The Best Interests of the Child in Intercountry Adoption Nigel Cantwell The UNICEF Office of Research works to improve international understanding of issues relating to children’s rights and to help facilitate full implementation of the Convention on the Rights of the Child in developing, middle-income and industrialized countries. Publications produced by the Office are contributions to a global debate on children and child rights issues and include a wide range of opinions. The views expressed in this report are those of the author and do not necessarily reflect UNICEF policies or approaches.

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Cantwell, Nigel (2014). The Best Interests of the Child in Intercountry Adoption, Innocenti Insight, Florence: UNICEF Office of Research.

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© 2014 United Nations Children’s Fund (UNICEF) ISBN 978-88-6522-025-2

UNICEF Office of Research - Innocenti Piazza SS. Annunziata, 12 50122 Florence, Italy Tel: (+39) 055 20 330 Fax: (+39) 055 2033 220 [email protected] The Best Interests of the Child in Intercountry Adoption Nigel Cantwell Acknowledgements

Many of the foundations of this study were built up through an expert consultation, research carried out and texts compiled during the period 2008–2012, and these various contributions are acknowledged with much appreciation below.† Although the study now has an emphasis and focus that diverge to some extent from the thrusts initially foreseen, it has benefited greatly from that process as well as from the wide-ranging consultations effected over those years.†† Rachel Bentley and Dawn Watkins played particularly key roles in teasing out main issues from a vast array of detailed material. The combined results of all these efforts have in no way been lost: they are reflected at various points of the present publication, and particularly in many parts of Chapter 4.

Special thanks are due, in addition, to those who have given inputs to this final version of the study. At UNICEF headquarters, Susan Bissell and Kendra Gregson made a host of useful suggestions and comments, as did Laura Martínez-Mora at the Permanent Bureau of the Hague Conference. Ron Pouwels, who had led the ‘best interests determination’ exercise at the UNHCR, provided valuable feedback on the checklist of issues in section 4.3. Thanks are also due to those who took time to review the final text: David Smolin of Samford University, and Rita Shackel of Sydney University.

Susan Bissell was the original supervisor of the development of the project, under the overall guidance of the then Innocenti Research Centre Director, Marta Santos Pais. This final version of the study was drawn up under the supervision of Andrew Mawson, with overall guidance from UNICEF Office of Research Director Gordon Alexander. It was reviewed by Andrew Mawson and edited by Angela Hawke. Claire Akehurst was responsible for administrative questions throughout the project.

The financial and other support of the Swiss National Committee for UNICEF was critical to producing this document and is greatly appreciated.

† Development of the study was initially led by Chantal Saclier. Further work was contributed by Kelley McCreery Bunkers, with the collaboration of Victor Groza.

†† During the initial four-year period, a wide range of specialists provided inputs and comments. Anne-Marie Crine, Jonathan Dickens, Aaron Greenberg, Femmie Juffer, Isabelle Lammerant, Benyam Dawit Mezmur, Rosa Maria Ortiz and Karen Rotabi made expert contributions. Information was also obtained from a number of researchers and practitioners, in particular, Yolanda Galli, Angelo Moretto, Dan O’Donnell, Françoise Pastor, Peter Selman and Jean Zermatten.

Several UNICEF staff-members were also actively involved as the project progressed. Kendra Gregson madea substantial contribution and Jawad Aslam, Joanne Doucet, Eduardo Gallardo, Rosana Vega and Elena Zaichenko gave valuable assistance. Partnerships with the Better Care Network (Ghazal Kesharvazian), International Social Service (Hervé Boechat, Mia Dambach, Cécile Maurin and Stéphanie Romanens Puythoud) and the Permanent Bureau of the Hague Conference on Private International Law (Trinidad Crespo Ruiz, Jennifer Degeling and Laura Martínez Mora) were also crucial to developing the material during that period.

ii About the Author

Nigel Cantwell has been working on issues related to the protection of children’s rights in intercountry adoption for over 25 years. As founder of Defence for Children International (DCI) and coordinator of the group of non-governmental organizations that helped to shape the Convention on the Rights of the Child during the 1980s, he began taking a special interest in rights violations in the context of children’s adoption abroad.

He represented DCI at the meetings to draw up the 1993 Hague Convention, and has been UNICEF’s delegate to all sessions of the Special Commission responsible for reviewing the practical operation of that treaty, as well as to expert meetings on specific aspects of the issue organized by the Permanent Bureau of the Hague Conference. UNICEF designated him as lead consultant on the drafting of the Guidelines for the Alternative Care of Children that were approved by the United Nations General Assembly in 2009.

With a colleague from International Social Service (ISS) and the active support of UNICEF, in February 1991 he undertook the first mission to Romania designed to assist the authorities in responding to abuses of the intercountry adoption process, and he continued to advise UNICEF-Romania on policy in this sphere for the following 15 years. He has undertaken many field assessments of adoption systems for or in cooperation with UNICEF and ISS, notably in Ghana, Guatemala, Haiti, Moldova, Kazakhstan, Kyrgyzstan, Sierra Leone and Viet Nam, and with ISS for the Organisation for Economic Co-operation and Development (OECD) in Ukraine.

As a consultant to the Innocenti Research Centre, he authored the very first UNICEF publication on intercountry adoption – Innocenti Digest No. 5, issued in 1999 – and from 1998 to 2003 he headed up the Implementation of International Standards Unit at the Centre. Among his other writings on this topic is the Issue Paper on ‘Adoption and children: a human rights perspective’, published by the Council of Europe’s Commissioner for Human Rights in 2011.

Since 2003, as an independent consultant on child protection policies, he has continued to work closely with UNICEF in the overall field of the rights of children without parental care, as well as on juvenile justice issues.

iii Contents

Acronyms and Abbreviations v Foreword vi Executive Summary 1

1. Best Interests, Human Rights and Intercountry Adoption 4 1.1. What is contentious about the best interests principle? 5 1.2. The chequered legacy of invoking best interests 6 1.3. The best interests principle gives way to human rights – except for children 9 1.4. The purpose of this study 10

2. The Role and Purpose of the Best Interests Concept in a Human Rights Context 11 2.1. Best interests in human rights instruments 12 2.2. Best interests in private international law 13 2.3. The best interests of the child in the Convention on the Rights of the Child 14 2.4. Compliance of best interests with human rights provisions 18 2.5. A two-fold challenge 24

3. The Changing Role and Purpose of Intercountry Adoption 25 3.1. Key phases in the development of intercountry adoption 26 3.2. The viewpoint and main thrusts of international standards 30 3.3. The subsidiarity of intercountry adoption to suitable in-country care 31 3.4. Prohibition or severe limitation of intercountry adoption 35 3.5. The best interests of the child in adoptions from non-Hague countries 42 3.6. Bilateral agreements 44 3.7. Policy and practice in emergency situations 45 3.8. If best interests are a requirement, so is their objective determination 48

4. Determining Children’s Best Interests in Intercountry Adoption 49 4.1. Factors that influence policies on intercountry adoption 50 4.2. Putting the best interests of children at the heart of intercountry adoption policy 52 4.3. Determining the best interests of individual children 54 4.4. Preserving the best interests of the child during the intercountry adoption process 60 4.5. What is the real importance given to the best interests of the child in intercountry adoption? 70

5. Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption 71 5.1. Policy approaches 72 5.2. Conditions in the country of origin 73 5.3. Actions taken by receiving countries 77 5.4. Creating consensus over best interests in intercountry adoption 80

6. By Way of Conclusion: Paradoxes and Dilemmas 81

Bibliography 83

iv Acronyms and Abbreviations

BID Best Interests Determination

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CHR UN Commission on Human Rights

CEE and CIS Central and Eastern Europe and the Commonwealth of Independent States

CoE Council of Europe

CPED International Convention for the Protection of All Persons from Enforced Disappearance

CRC Convention on the Rights of the Child

CRIA Child Rights Impact Assessment

CRPD Convention on the Rights of Persons with Disabilities

ICAB Inter-Country Adoption Board (Philippines)

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

JCICS Joint Council on International Children’s Services (USA)

USAID US Agency for International Development

v Foreword

The ‘best interests of the child’ is a ringing phrase that is widely seen as emotionally capturing the intent of the Convention on the Rights of the Child (CRC), putting into a mere five words the combined purpose of all of its articles. Perhaps because of this emotional power, it is not often asked why the principle is enshrined in the CRC in the first place, and nor are the wide-ranging and sometimes unexpected ramifications of its inclusion in this human rights treaty often considered.

This is the fascinating point of departure for Nigel Cantwell’s study on the application of the best interests principle in intercountry adoption. His approach is to tackle upfront a two-fold fundamental problem with this principle: the fact that it still carries the legacy of its pre-human rights form – a notion with no clear limits yet still the benchmark for making decisions about children, used to justify bad practices as well as good; and the fact that, although international human rights law now places best interests within the boundaries of all the other rights of the CRC, the way the principle is to be operationalized has remained necessarily undefined.

If the best interests principle thus poses major challenges in itself, these are magnified considerably when we look at its application as the determining factor in the practice of intercountry adoption, which has been one of the most hotly debated measures in the sphere of child protection.

UNICEF’s Office of Research Innocenti, through its Insight series and other publications and initiatives, has a long history of taking up challenges such as these. The Insight series offers experts the space to put forward critical but constructive analysis of conventional wisdom on ‘sensitive’ issues, ranging from poverty in the industrialized countries to the realities of the ‘transition’ in Central and Eastern Europe, juvenile justice and traditional practices harmful to children’s health. Indeed, Nigel Cantwell has already authored a well-received Innocenti Insight study, ‘Starting from Zero: The promotion and protection of children’s rights in post-genocide Rwanda’, published in 1997, which also addressed some controversial areas of child protection.

While the present study is aimed at helping to determine what role the best interests principle should play in intercountry adoption and the overall conditions required for it to do so in keeping with the rights of the child, the discussion clearly has far wider relevance. The order of wording in the title is deliberate: the emphasis is on unravelling the best interests of the child, taking its application to intercountry adoption as the practical example in this case. But it goes to the heart of the use of the principle in all areas in which best interests need to be assessed within a human rights framework in order to arrive at appropriate solutions for children.

Our intent in publishing this study, while first seeking to contribute to improving practice in intercountry adoption, also reflects this broader perspective. We hope it will provoke discussion among a wide readership.

Gordon Alexander Director, Office of Research

vi Executive Summary

This study responds, in particular, to one key question: what is it that enables a policy, process, decision or practice to be qualified as either respectful or in violation of the best interests of the child in intercountry adoption?

There is universal agreement, embedded in international human rights law, that the best interests of the child should be a primary consideration in any decisions made about a child’s future. In the case of adoption, which represents one of the most far-reaching and definitive decisions that could be made about the future ofany child – the selection of their parents – international law qualifies the best interests of the child as the paramount consideration. The implications of this obligation are all the greater in the context of the intercountry form of adoption, since this involves in addition the removal of a child to a new country and, usually, a new culture.

However, there is no universal agreement on who is ultimately responsible for determining what is in a child’s ‘best interests’, nor on what basis the decision should be made.

With specific reference to intercountry adoption, this study sets out to demonstrate the dangers for children’s rights that are inherent in the lack of such consensus, and to contribute concrete proposals for addressing the problem in its various facets. It focuses on the precise role that the best interests principle should play in intercountry adoption to ensure that the human rights of children are upheld at every stage.

It seeks to move debate beyond so-called ‘pro’ and ‘anti’ stances towards intercountry adoption, and therefore does not assess the overall merits of this measure to fulfil the best interests of the child. Most conflicts of opinion about intercountry adoption in fact revolve around the conditions to be met if the ‘best interests of the child’ are to point to intercountry adoption as a positive solution for a child. This matters not only for decisions about individual children and the way in which the adoption process is carried out, but also for the place given to, or restrictions placed on, intercountry adoption in national child protection policies. The study therefore calls for the systematic and rigorous appraisal of best interests in the sphere of intercountry adoption both at policy level and for each child concerned.

In addition, the study aims to clarify important issues and propose ways forward that would enable intercountry adoption to better fulfil its role as an exceptional protective measure when a child’s general adoptability has been shown to be legally possible, warranted and desirable. In other words, intercountry adoption is one possible component of wider child care and protection provision, to be used only when no suitable alternatives exist or can be created in that child’s own country.

The scene is set in Chapter 1, which gives examples of the ‘chequered history’ of policy and programmes justified by invoking the notion of children’s best interests, with special reference to the removal of children from parental care and their transfer abroad. This notion originated well before the codification of human rights, and served as the key basis for decision-making. With the advent of internationally agreed human rights, the ‘best interests’ approach was deemed redundant for adults, but not for children. Quite the contrary: in their special case the notion was turned into a principle, notably through the right to have best interests taken into account as contained in the Convention on the Rights of the Child (CRC). At the same time, implicitly, its ascribed role changed from being the benchmark in itself to becoming one means of achieving the benchmarks set by all the other rights in the treaty. However, the legacy of the paternalistic and often simplistic approach originally behind the notion is still very much alive and can lead to serious violations of the rights of the child today.

Chapter 2 looks at how the best interests principle came to be such a wide-ranging and significant element of human rights law relating to children. It reviews how the scope of its application evolved and expanded from the limited reference in the 1959 Declaration on the Rights of the Child through to the broad role it is assigned

1 The Best Interests of the Child in Intercountry Adoption

in the final version of the CRC, and the designation of ‘best interests’ as a General Principle of that treaty by the Committee on the Rights of the Child. The rationale and repercussions of the deliberate flexibility of the concept are analysed, as is its relationship with children’s other rights, especially the ‘right to be heard’.

There follows an examination of the reasons behind the enhanced status afforded to best interests as ‘the paramount consideration’ uniquely as concerns adoption. This stemmed in good part from changing attitudes towards intercountry adoption during the 10-year drafting process of the CRC, as a result of an increasing preoccupation over the way it was being carried out. The chapter ends by emphasizing that the best interests of the child are relevant not only to decisions on individual children, but also to laws, policies and procedures affecting children as a group.

Against this background, Chapter 3 uses a best interests lens to review how intercountry adoption has evolved from a humanitarian response into a child protection measure since it began in the aftermath of the Second World War, assessing the extent to which the best interests of the child have shaped this development.

Initially carried out under conditions tantamount to a legal void, intercountry adoption first became the explicit subject of international treaties in the 1960s. Quickly, however, these texts became obsolete because of the rapid demand-led expansion of the practice and the new problems this raised. By the mid-1980s, the need for more comprehensive regulation to protect children’s best interests and basic rights was recognized, leading to the decision to draft what became the 1993 Hague Convention. The steady rise in intercountry adoption numbers continued until 2004, but has since declined equally steadily. On the one hand increasing ratification of the 1993 Hague Convention has invariably led to stricter procedures; but on the other, new non-Hague countries of origin have been sought where best interests safeguards are generally less effective.

The chapter also deals with a number of key issues that have arisen in light of experience over the six decades during which intercountry adoption has been practised to date. Among these is the debate on how the ‘subsidiarity rule’ – established under the CRC and the 1993 Hague Convention, and stipulating that intercountry adoption can only take place if no ‘suitable’ care option can be found in the child’s own country – should be implemented with the best interests of the child in mind. A similar debate is ongoing about the ramifications for the best interests of the child of imposing severe limitations or moratoria on intercountry adoptions. In addition, the fragile nature of respect for international standards in emergency situations was highlighted by the post-earthquake evacuation of children from Haiti for adoption abroad, again raising serious concerns about the level of importance given to the best interests and human rights of the children involved.

This historical perspective demonstrates clearly that what has been missing is a globally accepted and well-defined basis for determining the best interests of the child in relation to intercountry adoption, and Chapter 4 addresses this question on three levels.

First, it considers elements to be taken into account when evaluating policies and laws relevant to intercountry adoption against a best interests criterion. Here, special reference is made to the child rights impact assessment advocated by the Committee on the Rights of the Child, which can be used by legislators, government officials and monitoring bodies alike.

Second, it draws on pertinent sources to propose a detailed checklist of issues to be considered when determining the best interests of each child for whom adoption abroad may be envisaged. Emphasis is placed on the need for the determination process to be carried out systematically for every child in that situation. Further, it should be conducted by qualified and specially trained professionals, ideally in a multidisciplinary team, and the final decision should not be in the hands of one individual alone.

2 Executive Summary

Finally, this chapter discusses the implications of the procedure required by the 1993 Hague Convention – from determining adoptability to ensuring post-adoption support – for preserving the best interests of the child throughout the intercountry adoption process.

Such systematic assessments are clearly vital if the best interests of the child are to be truly ‘the paramount consideration’ in intercountry adoption, but they require substantial investment and an ‘enabling environment’ in order to function adequately. Chapter 5 points to a range of elements in the current environment that, far from being ‘enabling’, are actively or passively hostile to the required attention to best interests. These relate not only to prevailing conditions in countries of origin – such as limited domestic care options, laws that strongly influence the reasons given for pronouncing adoptability, and resource constraints – but also to the approach taken by receiving countries, including the pressure they exert, and the conditions they accept, in order to secure children for adoption. Without tackling these issues as well, the best interests of the child can only remain a secondary feature of decision-making on the intercountry adoption of many children in the years to come.

As concluding Chapter 6 indicates, differing perceptions of the best interests of the child in a human rights framework are the essential cause of conflicting opinions as to when recourse to intercountry adoption is warranted. At the same time, attempts to develop globally accepted bases on which those best interests can be determined will have to confront a number of paradoxes and dilemmas that the study brings to light, and which are briefly recalled at this point in order to signpost the way forward.

3 The Best Interests of the Child in Intercountry Adoption

Best Interests, Human Rights 1ǀ and Intercountry Adoption

Key points

ÌÌ While there is general agreement that the best interests of the child should be the paramount consideration in intercountry adoption, there is no consensus on who decides what is in a child’s best interests or on what basis that decision should be made.

ÌÌ The notion of best interests pre-dates the international codification of human rights, and many decisions justified by best interests considerations alone have had very damaging consequences for children.

ÌÌ It is essential, therefore, to define clearly the role of the best interests of children in intercountry adoption as a principle within a human rights framework, to avoid ‘hit-and-miss’ decisions that determine children’s entire future.

4 Best Interests, Human Rights and Intercountry Adoption

There is general agreement that measures principle is unlikely to be overcome solely as a to protect and ensure the healthy result of this move, welcome though it may be. development of children – whether initiated by parents, caregivers, third If this lack of consensus has worrying parties or the state – must be guided by implications for crucial decision-making on the best interests of those children. adoptions in general, its significance is all the greater when it comes to intercountry It may seem obvious, therefore, that adoptions adoption in particular. First, the joint decision- should only take place when they are in making required usually involves actors the best interests of the children concerned. from very different socio-cultural realities Indeed, authorizing an adoption – in essence that will have shaped their respective choosing a child’s parents – is one of the most outlooks on what the application of best drastic and definitive decisions that could interests might entail. Second, there are be made about a child’s future. Not only many additional and complex factors to be might it seem evident that this ‘best interests’ considered when contemplating moving a condition should be fulfilled, but there child definitively – not just to a new family, is also now an absolute obligation, anchored but also to an entirely new country and culture. firmly in international human rights law, for the best interests of the child to be the Yet there are frequent warnings about a ‘paramount consideration’ – the decisive worrying lack of respect for best interests in factor – where adoption is concerned. And intercountry adoption, despite the notable this is reflected in the legislation of most absence of any common understanding on countries that permit adoption. what, precisely, the principle means in practice.

A 2012 situation analysis by the African 1.1. What is contentious about the 1 Committee on the Child Policy Forum, for example, expressed best interests principle? Rights of the Child concern that: (2013). General Comment No. 14, Despite clear consensus on the need to uphold ...despite the fact that the continent’s The right of the the principle of the best interests of the child, child to have his or laws, policies and practices are generally there is a persistent lack of consensus on her best interests ill-equipped to uphold the best how, precisely, those best interests are to be taken as a primary interests of children, Africa is becoming consideration decided. International standards themselves the new frontier for intercountry (CRC/C/GC/14). do not specify any criteria at all on how and by adoption. With globalisation, there are whom these interests should be determined, 2 More details on the or on who should be responsible for making also indications that illicit activities that recommendations of this General the final decision. As a result, perceptions violate children’s best interests on the African continent are on the rise, Comment are of what constitutes the best interests of the given at various encouraged by a shortage of adoptable child have varied widely over the decades, points of this and still do. It was fully 23 years after the children in other parts of the world, the study, including in particular in Convention on the Rights of the Child (CRC) shifting focus of intercountry adoption to Africa, increasing poverty in Africa, sections 4.2 and came into force in 1990 that the Committee 4.3.1 below. and accompanying weak institutional on the Rights of the Child tried to fill this gap through General Comment No. 14,1 law enforcement capacity of African 3 African Child 3 Policy Forum issued in 2013, which sets out how the best State institutions. (2012a). Africa: interests of the child should be taken into The new frontier for account in implementing the Convention.2 The Parliamentary Assembly of the intercountry adoption. Council of Europe, having already felt it Addis Ababa: The necessary in 2000 “to alert European public African Child Policy Perceptions of what opinion to the fact that, sadly, international Forum. p. v (our emphasis). constitutes the best interests adoption may prove to be a practice that disregards children’s rights and that 4 Council of Europe of the child have varied does not necessarily serve their best (2000). ‘International widely over the decades. interests”,4 returned to the theme in 2012, adoption: Respecting preoccupied by “persisting reports of cases children’s rights’, But the impact of a long and entrenched of intercountry adoption where the best Recommendation history of confusion and disagreement on this interest of children has evidently not been 1443 (our emphasis).

5 The Best Interests of the Child in Intercountry Adoption

the paramount consideration or where based on best interests notions are still their human rights have been severely seen as positive today. For example, while violated”.5 a certain view of best interests underpinned the now widely discredited institutional care In the absence of any formal consensus for children separated from their families, it on the subject, we need to clarify the was the concept of best interests, rather than basis on which such statements might be a human rights approach, that spurred efforts valid. This means answering the following in some industrialized countries to begin to crucial question: What is it that enables a phase out large residential facilities and policy, process, decision or practice to be replace them with foster care and similar qualified as either respectful or in violation arrangements as far back as the 1890s.7 of the best interests of the child in the Analyses of past policies and practices particular case of intercountry adoption? that are now condemned have often been acknowledged to have at least some good 1.2. The chequered legacy of intentions behind them, even if combined with invoking best interests other less honourable motives. The degree of ‘flexibility’ afforded by the concept of The notion of best interests (and similar best interests is still looked on positively, as it approaches) pre-dates the development of allows the adjustment of the desired outcome internationally accepted human rights. It to respond to advances in knowledge, evolving 8 has invariably been used as the basis for attitudes and diverse socio-cultural contexts. decisions about people deemed incapable of making rational decisions for themselves, Nonetheless, when decisions based on best as well as for actions intended to help them interests are grounded predominantly in protect themselves or improve their lives. contemporary thinking among decision- Persons with disabilities and children have makers, with few boundaries set by other been the main, though by no means the considerations, the results become somewhat only, groups dealt with in this way. ‘hit-and-miss’. This is unacceptable in the case of any child, and particularly those The notion of best interests who might be adopted to another country; vulnerable children simply should not be pre-dates the development part of an ‘experiment’ that will determine 5 Council of Europe (2012). ‘Intercountry of internationally accepted their future prospects. adoption: Ensuring that the best interests human rights. However many examples there may be of of the child are upheld’, Resolution initiatives that had a positive outcome in the 1909, para. 4 (our Decisions ostensibly inspired by notions end, reliance on notions of best interests or emphasis). of best interests have, in essence, reflected similar terms to justify a particular action prevailing attitudes towards both groups has a clear legacy of misuse, abuse and 6 The same could be said in relation of people in question and the desirability failure. The negatives include outcomes to persons with of particular protective actions. In relation that are now condemned from a human disabilities until to children, such decisions could be – and rights standpoint. Nowhere has this been the advent of the Convention on the certainly were – unfettered by human rights more apparent, perhaps, than in policies Rights of Persons considerations until the codification of their and initiatives involving the large-scale with Disabilities. rights (including their right to be involved removal of children from their parent(s) for 7 See, for example, in the decisions affecting them) in the CRC.6 placement in various forms of ‘alternative ‘The history of Until that point, decisions about children care’, whether in-country or in a foreign Barnado’s’ at http:// tended to be driven by unilateral individual land, so that they might have ‘a better life’. www.barnardos.org. initiatives or contemporary views on uk/barnardo_s _history.pdf desirable and appropriate solutions. In addressing the subject, therefore, it is useful to recall examples of what are now 8 For a review of Although attitudes and knowledge develop invariably termed ‘abuses’ but that were, in arguments in favour of the flexibility of and change over time, and differ from place the not-so-distant past, promoted as being in the concept, see to place, some of the outcomes of decisions the best interests of the children concerned. section 2.3.3.1 below.

6 Best Interests, Human Rights and Intercountry Adoption

1.2.1. Best interests used to justify the Tellingly, the wording of the National removal of children from parental care Apology adopted by the Senate and House One obvious example of an action once seen of Representatives makes no mention at all of best interests as a basis for future as positive and now seen, quite rightly, as policy in this sphere, placing the emphasis disastrous lies in the account of ‘forced rather on the protection of rights: adoption’ produced by an Australian Senate committee in February 2012,9 which We resolve, as a nation, to do all led to the national apology for the practice in our power to make sure these by the country’s then prime minister, Julia practices are never repeated. In facing 10 Gillard, one year later. future challenges, we will remember the lessons of family separation. An estimated 150,000 babies born to unwed Our focus will be on protecting the mothers in Australia were the victims fundamental rights of children and on of forced adoptions between the late the importance of the child’s right to 1940s and the early 1980s – the result of a know and be cared for by his or her government policy sanctioned by churches parents.14 and charities.11 Haskins and Jacobs also give examples The Senate report sets out the way in which of the best interests leitmotif behind the the best interests of the child were invoked removal of indigenous children from to justify the practice, which was grounded parental care in both Australia and the USA: in “the belief that if children were born to people of ‘low moral standard’ or poverty, In each case, government authorities 9 Australian they should be adopted by infertile couples forcibly removed children from their families for the stated purposes of Senate, Community of better social standing so as to ensure the Affairs References educating them or improving their best interest of the child were [sic] being Committee (2012). lives... ‘Commonwealth looked after” (para. 2.21). One adoptee is contribution to quoted as saying, “My true mother was As a central component of the former forced told to give me away because it was in the adoption policies assimilation agenda in the United and practices’. best interests of the child” (para. 4.7). States and of absorption plans in Commonwealth of Australia, child removal became a Australia: Canberra. That principle also underpinned the so- systematic government policy toward called ‘clean break’ approach: removing 10 National indigenous peoples in both countries Apology for children early and abruptly from their in the nineteenth and twentieth Forced Adoptions, mothers’ care – often immediately after centuries. Using the rhetoric of delivered by birth, to prevent bonding. Here, best protecting and saving indigenous Australian Prime Minister Julia interests presumed that “the interests of children, reformers and government Gillard, Parliament the child of an unmarried mother was officials touted child removal as House, Canberra, [sic] well-served by adoption by a married a means to “uplift” and “civilize” 21 March 2013, couple” (para. 7.32). A major Australian indigenous children... available at: http:// resources.news.com. charity, The Benevolent Society, is quoted au/les/2013/03/21/ in the report as agreeing that adoption After World War II, the [US] 1226602/365475- practices “which were seen at the time to government revived assimilation aus-file-forced- be in the best interests of a child, are now policy under a new name – adoptions-apology .pdf acknowledged as cruel and damaging to termination and relocation. Although 12 both the mother and her child/ren”. many boarding schools remained in 11 Australian Senate, operation, Indian child removal now Community Affairs In her official apology address, Gillard noted more often manifested itself in the References Committee (2012). that the practice of forced adoption “had its form of social workers who removed beginnings in a wrongful belief that women Indian children from families they 12 ibid., para. 9.32. could be separated from their babies and it deemed unfit, to be raised in white would all be for the best” and she criticized foster homes. 13 National Apology (2013). “the bullying arrogance of a society that 13 presumed to know what was best”. 14 ibid.

7 The Best Interests of the Child in Intercountry Adoption

Child removal [in Australia] was Canada was not resumed after the Second aimed ostensibly at making Aboriginal World War, between 7,000 and 10,000 children into “decent and useful children were sent to Australia and 549 members of the community” and to New Zealand from 1947 to 1967.18 The couched in the language of benevolent Committee’s report notes that the best welfare policy. Thus, the New South interests principle was not the only motive Wales (NSW) Aborigines Protection for such forced migration, but may well Board had the power to secure custody have been invoked to mask other, far less and control of any Aboriginal child palatable, intentions: “if it is satisfied that such a course is in the interest of the moral or physical The motivation underlying child welfare of such child”.15 migration policy was mixed. On the one hand, there was a genuine A similar approach was used in Switzerland, philanthropic desire to rescue children where children from the Jenisch travelling from destitution and neglect in Britain population were routinely removed from and send them to a better life in the their families from the late 1920s until the Colonies. This went hand in hand with early 1970s – a measure seen as being for a wish to protect children from ‘moral their own good: danger’ arising from their home circumstances – for instance, if their In 1926, together with a number mothers were prostitutes... Child of charitable associations and with migration was also seen to be of the support of the Confederation, economic benefit both to Britain the Œuvre des enfants de la grand- (because it relieved the burden on route [Action for travelling children] public finances of looking after ... began the systematic removal these children) and to the receiving 15 Haskins, V. of children from Jenisch families countries (because child migrants and M.D. Jacobs (2002). ‘Stolen (approx. 800), placing them with were seen as being potential members foster families, in psychiatric hospitals Generations and of a healthy and well-trained work- Vanishing Indians: or even in prisons, to turn them into force). Evidence shows that they The removal of a ‘settled’ population. It was only in were actually used as cheap labour. indigenous children 1973 that, with the help of the media, as a weapon of war (paras 15–16) the persons affected were able to bring in the United States and Australia, this practice to a halt.16 However mixed the arguments in favour 1870–1940’, in J. of the practice may have been, the report Marten, ed. Children With such a prevailing mindset, it was and War: A historical finds that: only logical that the forced migration of anthology. New York: New York children ‘in their best interests’ would also It was the charitable and religious University Press, be envisaged. pp. 227–29. organisations who maintained the child migration policy, often apparently 16 ‘Dictionnaire 1.2.2. Best interests used to justify the motivated by the need to keep the historique de la forced migration of children to other institutions overseas financially viable. Suisse ’, available at: countries http://www.hls- (para. 20) dhs-dss.ch/textes/f/ The United Kingdom was the source of F8247.php (our some of the worst examples of the long- Tellingly, after qualifying such forms of translation). cross-border displacement of children term forced migration of children to other 17 UK Parliament countries. According to the report of a as “a bad and, in human terms, costly Select Committee Parliamentary Committee set up to examine mistake” (para. 98), the report draws on Health (1998). the practice in depth, an estimated 150,000 parallels between the past practice of Third Report, 23 July 1998, para. 11. forced migration and today’s intercountry children were subjected to this practice in http://www.public the nineteenth and twentieth centuries, adoption: ations.parliament. two-thirds of whom were sent to Canada uk/pa/cm199798/ and the remainder to Australia, New Potential future difficulties related cmselect/cmhealth /755/75502.htm Zealand and other British dominions to inter-country adoptions which or colonies.17 While child migration to may mirror some of the current 18 ibid., para. 13.

8 Best Interests, Human Rights and Intercountry Adoption

concerns of former child migrants That said, the CRC, in particular, sets about their identity and past were boundaries to the kinds of measures that brought to our attention in both New may be envisaged in the name of best Zealand and Australia... Removing interests. Having them taken into account children from their country of birth is now a fully fledged right within the should not be seen as an alternative CRC itself, and its implementation is, to appropriate child care or occur therefore, totally inter-dependent with because insufficient aid or assistance all the other rights contained in the is available. (para.101) Convention. These protections have been reinforced substantially in relation to Indeed, very similar concerns are still intercountry adoption, through specific raised to this day about the validity of procedural requirements set out in the 1993 the reasons given for placing some children Hague Convention. Taken in combination, – in particular – for intercountry adoption. these provisions might be expected to consign the chequered history of applying 1.3. The best interests principle a best interests approach to the past. gives way to human rights – However, the dangers of the paternalistic except for children and often simplistic approach that spawned the principle of best interests With the development of human rights still contribute to attempted or actual instruments, and particularly since the violations of the rights of the child today. 1970s, invoking ‘best interests’ as regards With the concept deliberately, and to adults has become something of an some extent understandably, being anathema. The very fact of having human left undefined to take account of diverse rights has been viewed as negating the need individual situations and different socio- and justification for using best interests as cultural perceptions, the vague nature of a basis for decision-making. Arguments the obligations implied by best interests is based on the concept are even deemed, in a breeding ground for misconception and the worst cases, to threaten the promotion manipulation. and protection of human rights (see, for example, the introduction to 2.1 below). Such vagaries are a special concern in It is noteworthy, therefore, that the notion intercountry adoption, given that the of best interests has been retained within assessment of best interests is, supposedly, international human rights law solely the paramount consideration. They in relation to children. The principle is are also a wider concern in the overall enshrined in the CRC itself, but also in the promotion and protection of all child small number of more general instruments rights, with best interests now designated that refer to certain children’s issues. as one of four General Principles of the This is certainly, in part, a legacy of CRC by the Committee that monitors the charitable approach to children’s the treaty’s implementation by states issues that prevailed in the nineteenth parties, alongside non-discrimination, the and twentieth centuries – a legacy that right to life, survival and development, and continues to make itself felt in any and all respect for the views of the child. decisions concerning children. This legacy is complicated by the real dilemma that The way the best interests principle is to the capacity of children to exercise their be approached and used today – essentially rights on their own behalf depends upon to ensure the best possible protection their evolving capacities. Many children of rights – stands in stark contrast to its adopted abroad are very young, and adults origins, when it was designed to fill in or are called upon to make decisions on compensate for the absence of rights. their behalf. The question thus becomes: to what extent, and when, must those decisions rely on a best interests approach rather than simply being ‘rights based’?

9 The Best Interests of the Child in Intercountry Adoption

The way the best and decisive in terms of, the human rights held by children alone? What initiatives, interests principle is to be decisions and actions about children approached and used today would require a best interests basis rather than simple reliance on respecting and – essentially to ensure the furthering the human rights of the children best possible protection concerned? And which criteria should we use to fulfil that requirement? This study of rights – stands in stark aims to respond, in a dispassionate manner, contrast to its origins. to these questions.

First, this study outlines how and why the Therefore, instead of being the sole basis principle of best interests now applies only for defining what action to take, best to children in an era of broader human interests now have – or should have – a rights, and examines the extent to which far more limited role within human rights developments in intercountry adoption, constraints. This means that determining in particular, have been guided by that best interests needs to be a thorough principle as ‘the paramount consideration’. and well-prescribed process directed, in particular, towards identifying which Second, the study sets out to demonstrate of two or more rights-based solutions is the need for consensus on, and rigorous most likely to enable children to realize appraisal of, best interests within a human their rights, bearing in mind that the other rights framework, and particularly in the people affected by those solutions also have sphere of intercountry adoption, where their own human rights. decisions made on behalf of children are meant to be final. It proposes concrete 1.4. The purpose of this study responses to build consensus on policy development, on safeguards at all stages of This study focuses on the role of best the adoption process, and on determining interests in the specific context of whether or not intercountry adoption intercountry adoption. It does not seek to should be pursued for any given child. It assess whether intercountry adoption itself also sets out some minimum conditions is a measure that fulfils the best interests of to ensure that a decision based on best the child. interests can indeed take place and have real effect. It is grounded in the belief that, while the best interests principle can be shown to have a clear role to play in intercountry Determining best interests adoption, it no longer sets the benchmark needs to be a thorough and itself. It is now one of several ways to attain the optimal achievement of benchmarks well-prescribed process. established elsewhere, notably in the rights set out in the CRC and the safeguards and This study contributes to ongoing debates procedures foreseen by the 1993 Hague by clarifying important issues and Convention. On the one hand, part of the proposing ways forward that would initial role of ‘best interests’ in guiding better enable intercountry adoption to responses and outcomes may have been fulfil its prime and historic role: asan subsumed into a human rights framework; exceptional protective measure offered to on the other, its more limited role within a child for whom adoption is legally that framework needs to be fully understood possible, warranted and desirable; and and respected. when no suitable alternatives exist, or can be created, in that child’s own country. There is a clear dilemma here. If best interests are not part of the overall approach to human rights, how, when and why might they be seen as applicable to,

10 The Role and Purpose of the Best Interests Concept in 2ǀ a Human Rights Context

Key points

ÌÌ The principle of best interests applies only to children, both in international human rights instruments and in private international law.

ÌÌ It is, at one and the same time, a deliberately vague concept in the CRC, and a guiding principle of that Convention.

ÌÌ A two-fold challenge emerges: how to determine the best interests of the individual child in intercountry adoption, and how to assess the impact of national laws, policies and procedures on intercountry adoption from the standpoint of children’s collective rights.

1111 The Best Interests of the Child in Intercountry Adoption

While there is nothing new about the notion proceedings concern matrimonial of best interests – sometimes formulated disputes or the guardianship of children. as, for example, “it’s for your own good” and “we have your interests at heart” – • CEDAW (1979) 5(b): To ensure references to it in international law are not ... the recognition of the common only recent, but also rare and confined to responsibility of men and women in issues concerning children. the upbringing and development of their children, it being understood There is no mention, therefore, of best that the interest of the children is the interests in humanitarian law (the four primordial consideration in all cases. Geneva Conventions of 1949 and their Additional Protocols of 1977) or in • CEDAW 16. 1: States Parties ... international refugee law. Where it appears shall ensure, on a basis of equality of in international human rights law, it applies men and women: ... (f) The same rights 19 The nine core international human only to children or ‘juveniles’ (see section and responsibilities with regard to rights instruments 2.1 below). Reliance on the concept is also guardianship, wardship, trusteeship are, in date order: extremely limited in private international and adoption of children, or similar International law (see section 2.2 below). institutions where these concepts exist Convention on the Elimination of All in national legislation; in all cases Forms of Racial Against that background, this chapter the interests of the children shall Discrimination looks at how best interests came to be be paramount. (ICERD) 21 Dec a cornerstone of the CRC in general, 1965; International and the determining factor in adoption Covenant on Civil Of the three post-CRC core treaties, only the and Political Rights decisions in particular, and examines the 2006 Convention on the Rights of Persons (ICCPR ) 16 Dec implications of this for broaching the best with Disabilities (CRPD) mentions “best 1966; International interests principle from a human rights interests”, again solely in relation to children: Covenant on standpoint. Economic, Social and Cultural Rights • CRPD 7.2: In all actions concerning (ICESCR) 16 Dec 2.1. Best interests in human rights children with disabilities, the best 1966; Convention interests of the child shall be a primary on the Elimination instruments of All Forms of consideration. Discrimination The CRC is one of the nine current treaties against Women (CEDAW) 18 Dec known as core international human rights In this case, the wording is a faithful echo of 1979; Convention 19 the CRC, where best interests are clearly an instruments. It is interesting to note, against Torture however, that best interests is not a concept important, but not definitive, consideration and Other Cruel, that is widely used in human rights hard in decision-making. Inhuman or law: in those rare cases where it figures in Degrading Treatment Persons with disabilities are, like children, or Punishment core instruments other than the CRC, it also (CAT) 10 Dec 1984; relates solely and specifically to children. a group that has been particularly Convention on the subjected to a charitable approach, rather Rights of the Child Of the five core treaties that pre-date the than one grounded in human rights. So it (CRC) 20 Nov is interesting to note the clear criticisms 1989; International CRC, only two refer to the “interest(s)” Convention on – though not the “best interests” – of made in a 2012 UN study on disability the Protection of children: the International Covenant on about reliance on best interests criteria, the Rights of All Civil and Political Rights (ICCPR) and which are seen as running counter to the Migrant Workers fulfilment of rights obligations: “In many and Members of the Convention on the Elimination of All Their Families Forms of Discrimination against Women societies, persons with disabilities are still (ICRMW) 18 Dec (CEDAW). Interestingly, in each instance, regarded as recipients of charity or objects 1990; Convention on this criterion is accorded a determining of others’ decisions instead of holders of the Rights of Persons with Disabilities status (our emphasis): rights” (para 14). As a result, “international (CRPD) 13 Dec 2006; human rights standards ... prohibit forced and International • ICCPR (1966) Art. 14.1: [A]ny and coerced treatment of people suffering Convention for judgement rendered in a criminal case from intellectual disabilities, regardless the Protection or in a suit at law shall be made public of arguments of their ‘best interests’” of All Persons from Enforced except where the interest of juvenile (para 29). Despite this, “a striking number Disappearance persons otherwise requires or the of States have laws that authorize forced (CPED) 20 Dec 2006.

12 The Role and Purpose of the Best Interests Concept in a Human Rights Context

or involuntary treatment of persons with it all the more vital to ensure the proper psychosocial disabilities when in their ‘best use of a precise best interests concept in the interests’. In more than half of the countries context of the human rights of children. that submitted data, psychiatric treatment is imposed on persons with disabilities A further indication of the perceived within legal safeguards if demonstrably marginal role of best interests in the overall ‘justified’, ‘reasonable’, ‘necessary’ and human rights framework lies in General ‘proportionate’” (para 30).20 Comment No. 17 on the Rights of the Child, adopted by the Committee on Civil and Indeed, the Committee on the Rights of the Political Rights in April 198923 – in other Child itself fully recognizes that: words, just after the text of the CRC had been finalized but before its formal ... the concept of the child’s best interests acceptance by the UN General Assembly. has been abused by Governments and While this commentary is linked ostensibly other State authorities to justify racist to the one short article in the ICCPR policies, for example; by parents to devoted specifically to children (Art. 24, defend their own interests in custody covering the rights to protective measures, disputes; by professionals who could birth registration, and to a name and not be bothered, and who dismiss the nationality), the Committee took the assessment of the child’s best interests opportunity to expand considerably on 20 UN General 21 ‘protection’ questions in particular. General as irrelevant or unimportant. Assembly, Human Comment No. 17 refers, therefore, to a wide Rights Council When reviewing states parties’ reports range of issues, from children deprived of (2012). ‘Thematic in particular, the Committee has had to parental care to juvenile justice, labour and study on the issue abduction, sale and trafficking. Apart from of violence against confront arguments based on an ill-founded women and girls perception of best interests: an allusion to ICCPR Article 14.1, however, and disability, not once does the document refer to the best Report of the Office of the United When the Committee on the Rights interests of the child as having a bearing on decision-making on any of these matters. Nations High of the Child has raised eliminating Commissioner for corporal punishment with certain Human Rights’. States during the examination of their New York: United 2.2. Best interests in private Nations General reports, governmental representatives international law Assembly (our have sometimes suggested that some emphasis). level of ‘reasonable’ or ‘moderate’ Private international law does not corporal punishment can be justified as 21 Committee on set human rights standards directly. the Rights of the in the ‘best interests’ of the child. ... But However, it builds on those standards Child (2013), interpretation of a child’s best interests by establishing requirements for their para. 34. must be consistent with the whole respect through the procedures it puts 22 Committee on Convention, including the obligation in place in certain fields that it covers. In the Rights of the to protect children from all forms of doing so, private international law not Child (2006). violence and the requirement to give only reflects human rights law, but also General Comment due weight to the child’s views; it cannot complements the standards it sets by giving No. 8 on the right of the child be used to justify practices, including a practical dimension to implementation. to protection corporal punishment and other forms of This is clearly a key factor when applying from corporal cruel or degrading punishment, which the best interests of the child principle in punishment and other cruel or conflict with the child’s human dignity intercountry adoption. degrading forms 22 and right to physical integrity. of punishment As is the case for human rights law, the (CRC/C/GC/8), What these documents demonstrate is term ‘best interests’ is rarely used in private para. 26. that best interests continue to be used in international law and, once again, only in 23 Office of the a paternalistic manner that should have relation to children. High Commissioner become obsolete with the advent of the for Human Rights human rights narrative, or that may even For example, the 1993 (Hague) Convention (1989). General Comment No. 17 on Intercountry Adoption (see Chapter 3) is be incompatible with those rights from on the rights of the many standpoints. Obviously, this makes premised on: child (Art. 24).

13 The Best Interests of the Child in Intercountry Adoption

...the necessity to take measures to ‘best interests’ to allow derogation from the ensure that intercountry adoptions treaty’s basic principle that abducted children are made in the best interests of the should be returned as quickly as possible to child and with respect for his or her their country of habitual residence. Here, the fundamental rights.24 competent authority is under no obligation to return a child if: And the treaty’s very first objective is indeed “to establish safeguards to ensure …there is a grave risk that his or that intercountry adoptions take place her return would expose the child in the best interests of the child and with to physical or psychological harm 24 Hague respect for his or her fundamental rights as or otherwise place the child in an Conference on recognised in international law”.25 intolerable situation.29 Private International Law (1993). Another child-focused Hague Convention – In contrast, the 2000 (Hague) Convention Convention on the Protection of the Convention on Jurisdiction, Applicable on the International Protection of Adults, Children and Co- Law, Recognition, Enforcement and although it applies to those who, “by operation in Respect Co-operation in Respect of Parental reason of an impairment or insufficiency of Intercountry Responsibility and Measures for the of their personal faculties, are not in a Adoption, preamble.

26 Protection of Children – was, like the position to protect their interests” (Art. 1.1), 25 ibid., Art. 1(a). Convention on Intercountry Adoption, contains no reference to decisions being drafted after the entry into force of the CRC. made on the basis of the ‘best interests’ of 26 Hague Not surprisingly, it also reflects the CRC those concerned.30 Certainly, the preamble Conference on Private International by stating in its preamble that “the best affirms that “the interests of the adult and Law (1996). interests of the child are to be a primary respect for his or her dignity and autonomy Convention on consideration”. ‘Best interests’ also figure in are to be a primary consideration, but, Jurisdiction, a number of its operative provisions, either in operative terms, the ‘interests’ in this Applicable Law, Recognition, as a determining factor (Arts. 8.4, 10.1.b) context are seen specifically and concretely Enforcement and or as a factor to be taken into account in as “the protection of the person or the Co-operation in decision-making (Arts. 22, 23.2.d and 33). property of the adult” (Art. 8.1). Respect of Parental Responsibility and Measures for Of special note in the context of this study, It is of note that the implications of ensuring the Protection of however, are the references to best interests ‘best interests’ are left relatively vague Children. in Articles 8.1 and 9.1 of this Convention. compared with other private international These provisions deal with the question law instruments as far as intercountry 27 Article 4 of the 1993 Hague of which state – the country of a child’s adoption is concerned – although it is Convention habitual residence or, for example, the arguable that the substantive provisions of requires that country where the child is physically present the 1993 Hague Convention indicate, albeit “the competent authorities of the – is “better placed in the particular case to implicitly, how ‘best interests’ should be State of origin assess the best interests of the child” (our interpreted (see section 4.4). have determined ... emphasis). This matters because it may be that an intercountry the only example in an international treaty, adoption is in the 2.3. The best interests of the child child’s best other than the 1993 Hague Convention,27 in the Convention on the Rights interests”. where an explicit link is made between ‘best interests’ and the need for an assessment of the Child 28 Hague (or determination) process to be established Conference on Private and carried out by the state. It is particularly challenging to respond International Law (1980). Convention on appropriately to the best interests of the the Civil Aspects of The preamble of the 1980 (Hague) Convention child requirements in the human rights International Child on the Civil Aspects of International Child context of the CRC. There is no global Abduction. Abduction,28 developed well before the precedent or jurisprudence based on the 29 ibid., Art. 13 (b). CRC, underlines the fact that “the interests provisions or application of human rights of children are of paramount importance law as a function of the best interests of a 30 Hague Conference in matters relating to their custody”. That child, or for that matter, an adult. Hence on Private said, the operative articles make no further the need to look more closely at why and International Law (2000). Convention mention of the concept. This Convention how the concept was incorporated into on the International uses a more concrete formulation than the CRC. Protection of Adults.

14 The Role and Purpose of the Best Interests Concept in a Human Rights Context

2.3.1. Why best interests figure in the CRC Three aspects of this proposed new text are The first draft for a convention on the noteworthy: rights of the child was submitted to the • Those responsible for protecting UN Commission on Human Rights (CHR) and ensuring the best interests of by Poland in 1978 and was based almost children – the authorities on the entirely on the non-binding Declaration one hand and the parents on the on the Rights of the Child adopted by other – were now covered in a single the UN General Assembly in 1959, which provision instead of separately as in included two principles dealing with the the 1959 Declaration. best interests of the child: • The “enactment of laws” for • Principle 2: The child shall enjoy the special protection and overall special protection, and shall be given development of children no longer opportunities and facilities, by law figured in the text, and was replaced and by other means, to enable him by a list of protagonists which, to develop physically, mentally, somewhat paradoxically, made no morally, spiritually and socially in a mention of legislators at all. healthy and normal manner and in • Best interest(s) remained the conditions of freedom and dignity. In “paramount consideration” in all the enactment of laws for this purpose, instances. the best interests of the child shall be the paramount consideration. This text was adopted provisionally in 1980 by the Working Group charged with • Principle 7: The best interests of the drawing up the final version of the CRC. child shall be the guiding principle Interestingly, while all three aspects listed of those responsible for his education above were modified, the Working Group and guidance; that responsibility lies never debated either the principle or in the first place with his parents. (our the potential ramifications of the sudden emphasis) expansion of best interests or how it would fit within the human rights logic. While the CHR rejected the proposed text as a whole and asked Poland for a revised This almost unquestioning acceptance of version, it was clear from the start that the such a sweeping application of best interests concept of best interests would figure, in in relation to children’s rights has never some way, in any final text. been critically analysed since. Yet it has had, and still does have, a key and clear However, where state responsibilities (as influence on how the implementation of the opposed to those of parents) were set out, human rights of children is perceived today. the scope of the best interests of the child as formulated in the 1959 Declaration had been 2.3.2. Provisions on the best interests limited to legislation alone. The revised of the child in the CRC draft of the CRC submitted by Poland in 1979 – which contains the foundation of 2.3.2.1. Drafting the fundamental provision CRC Article 3.1 as we know it – suddenly on the best interests of the child (Article 3.1) reinforced and widened the scope of the Almost all decisions on how Article 3.1 of the best interests concept and its potential CRC – the generic provision on best interests impact to an unprecedented degree: – would be formulated were made in 1981.

In all actions concerning children, Some members of the Working Group whether undertaken by their parents, questioned the wisdom of positioning the guardians, social or state institutions, formal obligations on parents and guardians and in particular by courts of law and on the same plane as those of courts of administrative authorities, the best law and administrative authorities. They interest [sic] of the child shall be the prevailed, and parents’ duty to have the best paramount consideration. (draft Art. interests of the child as “their basic concern” 3.1; our emphasis) is now a separate issue in CRC Article 18.1.

15 The Best Interests of the Child in Intercountry Adoption

As a result of another suggestion by the 2.3.2.2. Other CRC provisions referring to the United States, the Working Group agreed best interests of the child to a major change: the general status of the best interests of the child was no longer to be There is only one place in the CRC where viewed as “the paramount consideration” the principle of best interests becomes, but as “a primary consideration” in decision- automatically and explicitly, the decisive making by “public or private social welfare factor for assessing the desirability of any given institutions, courts of law or administrative course of action foreseen under the treaty: 31 authorities”. its status as “the paramount consideration” in decisions about a child’s adoption in This move – and indeed the draft text of Article 21. Article 3.1 as a whole – was not picked up again until the last stages of the drafting This singular recourse to best interests as process, in the context of a technical review the ultimate determinant of a decision to in late 1988 to ensure that the entire draft proceed with a measure that, in principle, Convention was consistent in itself and with should not undermine the fulfilment of existing human rights treaties. The review any other right(s), is telling. We review the invited further discussion on whether the reasons for its inclusion in these terms in best interests of the child should be ‘the’ or section 2.4 and examine its implications in only ‘a’ primary consideration. more depth in Chapter 4. Some Working Group members wanted to revert to the original higher status given Elsewhere in the CRC, as well as being to the concept of best interests in the future cited as the “basic concern” of primary CRC, to bring it into line with CEDAW caregivers (Article 18.1), the status of best Article 5(b), which refers to best interests as interest as “a primary consideration” in “the primordial consideration”. However, it decision-making on “all actions concerning was pointed out that where ‘the’ rather than children” is up-graded for a small number ‘a’ had been used, the issues at stake are far of specific situations. In all but one of these, more specific (e.g. adoption) than the wide- the best interests of the child become the ranging issues to be covered by CRC Article determining criterion to justify any case- 3.1. It was also noted that the interests of by-case derogation from an otherwise other parties (including justice and society as established right: a whole) might be of equal importance, at the very least, in certain circumstances. Given the • removing children from parental many reservations expressed, it was finally care (Arts. 9.1, 20.1) decided that the best interests of the child should remain as “a primary consideration”. • denying contact between the child and his or her parents (Art. 9.3)

The concept of the best • envisaging deprivation of liberty interests of the child applies with adults (Art. 37.c) and

not only to individual • prohibiting parents from being children but also to children present during judicial proceedings as a group. (Art. 40.2.b.iii). 2.3.3. Issues raised by the inclusion There was also agreement on a proposal of the best interests of the child in contained in the technical review to bring 31 Detrick, S. ed. the CRC (1992). The United back reference to ‘legislative bodies’ in the Nations Convention As we have seen, in human rights law – list of actors covered by this provision. on the Rights of This also has major ramifications for inter- as well as in humanitarian law, refugee the Child: A guide pretation, demonstrating beyond doubt that law and private international law – the to the ‘travaux the concept of the best interests of the child concept of best interests, when used at all, préparatoires’. Leiden: Martinus applies not only to individual children but applies solely to children. It is all the more Nijhoff Publishers, also to children as a group (see section 2.4.3). important, therefore, to look closely at the p. 133.

16 The Role and Purpose of the Best Interests Concept in a Human Rights Context

way it is broached and the implications of Alston has also emphasized the deliberate its specific inclusion in the CRC in such ‘flexibility’ of the CRC drafters to allow a context. for the principle’s broad application by professionals. He underlines how 2.3.3.1. A deliberately undefined concept... the cultural setting can influence the interpretation of child rights and the role During the drafting of the CRC, there was of the best interests principle in mediating implicit consensus that the notion of best between rights and cultural frameworks, interests should be left undefined, so that with human rights taking priority where 32 ibid., p. 137. there is insoluble conflict between the two.35 its interpretation could take account of 33 Zermatten, J. The CRC Committee also points out that context and circumstances. (2010). The Best the “flexibility of the concept of the child’s Interests of the Child: Only Venezuela voiced serious concerns best interests allows it to be responsive Literal analysis, function and about this lack of clarity during final to the situation of individual children, as well as to “evolve knowledge about child implementation. discussions on the text, fearing that the Sion: Institut 36 concept of best interests would be interpreted development”. International des subjectively. It was particularly concerned Droits de l’enfant, p. 16. at the lack of any wording to clarify that At the same time, the range of considerations to be taken into account, the criteria to be best interests included all aspects of a 34 Van Bueren, G. applied in respecting the best interests child’s development, spanning – as in (2007). ‘Pushing and criterion itself and the precise responsibilities the 1959 Declaration – the broad range of pulling in different for assessing and determining the best directions: The best “physical, mental, moral, spiritual and interests of the child are still somewhat of a interests of the child social” considerations.32 legal and conceptual wilderness in practice. and the margin of appreciation In the early 1990s, Mr Justice Brennan of There was scant support for this stance, of states’, in Child the Supreme Court of Australia commented Rights in Europe: however, as it was presented during the final that: Convergence and stages of drafting. Venezuela did not insist divergence in judicial on a further review and joined consensus protection, p. 32. The best interest approach depends on the text as proposed. However, the on the values systems of the decision- 35 Alston, P. (1994). fears expressed about the scope of best maker. Absent any rule or guideline, ‘The Best Interests of interests – and the criteria to be applied in a that approach simply creates an the Child: Towards potentially subjective decision about those unexaminable discretion in the a reconciliation of culture and human interests – remain valid. 37 repository of the power. rights’, in P. Alston, The Best Interests of There is general agreement on the need Twenty years later, his concerns remain the Child: Reconciling for flexibility in determining best interests. largely unanswered. In such circumstances, culture and human Clearly, no single pre-determined outcome rights, Florence: efforts to ensure and verify compliance of UNICEF Innocenti is in the best interests of each and every resulting decisions with the substance of Research Centre, child, no ‘path’ is automatically preferable, the best interests principle itself are clearly pp. 1-25. and socio-cultural realities and percep- and severely compromised. tions differ. Zermatten, therefore, defends 36 Committee on the Rights of the the best interests of the child principle 2.3.3.2. …but a General Principle of the CRC Child (2013), para. as broad, flexible and adaptable to 34. cultural and socio-economic variance Despite this juridical, substantive and across different legal systems,33 procedural void, the Committee on the 37 Secretary of the Department of Health and Van Bueren comments that this Rights of the Child decided from the start and Community elasticity is essential in the case-by-case that best interests should be one of the Services v. J.W.B. approach required by the best interests four over-arching implementation issues, and S.M.B. (Marion’s standard.34 alongside non-discrimination, the right Case) [1992] HCA 15; (1992) 175 CLR 218, to life, survival and development, and the para. 14. right to be heard, all of which needed to be There is general agreement addressed by states parties in their initial 38 Committee reports to the Committee.38 on the Rights of on the need for flexibility the Child (1991). in determining best General Guidelines, As a result of that decision, which was CRC/C/5, interests. extended to cover states parties’ periodic 30 October 1991.

17 The Best Interests of the Child in Intercountry Adoption

reports, the best interests of the child and the are contrary to the rights enshrined three other over-arching implementation in the Convention or that would have issues were designated by the Committee an effect contrary to the rights under as the four General Principles of the CRC the Convention cannot be considered for interpreting and implementing all the as valid in assessing what is best for rights of the child. The Committee now a child or children.42 describes the provision on best interests as “express[ing] one of the fundamental In some quarters, nonetheless, the General values of the Convention”.39 No other treaty Principle designation of the best interests body to date has attempted to distinguish of the child still generates a perception between the provisions of an international that it can and should be seen as a ‘super- instrument in this way. right’ representing some kind of higher standard that can be invoked at will Whatever the justification and merits of to trump children’s other rights.43 As a elevating certain rights to this special careful examination of the Committee’s status, the move is not without its dangers statements shows, this is not the intention. from a human rights perspective. These If the best interests of the child are to play dangers are singularly acute when a rights-compliant role in decisions on considering best interests, as this is not intercountry adoption and certain other a familiar human rights concept. And in spheres in particular, it is vital to combat the case of intercountry adoption, where that perception. the best interests of the child are to be the sole determining factor, the risks are even greater. 2.4. Compliance of best interests 39 Committee on the Rights of the Child with human rights provisions (2013), para 1. The 1993 Vienna Declaration states – and the Committee itself has logically reaffirmed Whatever the challenges it poses, the 40 World – that all human rights “are universal, Conference on inclusion of best interests in the Convention indivisible and interdependent and Human Rights, has had the undeniable merit of positioning Vienna, 14–25 interrelated. The international community discussion of that notion in a human rights June 1993, Vienna must treat human rights globally ... on framework at last. Declaration and the same footing, and with the same Programme of emphasis.”40 In essence, the concept of the Action, UN Doc. A/ The acceptance of CRC Article 3.1 within CONF.157/23, 12 best interests of the child in this context that framework implies that its general July 1993, para. 5. means that all children have the right to have interpretation and application cannot their best interests determined as a way of 41 Committee on the conflict with, and are even compatible with, ensuring that all their other human rights Rights of the Child other rights established in the CRC itself (2013), para. 4. are respected. Indeed, the CRC Committee and those in all other binding international stresses that the role of best interests as a 42 ibid., para. 51. human rights instruments. Therefore, in its guarantor of child rights is reflected in its own approach: General Comment No. 8, the Committee 43 One very clear on the Rights of the Child states that “the example of this is the expedited [The Committee] recalls that there interpretation of a child’s best interests must 44 adoption of is no hierarchy of rights in the be consistent with the whole Convention”. children from Convention; all the rights provided for Haiti (see section 3.7 below) where, therein are in the ‘child’s best interests’ The best interests of the child can be invoked, but only in explicit and well- despite the lack of and no right could be compromised any assessment, by a negative interpretation of the defined instances and on a case-by-case ‘best interests’ child’s best interests.41 basis, to justify derogation from a very were invoked to limited number of rights, establishing a justify derogation from procedures kind of ‘right not to benefit from a right’ [T]he ultimate purpose of the child’s designed to protect best interests should be to ensure the (see 2.3.2.2 above). In such cases, this does the rights of the full and effective enjoyment of the not make it a ‘super-right’, but simply children concerned. rights recognized in the Convention a way of preserving the positive 44 Committee on the and the holistic development of the intention behind the right in question: Rights of the Child child. Consequently, elements that it should not be applied if the outcome (2006a), para. 26.

18 The Role and Purpose of the Best Interests Concept in a Human Rights Context

for the child can be demonstrated as very and those views shall be taken into likely to be harmful. The key, and far consideration by the competent more common, purpose of the best authorities.45 interests of the child principle, however, is to guide decisions where a choice must One of the key elements be made across a range of options that comply with the rights of the child. in a best interests determination (BID) must It is here, where the best interests of the be the child’s own opinion. child is the primary or even paramount consideration for implementing one or The subject of this paragraph was finally more rights, rather than for derogating from a specific one, that its compatibility with dealt with in CRC Article 12, together the overall rights framework is particularly with the right of the child “who is capable at risk in practice. Here, the function of the of forming his own views ... to express ‘best interests right’ in relation to others is his opinion in matters concerning his far more vague. own person”, which was contained in the revised Polish proposal of 1979. The This risk is evident where the best interests United States’ proposal, however, made an of the child inform decisions that must implicit linkage between the best interests balance or prioritize different rights. Such of the child and the right of the child to be situations are frequent, and particularly heard in dealings with courts of law and so in relation to child protection administrative authorities. This matters and alternative care. The inevitable when interpreting the two concepts. Even consequence is that the enjoyment of one if there is no explicit connection between or more rights will be restricted to some them in the final text of the CRC, Zermatten degree, or may even be denied completely describes Articles 3 and 12 as a “duo”, 46 in extreme cases. We are then looking at to sit side by side. The CRC Committee the equivalent of a child’s ’right to have goes further, noting the “inextricable the relative importance of all my other links” between the two articles and their rights decided for me’. This is a vivid complementary roles: demonstration of both the dilemma and the crucial nature of decision-making on …the first aims to realize the child’s 45 Detrick (1992), the basis of best interests in the context of best interests and the second provides p. 133. human rights. the methodology for hearing the views of the child or children and their 46 Zermatten (2010), p. 21. 2.4.1. Linkages between the best inclusion in any matters affecting the interests of the child and a child’s right child, including the assessment of his 47 Committee on to be heard or her best interests. Article 3, paragraph the Rights of the Child (2013), The question of the compatibility and 1, cannot be correctly applied if the para. 43. 47 interdependence of decisions based on best requirements of article 12 are not met. interests with other rights is illustrated by 48 Archard, D. In light of this, one of the key elements (2004). Children: their connection with CRC Article 12 on Rights and the right to be heard. in a best interests determination (BID) childhood, must be the child’s own opinion. Archard London/New York: Routledge, p. 68. The United States’ proposal that became the maintains that what children say about

their interests is valuable evidence on what basic text for CRC Article 3.1 (see section 49 Eekelaar, J. 48 2.3.2.1 above) originally had a second is, in fact, in their best interests. Eekelaar (1994). ‘The paragraph devoted to the right to be heard: talks about the importance of “dynamic interests of the self-determinism” in enabling children to child and the child’s wishes: The In all judicial and administrative influence decisions; in determining their role of dynamic proceedings affecting a child that best interests, the subjectivity they bring as self-determinism’, has reached the age of reason, an to how they experience a situation enriches International any analysis of the objective elements.49 Journal of Law, opportunity for the views of the Policy and the child to be heard... shall be provided, As demonstrated by specialists such as Family, 8(1): 47–48.

19 The Best Interests of the Child in Intercountry Adoption

Lansdown, even very young children decisions can easily, yet inaccurately, be have non-verbal ways to make their views justified as being in the interest of the known, if sufficient efforts are made to child” depending on the subjective views of facilitate this by skilled professionals under the decision-maker.55 The CRC Committee appropriate conditions.50 emphasizes the child’s evolving capacities over time: Thomas and O’Kane have elaborated on the difficulty of having no clear guidance In the best-interests assessment, one or legislation on the weight to attribute to has to consider that the capacities of children’s views, or on how their views the child will evolve. Decision-makers 50 Lansdown, G. (2005). ‘Can you and feelings should be balanced in best should therefore consider measures hear me?: The right interests decisions. Drawing on research by that can be revised or adjusted of young children to Schofield et al., they argue that determining accordingly, instead of making participate in decisions the child’s competence is critical, but definitive and irreversible decisions. affecting them’. The Hague: Bernard van it should be assessed on the basis of a To do this, they should not only assess Leer Foundation. specific decision. The emotional contexts the physical, emotional, educational in which children make decisions, which and other needs at the specific 51 Thomas, N. and are influenced by their wishes and feelings, moment of the decision, but should C. O’Kane (1998). ‘When children’s should also be taken into account when also consider the possible scenarios of wishes and feelings seeking their views.51 the child’s development, and analyse clash with their them in the short and long term. In “best interests”’, That said, as Archard and Skivenes argue, this context, decisions should assess International Journal of Children’s Rights, children cannot be expected to display continuity and stability of the child’s 6(2): 137–54. competencies that even adults are unlikely present and future situation.56 to possess in a highly emotional situation 52 Archard, D. and (such as the choice of a family or parent). These questions are particularly pertinent to M. Skivenes (2009). ‘Balancing a child’s They emphasize, too, the complexity of alternative care and adoption, but at least best interests and balancing the views of children with their two aspects of them pose clear problems, a child’s views’, best interests, as this raises some tensions. especially in relation to intercountry adoption. International Journal Ensuring what is best for children – and of Children’s Rights, 17(1): 1–21. therefore their welfare – is essentially First, the children most often placed for ‘paternalistic’, yet asking children for intercountry adoption are likely to be very 53 Brems, E. (2002). their views might not tally with what is young, and any expectation that they will ‘Children’s rights considered to be in their best interests. fully understand what is happening to and universality’, in J.C.M. Willems, ed. Archard and Skivenes define three key steps them or be able to share an informed opinion Developmental and to determine the best interests: judgement, about it is, at best, unrealistic, even with the Autonomy Rights of hearing the child’s opinion and balancing involvement of highly skilled practitioners. Children: Empowering the child’s views and best interests.52 The age at which a child must be consulted children, caregivers and communities. about, or give their consent to, intercountry Antwerp: Intersentia, A related issue is the standpoint from which adoption – to the extent that it is set – varies pp. 21–45. the assessment is made. Should young from country to country, but is rarely under children’s best interests be determined 10.57 There is no research, however, about the 54 Rawls, J. (1972). A Theory of Justice. according to their current needs? Or is it extent to which children of any particular Oxford: Clarendon necessary to consider what they might age are able to really grasp the various Press, p. 209. choose if they were older and capable implications of adoption, and particularly of making an informed choice? Some of being adopted abroad. As a result, the 55 Zermatten (2010), p. 27. commentators, such as Brems, maintain principle that the child’s opinion should that we should consider children’s current inform the process around a determination 56 Committee on the interests as children.53 Others believe that of best interests may be very hard to apply Rights of the Child “we must choose for others as we have in intercountry adoption. (2013), para. 84.

reason to believe they would choose for 57 United Nations themselves if they were at the age of reason Second, it is obvious that the general Population Division and deciding rationally”.54 Zermatten has advice given by the CRC Committee (see (2009). Adoption, noted the need for “a more objective form above) to avoid “definitive and irreversible Trends and Policies, Department of of knowledge about this concept” if we decisions” on best interests cannot apply in Economic and Social are to avoid the “risk that very different relation to any adoption, be it domestic or Affairs, pp. 43–44.

20 The Role and Purpose of the Best Interests Concept in a Human Rights Context

intercountry. That said, the very fact that (see section 2.3.2.1 above). After extensive the Committee advises this, on a general debate on how the CRC should broach level, is highly significant. It indicates the the adoption question as a whole,59 the inherent difficulty in reaching a permanent Working Group decided to supplement decision for a child on the basis of a one-off the idea of ‘facilitating’ – but facilitating BID exercise – a decision that will remain the process, rather than adoption itself – by ‘correct’ over the long term. Again, this an explicit reference to best interests (and, underscores both the crucial importance interestingly, in relation to intercountry and the potential weaknesses of any BID adoption alone). Therefore, the provisional process that will be the foundation of an draft text of what is now Article 21 of the irrevocable decision about the intercountry CRC, approved in 1982, contained two adoption of a child. And again, it highlights paragraphs, opening as follows: the need to prioritize the protection of the human rights of the children concerned. 1. The States Parties ... shall undertake measures, where appropriate, to facilitate 2.4.2 Why the CRC enhances the the process of adoption of the child. 58 UN Doc. E/ status of the best interests of the child CN.4/1349, p. 4, cited in Detrick in relation to adoption 2. The States Parties ... shall take all (1992), p. 305. appropriate measures to secure the The emphasis given to the best interests of best interests of the child who is the 59 Detrick (1992), the child in determining whether or not an subject of intercountry adoption.60 pp. 306–311. adoption should go ahead only emerged during the drafting of the Convention. 60 UN Commission This draft text was not reviewed again until This was the result of growing recognition, on Human Rights the final session of the Working Group in (1982). Economic particularly during the 1980s, of serious 1989. During the 1980s, however, there and Social Council, problems that needed to be tackled within UN Doc. E/1982/12/ were significant developments in response the adoption sphere, particularly in relation Add.1. to growing concerns about how and why to intercountry adoption. more and more intercountry adoptions 61 Council of were being carried out. Europe (1980). The 1959 Declaration on the Rights of the ‘The role of Child made no reference to adoption, or governmental and At the very start of that decade, the Council non-governmental indeed to any specific measure for children of Europe (CoE) had issued a document organisations without parental care. Similarly, Poland’s where it was stated that “over the past decade in supervising initial draft text for a convention on the pressure by numerous European couples the placement in rights of the child (1978), grounded as it Europe of children wishing to adopt has reduced the attention from the Third was in the 1959 Declaration, contained no that is paid to the child’s interests”.61 World’, Social mention at all of adoption. Affairs, Doc. At the United Nations, a report requested COE.G.6/80, p. 35. This was remedied in Article 11.3 of the by the Sub-Commission of the CHR, 62 Whittaker, B. 1979 revised draft, which required states submitted in 1982, noted that “growing (1982). Updating to “undertake measures so as to facilitate concern is being expressed at the ... practice of the Report on adoption of children”. This was adopted of the sale of children for adoption”,62 Slavery Submitted as a basic working text by the 1980 to the Commission and the Sub-Commission resolved that “a in 1966, UN Doc. E/ 58 Working Group. At that time, it should report on the causes and implications of the CN.4 Sub.2/1982/20. be recalled, the draft text still referred sale of children, including commercially- to the best interests of the child as “the motivated (and especially transnational) 63 UN Commission on Human Rights paramount consideration” in relation to all 63 adoptions, should be prepared”. That (1982). Resolution decisions concerning children (see section same year the Economic and Social 1982/15, para. 14. 2.3.1 above). Council appointed a Special Rapporteur on traffic in persons; his 1983 report 64 Report of Jean Fernand-Laurent, By the time the draft provision on adoption noted that “international traffic in young Special Rapporteur came up for in-depth examination at children for adoption ... should be given on the suppression the 1982 session of the Working Group, separate treatment in a specific study”.64 of the traffic in however, this general reference to the persons and the exploitation of best interests of the child had been Calls throughout the decade for the the prostitution of down-graded to “a primary consideration” appointment of a Special Rapporteur on others, E/1983/7.

21 The Best Interests of the Child in Intercountry Adoption

the Sale of Children resulted in such of the 1986 Declaration, between 1988 and 65 UN Commission an appointment, finally approved by 1989 the term “protection of children” was on Human Rights (1990). Human Rights the CHR, in 1990. The mandate of the inserted after “international co-operation” Council Resolution Special Rapporteur included efforts in the draft title of the future Hague 1990/68. to address “the problem of the adop- Convention. The Diplomatic Conference tion of children for commercial purposes”,65 that approved the final text in 1993 was to 66 United Nations (1986). ‘Declaration a confusing term that was intended to go even further, with the symbolic on Social and Legal emphasize financial gain, in particular. placement of “protection of children” before Principles relating to the reference to cooperation, “in order to the Protection and Welfare of Children, In 1986, the United Nations General stress its importance as the main subject- with Special Assembly approved a text that had been in matter of the Convention”.71 Reference to Foster the pipeline for eight years: the Declaration Placement and Adoption Nationally on Social and Legal Principles relating to the and Internationally’, Protection and Welfare of Children, with Adoption can only be UN Doc. A/Res. 41/85, special reference to Foster Placement and 3 December 1986. 66 undertaken as a uniquely Adoption Nationally and Internationally. 67 UN Economic and It was certainly a sign of the times that the child-centred practice and Social Council (1979). terms ‘protection’ and ‘welfare of children’ ‘Draft Declaration only if it is in accordance on social and legal were mentioned in this context: they were principles relating inserted towards the end, not having with all of the other rights to adoption and figured in the original working title of foster placement of 67 of the child concerned. children nationally the 1970s. Of special note here is the and internationally’, status that the 1986 Declaration affords to Report by the the best interests of the child in relation In short, the prevailing mindset reversed Secretary-General, United Nations, to both adoption and foster care: it is re- completely in the late 1970s and the 1980s E/CN.5/574, instated as “the paramount consideration”.68 from a climate where adoption should be 22 January 1979. ‘facilitated’ to one where the overriding 68 United Nations Finally, in 1988, states members of the concern was the protection of children’s (1986). ‘Declaration Hague Conference on Private International interests and rights in adoption. Not on Social and Legal Law agreed that a new convention on surprisingly, the definitive text in the Principles Relating “international co-operation in respect of CRC, applying to both domestic and to the Protection and Welfare of Children’, intercountry adoption” was necessary intercountry adoptions, reflects this shift Art. 5. because “international adoption was and takes an uncompromising line from posing at present very serious problems the start (Art. 21): 69 Hague Conference on Private International of a kind or degree different from those Law (1994a). existing when the Hague Convention of 15 States Parties which recognise and/ ‘Explanatory report November 1965 on Jurisdiction, Applicable or permit the system of adoption on the Convention on protection of Law and Recognition of Decrees Relating to shall ensure that the best interests children and co- Adoptions was drawn up”.69 of the child shall be the paramount operation in respect consideration. of intercountry adoption’. Caracas, In a preparatory document for the drafting paras. 1–2. process, the Permanent Bureau of the This requirement to “ensure” is one of Hague Conference observed that the future the strongest in human rights law, being 70 Hague Conference on Private International treaty should meet the part of the state’s obligation to take active Law (1989). measures to fulfil a right, rather than ‘Memorandum ...need for a system of supervision merely respect it (refrain from interfering concerning the preparation of a new in order to ensure that [legally with the enjoyment of the right) or protect Convention on binding] standards are observed (what it (prevent violations of the right by any international can be done to prevent intercountry party, including the state itself and its co-operation and protection of children adoptions from occurring which agents). And the best interests of the in respect of are not in the interest of the child; child become the determining criterion intercountry adoption’, how can children be protected for adoption decisions, a clear reflection Permanent Bureau, The Hague, pp. 1–2 from being adopted through fraud, of consensus: adoption can only be (our emphasis). duress or for monetary reward...); 70 undertaken as a uniquely child-centred practice and only if it is in accordance 71 Hague Conference Significantly, and reflecting what had with all of the other rights of the child on Private International Law happened in deciding on the lengthy title concerned. (1994), para. 31.

22 The Role and Purpose of the Best Interests Concept in a Human Rights Context

2.4.3 Application of the best interests process of child impact assessment principle to children as a group (predicting the impact of any Because we talk about the best interests proposed law, policy or budgetary of the child, discussion on the application allocation which affects children of the principle has often focused on and the enjoyment of their rights) decision-making in relation to the future and child impact evaluation of one individual child. However, apart (evaluating the actual impact of 72 from parents and others responsible for implementation). the child’s education and guidance, the original reference to the best interests of In the context of its consideration of the the child in the 1959 Declaration (and situation of young children, the Committee Poland’s initial proposed text for a has established a principle that would convention) concerned only its paramount apply to those of all ages from a collective importance in the “enactment of laws”, standpoint: clearly grounded in the best interests of children collectively, rather than Best interests of young children as a individually. The final text of CRC group or constituency. All law and Article 3.1 reflects this by mentioning policy development, administrative “legislative bodies”, but all other relevant and judicial decision-making and actors are also bound to give “a primary service provision that affect children consideration” to the best interests of must take account of the best interests the child, developing overall approaches principle. This includes actions and policies, as well as determining best directly affecting children (e.g., related interests case by case. to health services, care systems, or schools), as well as actions that While the notion of the best interests of indirectly impact on young children the child has, therefore, clear ramifications (e.g., related to the environment, 73 for policy and law affecting children as a housing or transport). 72 Committee group, there has been debate about how on the Rights of the term “all actions concerning children” Taking a complementary angle that the Child (2003). builds on the requirement for an impact General Comment should be interpreted. Does it designate No. 5, General actors and initiatives that target children assessment, the Committee has used its Measures of specifically, or does it cover any initiative review of the situation of indigenous Implementation or decision that may affect children in children to make another point that has for the Convention wider application, setting out the link on the Rights of some way? While an impact assessment the Child (CRC/ of any policy or measure that may affect between collective rights and best interests GC/2003/5), the rights of children is desirable, this explicitly: para. 45. does not mean that the best interests of the 73 Committee child should be the primary consideration The principle of the best interests of on the Rights in cases where children are affected only the child requires States to undertake of the Child marginally. active measures throughout their (2005). General legislative, administrative and judicial Comment No. 7 on implementing Zermatten highlights the fact that the systems that would systematically child rights in Committee on the Rights of the Child has apply the principle by considering early childhood long taken a broad and firm view on these the implication of their decisions (CRC/C/GC/7/ and actions on children’s rights Rev.1), para. 13(b). questions: and interests. In order to effectively 74 Committee on Ensuring that the best interests of guarantee the rights of indigenous the Rights of the the child are a primary consideration children such measures would Child (2009a). General Comment in all actions concerning children include training and awareness- No. 11, Indigenous (art. 3 (1)), and that all the provisions raising among relevant professional children and of the Convention are respected in categories of the importance of their rights under legislation and policy development considering collective cultural rights the Convention (CRC/C/GC/11), and delivery at all levels of in conjunction with the determination para. 33 Government demands a continuous of the best interests of the child.74 (our emphasis).

23 The Best Interests of the Child in Intercountry Adoption

It is clear that all legislation, policy and same time, disregard for the best interests measures relating to intercountry adoption of the child has been cited as a major – and indeed to the wider context in reason for the development of protective which it may take place, such as family international standards governing the support and strengthening alternative practice of intercountry adoption. care provision – must be reviewed from the standpoint of compliance with the best interests of children. The implications of The best interests of the this are examined in depth in Chapter 4. child remains a deliberately undefined concept. Yet 2.5. A two-fold challenge it is a General Principle of

This chapter has demonstrated that the CRC. the concept of best interests is almost unknown in international human rights There is a clear two-fold challenge: first, law other than in the CRC, and in the how to determine the best interests of the very rare cases where it is mentioned in individual child who is, or may be, placed other treaties it refers solely to children. for intercountry adoption; second, how to The same applies to private international assess the impact of national laws, policies law, where reference to best interests is and procedures related to intercountry limited, for the most part, to decisions adoption from the standpoint of children’s on intercountry adoption. In addition, collective rights. the notion of best interests is nowhere to be seen in either humanitarian law (the Geneva Conventions) or refugee law. As a result, there is no international jurisprudence or precedent on the interpretation of the concept in general or its implications in practice when it comes to human rights.

The reasons for the inclusion of the best interests of the child in the CRC date back to an era before the formal recognition of the human rights of children. But there has never been any global agreement on best interests criteria, on clear and exclusive responsibilities, or on what best interests might imply in a human rights context. Indeed, the concept of best interests continues to be invoked in attempts to side-line or negate agreed human rights, including those of children.

The best interests of the child remains a deliberately undefined concept. Yet it is a General Principle of the CRC – an integral part of children’s human rights. This presents a major challenge for implementation, particularly when the best interests principle is to be ‘the paramount consideration’ in decisions about inter- country adoption, and where those decisions may have to balance or prioritize a range of inalienable human rights. At the

24 UNICEF Office of Research

The Changing Role and Purpose 3ǀ of Intercountry Adoption

Key points

ÌÌ Intercountry adoption is a relatively new phenomenon, emerging only in the aftermath of the Second World War as a ‘humanitarian’ response and expanding dramatically in the 1970s, with few international safeguards in place until the advent of the 1993 Hague Convention.

ÌÌ It is intended as a protection measure when in-country care for a child who cannot remain with his or her family is not available, but its escalation has been so rapid and often uncontrolled that countries of origin have been hard pressed to ensure that the best interests of the children concerned are being upheld.

ÌÌ As increasing numbers of countries of origin have become parties to the 1993 Hague Convention and have implemented its provisions designed to protect children’s best interests and human rights, adoptions from these countries have invariably declined. This has led receiving countries to seek children for adoption from countries that are not bound by the standards set in that treaty.

25 The Best Interests of the Child in Intercountry Adoption

Every society has its own traditional as in other parts of the world, such as the mechanisms to look after children who Republic of Korea. cannot be cared for by their parents – measures that often involve extended 3.1.1. The development of intercountry family or friends.75 With the exception of adoption from the perspective of the most Islamic societies, local mechanisms best interests of the child the world over include some form of ‘de facto adoption’, an informal process that 3.1.1.1. The first decades of intercountry adoption: is sanctioned by society. Full and formal a humanitarian response to war adoption as a protective measure for a child, however, is a relatively recent development Intercountry adoption emerged in the in human history, dating back to the mid- aftermath of the Second World War as nineteenth century at the earliest, while a humanitarian response – in the first intercountry adoption emerged only in the instance, largely by families in the United aftermath of the Second World War. States – to war orphans in a number of European countries and Japan. Its evolution over the past 60 years has been neither Full and formal adoption linear nor predictable, and its development, as a protective measure over time and from country to country, reflects a complex and changing interaction for a child is a relatively of factors. But, from the standpoint of the recent development in best interests of the child, some key events and trends are worth highlighting. human history. The initial trans-Atlantic movement of children for adoption was supplemented and 3.1. Key phases in the development then overtaken by cross-border adoptions of intercountry adoption within Europe itself. In the mid-1950s, the focus in the USA moved to children affected 75 Van Loon, J.H.A. Formal, legalized and full adoption – the by the Korean War, and particularly to (1993). ‘International kind that characterizes its intercountry stigmatized ‘Amerasian’ children fathered co-operation and protection of form – involves cutting ties with a child’s by US troops. This development spawned children with regard original family and “complete or almost the first specialist private agencies that to intercountry complete integration in the new family”.76 aimed to place children with foreign adoption’, in Collected Courses of It is a relatively recent construct, with families79 – agencies that were to become the Hague Academy its genesis in the United States, where a major fixtures in intercountry adoption. of International Law, number of states enacted laws on adoption vol. 244. Leiden: from the mid-nineteenth century.77 It took These agencies – and individuals who Martinus Nijhoff Publishers, p. 207. decades to spread to Canada, Australasia organized their own independent adoptions and Europe, where in 1926 the United – arranged adoptions in what was essentially 76 Weinstein, E.A. Kingdom became the first European a normative and procedural void. Not (1968). ‘Adoption’, country to legislate on this full form of surprisingly, legislation at that time did not in International Encyclopedia of the adoption. Similar initiatives by other envisage this sudden extension of adoptions Social Sciences. New European nations followed over the next across borders: in the United States, for York: Macmillan. 50 years: France introduced its ‘légitimation example, regulation of international 77 Van Loon (1993), adoptive’ in 1939, for example, while Ireland, adoption was only achieved in 1961 through p. 213. the Netherlands and Sweden enacted laws the Immigration and Nationality Act. on full adoption in the 1950s, Poland in Ad hoc procedures were put in place in the 78 Council of Europe 1964, and the former West Germany only in 1950s to ensure some measure of legality in (2011). ‘Adoption and 78 children: A human 1977. There was, however, a certain stigma the receiving country, but oversight of the rights perspective’. attached to adoption in Europe in the process itself was patchy at best. In addition, Strasbourg: mid-twentieth century: it tended to be the humanitarian nature of intercountry Commissioner for shrouded in secrecy, and indeed this adoption was never questioned. As a result, Human Rights.

remains the case today in many Central it was seen by definition as a desirable 79 Van Loon (1993), and Eastern European countries, as well outcome for the children concerned. Indeed, p. 229.

26 The Changing Role and Purpose of Intercountry Adoption

the paucity of data and more general country adoptions and the help of social information from that period reflects the lack workers having special training or having of attention given to this new phenomenon. particular experience concerning the problems of adoption”.

The humanitarian nature The 1967 European Convention went into of intercountry adoption more detail: was never questioned. • Article 9.3: “These enquiries shall As a result, it was seen by be entrusted to a person or body recognised for that purpose by law definition as a desirable or by a judicial or administrative outcome for the children body. They shall, as far as practicable, be made by social workers who are concerned. qualified in this field as a result of either their training or their experience.” 3.1.1.2. The 1960s: first attempts to impose international standards • Article 18: “The public authorities shall ensure the promotion and International efforts to address the issues proper functioning of public or private raised by intercountry adoption in the agencies to which those who wish to 1960s focused on harmonizing laws, adopt a child or to cause a child to be determining jurisdiction and ensuring adopted may go for help and advice.” that all parties recognized the adoption decisions that were made – in other words, • Article 19: “The social and legal the stuff of private international law. At the aspects of adoption shall be included international level, these efforts shaped the in the curriculum for the training of first Hague Convention on intercountry social workers.” adoption in 1965.80 This treaty stipulated that the authorities “shall not grant an The 1967 European Convention alone adoption unless it will be in the interest of recognized the potential influence of the child” (Art. 6). A similar requirement financial considerations in adoption was made in a European Convention arrangements, with Article 15 stipulating approved two years later for Member States that: of the Council of Europe (though also open, in theory, to other countries).81 Provision shall be made to prohibit any improper financial advantage In addition to these single references to the arising from a child being given up best interests of the child and a listing of basic for adoption. procedures to be followed in the adoption process, the first Hague Convention of However, neither of these treaties would 1965 and the European Convention of 1967 be able to deal with the ways in which 80 Hague reflected two significant developments in intercountry adoption expanded in the Conference adoption practice that have, for different 1970s or the new problems this raised. on Private reasons, become vital factors in the best Both were too restricted in scope and both International Law (1965). Convention interests debate: the involvement of private suffered relatively poor ratification rates. on Jurisdiction, bodies and the professionalization of the Their limited impact made them obsolete Applicable Law process. within a few years, and as a result they and Recognition ceased to be operative. of Decrees Relating When setting out the need to determine to Adoption. the situation of the child, his or her family 3.1.1.3. The 1970s: growing ‘demand’ for a 81 Council of and prospective adopters, Article 6 of the dwindling ‘supply’ of children Europe (1967). now-defunct 1965 Hague Convention European Convention on stated that “this enquiry shall be carried By the start of the 1970s, the adoption the Adoption of out in co-operation with public or private picture had started to change radically, Children, (ETS- organisations qualified in the field of inter- with a sharp decline in the numbers of 058), Art 8.1.

27 The Best Interests of the Child in Intercountry Adoption

children in the industrialized countries in Prospective adopting U.S. parents were need of adoption. Van Loon summarizes concerned that Vietnamese orphans the prevailing situation as follows: already selected for adoption, who might be physically endangered by As long as only the existence of children active hostilities, would not be able to deprived of their families had a structural leave Vietnam expeditiously if normal, character, the problem of intercountry lengthy Vietnamese exit procedures adoption could be phrased ... as: how to and U.S. immigration procedures find a family for this child? The question were followed. ... The movement of became ambiguous when, as a result the children was accelerated due to the of declining fertility, birth control and growing crisis in Vietnam. But, with changing attitudes, the impetus and negligible exceptions, the children met motivation for intercountry adoption the criteria for intercountry adoption arising from the industrialised countries and virtually all of them were in some also acquired a structural character. stage of processing when the decision 83 At this point a structural ‘supply’ of was taken to speed up the movement. children ‘available’ for adoption abroad Others were less convinced. As a report in economically developing countries from the Public Broadcasting Service put it: met with a structural ‘demand’ for such children in economically advanced The hasty evacuation in the final days countries. The language of economics of the war led to a public debate over made its appearance and intercountry whether these actions had been in adoption became a more complex and the best interest of the children and controversial social phenomenon.82 whether the children would have been better served by remaining in Vietnam. In other words, the original ‘humanitarian’ ... The greatest point of controversy ... motives were being overtaken by a more had to do with the circumstances that general desire simply to adopt children led to the relinquishment of the “Baby from abroad. This would create pressures Lift” children and whether these to secure children by means that might not children were technically orphans respect their best interests in full. who qualified for adoption. Lost or inaccurate records were the norm Although the number of children adopted and, in several cases, birth parents or from Latin America (especially Colombia) other relatives who later arrived in the began to grow in the 1970s, the focus was U.S. demanded custody of children still largely on Asian countries of origin. who had previously been adopted by These included Viet Nam, from where over American families.84 1,400 adoptions took place to the United States alone between 1970 and 1974. And This debate crystallized the complexity 82 Van Loon (1993), it was Operation Baby Lift from Viet Nam and controversial nature of intercountry p. 230. in 1975 that sparked the first real debate adoption at that time. And it was to return, on the ethics of how intercountry adoption from a different angle but with particular 83 See report on was being organized – and, therefore, on force, 15 years later, when the plight of the 1975 ‘Operation Babylift’, at: http:// Romania’s institutionalized children was the extent to which children’s best interests darkwing.uoregon. were being respected. suddenly revealed to the world. By then, edu/~adoption/ the decision had already been made – in archive/AIDOBR.htm According to the US Agency for International 1987 – to draft a new Hague Convention, given the growing preoccupation with 84 Public Development (USAID) at the time, a total Broadcasting Service of 2,547 Vietnamese children were airlifted intercountry adoption. But negotiations on (2000). ‘Adoption out of what was then South Vietnam under the text were yet to start. History: Overview the Baby Lift programme, with 80 per cent of International 3.1.1.4. The 1990s: countries close their doors Adoption’. destined for adoption in the United States. http://www.pbs.org USAID defended the evacuation in the as the search for ‘adoptable’ children escalates /pov/archive/ following terms: firstpersonplural/ There were many concerns when agencies historical/intad and individuals flocked to Romania in options.html

28 The Changing Role and Purpose of Intercountry Adoption

early 1990 to adopt children, but two are of the number of states parties to reach a level particular importance. First, the structures, at which the treaty would have a real impact procedures and laws in place at the time and its provisions would become widely in Romania were totally inadequate to accepted as constituting the benchmark for ensure respect for the best interests and good practice in intercountry adoption. rights of children adopted by foreigners – a weakness that was exacerbated many times over by the sudden, massive and insistent Restrictions put in place by surge in applications that occurred. Second, Hague Convention countries it soon became clear that the children of origin have led to in institutions who might be seen as ‘adoptable’ accounted for only a very small attempts to identify potential proportion of the total: the overwhelming ‘substitute’ countries, majority were not ‘orphans’ or abandoned, in particular, outside the and were not babies – most were aged 7 or older and/or had special needs, including Hague framework. severe disability or trauma. Because of this, financially vulnerable families began to be 3.1.1.5. Stronger controls halt the growth of approached directly with ‘offers’ to adopt intercountry adoption, but the focus shifts their babies or healthy young children. Within the space of just one year, such The first decade of the twenty-first century arrangements were reported to account for was characterized by four phenomena of at least half of all intercountry adoptions special note: from Romania.85 • First, the constant growth in inter- From then on, throughout the 1990s a country adoption worldwide that rapidly increasing number of countries in characterized the 1990s and the first the Central and Eastern European region years of the twenty-first century – became countries of origin for intercountry peaking at well over 40,000 in 2004 adoption. This was, in part, a response to – was reversed. By 2012, that number the year-long moratorium on intercountry had been more than halved. This rapid adoption imposed by Romania in mid-1991, fall – whether or not it continues – which led prospective adopters and their has raised questions about the real agencies to search for alternatives. While importance given to the best interests no other country had to confront a wave of, in particular, some of the children of applications on the scale of that seen in adopted abroad when numbers were Romania, almost all countries in the region steadily rising, given the subsequent were similarly unprepared, legally and drastic decline in the number of children 85 Defence practically, to deal with the demand. As a deemed to require intercountry for Children result, and ironically, most of the countries adoption. International concerned have since at some point (1991). ‘Romania: Is imposed a moratorium on intercountry • Second, as more countries have the adoption jungle a thing of the adoption in order to establish reforms and committed to the 1993 Hague past?’, International regain control of the situation.86 The best Convention, they have introduced Children’s Rights interests implications of these moratoria stricter procedures on the adoption Monitor, Vol 8, pp. 29-30. have become yet another subject of debate of children abroad. In quantitative

(see section 3.4.1 below). terms, the most significant develop- 86 UNICEF (2009a). ments relating to countries of origin UNICEF Guidance In the midst of these developments, the have been the two-thirds fall in Note on Intercountry Adoption in the landmark Hague Convention on Protection adoptions from China, due in part to CEE/CIS Region. of Children and Co-operation in Respect its ratification of the Convention in Geneva: UNICEF of Intercountry Adoption (or 1993 Hague 2006, and Guatemala’s confirmation Regional Office for Convention) entered into force on 1 May of its ratification in 2008, with a Central and Eastern Europe and the 1995, but only in the initial three ratifying moratorium on new applications. Commonwealth of states. It would take several years more for Among receiving countries, the Independent States.

29 The Best Interests of the Child in Intercountry Adoption

ratification in late 2007 by the with special needs in those very same United States, which has been the countries for whom adoptive families destination country for about half cannot be found. of all intercountry adoptions in the past, was particularly significant in The combined and interrelated ramifications its effects. of these developments have created, within the space of no more than a decade, an • Third, restrictions put in place by ‘adoption landscape’ for which no one was Hague Convention countries of origin prepared. As a result, there have been wild have led to attempts to identify potential variations in the reactions to it and attempts ‘substitute’ countries, in particular, to cope with it, both in substance and intent. outside the Hague framework. In many cases, this has implied sub-Saharan If the best interests of the African nations whose children had previously constituted only a small child are to remain the central proportion of all intercountry adoptions. tenet of adoption, it is all the Thus adoption of African children to more important to ensure the United States rose from just 1 per cent of the total in 1999 to 30 per cent in that they are determined in 2012; to Italy from 4 per cent to 16 per a clear and accepted manner, cent; and to France from 17 per cent at the very least. to 45 per cent over the same period.87 Disturbingly, not one of the ‘top five’ African countries whose children In this kind of climate, if the best interests of the child are to remain the central tenet were adopted to France, Italy, Sweden of adoption, it is all the more important to and the United States in 2011 was a ensure that they are determined in a clear Hague country.88 As was the case for and accepted manner, at the very least. Central and Eastern Europe in the 1990s, in such circumstances capacity to ensure that the best interests of the child (and other rights) are respected 3.2. The viewpoint and main is likely to be limited. thrusts of international standards

• Fourth, a growing number of The international standards in force today countries of origin are emphasizing no longer view adoption as a ‘humanitarian’ their priority, or even sole reliance, act as such, but as one in a range of possible on intercountry adoption to find child protection measures that may be families for children with special taken when it is deemed that, for whatever needs. This is in good part the result reason, the parents will never again be in a of efforts to demonstrate respect for position to look after their child. the subsidiarity principle (or at least the philosophy behind it). In line It is important to distinguish between with this, many people have been adoption and other protective measures working to put in place suitable care that involve what is known as ‘alternative arrangements in their own countries care’. That distinction is sometimes made for an increasing number of children. 87 Based on statistics inadequately. The CRC itself contributes published by the Again, however, the best interests to the confusion by listing adoption under Central Authorities ramifications of this approach ‘alternative care’ in its Article 20 (see below). of the countries require examination, both because concerned.

of fears that prospective adopters Of course, both adoption and alternative 88 African Child in receiving countries will agree to care are components of the wider child Policy Forum care for children with characteristics protection system, but when a child is (2012a), p. 10. The or requirements that, in practice, adopted he or she is in (new) parental care ‘top five’ countries were Ethiopia, DRC, prove to be beyond their capacity, and, as a result, many of the safeguards that Uganda, Nigeria and because there are many children apply to alternative care settings – including and Ghana.

30 The Changing Role and Purpose of Intercountry Adoption

foster and residential care – do not apply to Similarly, in the preamble to the 1993 adoption, such as the formulation of a care Hague Convention, states recognize that plan and periodic reviews of the placement. “intercountry adoption may offer the Generally speaking, therefore, adoption is advantage of a permanent family”. Use one possible outcome of alternative care of the terms “may be” in the CRC (rather rather than a component of that care. This is than, for example, “shall be”), and “may why the UN Guidelines for the Alternative offer” in the Hague Convention (rather Care of Children clearly state that adoption than “offers”), demonstrates deliberate placements, once finalized, fall outside restraint on the part of the drafters. It their scope.89 signals both that intercountry adoption is to be seen only as a potential response to Similarly, it is important to highlight the certain children without parental care, and way in which references to adoption are that compliance with these treaties does not formulated in the CRC: no state is obliged to depend on carrying out such adoptions, foresee the adoption of children. So, under either as a receiving country or as a country CRC Article 20.2 and 20.3: “States Parties of origin. shall in accordance with their national laws ensure alternative care [that] could include, As a result, assessing compliance at both inter alia, foster placement, kafala of Islamic policy and individual level revolves law, adoption.” around whether or not the best interests of the child are shown to be “the paramount This double insistence on what is possible consideration” (CRC Art. 21) and whether (“could include, inter alia”) rather than what “intercountry adoptions take place in is required, coupled with the condition the best interests of the child and with that the measure should be in compliance respect for his or her fundamental rights with “national laws”, is supplemented by as recognised in international law” (1993 the restriction on the application of Article Hague Convention Art. 1(a)). 21, which applies only to “States Parties that recognise and/or permit the system The following sections review the of adoption”. implications of the predominant role of the best interests of the child in relation In general, these formulations are seen to intercountry adoption from four key as a response to the situation of states standpoints: governed by Islamic law, which do not, as a rule, “recognise and/or permit” adoption • the subsidiarity of intercountry (several such states nonetheless felt it adoption to suitable in-country care necessary to go further, declaring on their (section 3.3) signature or ratification of the CRC that • prohibition or severe limitation of they did not consider themselves bound intercountry adoption (section 3.4) by Article 21). In fact, the formulations • intercountry adoption procedures also imply that any state may choose with non-Hague countries (section 3.5) not to implement adoption, at any time • the best interests of the child in and for any reason that is consistent with emergency situations (section 3.7). safeguarding children’s best interests and other rights.

3.3. The subsidiarity of 89 See UN General This is particularly important in relation intercountry adoption to suitable Assembly (2010). to the intercountry form of adoption. Guidelines for International standards reinforce the non- in-country care the Alternative prescriptive nature of the measure. Care of Children: resolution, adopted According to CRC Article 21(b), the states International standards require that by the General parties concerned “[r]ecognise that inter- intercountry adoption can only be Assembly, country adoption may be considered as an considered when the parents or family 24 February 2010, alternative means of child’s care”. A/RES/64/142, in are unable to care for the child and where particular para. there are no appropriate in-country care 30(b).

31 The Best Interests of the Child in Intercountry Adoption

options available. In the words of the CRC This raises two key issues: the potential (Article 21(b)), this translates as ”...if the role of informal arrangements to care for child cannot be placed in a foster or children, and what determines whether an adoptive family or cannot in any suitable in-country care option is ‘suitable’. manner be cared for in the child’s country of origin”. Similarly, according to the 1993 3.3.1. The role of informal and traditional Hague Convention (Art. 4(b)), the competent care mechanisms authorities of the state of origin may only Some maintain that informal care decide that intercountry adoption corresponds arrangements cannot, by their very to a child’s best interests “...after possibilities nature, guarantee permanency for a child, for placement of the child within the State of and that the best interests of the child origin have been given due consideration”. cannot therefore be served by positioning intercountry adoption as subsidiary to such This subsidiarity rule has provoked debate arrangements. In the context of this study, about its implications for the best interests this approach has to be examined in the light of the child. Some middle ground in that of international standards, particularly on debate is expressed in the Hague’s Guide the roles of informal caregivers within and to Good Practice: beyond the family in looking after children who are without parental care. The principle of subsidiarity should be interpreted in the light of the There is little more than implicit principle of the best interests of the acknowledgement in the CRC of the vital child. For example: role played by informal forms of alternative care and traditional coping mechanisms • It is true that maintaining a child in for children who cannot live with their his or her family of origin is important, parents. The 1988 Technical Review of the but it is not more important than first full draft of that treaty noted: protecting a child from harm or abuse. The draft Convention as a whole • Permanent care by an extended may not adequately recognize the family member may be preferable, role of the extended family and but not if the carers are wrongly community when parental care is not motivated, unsuitable, or unable available. Because cultures, traditions to meet the needs (including the and customs in many countries medical needs) of the particular child. and areas provide for such a role, the Working Group [drafting the • National adoption or other permanent Convention] may wish to broaden 90 Hague family care is generally preferable, but 91 Article [5] accordingly. Conference on if there is a lack of suitable national International adoptive families or carers, it is, as a As a result, the focus of CRC Article 5 Private Law (2008). The Implementation general rule, not preferable to keep was broadened to require respect for the children waiting in institutions when and Operation of “responsibilities, rights and duties of the 1993 Hague the possibility exists of a suitable parents or, where applicable, the members Intercountry permanent family placement abroad. of the extended family or community as Adoption Convention: Guide [Institutionalization as an option for provided for by local custom”. However, permanent care, while appropriate to Good Practice, the article itself is limited in scope: the Guide No. 1. Bristol: in special circumstances, is not as a responsibilities, rights and duties in Family Law, general rule in the best interests of question relate only to giving “appropriate Chapter 2.1.1., the child.] para. 51. direction and guidance” to children in exercising their rights. It makes no reference 91 UN Secretariat • Finding a home for a child in the to situations where children are without (1989). ‘Additional country of origin is a positive step, but parental care. Comments and a temporary home in the country of Clarifications’, UN Doc. E/CN.4/1989/ origin in most cases is not preferable WG.1/CRP.1/Add.1, to a permanent home elsewhere.90 para. 13.

32 The Changing Role and Purpose of Intercountry Adoption

Some commentators claim that the spirit Concerns about the lack of recognition of this provision, together with its position given to informal care arrangements near the beginning of the treaty, means were addressed more explicitly during that it should be seen as a baseline, or the drafting of the Guidelines for the ‘umbrella’, for considering the role of Alternative Care of Children. As a result, it the extended family and community contains specific provisions that “apply to throughout the CRC. Others argue that there informal care settings, having due regard was no indication of such an aim during for both the important role played by the the drafting of the CRC, and that there extended family and community and the 92 See, for example, would be inconsistencies in trying to apply obligations of States [under the CRC] for discussion on this this wider vision of that role systematically all children not in the care of their parents point in Cantwell and to the Convention as a whole.92 or legal and customary caregivers”.94 The Holzscheiter (2008). Guidelines include the need to “respect ’Article 20: Children deprived of their Whether or not the inclusion of “extended and promote” care arrangements based on family environment’, family or community” in CRC Article “cultural and religious practices” (para. 75) in Alen, A., J. Vande 5 resolved the issue raised in the 1988 and to take adequate measures to support Lanotte, E. Verhellen, Technical Review, there is general the optimal provision of informal care F. Ang, E. Berghmans and M. Verheyde, agreement that the interpretation of the (para. 76). eds. A Commentary term ‘family’ must be wide and culturally on the United Nations sensitive. This is particularly important Behind those concerns was the Convention on the when reviewing the implications of CRC preoccupation that positive but informal Rights of the Child. Leiden: Martinus Article 20.3 for decisions on the need for arrangements by extended families and Nijhoff Publishers, formal alternative care measures and communities would be disrupted if carers pp. 33–35. adoption. Here, the question at hand is not found it difficult, in material terms, to the restricted concept of ‘parental care’, provide for children and/or on the grounds 93 Committee on the Rights of the Child but, as spelt out in CRC Article 20.1, the that only a formal arrangement can ensure (2006). Day of General situation of a child “deprived of his or her that the best interests of the child will be Discussion, family environment or in whose own best upheld in the long term. This ‘guarantee UN Doc.CRC/C/153, interests cannot be allowed to remain in that of permanency’ argument is often used para. 6; UN Human Rights Committee environment”. Both the CRC Committee by those who advocate greater recourse to (1990). General and the Human Rights Committee have intercountry adoption. On that basis, some Comment No. 19, underlined the fact that there can be no contend that intercountry adoption should para. 28. one globally applicable definition: ‘family’ be subsidiary only to formal domestic 94 UN General may include, for example, those of a adoption, and not to informal arrangements Assembly, Human 95 nuclear or extended nature, unmarried or even formal foster-care. However, Rights Council (2010), or re-constructed families, and those with as noted by Hodgkin and Newell, “[i]t is para. 27. a single parent.93 Alternative formal care clear that children’s psychological need for 95 See, for exam- provision is, therefore, to be envisaged only permanency and individual attachments ple, Bartholet, E. when that broad “family environment” is can be met without the formality of (2007). ‘International not available or is deemed unsuitable in the adoption”.96 adoption: Thoughts light of the child’s best interests. on the human rights issues’, Buffalo Human One state, Canada, recognized the need Rights Law Review, 13: This wide-ranging view is reflected in to pre-empt that approach formally when 151–203, pp. 154–55. other CRC provisions relevant to child ratifying the CRC, at least in the adoption care. The child’s right to benefit from of its own children. A reservation to CRC 96. Hodgkin, R. and P. Newell (2007). social security, for example, depends in Article 21 states: Implementation Hand- part on the resources and circumstances of book for the Convention the “persons having responsibility for the With a view to ensuring full respect on the Rights of the maintenance of the child” (CRC Art. 26), and for the purposes and intent of article Child. New York: United Nations Chil- the primary responsibility for ensuring that 20 (3) and article 30 of the Convention, dren’s Fund, p. 294. the child has an adequate standard of living the Government of Canada reserves falls to “parent(s) or others responsible for the right not to apply the provisions 97 http://treaties. the child” (CRC Art. 27). But neither case of article 21 to the extent that they un.org/Pages/View Details.spx?src= mentions ‘legal’ responsibility, so the terms may be inconsistent with customary TREATY&mtdsg_ used could include informal carers, as well forms of care among aboriginal no=IV-11&chapter as those who are not related to the child. peoples in Canada.97 =4&lang=en

33 The Best Interests of the Child in Intercountry Adoption

This is not always the approach that based solution – a call made explicit by the receiving countries take to intercountry CRC Committee in its recommendations adoption. Despite the existence of, in to states parties – and they recognize the particular, such informal “customary role to be played by residential care when forms of care” in many actual or potential it is “specifically appropriate, necessary countries of origin, there seems to be a and constructive for the individual child willingness in some quarters to overlook concerned and in his/her best interests”.100 these and enable adoption abroad, rather In other words, it is clear that ‘suitable care’ than supporting such informal mechanisms can be provided in a residential setting if the in the best interests of the child. family-based alternatives on offer could not meet a child’s needs, particularly those of Bearing in mind the overall thrust of the a psychosocial nature: some children need relevant international standards, it is specialized treatment, for example, and reasonable to question the validity of such others have had such a negative experience a dismissive approach towards informal of family life that – for some time at least – care arrangements. Reliance on such they cannot cope with family-based living. arrangements “to the extent that they can be shown to be consistent with the rights Much of the debate around suitability has been about residential care placements. and best interests of the children” is indisputably the path to be followed.98 This issue has been clouded by the reference in CRC Article 20 to “suitable institutions”, 3.3.2. Determining what is a ‘suitable’ rather than suitable residential facilities, as care placement the only explicitly mentioned alternative to family-based alternative care. This In the absence of appropriate informal CRC terminology is, for the most part, a solutions, children may need formal reflection of the influence of the Soviet alternative care. In that case, the suitability Union and allied states during the drafting of each placement option for the child in process in the 1980s, and there are still question has to be determined and, according many examples of the amalgam between to international standards, the option chosen institutional and residential care. must correspond to the child’s best interests. If it is not regarded as ‘suitable’, adoption The Guidelines for the Alternative Care of abroad may be envisaged. Children do help to clarify the distinction between the two, however. The single There is widespread agreement that, to be reference to “institutions” equates them deemed suitable, a formal care setting must with “large residential care facilities” (para. meet two criteria: first, it must conform 23) which are to be subjected to a strategy to general human rights obligations on of “progressive elimination”. The thinking the welfare, development and protection here is that, while suitable care can be 98 UN General of those children for whom it takes provided in certain residential facilities, it Assembly, Human responsibility; second, the form of care is unlikely to be assured in ‘institutions’. Rights Council (2010), it offers must correspond to the specific para. 75.

characteristics, needs and circumstances of Determining the suitability of a care 99 99 See Cantwell, N. each individual child. arrangement also hinges on respect for et al. (2012). Moving the child’s right to a periodic review of Forward: Implementing The Guidelines for the Alternative Care his/her placement for treatment or care, to the ‘Guidelines for the of Children stress that all forms of care, Alternative Care of determine whether or not it is still needed Children’. Glasgow: whether family-based or residential, and is still the most appropriate form of Centre for Excellence should be viewed as potentially suitable. care. Formal alternative care should be for Looked After This approach underlies the requirement designed to ensure what the Guidelines Children in Scotland, pp. 22–23 and 66–74. to have a range of options in place, the 101 term “permanency”, wherever possible components of which can be evaluated through reintegration with the family or, 100 UN General according to their capacity to respond when necessary, in a substitute family- Assembly, Human effectively to the situation of the individual based setting. The child’s need for stability, Rights Council (2010), para. 21. child. Here, the Guidelines echo the CRC’s security and support, set out implicitly in implicit call to look first for a viable family- the “permanency” objective, can be foreseen 101 ibid. paras. 60-63.

34 The Changing Role and Purpose of Intercountry Adoption

in various ways for individual situations. scrutiny when they impose severe restrictions Beyond a ‘simple’ choice between return on the adoption of their children abroad. to parental care or adoption, there are other responses that can meet those This obscures the fact that many receiving requirements, such as kinship care, long- countries take exactly the same line – a term foster care or – especially if the child line that is tantamount to prohibiting particularly wants it – a residential facility intercountry adoption. While exceptions such as a small group home. can usually be made in the case of relative (intra-familial) adoptions, Canada, Taking these and other factors – including Denmark, Italy, Malta, the Netherlands, the “desirability of continuity in a child’s Spain and Sweden are among those upbringing” (CRC Art. 20.3) – into account, countries that require foreign adopters to the suitability of any in-country care be ‘permanent’ or ‘legal’ residents, and arrangement depends on a professional Switzerland requires them to be ‘habitually assessment in each case, based on established resident’ in the country. Greece has similar and wide-ranging criteria. Without that, restrictions, save in the case of children it is difficult to see how respect for the with health problems who are living in subsidiarity principle can be achieved before institutions. To adopt an Australian child, at an intercountry adoption goes ahead in the least one of the adopters must be Australian best interests of the child. or a permanent resident; Iceland requires them to be residents or to have “special connections” with the country, while Japan demands that they be resident throughout 3.4. Prohibition or severe the adoption process, which can take up to limitation of intercountry 18 months.103 adoption These stringent restrictions rarely provoke comment. It is apparently assumed that As we have seen (section 2.2), there is no in devising their policies those countries obligation on a state party to the CRC are justified in deciding that, as a general to carry out any adoptions, domestic or principle, the best interests of their intercountry. It is the state concerned that, children will not be served by non-relative in the first instance at least, determines adoption abroad. The CRC Committee, whether or not in-country care for the child for example, has never commented on can be provided in a suitable manner, and the validity of restrictive approaches by whether or not adoption abroad could receiving countries from a rights or best 102 See, for example, indeed meet the child’s best interests as a interests angle, even when there are many Hague Conference general rule or in individual cases. legally adoptable children who are living on Private International Law in permanent alternative care settings (2008), Chapters Similarly, contracting states to the 1993 and who will struggle to find a domestic 8.2.1., 8.2.2. and Hague Convention are not obliged to carry adoptive family.104 8.2.3. out intercountry adoptions, but if and when they choose to do so any such adoption 103 All information This assumption, however, is rarely applied from the US (between contracting states, at least) must when those considered to be ‘countries Department of State 102 be carried out in line with the Convention. of origin’ impose similar restrictions in website: http:// the long term or declare a moratorium on adoption.state.gov/ Indeed, many states parties to the CRC (often intercountry adoption. When evaluating 104 According also Hague contracting states) prohibit or the importance given to best interests to the Adoption severely restrict the intercountry adoption of as ‘the paramount consideration’ to be Council of Canada, their children, while recognizing and permitting applied to intercountry adoption, it is for example, there are approximately domestic adoptions including those by highly instructive to examine how the CRC 30,000 children in foreigners who are habitually resident in Committee has reacted to the limitations the country who the child’s country of origin. established by countries of origin. are “legally free or eligible” for adoption. See http:// Typically, it is the countries known as The case of Romania is illuminating. In www.adoption.ca/ ‘countries of origin’ that are subjected to 2000, Romania determined that it could myths-and-realities

35 The Best Interests of the Child in Intercountry Adoption

not safeguard the rights of its children who and it explains why the country is not a were adopted abroad, and that adoption party to the Hague Convention. The only could not, therefore, be seen as being in comment by the Committee, however, the best interests of the children concerned. concerned Argentina’s reservation on this Consequently, Romania suspended all issue when ratifying the CRC: intercountry adoptions and banned the practice by law in 2005, with the exception The Argentine Republic enters of adoption by close relatives, particularly a reservation to subparagraphs grandparents.105 (b), (c), (d) and (e) of article 21 of the Convention on the Rights of Having reviewed the state party’s the Child and declares that those subsequent report in 2009, the CRC sub-paragraphs shall not apply Committee noted in its Concluding in areas within its jurisdiction 105 Romania later Observations that it considered that the because, in its view, before they enacted a new law on prevailing restrictions on intercountry can be applied a strict mechanism adoption that came adoption fell short of the requirements of must exist for the legal protection of into effect on 7 April CRC Article 21: children in matters of intercountry 2012, extending the categories of potential adoption, in order to prevent adopters to include 53. The Committee notes that inter- trafficking in and the sale of children.107 relatives of the fourth country adoptions have been limited to degree of kinship, the cases where a family relationship exists Commenting on this reservation and the spouse of the child’s natural parent and, between the child and prospective reference to it in Argentina’s state party significantly, parents... report, the Committee, Romanian citizens who are habitually 55. The Committee recommends that ...while appreciating that the State resident abroad.

the State party, taking into account the party wishes to adopt “a rigorous 106 Committee on the new adoption laws and guarantees arrangement ... for the legal Rights of the Child of legal procedures for inter-country protection of children in order to (2009). Concluding adoption in conformity with the prevent the phenomenon of the sale Observations of the 108 Committee on the Hague Convention on Protection of of children and child trafficking” Rights of the Child: Children and Cooperation in Respect remains concerned that the system Romania’ (CRC/C/ of Intercountry Adoption, withdraw has not yet been fully addressed.109 ROM/CO/4). the existing moratorium [sic] as a 107 See UN Treaty barrier to the full implementation of In the light of the long waiting lists Collection, Declarations article 21 of the Convention.106 for adoptions, the Committee urges and Reservations: the State party to establish a strong http://treaties.un.org/ This was the very first time that the legal protection system against sale Pages/ViewDetails. aspx?src=TREATY& CRC Committee had ever equated the and trafficking of children in line with mtdsg_no=IV-11& prohibition or limitation of intercountry the Optional Protocol on the sale of chapter=4&lang=en adoption with the violation of – or lack of children, child prostitution and child full compliance with – the CRC. It is also, so pornography in order to, inter alia, 108 Committee on the Rights of the Child far, the only time the Committee has taken establish a secure system of adoption (2009c). ‘Concluding such a stance. that respects the best interests of the Observations of the child and with a view to eventually Committee on the One year later, in 2010, the Committee withdrawing its reservation.110 Rights of the Child: Argentina’ (CRC/C/ issued Concluding Observations on three ARG/3-4), para. 38. countries with highly restrictive laws on In other words, the Committee agreed that intercountry adoption – Argentina, Paraguay the blanket ban on intercountry adoption 109 Committee on the and Tajikistan – that are worth reviewing. was justified since the system in place could Rights of the Child (2010a). ‘Concluding not guarantee that the best interests of the Observations of the In Argentina, applicants to adopt a child children concerned would be upheld. Committee on the must be Argentine nationals or have been Rights of the Child: permanent residents of the country for at In Paraguay, the current Paraguayan law Argentina’ (CRC/C/ ARG/CO/3-4), para 9. least five years immediately before their states that prospective adoptive parents application. This means that there are no of Paraguayan children must reside in 110 ibid., para. 10 intercountry adoptions from Argentina, Paraguay, and intercountry adoption is, (our emphasis).

36 The Changing Role and Purpose of Intercountry Adoption

therefore, prohibited. In this case, the (a) Accede to the Hague Convention Committee actually expressed support for of 1993 related to the protection of the restrictive approach: children and cooperation on intercountry adoptions. The Committee welcomes Act No. 1169, adopted by the State party (b) Introduce a new legislation on in 1997, and the various initiatives adoption in compliance with article 21 that it has undertaken regarding of the Convention and the procedures adoption processes, with the effect established under the Hague Convention of restricting international adoption (1993). in response to widespread trafficking and sale of children.111 (c) Establish screening and monitoring mechanisms to determine the suitability Here, as in the case of Argentina, the of prospective adoptive parents and Committee appears to agree that the ensure the best interests of the child 114 blanket ban is warranted. This stance also to be adopted. 111 Committee on the Rights of corresponds with that taken earlier, in There is no indication what “compliance” the Child (2010b). 2004, by the UN Human Rights Council’s ‘Concluding might require, unless, by implication, it Special Rapporteur on the sale of children, Observations of the means opening up intercountry adoption, child prostitution and child pornography, Committee on the even though the obligations under Article Rights of the Child: who noted in relation to Paraguay: 21 apply only to countries that “recognise Paraguay’ (CRC/C/ “Between 1990 and 1995, approximately PRY/CO/3), para. 44. and/or permit” that measure. 3,000 babies left the country as a result of 112 United Nations inter-country adoptions that were riddled It will be interesting to see how the Economic and with irregularities.” Committee reacts to similar prohibitions Social Council (2004). ‘Report and restrictions in the future. At the time He endorsed the enactment of legislation submitted by the of writing, the countries concerned will Special Rapporteur suspending intercountry adoptions, thereby include Mali, a state party to the 1993 Hague on the sale of “putting an end to trafficking in babies for Convention. A circular dated 5 December children, child intercountry adoptions”.112 prostitution and 2012 issued by its Ministry of Justice invites child pornography’ magistrates to apply Article 540 of the (E/CN.4/2005/78/ In Tajikistan, a 2006 amendment to the new Personal and Family Code, whereby Add.1). New York: Family Code prohibits the adoption of Tajik intercountry adoption is permissible only United Nations, paras. 44–45. Also children by non-Tajik citizens, although if the adopters are Malian citizens.115 If the see para. 46. couples where only one spouse is a Tajik current tendency of greater restrictions citizen may still be allowed to adopt. being imposed by countries of origin 113 Committee Here, the CRC Committee’s response continues, the importance of measuring on the Rights of the Child (2010c). is somewhat unclear. First it expresses such initiatives against the best interests of ‘Concluding support for this stance: the child will be thrown into even sharper Observations of the relief. Committee on the The Committee welcomes the Rights of the Child: initiatives undertaken by the State Tajikistan’ (CRC/C/ 3.4.1. Moratoria TJK/CO/2), para. 46 party regarding adoption, such as A suspension or moratorium on intercountry (our emphasis). restrictions to intercountry adoptions adoption is designed as a temporary 114 ibid., para. 47 in response to the lack of sufficient measure to respond to an actual or potential monitoring of such adoptions. The (our emphasis). risk of a general and severe violation of the Committee also welcomes the State rights of children who enter the process. 115 http://www. party’s commitment indicated during Moratoria may be declared by countries of diplomatie.gouv. the dialogue to amend its legislation origin or by receiving countries, in varying fr/fr/adopter- a-l-etranger/ on adoption to ensure that it includes contexts and with different scope and comment-adopter- the principle of the best interests of effects. The aim is to use the suspension a-l-etranger/ the child.113 period to secure conditions under which les-fiches-pays-de- adoptions can resume, with the necessary l-adoption/fiches- pays-adoption/ The Committee goes on, however, to safeguards in place to protect children’s article/adopter-au- recommend that Tajikistan: rights in line with their best interests. mali

37 The Best Interests of the Child in Intercountry Adoption

Moratoria are not unusual. Most of the 22 Sweden and the United States) and applied countries in Central and Eastern Europe only to them: all three indicated their wish to and the Commonwealth of Independent resume once the necessary conditions were in States (CEE/CIS) have invoked the measure place. Furthermore, the JCICS list of countries at least once since the early 1990s,116 as have was selective: many others suspended many other countries of origin, particularly intercountry adoptions in the 2000s but later in Africa and Asia. At the same time, the reinstated the measure, including Moldova, justification for and the aims of moratoria Ukraine and Sierra Leone. are contested in certain quarters – particularly in receiving countries – as The JCICS stance does, however, highlight running counter to the rights and best important issues that need to be addressed interests of those children who are, as if the best interests of the child are to be a result, deprived of the opportunity of ensured through moratoria. For example, adoption abroad. In a 2010 statement, they are bound to affect children for whom for example, the US Joint Council on intercountry adoption could be a valid International Children’s Services (JCICS) response; but if the system in place cannot stated: safeguard their rights and best interests, the risk involved in continuing adoptions under The history of suspensions clearly such a system is too high. The time it takes demonstrates that an ethical and fully – often years – to establish a system capable functional intercountry adoption of safeguarding children can reflect the process is not the true goal of those depth and extent of reform that is needed, calling for suspension. Of eight demonstrating just how unacceptable the countries where the chosen route framework for intercountry adoption has of reform included the suspension been. This is certainly the case for countries of intercountry adoption, not one such as Cambodia, Guatemala and Nepal: country has effectively reconstituted even after years of effort, including technical intercountry adoption as an option for assistance, few receiving countries felt that children in need. Suspension without conditions were good enough to lift the a goal of achieving a full spectrum moratoria. of permanency services, including intercountry adoption is not in the That said, it is also clear that a moratorium best interest of children and only to protect the best interests of children replaces one abuse with abuse of must only be imposed with good cause and another form.117 in a manner that takes full account of the situation of children already going through The eight countries cited by JCICS as the intercountry adoption process (see having imposed moratoria were Romania 3.4.1.3 below). (June 2001), Cambodia (December 2001), Georgia (August 2003), Azerbaijan (May 3.4.1.1. Why do countries of origin impose 2004), Belarus (October 2004), Guatemala moratoria? (December 2007), Viet Nam (September 2008) and Kyrgyzstan (September 2008), Moratoria declared by countries of origin all of which “continue[d] to this day” are usually general in nature (affecting (i.e. February 2010. All of these countries adoptions to all receiving countries) and were, or have since become, parties to the may be motivated by a number of factors: 1993 Hague Convention. 116 UNICEF • Evidence that the adoption system (2009a), p. 8. The nature and outcomes of these moratoria and procedures in place have failed to 117 Joint Council on were very different. Romania’s initial prevent serious and widespread violations International decision to suspend intercountry adoptions of children’s rights. This may be on Children’s was transformed into a virtually outright the basis of the country of origin’s Services (2010). ‘A prohibition in 2005, while the 2008 suspension spontaneous concerns or at the Statement on the True Character of suggestion of – and sometimes under of adoptions from Viet Nam was at the Reform Efforts’ initiative of three receiving countries (Ireland, pressure from – international bodies (our emphasis).

38 The Changing Role and Purpose of Intercountry Adoption

and/or receiving countries concerned because of a significant backlog and about systemic problems. This is why, the relatively few children in need of for example, Sierra Leone’s Ministry of intercountry adoption. In some cases, Social Welfare, Gender and Children’s this may apply only to applications Affairs imposed a suspension on to adopt children in particular age- intercountry adoptions on 21 May groups. For example, on 1 May 2009, the 2009 – a suspension that was lifted Central Authority of the Philippines, on 13 April 2012 after more effective the Inter-Country Adoption Board measures were put in place. (ICAB), announced a moratorium on accepting new applications from those • Concerns that systems may lack wishing to adopt a child under the age the resources to cope with the level of of 25 months with or without medical intercountry adoption while protecting or developmental concerns. It stated the rights of the children involved. There that this was “due to the large number have been many examples of this since of unmatched approved adoption the ‘free-for-all’ that hit Romania in applications for prospective adoptive 1991, and Ghana is one of the countries parents wanting to adopt children” that reacted to high demand in this in this age group and the relatively way more recently (in 2013). small number of such young children in need of inter-country adoption.119 • The need for thorough legislative The ICAB indicated that it would lift reform and establishment of procedures the moratorium once it had processed and structures with a view to becoming a at least 50 per cent of its current cases state party to the 1993 Hague Convention – and it did so, subject to a quota or to implementing that treaty. Carrying system, in September 2012. In many out such fundamental changes such instances, exceptions are made while continuing to process new for one or more categories of hard-to- applications compromises the efficacy place children (those with a disability and speed of the reform process. or serious illness, sibling groups and/ Rwanda, for example, applied a or older children). 118 Hague Convention moratorium in August 2010, so that on Private it could put in place the necessary Suspensions by countries of origin International infrastructure to protect the best sometimes target specific receiving Law (2012a). interests of its children and combat countries. This has been the case for ‘Francophone workshop on The their potential abduction, sale and Ukraine, for example, which in September Hague Convention trafficking, enabling it to accede to the 2005 halted – but later reinstated – of 29 May 1993 Hague Convention in 2012.118 adoption procedures for Canada, France, on protection Germany, Italy, Spain and the United of children and co-operation • Fears that proven malpractice else- States on the grounds that many adoptive in respect of where may compromise adoptions from parents there had failed to comply with intercountry the country. One example was the post-adoption reporting requirements.120 adoption: moratorium imposed by Congo- Conclusions and recommendations’. Brazzaville in 2007 and 2008 to avoid 3.4.1.2. Why do receiving countries impose Dakar. problems like the Arche de Noé episode moratoria? in neighbouring Chad, when an illegal 119 See: http:// attempt was made to remove 103 In stark contrast, moratoria declared by www.psbi. org/document. children for adoption in France. receiving countries always target individual doc?id=399 and countries of origin whose intercountry http://www.icab. • Fears of malpractice in the wake of adoption practices are deemed to fall below gov.ph/ disaster or emergency situations. Examples acceptable standards for safeguarding the 120 Organization include the moratorium imposed by child’s rights and best interests. Justifying for Security and Sri Lanka following the December 2004 its suspension of adoptions from Ethiopia Cooperation in tsunami (see also section 3.7 below). in June 2012, Australia noted that “the Europe (2006). changing and complex Ethiopian adoption ‘Assessment of the adoption system • Temporary refusal to accept new environment meant that the Australian in Ukraine’. OSCE: applications from prospective adopters Government could no longer be confident Kyiv, p. 96.

39 The Best Interests of the Child in Intercountry Adoption

that the program would continue to operate views on whether or not those best interests in a way that protected the best interests are being safeguarded adequately at any of Ethiopian children.”121 The government given point in time? pointed to “ongoing challenges in identifying orphanages in which Australia 3.4.1.3. Preserving the best interests of children could have trust and confidence” and the through a moratorium “growing numbers of non-government adoption agencies operating in Ethiopia Moratoria declared by receiving countries [leading] to increased competition for invariably take the form of official statements referral of children to intercountry adoption that no more applications will be accepted in programs”, which “is not always conducive relation to the country of origin in question, to ethical adoption practices”.122 while allowing for the completion of cases already under way (‘transition’ cases that Such decisions are generally made have already reached a specified stage in unilaterally, rather than as a concerted the process). These moratoria are often move, although they may snowball more combined with an offer to provide technical or less quickly. The United States, for assistance, so that the country of origin example, was the first country (in 2001) to can meet the standards required (and, prohibit adoptions from Cambodia, and where appropriate, accede to the Hague it was followed over the next four or five Convention), allowing intercountry years by most receiving countries – the adoptions to resume. notable exception being Italy, which has maintained its programme. In contrast, Experience shows that countries of origin the European receiving countries were are more likely than receiving countries to the first to ban adoptions from Guatemala declare an immediate or almost immediate during that same period, while the United suspension. The aim is, at least in part, to States was practically the only country pre-empt a flood of applications before a processing adoptions from Guatemala in moratorium comes into force. the years up to the 2008 moratorium. In the case of Viet Nam, three countries (Ireland, As noted above, one justification for Sweden and the United States) decided that suspending adoptions lies in the need to conditions did not enable them to renew create the most conducive context for the their agreements with the authorities in successful preparation and establishment 2008–2009, but other countries to which of fundamental reforms. In most cases, Vietnamese children were being adopted the spur for reform is the evidence of (notably Denmark, France and Italy) serious and widespread systemic problems decided that such a move was unnecessary. that constitute or result in procedures or activities that are not in keeping with A rare example of coordinated action to international standards – and therefore date is adoption from Nepal. In 2010, all of violate the best interests and rights of the the 13 main receiving countries suspended child. the adoption of any children declared as ‘abandoned’. This had been the officially The key word here is ‘systemic’. In other recorded status of the vast majority of words, the problems and actions to be intercountry adoptees from Nepal, but it addressed by a moratorium are not those was clear that it did not reflect the reality attributable to individuals or agencies in many cases. acting in isolation that infringe the law or abuse what is otherwise a valid system. 121 Australian The best interests implications of such Clearly, such cases are to be dealt with Government, Attorney-General’s disparate policies are considerable. by law enforcement and judicial bodies. Department (2012). The biggest and most obvious question Systemic problems involve practices that do ‘Closure of the revolves around the fact that, if the not comply with international standards Ethiopia–Australia best interests of the child are to be the but are nonetheless required or tolerated, or Intercountry Adoption Program’, paramount consideration in adoptions, that are simply not addressed adequately, 28 June. why do the competent authorities of if at all, by the legislation, system and/ receiving countries have such divergent or procedures in place. Consequently, 122 ibid.

40 The Changing Role and Purpose of Intercountry Adoption

they are ‘accepted’ and their incidence is interests of the children who are affected – generalized. Examples include: actually and potentially.

• lack of effective procedures to verify the alleged ‘abandonment’ of a child ‘Transition’ cases have been left in an administrative • lack of guarantees to ensure that consent for adoption is fully informed, and legal limbo that creates freely given and involves no recompense uncertainty and anxiety in

• a legal requirement for every the children concerned. adoption agency to provide ‘humanitarian’ financial contributions, There have, to date, been many instances often based on the number of adoptions where lack of clarity and expediency in carried out, to secure authorization following through the initial decision has to operate (a clear incentive for the jeopardized those best interests severely. country of origin to maximize the In particular, there has often been a failure number of children made available) to foresee from the start the criteria to determine which pending adoption cases • regulations that require or allow should proceed and how this should be adoption agencies to identify specific residential facilities (‘orphanages’) with done. As a result, these so-called ‘transition’ which they will ‘cooperate’ directly cases have been left in an administrative (which can create an unwarranted and legal limbo that creates uncertainty channel for intercountry adoption) and anxiety in the children concerned and cannot, therefore, be in their best interests • little or no oversight of residential – even more so when that limbo lasts facilities set up and/or financed by for several years. This has happened, for agencies with an interest in intercountry example, in Guatemala where, at the time adoption of the vital moratorium in January 2008, there were over 3,000 transition cases, of • tolerance of ‘independent’ or ‘non- which 714 had still not been resolved three agency’ adoptions (by some non-Hague years later, and 73 were still pending in signatory countries of origin, as well mid-2013.123 as certain receiving countries in their relations with non-Hague signatory At the same time, it has to be recognized states) that where many hundreds of children can be said to be in the intercountry • lack of professional procedures to adoption process at one stage or other match children with prospective parents – as in Guatemala – it is difficult to deal appropriately with their individual cases. • no provision to authorize or monitor While the quickest possible resolution individual ‘facilitators’ working with is desirable in principle, it is important agencies or prospective adopters in the not to overlook the probability that many country of origin. (or even most) of the children involved Such systemic failures, which seriously will have been the subject of illegal or jeopardize the protection of children’s unethical practices that led to their being rights and best interests, have underpinned declared adoptable abroad. Inevitably, most major suspensions in recent years, each case requires very thorough and time- including those put in place in Cambodia, consuming review. Guatemala, Liberia, Nepal and Viet Nam. To reduce the negative impact of this apparent If, on balance, the suspension of adoptions best interests conflict between ensuring 123 See http:// is deemed necessary to prevent rights stability for the child and the case review www.unicef.org/ infobycountry/ violations, it must be planned and carried time-lag, some issues must be addressed guatemala_68509. out in a manner that respects the best before adoptions are suspended: html

41 The Best Interests of the Child in Intercountry Adoption

• A clear announcement should be – at least half at the present time. Receiving made of both the reason(s) for and the countries do not, in general, provide up- goal(s) of the initiative. front information on the proportions involved, but a 2011 Council of Europe • The specific issues to be tackled document noted that: and the responsibilities and processes required for carrying out the reforms ... five of the seven countries of origin need to be identified and made public. from which more than 100 children were adopted in Spain in 2008 had not • Where appropriate, details of ratified the [1993 Hague Convention]. the expected technical assistance A similar degree of reliance on non- inputs should be published and their Hague countries of origin is seen delivery programmed. elsewhere: 78 per cent of adoptions to the Flanders region of Belgium • A timescale should be established for (in 2008) were processed outside the undertaking each key reform, which Hague framework, as were 72 per should be made public, and a target cent to France. The corresponding date given for completion of the whole figure for Italy was lower, however, at exercise. 54%, and adoption from non-Hague countries is now less than half of total 124 • If the moratorium is declared by a ICAs to Switzerland. country of origin, there should be a designated government contact point The 2012 figure for Italy – a receiving to provide updated information to the country that excels in providing detailed Central Authorities of the receiving statistics – was, at 51 per cent, similar to 125 countries concerned. the figure for 2008. Data for the 2012 financial year from the United States show • The country of origin and relevant that adoptions from seven of the ‘top 10’ receiving countries should agree on countries of origin took place outside the 126 the exact criteria to determine which Hague framework. Clearly, the protection adoption cases under way at the time of the best interests of the child in adoptions of the suspension are to go forward, in from non-Hague countries will be a very each child’s best interests, for review important issue for a long time to come. and potential completion (transition cases), for example, from the moment Why is the balance between Hague and 124 Council of that bonding between the child and non-Hague adoptions changing so slowly, despite increased ratification of the treaty? Europe (2011). identified prospective adopters has There is one key reason: once a country been initiated. 125 See http://www. of origin becomes a party to the Hague commissioneadozio convention, it usually applies the subsi- ni.it/media/138484/ • Detailed provisions should be in place diarity rule and other safeguards more dp2_2012.pdf to examine and decide on such transition strictly than before. This is often combined, cases, again on the basis of consultation 126 China, a Hague logically, with a policy to enhance domestic between the country of origin and the country, was first, responses to children needing alternative followed by Ethiopia, receiving countries concerned. care or adoption. As a result, there is almost Nigeria, Russia and always a fall – sometimes very substantial Ukraine which are not. http://adoption. 3.5. The best interests of the child – in the numbers of children deemed to state.gov/content/ in adoptions from non-Hague require adoption abroad, especially among pdf/fy2012_annual_ the youngest. One striking example is report.pdf countries Madagascar: in 2004, the year in which it 127 Australian ratified the Hague Convention, intercountry Intercountry Although an ever-growing number of adoptions peaked at over 300, but by 2012 Adoption Network, states of origin have become parties to the the figure had fallen to less than 50.127 (n.d.). International 1993 Hague Convention, adoptions from Adoption Statistics, available at: http:// Faced with this phenomenon, authorities, non-Hague signatory countries appear to www.aican.org/ account for a gradually declining yet still agencies and individuals in receiving statistics.php?region substantial proportion of the annual total countries have sought new or enhanced =0&type=birth

42 The Changing Role and Purpose of Intercountry Adoption

partnerships with non-Hague countries children could be endangered by an 128 By 2013, just of origin where more children may be adoption from a non-Hague country. one-third of African countries practising ‘available’ because subsidiarity and other intercountry adoption protective considerations are applied less Above all, many – though gradually had become contract- ing states to the 1993 strictly. Sub-Saharan African countries, in fewer – receiving countries continue to Hague Convention. particular, have increasingly become the allow their citizens to undertake ‘private’ target for such initiatives in recent years, (direct contact with birth parents) or, more 129 Australian Intercountry Adoption given their relatively low ratification frequently, ‘independent’ adoptions in non- Network, (n.d.). rate to date.128 While adoptions from Hague countries (where the prospective International Adoption China plummeted from over 14,000 adopters act without the support and Statistics, available at: http://www.aican.org/ at their peak in 2005 to hardly more supervision of the central authority or an statistics.php?. than 4,000 in 2012, those from Ethiopia accredited agency). In France, for example, 130 Statistics for 2012 climbed from just over 1,500 in 2005 to such ‘adoptions individuelles’ accounted from just three a high of more than 4,200 by 2009.129 for no less than 32 per cent of the total in receiving countries: On a smaller but still illustrative 2012.132 Given that the risks of malpractice France 84, Italy 138, United States 240. scale, intercountry adoption from the had been shown so clearly to be far higher See http://www.aican. Democratic Republic of Congo was in such instances,133 the drafters set out to org/statisticsphp? virtually unknown until 2005, but then ensure that adoptions by these means fall region=0&type=birth rapidly expanded, reaching at least 460 outside the framework of the 1993 Hague 131 Figures available by 2012.130 In Nigeria and Uganda there Convention. Even so, the 2010 Special for 2012 to date: Nigeria at least 208 have also been increases from single Commission felt it necessary to recall the (United States 197, figures in the first years of the century unacceptability of such adoptions as part Italy 11); Uganda at to over 200 each in 2012.131 None of of Hague-compliant practice, and in very least 238 (all United States). these is a Hague country, and all have clear terms: been approached by actors from receiving 132 http://www. diplomatie.gouv.fr/ countries to ‘compensate’ for the fall in Adoptions which are arranged fr/IMG/pdf/Rapport_ adoption numbers from contracting states directly between birth parents statistique_2012_ of origin. and adoptive parents (i.e., private cle8c651d.pdf p. 16. adoptions) are not compatible with From the standpoint of the best interests of the Convention. 133 Defence for the child, the implications are considerable Children International/ International Social and alarming. Independent adoptions, in which the Service/Terre des adoptive parent is approved to adopt Hommes (1991). ‘Preliminary findings First, they involve a deliberate shift away in the receiving State and, in the State of a joint investigation from countries where those best interests of origin, locates a child without the into independent should be better protected under the 1993 intervention of a Central Authority or intercountry adoptions’, Geneva: Hague Convention to countries where the accredited body in the State of origin, DCI. kind of guarantees afforded by the treaty are also not compatible with the may well be absent and where experience Convention.134 134 Hague Conference on International and adequate resources are lacking. Private Law (2010). Second, the year-on-year increase in the Linked with this is the ability of adoption ‘Conclusions and recommendations and volume of adoptions from a non-Hague agencies or other third parties that are report of the Special country may be so rapid that it defies not accredited by the receiving country Commission on the any real attempt to ensure case-by-case to operate in a non-Hague country. Some practical operation of the 1993 Hague verification of the child’s circumstances receiving countries, including Italy and Intercountry Adoption by the competent authorities. Third, Sweden, prohibit any non-accredited Convention’, paras. 22–23. as already noted, it often leads to a agency from processing any adoption from moratorium that, although justified on any country. In contrast, US agencies that 135 Rotabi, K. (2010). protection grounds, demonstrates by are not accredited under the US system can ‘From Guatemala to Ethiopia: Shifts in its very existence that the best interests still deal with intercountry adoptions from intercountry adoption of children had indeed been widely and non-Hague countries, such as Ethiopia, as leave Ethiopia substantially jeopardized before the long as they are ‘approved’ to work there vulnerable for child sales and other 135 moratorium was in place. by the government of that country. unethical practices’, A vast array of fundamental Hague unpublished report received from author standards and procedures designed to Other dangerous gaps and derogations from via email 12 February protect the rights and best interests of the 1993 Hague Convention that are likely 2010.

43 The Best Interests of the Child in Intercountry Adoption

in adoptions from non-Hague countries of the Convention must be scrupulously are set out in the discussion on bilateral respected in such agreements. agreements below. They are also listed as explicit or implicit problems to be tackled But states parties to the 1993 Hague as part of measures required to promote Convention are also free to sign bilateral the appropriate ‘environment’ in which the agreements with countries that have not best interests of the child can be a positive ratified the Convention, and there are feature of decision-making on intercountry many examples of this. Some see this as adoption questions (see Chapter 5). a valid way to ‘officialize’ – and thereby legitimize – intercountry adoptions outside All this said, it is difficult to determine the Hague framework. At the same time, the extent to which adoptions from non- concerns have been voiced by many about 136 US Department Hague countries may cause more problems these bilateral agreements with non- of State (2012). ‘FY than those carried out according to the Hague States. 2012 Annual Report Convention. For example, United States on Intercountry official data seem to use different criteria for One concern is that concluding such Adoption’, Office of Children’s Issues. Hague as opposed to non-Hague countries an agreement might undermine any when broaching the question: motivation for the non-Hague state to 137 Hague ratify the treaty.140 The report of the Convention on In [Fiscal Year] 2012, adoption service Special Commission in 2001 noted: “Some Private International Law (1993), Art. 39(2). providers (ASPs) reported no concern was expressed about agreements disrupted placements in Convention which seemed to supplant rather than to 138 Convention on adoptions, i.e., cases in which there supplement the Convention.”141 the Rights of the was an interruption of a placement for Child, Art. 21, as referenced in Mezmur, adoption during the post-placement Another concern is that this kind of B.D. (2008). ‘From (but pre-adoption) period. …In agreement would be tailored to fit, in Angelina (to addition, information received from particular, the non-Hague system in the Madonna) to Zoe’s Ark: What are the the Department of Health and country of origin and would not therefore “A-Z” Lessons Human Services… indicated 71 ensure the appropriate safeguards foreseen for Intercountry cases of disruptions and dissolutions by the Convention. This is compounded Adoptions in Africa?’, involving 76 children who were by a fear that such agreements will not be International Journal of Law, Policy and the adopted from other countries and comprehensive or detailed enough to cover Family, 23(2): 145–73. entered state custody as a result.136 all requirements for adoption procedures and mechanisms that meet the required 139 United Nations, Other receiving countries provide no standards. Department of Economic and Social upfront information at all on this question, Affairs, Population which is of major significance from a best All three of these concerns proved well Division (2009). interests perspective. founded in the case of agreements between 140 ibid., p. 60. Viet Nam and individual receiving countries in 2004 and 2005. As a result, 141 Hague 3.6. Bilateral agreements Sweden decided not to renew its 2004 Convention on Private accord with Viet Nam, noting that, at the International Law (2001). ‘Report and time of signature, Conclusions of the To facilitate cooperation, and “with a Special Commission view to improving the application of the ...pledges were made that the country on the Practical [1993 Hague] Convention in their mutual would accede to the 1993 Hague Operation of the relations”,137 contracting states may enter Hague Convention Convention. … Since then, Viet Nam of 29 May 1993 on into agreements with one another, as fore- has postponed accession several times Protection of seen by Article 39(2). Under a so-called and has still [as at October 2008] not Children and Co- ‘bilateral agreement’, the country of origin operation in Respect specified a definite date on which the of Intercountry 142 and the receiving country try to create better country intends to accede. Adoption’, para. 105. safeguards for children’s rights in specific 138 procedures, as their most common A review of the content of agreements 142 Swedish Ministry of Health and Social purpose is to streamline the adoption with Viet Nam found that some – with 139 Affairs, Press Release, process. At the same time every provision France, Switzerland and the USA – were 23 October 2008.

44 The Changing Role and Purpose of Intercountry Adoption

grounded explicitly in a “humanitarian Clearly, however, there are strong objective for adoption”, when they “should arguments for requiring that states parties have reflected the fact that adoption is one uphold minimum Hague standards in all of a series of child protection measures, their intercountry adoption relationships, not a humanitarian or charitable act”.143 beyond the fact that this is recommended Moreover, that humanitarian approach by the Special Commission. As noted in underpinned another major concern a recent report,147 if the best interests of raised by the agreements: the (non-Hague) every child are to be at the centre of the requirement that “accredited adoption intercountry adoption process, receiving bodies support humanitarian projects linked countries that have ratified the 1993 Hague to adoption” with, in addition, no concrete Convention have an ethical responsibility references to amounts, procedures for to grant children from non-Hague countries transfer or oversight and accountability.144 the same legal guarantees and protection offered to children from Hague States. In The agreements also clearly failed to particular, Hague States are obliged to address crucial questions at the heart of the restrict or even prohibit private or 1993 Hague Convention: independent adoptions. Worotynec puts it more strongly – citing Canada, but her The issue of fees, as per article 32 [of question applies to all receiving countries the Convention] is … not adequately – when she asks: addressed in any of the bilateral 143 International agreements to which we had access. Should Canada not expect, at Social Service (2009). Moreover, the bilateral agreements minimum, such an explicit endorsement Adoption from Viet do not cover the issue of accreditation of relevant standards from the Nam: Findings and recommendations of an 145 sending countries as it sets for itself? of agencies. assessment. Geneva: Should Canada enter into agreements ISS, p. 39. Some of the agreements (for example, with countries that do not share this 144 ibid. in Switzerland and the United States) commitment, in particular when lives – children’s lives – are at stake? 148 omitted any mention of obtaining the 145 ibid. child’s consent; all failed to cover the issue Such concerns, which have been borne out of matching and (with the exception of 146 ibid., pp. 39-40. over recent years, demonstrate just how Denmark) the prohibition on any contact fragile respect for the best interests of the 147 Lammerant, I. between prospective adopters and the and M. Hofstetter child in intercountry adoption may be in child before that stage (Hague Art. 29). (2008). ‘Adoption practice. The agreements were also “vague or at what cost? For an ethical inadequate” about the implementation of responsibility of the subsidiarity principle.146 receiving countries 3.7. Policy and practice in in intercountry adoption’. Lausanne: There is, regrettably, good reason emergency situations Terres des Hommes to believe that many future bilateral International agreements between Hague receiving Such concerns are highlighted all the more Federation. countries and non-Hague countries of in emergency situations – such as a natural 148 Worotynec, Z.S. origin will be characterized by similar disaster or armed conflict – when the (2006). ‘Child, deficiencies, and will continue to put the balance of power shifts even further interrupted: rights and best interests of the child at risk. towards the receiving countries and the International adoption in Receiving countries, unconstrained by opportunities to manipulate the best the context of formal obligations other than the general interests requirement appear almost Canadian policy conditions set out in CRC Article 21, seem limitless. The CRC and the 1993 Hague on immigration, prepared to accept far lower standards Convention do not contain any derogation multiculturalism, citizenship and clauses permitting modifications to their in their ‘felt-need’ to access children in child rights’, CERIS non-Hague States now that so many applicability in emergencies or their Working Paper, No. of their Hague-compliant partners are aftermath. In other words, states parties 46. Toronto: Joint showing greater resolve to find preventive to either of these treaties are bound to Centre of Excellence for Research on and reactive solutions within their own abide by all their provisions, whatever the Immigration and borders. circumstances. Settlement, p. 12.

45 The Best Interests of the Child in Intercountry Adoption

That said, an emergency makes it extremely cared for and tend to recover more difficult to ensure that international standards quickly in a family environment on child protection are respected – at precisely within their own communities. … the moment when they are most needed. The The number of children who are state is often overwhelmed by the sheer scale orphaned in a natural disaster is of an emergency and its consequences, and usually overestimated, and the ability may lose authority over the affected area. of the community to care for its The emergency response from outside the children is often underestimated.149 country may not be well coordinated, with an influx of many organizations and It is now a well-accepted principle that individuals that lack any experience or adoption (domestic or intercountry) is not an child protection training. At the same time, appropriate response for unaccompanied the response can be so massive and well- children or those who have become resourced that it constitutes an alternative separated from their parents during or authority accountable to no one. Social values after an emergency until efforts to trace and and cohesion may break down, particularly in reunite them with their family have been situations of armed conflict, and in any kind exhausted.150 It is conventional wisdom of emergency traditional coping mechanisms that such efforts should be allowed to run, can be stretched beyond their limits, given the if circumstances so require, for two years sudden increase in the number of children at least before permanent alternatives are who need them. considered. Meanwhile, the focus must be on preventing the separation of parents and children and bolstering alternative care An emergency makes it arrangements within the community.151 extremely difficult to ensure that international standards At a policy level, therefore, suspension of intercountry adoption in an emergency on child protection are creates relatively little controversy. On each respected – at precisely the occasion, the need for such a suspension is relayed, often forcefully, in statements moment when they are by UNICEF, the Permanent Bureau of the most needed. Hague Conference, Save the Children and 149 UN General International Social Service, for example. Assembly, Human Increasingly, governments and central Rights Council (2011). The dangers associated with such situations authorities have also made it clear that no ‘Report of the Special have been summed up by UN Special Rapporteur on the applications to adopt children in the post- sale of children, child Rapporteur Najat Maalla M’jid: emergency phase will be accepted. prostitution and child pornography’ In every humanitarian crisis, States, However, experience in Haiti following (UN Doc A/ HRC/19/63), paras. international aid agencies and civil the January 2010 earthquake demonstrates 62–63. society organizations seek to protect the limits of this apparent consensus in children by ‘rescuing’ them from practice. There was general agreement 150 See, for example, UN General affected areas. Child survivors are that, in principle, the best interests of Assembly, Human frequently mistakenly labelled as children whose adoption had already been Rights Council (2010), orphans and removed from their cleared by the court would be best served para. 166; Hague Conference on families and communities to be by allowing the adoption to proceed. In Private International transferred to orphanages or adopted fact, most children who were evacuated Law (1994b). ‘Hague into new families. This ‘misguided for adoption over the following days and recommendation on kindness’ may significantly increase weeks – at the instigation of the receiving refugee children’. The Hague: HCCH the short- and long-term harm caused countries and with ‘permission’ from the Permanent Bureau. to children and families who are Haitian Authorities – had not completed the suffering from the impact of a natural adoption process before the earthquake. 151 UN General disaster. Experience has shown that Assembly, Human For some, their adoptability status had Rights Council (2010), girls and boys are usually safer, better not even been confirmed, let alone their paras. 155–159.

46 The Changing Role and Purpose of Intercountry Adoption

match with prospective adopters.152 Najat of possibilities for in-country care. In Maalla M’jid expressed her concern that: other words, after the trauma of the earthquake, these children were … many receiving countries bowed to subjected to the second trauma of internal pressure and ’expedited’ the unnecessary and rapidly-implemented displacement of children (between ‘forced migration’ without family or the ages of 3 months and 18 years) for known caregivers and to a totally adoption in their own countries, based unfamiliar place.154 on ad hoc criteria. It has also been noted that the rapid removal of In fact, whatever the adoption status (or Haitian children without a court lack of it) of the children concerned, rapid order was unwarranted … 153 evacuation was wholly unnecessary. The Guidelines for the Alternative Care of For most children concerned, therefore, Children require that special attention be no assessment or determination of their paid, in emergency situations, to preventing best interests had taken place at all. It the cross-border displacement of children seems to have been simply assumed, as from their country of habitual residence in pre-CRC days, that the children would “except temporarily for compelling health, be ‘better off’ outside their country, and medical or safety reasons”, and in that the quicker the better. Adoption abroad case as close as possible to their home, 152 For an was the justification for the evacuations of accompanied by a parent or caregiver exhaustive account children, but these could not be justified known to the child, and with a clear of intercountry as an urgent measure. In addition, the return plan.155 Equally, urgent and wholesale adoption initiatives in the six months evacuations themselves were often carried removal of the kind that took place from following the Haiti out with scant regard for established Haiti would not have been countenanced earthquake, see international practice – and were certainly on the basis of a valid best interests International Social not designed to be a temporary measure assessment, even for those children who Service (2010). Haiti: ‘Expediting’ that would last only until the situation had completed the adoption process: intercountry stabilized, as good practice would dictate adoptions in the (see below). This led to the Haiti post- Expedited transfer may be in the best aftermath of a earthquake adoption programme being interests of a child with a pre-existing natural disaster … preventing future qualified as “forced migration” in the 2012 adoption judgement, but it should harm. Geneva: ISS. edition of the annual World Disasters Report be decided on a case-by-case basis (WDR): and should never take place before 153 Human Rights the child can first recover from initial Council (2011).

The UNHCR [United Nations High trauma in a familiar environment, 154 International Commissioner for Refugees] has verifications can be carried out and Federation of Red ‘Three Rules’ for evacuation: “first, appropriate preparations made in Cross and Red Crescent Societies a calm manner. There should be to protect and assist in the place (2012). ‘“Expedited where the child and his or her family sufficient time to enable the adoptive adoptions”: Forced are physically located; second, if parents to join the child in his/her migration by evacuation cannot be avoided, a country of origin and to accompany another name’, 156 in World Disasters child must be moved with a primary the child to the receiving country. Report 2012. care-giver; and third, never evacuate Geneva: IFRC, unless a plan has been made that Far from proceeding with a best interests pp. 68–70. will protect children’s rights and assessment for each child, the competent 155 UN General well-being” ... Objectively, there was authorities of receiving countries pressured Assembly (2010), no justification for removing these Haiti to accept a so-called ‘procedure’ paras. 154(e) and children from the country [Haiti] to authorize intercountry adoptions that 160.

on an urgent basis. ’Expediting totally circumvented essential protective 156 International adoptions’ translated in practice into processes stipulated as indispensable Federation of Red circumventing vital protection under the 1993 Hague Convention.157 Cross and Red procedures regarding adoption, Crescent Societies (2012). evacuation, verification of consent Although receiving countries had no formal and family situation, and examination obligation to respect that treaty in their 157 ibid.

47 The Best Interests of the Child in Intercountry Adoption

relations with Haiti, which was not a state party, it has long been agreed, in the context 3.8. If best interests are a of the Special Commission that examines the requirement, so is their objective Convention’s implementation periodically, determination that “States Parties, as far as practicable, apply the standards and safeguards of This chapter has demonstrated the the Convention to the arrangements for intercountry adoption which they make in incoherence and the pitfalls of all kinds respect of non-Contracting States”.158 that are seen in practice in the significance and implementation of the requirement It was only because Haiti was not a to make the best interests of the child the Hague country, and the receiving countries paramount consideration in decisions concerned decided to ignore this about intercountry adoption. recommendation, that most intercountry adoptions dating from that period could be Experience to date shows that the best ‘recognized’ in those receiving countries. interests principle is, to all intents and This would have been patently impossible purposes, such a vague concept that it is had the country of origin also been a state easily ignored or misconstrued. party to the 1993 Hague Convention: the procedures laid down by that treaty to protect the best interests of the child Experience to date shows were ignored, comprehensively and that the best interests deliberately, and any resulting ‘adoption’ could not have been recognized. principle is, to all intents and purposes, such a vague From a broader standpoint, the concept that it is easily disproportionate level of attention, effort and means devoted to these rapid ignored or misconstrued. evacuations had an undoubted impact on the best interests of all children, not If it is to promote and protect the human just those evacuated, by diverting rights of children who may be or are significant resources of all kinds from involved in the intercountry adoption wider protection and relief operations. process, the determination of best interests Yet, as the World Disasters Report 2012 must be based on accepted criteria and notes, “absolute priority must be given to assessed by qualified persons or bodies, providing assistance in situ and promoting continuity of care.”159 with responsibility for a final decision in the hands of a clearly-designated authority. There are many lessons to be drawn from the 158 Hague post-earthquake response to Haiti in 2010, The following chapter proposes both the Conference but one stands out in relation to inter- frame and substance for those vital on Private International Law country adoption: the absolute necessity assessment and decision-making processes (2000b). ‘Report to adhere to a process to determine best for general policy, adoption procedures and conclusions interests that respects the overall rights of and the future of any given child. of the Special the child before any final decisions are The results of such evaluations should Commission made about that child’s adoption abroad. be demanded systematically before any on the practical operation of the That process must be every bit as rigorous child is adopted abroad ‘in their best Hague Convention as a process used under normal conditions interests’. of 29 May 1993 or, for example, the process to inform on protection of decision-making on the most appropriate children and co- operation in respect measures to take for a separated or of intercountry unaccompanied child. While this implies adoption’, para. 56. ensuring best possible protection and services pending the assessment and 159 International Federation of Red determination, it clearly precludes any Cross and Red derogation whatsoever from the obligation Crescent Societies to carry it out. (2012), pp. 68-70.

48 UNICEF Office of Research

Determining Children’s Best 4ǀ Interests in Intercountry Adoption

Key points

ÌÌ Many factors must be taken into account to ensure that national policies on intercountry adoption correspond to children’s best interests, and the extent to which they do needs to be open to examination, so that this principle lies at the heart of the approach to the practice.

ÌÌ Many considerations also need to be reviewed when determining whether or not the best interests of an individual child would be met by intercountry adoption – Table 1 provides a checklist of these.

ÌÌ Once it is established that the intercountry adoption of a child should be envisaged, his or her best interests must be preserved at each and every stage of the adoption process, which comprises many phases, from the initial decision that a child is ‘adoptable’, right through to follow-up support measures with children and their adoptive families.

49 The Best Interests of the Child in Intercountry Adoption

The considerations set out in the preceding socio-cultural, political and sometimes chapters have highlighted the pitfalls to financial factors. In practice, these factors be avoided when defining the role of a have not always reflected the paramount best interests approach, within a rights- consideration of the best interests of the compliant framework, for children in child. the intercountry adoption process. They have also illustrated the lack of consensus 4.1.1. Socio-cultural factors about both the concept and the resulting Because the best interests of the child are variations in the impact, in practice, of best to be assessed within the societal context interests as ‘the paramount consideration’. in question – seen as a desirable element of Without agreement on clear criteria against the ‘flexibility’ of the concept161 – the impact which the respect for best interests in of purely socio-cultural factors on policy intercountry adoption can be evaluated, tends to be the least contested argument it is difficult to apply the principle in the for limiting intercountry adoption. As well coherent, consistent and widely accepted as the clear-cut prohibition of the practice manner that the term ‘paramount’ requires. in many countries that apply Islamic law, This chapter aims to provide a concrete where adoption cannot be countenanced response to that concern by proposing a on religious and cultural grounds, basis for such evaluations. several other states are hesitant or highly restrictive because the legalized, complete First, it reviews the factors that should and definitive rupture of family ties is not be taken into account to ensure that a familiar or acceptable practice in society national policies on intercountry adoption at large. No ‘best interests’ argument for 160 Thus, for correspond to children’s best interests. allowing intercountry adoptions seems to example, significant numbers of apply in such circumstances. children have been Second, it identifies the elements that adopted abroad should form part of a thorough and 4.1.2. Political factors every year from the comprehensive assessment of the best United States (99 Political factors, in contrast, are often the recorded at Federal interests of each individual child for whom subject of controversy from a best interests level in FY 2012), intercountry adoption might be envisaged standpoint. The most commonly contested leading many to (Table 1). wonder, moreover, are decisions to ban or restrict intercountry if the United States adoptions that are, or are perceived to be, is itself applying Finally, it considers the conditions rooted more in ‘national pride’ or even the ‘subsidiarity required, once it has been determined political posturing than in considerations principle’ in a that intercountry adoption is indeed in a systematic manner. of child welfare. There are several facets to In contrast, many child’s best interests, to achieve the optimal this approach. other ‘receiving ongoing protection of that child’s best countries’ to interests at each stage of the intercountry An argument often advanced is that children all intents and adoption process itself. purposes ban are a national resource whose numbers the intercountry should not be depleted through adoption adoption of their abroad. In studying adoption practice in children. India, for example, Lind and Johansson 4.1. Factors that influence policies 161 Zermatten on intercountry adoption document adoption professionals’ belief (2010); see also that adoptable Indian children should Committee on the be ‘reserved’ for Indian couples, on Rights of the Child (2013). States’ policies on the intercountry adoption the grounds that children are “an asset

162 of their children vary. This is true regardless belonging to their nation of origin”. 162 Lind, J. and of whether the country in question is S. Johansson generally seen as a receiving country or a Often, this goes hand in hand with a (2009). 160 ‘Preservation country of origin. Policies range from country’s understandable reluctance to be of the child’s total prohibition to full acceptance (and perceived or labelled as being unable to cope background in in- even virtual laisser-faire), and may change with problems related to the care of their and intercountry either temporarily or permanently over vulnerable children, and the knowledge adoption’, International Journal time. The foundations of the approach taken that in-country solutions could be enhanced of Children’s Rights, always lie in a combination of numerous and made available with a little additional 17(2): 235–60.

50 Determining Children’s Best Interests in Intercountry Adoption

investment. For example, the participants abroad as part of its assistance needs. This, at a May 2012 pan-African conference on too, needs to be taken into account when intercountry adoption noted that “African considering the best interests component of societies have for centuries been able to policy development on the question. care for their children, including those left without parental care, based on collective 4.1.3. Financial factors 163 values and wisdom”, and that despite There is no doubt that economic consider- present realities such as HIV/AIDS and ations have, on occasion, underpinned state conflict, “with a modest degree of economic policy towards intercountry adoption, at and social support, African families and least during a certain period. communities could provide for children without parental care”.164 The most notorious example of this was probably Guatemala. At their peak in They called, therefore, for “a reversal of the 2007, adoptions from Guatemala to the current trend of resorting to intercountry United States numbered 4,726.167 In the adoption as an easy and convenient option blunt words of one commentator, “a for alternative care in Africa, and for giving national industry has developed around absolute priority to enabling all children adoption, with specialty lawyers offering in Africa to remain with their families and their services, and hotels catering to the their communities”.165 thousands of American couples who visit for the sole purpose of finding a child”.168 Very often this kind of stance is mixed with concerns over how the adoption process It was estimated, entirely realistically, that is carried out and the end results for the Guatemala’s intercountry adoption at that adoptees. That same conference declaration, time had become a $100 million per year for example, observed that there are: 163 African Child industry – in the same author’s equally Policy Forum uncompromising terms, “making orphans (2012). ‘Final ...reports, in some instances, of the country’s second-most lucrative export Communiqué intercountry adoption resulting in after bananas”. The leverage and lobbying of the Fifth abuse of children in the receiving International Policy force of those involved kept that status quo Conference on the countries; ... that sometimes children in place – including by preventing domestic African Child’, are being procured for adoption abroad recognition of Guatemala’s adherence to Addis Ababa, 29-30 through manipulation, falsification the 1993 Hague Convention in 2002 – until May 2012, p. 1. and other illicit means of securing it became obvious that US ratification of 164 ibid. financial gains; [and] that in some the treaty in 2008 would put an end to the instances there are both internal and current system. 165 ibid. external pressures put on families and governments to make their children 166 ibid.

166 available for intercountry adoption. Other countries have also 167 http://adoption. gained financially by making state.gov/about_us/ In sum, the basic issues that often underpin statistics.php political arguments are linked to states’ their children available for 168 Martinez, H. concerns that they are unable to exercise adoption abroad. and R. Goldman proper control over the intercountry (2008). ‘US adoption process and there are inadequate adoptions fueled by Guatemalan resources for the development of in- Other countries have also gained financially kidnappings’, ABC country services that would enable more by making their children available for News, 13 May. stringent respect for the ‘subsidiarity rule’; adoption abroad. Under the short-lived states often lack confidence in the outcomes ‘points’ system set in place in Romania 169 Wolfe Murray, under such conditions. in 1997, for example, domestic social R. (2005). ‘Child Welfare Reforms protection foundations were set up to Threatened by Finally, it can be noted that, whether which adoption agencies were invited to International a country decides to allow, restrict or contribute: “[these] agencies could earn Adoption Lobby’, prohibit intercountry adoption, there is no points (by investing in social services) and http://www. childrights.ro/ record of any country ever having formally with enough points they would be given a media_article_ requested the adoption of its children child for international adoptions”.169 cotidianul.htm

51 The Best Interests of the Child in Intercountry Adoption

Similarly, countries such as Nepal and Viet children to be subject to a systematic Child Nam have required prospective adopters Rights Impact Assessment (CRIA), noting and agencies to make ‘humanitarian that: aid contributions’ as a condition for, respectively, operating and adopting. ...the adoption of all measures of One former head of a European central implementation should ... follow authority stated that, more generally, “it a procedure that ensures that the is an open secret that foreign Authorities child’s best interests are a primary solicit humanitarian aid contributions from consideration. The child-rights impact agencies that work on adoptions”.170 assessment (CRIA) can predict the impact of any proposed policy, The official line is, invariably, that financial legislation, regulation, budget or support to the child protection system is other administrative decision which necessary and that contributions do not affect children and the enjoyment of influence either adoption policy itself or their rights and should complement the number of children declared adoptable ongoing monitoring and evaluation of abroad. Such explanations, however, have the impact of measures on children’s not deterred the Hague Special Commission rights. CRIA[s] need to be built into from making its concerns very clear – an Government processes at all levels and implicit recognition of the widespread as early as possible in the development and significant nature of the problem. of policy and other general measures As far back as 2000, while encouraging in order to ensure good governance receiving countries “to support efforts in for children’s rights.173 States of origin to improve national child protection services, including programmes The proposed CRIA is, therefore, conceived for the prevention of abandonment”, the as the policy-level equivalent of what we call 170 Melita Cavallo, Special Commission stipulated that “this ‘best interests determination’ for individual ex-President of the Italian support should not be offered or sought in children (see section 4.3 below). Central Authority a manner which compromises the integrity (CAI) during of the intercountry adoption process, or As far as the specific focus of the present her presentation creates a dependency on income deriving study is concerned, this means that entitled from intercountry adoption”.171 It made ‘Humanitarian any policy decision (and its legislative aid and children a more far-reaching recommendation in ramifications) about the conditions placed outside their 2010, when it “emphasised the need to under which intercountry adoption may family of origin establish, in all cases, a clear separation of take place, if at all, must be backed by a and not proposed for adoption’, at intercountry adoption from contributions, thorough evaluation of the consequences 172 the colloquium donations and development aid”. this will have for the best interests of “Intercountry the country’s children – both those who Adoption Today”, Agence Française In sum, there are legitimate fears – and might be adopted abroad and those documented indications – that policies de l’Adoption, who will not. This is clearly all the more Paris, 7-8 on intercountry adoption have often been true given the ‘paramount’ status of November 2007 influenced unduly by financial factors that their best interests in relation to policies (our translation).

have no connection whatsoever with the about adoption abroad. best interests of the children concerned. 171 Hague Conference Logically, the outcome of such an on Private assessment is likely to differ widely from International Law (2000b), para. 47. 4.2. Putting the best interests one country to another, and as a result may of children at the heart of justify policies that are just as disparate as 172 Hague those in existence today. Some countries Conference intercountry adoption policy may decide that the services and structures on Private International Law in place are adequate to cater for their (2010), para. 14. In the context of its observations on the children, negating the need to envisage question of the best interests of the child, intercountry adoption (except, perhaps, in 173 Committee on the Rights of the the CRC Committee has highlighted the exceptional cases, such as intra-familial). Child (2013), need for all policies and measures regarding Others may decide that current conditions para. 99.

52 Determining Children’s Best Interests in Intercountry Adoption

do not enable them to ensure ‘suitable 4.2.1. Culture and ethnicity 174 Snow, R. and care’ for all children, and therefore foresee K. Covell (2006). It is also important to consider the issue ‘Adoption and inter-country adoption in certain cases. of removing children from their culture the Best Interests of origin. In this context, the principle of of the Child: The In the light of a CRIA, however, these policies subsidiarity suggests that it is generally dilemma of cultural – be they prohibitive, restrictive or ‘open’ – interpretations’, The in children’s best interests to remain in International Journal would be subject to scrutiny on objective their own community, but in individual of Children’s Rights, grounds. First, the validity of the findings of cases it may be concluded that the overall vol. 14, no. 2, pp. 109-117. the CRIA can be examined, and they can then rights of the child concerned would be be compared with the policy from a best better protected elsewhere. It is essential, 175 The term interests and rights-based standpoint. therefore, to weigh up the complex ‘transracial adoption’ Importantly, this standpoint would have to elements at play in developing a general is widely used, take account of a range of issues, including, justifiably or not, to policy on this question. A balance should for example: describe an adoption also be struck between supporting efforts between a child and to improve living conditions and children’s parents with different • the extent to which maximum life chances in their home communities and skin colours, and is levels of available resources are being thus more specific promoting forms of alternative care that devoted to family support and in- than ‘trans-ethnic’ or may be more appropriate to the specific ‘trans-cultural’. country alternative care (CRC Art. 4) cultural context.174 • whether or not international 176 It is beyond the scope of this cooperation is needed here and, if so, The debate around what is known as report to analyse the if it has been requested (CRC Art. 4) ‘transracial adoption’175 is also relevant impact on identity • the extent to which national and, to a discussion of the best interests of the of transnational and transracial adoption. where applicable, externally supported child and removal from their country of Much of the literature 176 measures on the prevention of origin. For decades, researchers and is based on the US family separation and the provision practitioners have voiced opinions for or context but the results have global relevance. of alternative care conform with the against such adoption, first dismissing the For a summary of Guidelines for the Alternative Care idea that it affects the formation of one’s seminal work on this of Children. identity, only to argue in longitudinal issue, see Evan B. studies that it does indeed complicate Donaldson Adoption 177 Institute (2009). It is identity development. The answers to such questions enable a beyond the scope of robust review of the justification for any this report to analyse country’s basic approach to intercountry No true consensus has been reached, the impact on identity but it is now clear that racial and ethnic of transnational and adoption as a response to children deprived transracial adoption. background is an important factor to bear of parental care. Other factors also need to Much of the literature be considered, however, when considering in mind in adoption. Much of this is based on the US whether a given policy is warranted. discussion has taken place in the context context, but the of domestic adoption and has influenced results have global relevance. For a First and foremost, and particularly for the approach to both domestic and summary of seminal countries of origin, is whether they can intercountry adoption taken by countries work on this issue, see have confidence in the contention that the such as the United States and the United Evan B. Donaldson Kingdom.178 The so-called transracial Adoption Institute overall rights of some of their children (2009). Other sources: will be better realized through adoption aspect becomes even more complex in Simon, R.J., and abroad. This includes their level of trust in intercountry adoption, of course, as here A. Alstein (2000); all aspects of the adoption process itself, it is intertwined with removal from the Huh, N.S. and W.J. culture of origin. From an overall policy Reid (2000); Lee, as well as in post-adoptive arrange- R.M. (2003); Baden ments and attitudes towards foreign perspective, and similarly in relation A.L. and R.J. Steward adoptees in the receiving country. Such to the more general question of a (2000). concerns manifest themselves most often child’s removal from the country of 177 Evan B. temporarily (in the form of moratoria, for origin, there seems to be no justification Donaldson Adoption example) but also explain the longer-term on best interests grounds for a blanket Institute (2009). prohibition on intercountry adoption put prohibition, rather than leaving it to in place to date by a limited number of case-by-case assessment to come to a 178 Evan B. Donaldson Adoption countries (see section 3.4 above), such as decision. Institute (2008); Argentina. Hayes, P. (1995).

53 The Best Interests of the Child in Intercountry Adoption

4.2.2. Access to information child’s ongoing relationship with the for adoptees birth parents, including meeting them The fact that full adoption – the invariable in person. Under some jurisdictions, an outcome of an intercountry measure – ‘open’ adoption can end with the child involves the complete severing of a child’s returning to the care of the birth parents. ties with their birth family is also an Such an arrangement, which is not without issue worthy of debate from the policy- its own risks for all involved, might development angle of the best interests of pose special problems in intercountry the child. To begin with, such an extreme adoption. Nonetheless in New Zealand, consequence of relinquishing a child’s for example, the principle of openness in care to others is not only unknown but adoption is broached in both domestic and 179 Berry, M. (1993). unthinkable in many societies. It provokes intercountry adoption, with each party in the adoption ‘triad’ – the child, the family ‘Risks and benefits both resistance to the measure and, in of open adoption’, many cases, confusion over the effects of of origin and the adoptive parent – being Adoption, 3(1): giving consent to adoption. In addition, it encouraged to understand that ‘open’ 125–38; International Social Service (2006a). can have implications for the child’s later adoption can help an adoptee to preserve their identity and maintain contact with ‘Post adoption: The ability to access information about birth search for origins family members,179 including their health the family, and therefore promote their (part 1)’ (Editorial), 184 history, which may be vital to prevent or best interests. Open adoption has also Monthly Review, 4. been used in the context of intercountry identify an adoptee’s medical conditions. 180 EurAdopt, Nordic adoption in the Marshall Islands – a Adoption Council It is surely necessary to balance the best result of cultural norms that have shaped (2005). ‘Origin and interests of the child with the rights of domestic adoption policy and the fostering Personal History of Adoptees: Principles 180 of these traditions in intercountry adoption the family of origin, and information for search, knowledge provided may, in some circumstances, be through the positive advocacy of adoption and reunion’, Working 185 of a ‘non-identifying’ (i.e. anonymous) agencies. document for the Special Commission nature. But access to at least a minimum In sum, applying the principle that the best on the practical of information about one’s origins is operation of the 1993 essential to identity formation, and is, interests of the child are the paramount Hague Intercountry indeed, linked to the child’s right to an consideration, policy that allows adoption Adoption Convention.

identity. arrangements based on some degree of openness (if all concerned are in agreement) 181 ibid.

might enable the most appropriate terms 182 Berry, M. (1993). Access to at least a minimum of adoption to be determined on a case- by-case basis. 183 Grotevant, H.D. of information about one’s (2000). ‘Openness in origins is essential to identity Adoption: Research with the adoption formation. kinship network’, 4.3. Determining the best interests Adoption Quarterly, of individual children vol. 4, no. 1, pp. 45-65. Overall, the tendency has been towards greater openness in domestic adoption,181 184 International Social Service (2006). with evidence showing that this has a As this study has sought to show, applying International Social number of benefits (prevention of identity the principle of best interests within Service (2006b). ‘What confusion, easing of maternal grief,182 and a human rights framework requires are the alternatives encouragement of empathy in adoptive consensus on the issues to be considered to full adoption?’ (Editorial), Monthly 183 and systematic recourse to an agreed parents). Informally, this approach Review, 7–8. is being taken up increasingly by the determination process. Decision-making adoptive parents of foreign children. on whether or not the best interests of any 185 Roby, J., given child will be served by adoption J. Wyatt and G. Pettys (2005). ‘Openness abroad cannot be made in a hurry, but Such openness in adoption – ensuring the in international greatest possible access to information must be timely, on the basis of subjective adoptions: A study and in some cases maintaining a degree and selective criteria. It requires a thorough of US parents who of contact with the birth parents – should review of the child’s overall situation and adopted children from the Marshall not be confused with ‘open adoptions’, needs, and of the likely impact of the measure Islands’, Adoption which are grounded in the adopted on virtually all the rights of the child. Quarterly, 8(3): 47–71.

54 Determining Children’s Best Interests in Intercountry Adoption

This section develops a basic checklist of children’s best interests in the context issues that should be covered by such a of alternative care provision in general formalized best interests determination – drawing much from the UNHCR (BID) process. Guidelines

One inspiration for this exercise is the • the CRC Committee’s General UNHCR Guidelines on Determining the Comment No. 14,189 made publicly Best Interests of the Child issued in 2008, available in May 2013, which the very first attempt at international level indicates the different spheres that to codify the issues for practical use. In all the Committee says should be situations covered by these Guidelines, the taken into account when coming to parents of the child concerned are absent a decision on the best interests of a or otherwise unable to exercise their basic child, whatever the question at hand. parental responsibilities. While they were developed to guide decision-making on Some key contributions from these texts are unaccompanied and separated children set out in the following sub-section. outside their country of origin, they can be applied to situations where competent 4.3.1. The development of a best authorities are called on to decide the interest determination process for future of a child and are faced with several intercountry adoption possible options. These UNHCR Guidelines In many countries, the best interests of describe BID as follows: the child principle is used most often by courts ruling in custody disputes, ...the formal process with strict but the way it is used in this narrow procedural safeguards designed to context can be applied more broadly. For determine the child’s best interests example, when considering what is in for particularly important decisions the best interests of a child in a custody affecting the child. It should facilitate case under English law, the judge must adequate child participation without take into account a range of factors on a discrimination, involve decision-makers so-called ‘welfare checklist’:190 with relevant areas of expertise, and balance all relevant factors in order to • the ascertainable wishes and feelings assess the best option.186 of the child concerned (in light of his 186 UN High or her age and understanding) Commissioner for Clearly, envisaging the adoption of a child Refugees (2008). abroad is a prime example of a “particularly • the child’s physical, emotional and UNHCR Guidelines important decision”. educational needs on Determining the Best Interests of • the likely effect of any change in his the Child. Geneva: There are currently three additional resources or her circumstances UNHCR. that can be used to conceptualize a BID process related to the intercountry adoption • the child’s age, sex, background and 187 Hague of a child. These are, in chronological order: any other relevant characteristics Conference on Private • any harm that the child has suffered International Law • the 2008 Guide to Good Practice or is at risk of suffering (2008).

No. 1 for implementing the 1993 • how capable each of the child’s Hague Convention,187 which deals 188 Cantwell et al. parents, and any other person (2012), p.25. with questions relating to safeguards considered relevant to the question for the child’s best interests when by the court, is of meeting the child’s 189 Committee on the Rights of the intercountry adoption is being needs. considered Child (2013).

The checklist approach is useful in 190 United • the handbook for implementing applying the principle according to a child’s Kingdom, Children Guidelines for the Alternative Care of Act 1989, s,1(3). particular needs at a particular time. Children,188 published in early 2013, http://www. legislation.gov.uk/ which contains a checklist of issues ukpga/1989/41/ to be covered when determining contents

55 The Best Interests of the Child in Intercountry Adoption

To determine how the best interests location that is to be considered as principle is to be applied practically in a potential place of residence for the relation to intercountry adoption, it is useful child to draw an analogy with the UNHCR’s • the view of experts, where appro- BID process. UNHCR uses this process to: priateor necessary.

• identify durable solutions for Relevant elements for BID from the Hague unaccompanied and separated refugee Guide to Good Practice are examined in children more detail in section 4.4 below, within the • decide on temporary care arrange- framework of wide-ranging safeguards for ments for unaccompanied and children throughout the entire adoption separated children in exceptional process. These include in particular: situations • establishing the child’s legal and • decide on the possible separation psychosocial adoptability of a child from his or her parents against his or her will in cases • ensuring the child’s consent to where the child is exposed to or adoption likely to be exposed to severe abuse • preparing a comprehensive report or neglect.191 on the child.

The UNHCR Guidelines point out that From the best interests angle – and leaving the BID process should not delay family aside to some extent legal considerations reunification, unless there are reasonable as such – it is clear that the essentials of grounds to believe that reunification is the BID process are the psychosocial likely to expose the child to abuse.192 adoptability of the child and an overall assessment of his or her situation (the The Guidelines aim to give practitioners comprehensive report). in the field a framework to help apply the best interests principle in any of the three For its part, the Handbook on the Guidelines scenarios above. Being a formal process, for the Alternative Care of Children notes BID must be carried out only by authorized that, for children for whom alternative persons, who are normally specialists in care is, or may be, a reality, BID should be child protection, community services or grounded in an assessment undertaken by child welfare. BID results are presented to a qualified professionals, and should cover multidisciplinary panel that considers each the following issues as a minimum: child’s situation assessment on a case-by- case basis.193 1. the child’s own freely expressed opinions and wishes (on the basis According to the UNHCR Guidelines, the of the fullest possible information), process of gathering information for BID taking into account the child’s must include: maturity and ability to evaluate the possible consequences of each option • verification of existing and docu- presented mented information about the child 2. the situation, attitudes, capacities, • several interviews with the child opinions and wishes of the child’s and, if appropriate, observations of family members (parents, siblings, the child adult relatives, close ‘others’), and the nature of their emotional relationship • interviews with persons within the with the child child’s network, including caregivers, 191 UN High family (siblings and extended), friends, 3. the level of stability and security Commissioner for provided by the child’s day-to-day Refugees (2008), neighbours, guardian, teachers etc. living environment (whether with • background information on the 192 ibid. parents, in kinship or other informal conditions in each geographical care, or in a formal care setting): 193 ibid.

56 Determining Children’s Best Interests in Intercountry Adoption

a) currently (immediate risk assessment) c) preservation of the family environment b) previously in that same environ- and maintaining the child’s relations ment (overall risk assessment) d) care, protection and safety of the c) potentially in that same environ- child, where the objective of ‘protection ment (e.g. with any necessary support and care’ is not stated in limited or and/or supervision) negative terms (such as ‘to protect d) potentially in any of the other care the child from harm’), but rather in settings that could be considered. relation to the comprehensive ideal 4. where relevant, the likely effects of of ensuring the child’s overall ‘well- separation and the potential for family being’ and development. Applying reintegration a best interests approach to the decisions means assessing the safety 5. the child’s special developmental and integrity of the child at the time needs: of adopting the measure, while also a) related to a physical or mental disability assessing the potential consequences b) related to other particular character- for the child’s safety of the decision to istics or circumstances be made 6. other issues as appropriate, such as: e) a situation of vulnerability such as: disability, belonging to a minority, a) the child’s ethnic, religious, cultural being a refugee or asylum seeker, and/or linguistic background, so that victim of abuse, living in a street efforts can be made, as far as possible, situation, etc. to ensure continuity in upbringing and, in principle, maintenance of links f) the child’s right to health with the child’s community g) the child’s right to education.195 b) preparation for transition to indep- endent living Combined, these sources provide a good insight into the scope and thrusts of the 7. a review of the suitability of each formal assessment process that would be possible care option for meeting the needed for case-by-case determination of child’s needs, in light of all the above the best interests of the child in intercountry considerations.194 adoption. Taking inspiration from them, a basic outline for a BID process related The CRC Committee lists the following to children for whom intercountry adoption elements to be taken into account, in is envisaged is proposed in Table 1. general, when assessing and determining the child’s best interests, with the important proviso that not all of them may be relevant or of equal importance in every situation in which such an assessment is required: a) the child’s views b) the child’s identity, to include characteristics such as sex, sexual orientation, national origin, religion and beliefs, cultural identity and the personality of the child. As regards the choice of a foster home, for example, the decision-maker will have to take into consideration the continuity in a child’s upbringing and the child’s ethnic, linguistic and 194 Cantwell et al. cultural background (CRC Art. 20.3) (2012), p.25. when assessing and determining the child’s best interests. The same will 195 Committee on the Rights of the apply to cases of adoption, separation Child (2013), paras. or divorce 52ff.

57 The Best Interests of the Child in Intercountry Adoption

Table 1: Proposed checklist for a best interests assessment and determination process on intercountry adoption

Key issues to be covered Considerations Outcome

The child’s freely expressed Fullest possible information needs An insight into the child’s opinions and wishes about a to be provided to the child on the feelings about cutting ties range of possible and realistic nature and implications of each with parents, siblings and outcomes, including adoption potential option, taking account of the wider family and community, abroad, taking into account the the child’s maturity. Consider and into his or her attitudes 1 child’s ability to understand not only verbal but also non- that might need to be taken into the nature and evaluate the full verbal responses (e.g. drawings) account and/or affect the success ramifications of each option and expert observation of of any given option, including, presented. behaviour, including body but not limited to, adoption language. abroad.

The situation, attitudes, capacities, Ideally, meet close family as a An understanding of the real opinions and wishes of the group and also observe their reasons behind the willingness of child’s family members (parents, interaction with the child. the parents and wider family to siblings, adult relatives), other If possible and appropriate, part with the child, and thereby caregivers and any other key meet the mother and father gauge the potential to prevent persons in the child’s life, and individually as well. Emphasize that separation. the nature and quality of their the perceptions of siblings, 2 emotional relationship with according to whether they the child. may or may not also be the subject of a potential change in their care setting. Check their understanding of the ramifi- cations of each future care option.

The level of stability and security This requires discussion with An informed evaluation of the provided by the child’s day-to- family, professionals and others degree to which the child could day living environment (whether who have been involved in or find necessary levels of security with parents, in kinship or other are familiar with the care of the and support in his or her current informal care, or in a formal care child, as well as on-site visits. care setting or in others available setting): Clearly, the child’s own percep- in the community or country. a) currently (immediate risk tions and experiences are also assessment) critical on this question. b) previously in that environment 3 (overall risk assessment) c) potentially in that environment (e.g. with any necessary support and/or supervision) d) potentially in any other in- country care setting that could realistically be considered e) potentially with adoptive parents abroad.

As appropriate, the potential This involves setting the findings An assessment of the nature, to keep or reintegrate the under Issues 1 to 3 against the extent and reasonable prognosis child with the parent(s) or within possibility of reintegration with of necessary family support, and the wider family, including the parents or within the family. a determination of whether and 4 consideration of the current or how such support can be provided future availability of any family through current services or mobilized strengthening and/or support in the near future, including through measures this would require. outside assistance.

58 Determining Children’s Best Interests in Intercountry Adoption

Table 1, continued

Key issues to be covered Considerations Outcome

Requirements and possibilities This evaluation needs to take A determination of which care to realize the child’s right to account of the context, notably option(s) are likely to offer education. of opportunities available the educational opportunities 5 to the child’s peers in his or corresponding to this right, her community. domestically or abroad.

The child’s physical and mental This requires a professional A determination of which care health, compared with the evaluation of the child’s health option(s) are likely to ensure the overall health and health-care needs, bearing in mind his or realization of the child’s right to implications of each possible her right to enjoy the highest physical and mental health and/or care setting. attainable standard of health which options might jeopardize and access to services. Again, that right, by their nature or by 6 this should be a contextualized their consequences, domestically evaluation. It also requires or abroad. assessment of the potential health consequences of removal to, and living in, a new care setting.

Any special developmental This requires a professional A set of conditions that should needs of the child related to: evaluation of any special needs, be met by any future care a) a physical or mental disability including behavioural problems setting or arrangement to cater b) other particular characteristics or vulnerabilities resulting from appropriately to the particular 7 or circumstances that create the child’s previous or current needs of the child. vulnerability. experience (e.g. separated from parents, victim of abuse, living or working on the streets).

The child’s potential to adjust A psychosocial evaluation is The elimination of any arrange- to new care arrangements and needed to establish the child’s ments and settings to which the 8 settings. propensity to adapt to new child is unlikely to adjust. circumstances.

Other issues as appropriate, This involves identifying the The selection of the arrangements, such as: kinds of arrangements and settings and other conditions that a) how each option would settings, and the conditions best preserve key elements of provide continuity with the required within them to the child’s identity. For an child’s ethnic, religious, cultural take appropriate account of older child, the establishment 9 and/or linguistic background the child’s origins or of any of the potential for a successful b) preparation for transition to other factor specific to that transition into adulthood. adulthood and independent child’s needs or situation living. (e.g. demonstrable sensitivity on the part of foreign adopters).

Best interests determination All of the findings of the A determination of whether or not (BID) phase; a review of the assessment should be collated the best interests of the child lie in suitability and advantages and examined by an inter- intercountry adoption compared and disadvantages of each disciplinary team, and their with any other option overall, possible care option for meeting discussion should lead to a and in specific relation to their 10 the child’s overall needs and preliminary recommendation rights. If so, an agreement on the respecting his or her rights, in on which option(s) complies conditions. If not, an agreement on light of all the considerations with the child’s best interests. the other avenues to be pursued. listed above.

59 The Best Interests of the Child in Intercountry Adoption

For the protection of children’s best interests in intercountry adoption to be approached 4.4. Preserving the best in the way foreseen by the CRC Committee, interests of the child during the a formal assessment process should reflect intercountry adoption process the procedures set out in the UNHCR BID model, and be carried out by qualified The 1993 Hague Convention stipulates professionals acting where possible as a the procedural requirements for each multi-disciplinary team.196 intercountry adoption, and the Guide to Good Practice No. 1 sets out clear guidance It is, of course, very unlikely that such an on how to implement the best interests assessment will identify any one solution of the child principle throughout the as positive on all counts. There must, process.198 This section does not provide therefore, be flexibility in determining, for detailed, step-by-step guidance on each each specific child and according to the phase – that is the purpose of the Guide specific context, the factors that need to be itself – but highlights key stages when prioritized in reaching a final decision – analysing how the best interests principle hence, again, the importance of professional is to be implemented: from the initial input. As the CRC Committee notes: determination of a child’s adoptability and the desirability of inter-country adoption Not all the elements will be relevant to the finalization of that adoption and the to every case, and different elements appropriate follow-up. can be used in different ways in different cases. The content of each The discussion once again demonstrates element will necessarily vary from that implementing the best interests child to child and from case to case, principle in an intercountry adoption depending on the type of decision usually means little more than protecting and the concrete circumstances, as the rights of the child, including, among will the importance of each element in others, the rights to an identity, to be raised the overall assessment. by his or her parents wherever possible, and to be protected from all forms of The elements in the best-interests exploitation. assessment may be in conflict when considering a specific case and its circumstances. For example, Implementing the best preservation of the family environ- ment may conflict with the need interests principle in an to protect the child from the risk intercountry adoption of violence or abuse by parents. usually means little more In such situations, the elements will have to be weighed against each than protecting the rights other in order to find the solution of the child. that is in the best interests of the child or children.197 4.4.1. Determination of ‘adoptability’ However, a systematic BID process does Determining adoptability is the stage 196 ibid., para. 94. provide a formal framework within which at which a child may be diverted from 197 ibid., paras. 80-81. those priorities and conflicts can be alternative care and other placement reviewed, with clear arguments being put options because he or she cannot be 198 Hague Conference forward to justify the selected option. In the reintegrated into the family of origin on Private International Law (2008). sphere of alternative care in general, and and a formal determination has been

intercountry adoption in particular, this made that an adoptive family would, in 199 International would be a very significant step forward in principle, best meet his or her needs. It is Social Service (2006c). ensuring that, when intercountry adoption a complex but fundamental process, with ‘The determination of the adoptability of the is the final decision, it is clearly in the best two major facets that are often referred to child’, Fact Sheet No. 199 interests of the child concerned. as ‘legal’ and ‘psychosocial’ adoptability. 20. Geneva: ISS/IRC.

60 Determining Children’s Best Interests in Intercountry Adoption

4.4.1.1. Legal adoptability Inducements for parents to give consent can 200 Lammerant, I. (2003). ‘Les occur at this stage, as seen in Romania in the Fondements Ethiques Legal adoptability is determined simply on 1990s and, more recently, in Guatemala.202 et Juridiques de the basis of the child’s potential legal status Great care must be taken to ensure that l’Adoption des Enfants Délaissés’, as adoptable, in view of the parents’ death or parents understand what it really means Contribution to the abandonment or their appropriate consent to to give consent, particularly the permanent colloquium ‘Devenir relinquish the child.200 Legal adoptability is severance of ties between the parents and adoptable, être adoptable’, Paris, therefore a necessary condition, but it is not child – a totally alien concept in many 14 November, p. 5; enough on its own to underpin an adoption societies. Decision-making on adoptability International Social Service (1999). decision. The suitability of adoption must also must also be timely; while it is not a decision ‘The rights of the be examined for each child, even if that child to be made in haste, a lack of expedition child in internal is deemed ‘adoptable’ from a legal standpoint. can work against the child’s best interests. and intercountry adoption: Ethics In addition, disclosing information to and principles Establishing that a child is legally eligible for adoptive parents about children who – Guidelines for adoption is a task that should be entrusted have not been declared as adoptable is practice’. Geneva: ISS. to a designated competent authority, such as contrary to the terms of the 1993 Hague 201 Bunkers, K.M., the judicial system. Resulting declarations Convention and may lead to further abuses V. Groza and 203 D.P. Lauer (2009). of adoptability do not, in themselves, of procedure. ‘International distinguish between possible domestic or adoption and intercountry adoption placements – that An effective birth registration system child protection in Guatemala: A case decision is based on other criteria and is fundamental in determining legal of the tail wagging comes at a later stage. adoptability, but the process should the dog’, International Social Work, 52: 649– also account for children whose birth 60; Baldauf, S., et al. documents have been lost, destroyed, (2010). ‘International Declarations of adoptability stolen or were never issued, so that they adoption: A big fix brings dramatic do not, in themselves, have the same opportunities, regardless decline’, Christian of their documentation (or lack of it). Science Monitor, 14 distinguish between possible Many children in post-earthquake Haiti March. domestic or intercountry in January 2010, for example, did not 202 Roby, J.L. and J. hold birth certificates,204 and in 2007 an Ife (2009). ‘Human adoption placements. rights, politics estimated 51 million births worldwide and intercountry went unregistered.205 Where children have adoption: An The CRC (Art. 21) and the 1993 Hague no birth registration documents, steps must examination of two sending countries’, Convention (Art. 4) indicate that all necessary be taken to resolve the issue in a timely International Social consents must be fully informed, freely given manner, so that they are not left in a ‘legal Work, 52(5): 661–71; and, importantly, must not be induced by any limbo’ that compromises their best interests Bunkers et al. (2009). compensation or promise of compensation and could hamper efforts to plan their long- 203 Hague Conference – requirements that are reflected in the term stability.206 on Private International Law legislation of most countries of origin. (2008). Again, the consent referred to is, in principle, 4.4.1.2. Psychosocial adoptability general: it is consent for adoption, not for 204 Baldauf , S. et al. (2010). either domestic or intercountry adoption Psychosocial adoptability is evaluated after alone. legal adoptability has been established, 205 UNICEF on the basis of a child’s potential capacity (2009). ‘Progress for Children: A Obtaining consent must be handled to create ties with a new family and be report card on child sensitively: a whole range of personal integrated into a new family environment. protection’, No. 8, p. 5. reasons can cause significant distress to the The concept is sometimes broken down birth parent(s), such as fear of punishment into its social, psychological and medical 206 Groza, V. and for leaving a child, and embarrassment if components.207 Social adoptability is based Nedelcu, C. (2006). ‘Romanian Adoption’, the mother’s pregnancy was kept a secret on an assessment of the child’s situation, in K. Stolley and V. or occurred out of wedlock. Securing in particular the family of origin and its Bullough (eds.), parental consent is also a process subject ability to provide a suitable environment pp.523-527.

201 to abuse and corruption. An adult may for the child’s full development. The term 207 International claim to be the birth parent, for example, psychological adoptability refers to the Social Service (2006). ‘The Determination but other evidence is needed to verify that emotional and psychological needs that of the Adoptability of claim in the absence of genetic testing. a child might have and that may not be the Child’.

61 The Best Interests of the Child in Intercountry Adoption

addressed properly through adoption. term ‘older’ may be applied to children as The establishment of medical adoptability young as 5 or as old as 10, while a ‘sibling is important to identify the best care group’ may amount to just two children. arrangement for an individual child, particularly one with special needs. In addition, some countries specify that the term ‘special needs’ includes children Clearly psychosocial adoptability matters who have traumatic histories with their when considering possible adoption biological families or those who have spent abroad. But additional elements must a long time in an institutional setting, both be taken into account to determine of which carry known and unknown risks ‘intercountry adoptability’. These include for the future. ensuring that all realistic efforts have been made to consider the suitability of domestic It is often impossible to secure appropriate adoption or other stable in-country options, adoption or other family-based care for and assessing the child’s potential to abandoned or relinquished children with adjust to a different cultural and linguistic special needs in their country of origin, environment. Consideration may also need whether industrialized or developing. If no to be given to the socio-political situation suitable care arrangements can be identified of the country of origin, particularly any domestically, it may be deemed in those allegations of corruption and child traffick- children’s best interests, therefore, to be ing in the context of armed conflicts or adopted by families in other countries that 208 natural disasters (see section 3.7 above). are better placed to cater to their particular

requirements. Psychosocial adoptability is, therefore, a key consideration from a best interests At the same time, and especially given standpoint. A child may be legally adoptable the increasing reliance by countries of but his or her situation, characteristics and origin on the potential adoption of these needs may indicate that adoption is not, children abroad, there is concern about in fact, an appropriate response or that his whether many of these children can adjust or her best interests can only be met in a to a new environment, and particularly domestic family setting. The BID process about whether foreign adopters have the aims to elucidate such elements, and the information, preparation and support to findings are to figure in the overall report cope with the special needs of the children on the child (see section 4.4.3. below). they adopt. A recommendation from the Council of Europe’s former Commissioner 4.4.1.3. The adoptability of children with for Human Rights, Thomas Hammarberg, disabilities and other ‘special needs’ pinpointed this latter problem, urging The question of psychosocial adoptability European States to “ensure that children is of particular significance in the adoption with special needs will be appropriately 208 ibid. of children with disabilities and other protected and cared for by prospective 210 special needs, who usually account for the [adoptive] parents”. 209 Vité, S. and Boéchat, H. vast majority of children who are legally (2008). ‘Article 21: adoptable but remain unadopted. Some central authorities have taken proactive Adoption’ in measures to increase public awareness of, Alen, J. et al. (2008). In adoption, children with ‘special and sensitivity to, the topic of children with special needs, to boost the chances of their 210 Council needs’ are in general those with physical, of Europe emotional or mental disabilities, as well as adoption, domestically or abroad. Peru’s (2011), General other ‘hard-to-place’ children: those with central authority, for example, developed Recommendation serious medical conditions, older children an awareness-raising programme in 2003 No. 3.

209 or sibling groups. There is no universally to recruit domestic adoptive families for 211 Ministerio de recognized definition of ‘special needs’, children who have health problems or Mujer y Desarrollo however, and the terminology used varies disabilities, children above 5 years of age and Social de Peru from country to country. In some countries, sibling groups.211 The campaign was later (n.d.). ‘Adopciones prioritarias: Los even minor problems such as a hare-lip or extended to the embassies of countries with ángeles que cleft palate are considered ‘disabilities’. The a history of intercountry adoption from Peru. aguardan, Lima.

62 Determining Children’s Best Interests in Intercountry Adoption

4.4.2. The child’s consent Where the child’s free consent is required 212 For example, the figure for France in According to both the CRC (Art. 12) – which by law and obtained freely, refusal to give 2012 was 68%, and is linked to the best interests determination that consent should always be respected 71% for the USA in 2011. – and the 1993 Hague Convention (Art. in practice. Where the law demands 4.d), children who have the maturity and only that the child’s views and wishes on 213 Webb, N.B. adoption are taken into consideration, a (2003). Social Work capacity to present their opinion on the Practice with Children. determination of adoptability should judge might well determine that these are not in the best interests of the child. Varying 214 Hague be given the chance to do so. However, Conference on 218 most children adopted abroad are babies approaches are taken on this issue. In Private International Brazil, children aged 12 years or older can Law (2008). or infants aged 4 years or less,212 who express their feelings about an adoption, cannot be expected to comprehend the 215 United Nations, but the law does not specify exactly what Department of implications of their adoption, let alone to Economic and Social ‘expressing their feelings’ might mean another country. Affairs, Population in practice. Madagascar states that every Division (2009), child who has reasonable judgement pp. 43-44. How such child participation is implem- must be informed of the implications of 216 Article 4, Cypriot ented varies, but it is clear that the child adoption.219 An adoption cannot be granted Adoption Law 19(1) must be enabled to express opinions in of 1995 States: “For in South Africa if the child is aged 10 years the making of an a context that is free from all types of or older and has not given consent. Even if adoption order, it constraints and from any fear of potential shall be required – c) a child is under the age of 10 that child’s the consent of the repercussions, with a guarantee that those views must be taken into account if he or person to be adopted, opinions will be taken into account in any if his age or spiritual she demonstrates the maturity or capacity 213 capability permits final decision. to give consent.220 that”.

217 Czech Family Guides to Good Practice Nos. 1 and 2 4.4.3. Preparing the report on the child Code Act No. 94/1963, underline the importance of having Art. 67 states: “(1) Once eligibility for adoption is confirmed, qualified and ethical personnel mandated the adoption requires a key step in preserving the child’s best consent of the legal to oversee the consent procedure. representative of the interests is the preparation of an accurate Professionals who work with children on child. If the child and comprehensive report about the child is able to consider placement decisions must understand and the consequences of and his or her background, using such appreciate the child’s history, and have a the adoption, also sources as case notes, legal records and his or her consent is good knowledge of child development, medical, developmental, educational, necessary except for family systems assessment, the impact of cases when it would psychological and social evaluations.221 frustrate the purpose trauma on children and the effects of grief Drawn up correctly, this report should of adoption.” and loss.214 be one of the main bases for a BID (see 218 Zermatten (2010), section 4.3 above). It should be prepared p. 21. A recent United Nations report found by a multidisciplinary team of experienced 219 Madagascar that the legislation of most states and qualified professionals, and should be Adoption Law No. set the minimum age of consent for 2005-014. www. independent of any pending application madagascar- adoption at 10 years of age; in 26 states by adoptive parents. Its preparation diplomatie.net/article. it was 12 years of age and in 10 states php?article_id=350 should allow sufficient time for accurate it was 14 years of age. At the other end elaboration, but should be carried out 220 Republic of South of the scale are Liechtenstein (5 years old) 222 Africa, Children’s expeditiously. Amendment Act and Mongolia and Sao Tome and Principe 2007, Government (7 years old).215 In 16 countries, the central Priority for the assessment of children who Gazette, No. 30884, 18 March 2008, para. authority is required to assess the child’s are not with their birth parents should go 233.1. maturity or capacity to understand before first to children in institutions, children 221 Vité, S. and asking for the child’s consent. Some with siblings and children with mental or Boéchat, H. (2008); countries recognize the right of children physical disabilities whose needs cannot Romaine, M., Turley, T. and to participate in adoption procedures be met in their country of origin. It is Tuckey, N. (2007). without specifying any age; instead vital that no significant information is 222 Hague the child must simply be able to left out, as this could hamper matching Conference on understand the concept of adoption. between the child and prospective Private International 216 Law (2008). This is the case in Cyprus and the adoptive parents, which would be Czech Republic.217 detrimental to the child’s best interests.223 223 ibid.

63 The Best Interests of the Child in Intercountry Adoption

In Hague contracting states, the central safeguarding the best interests of the authority is responsible for developing child. This aspect is taking on increasing policies, procedures and protocols for the importance as countries of origin seek type and frequency of assessment for each more opportunities for adoption abroad child who is not with his or her birth family of children with special needs (see section and who may be eligible for adoption. 4.4.1.3. above). Investigations should begin when the child 224 ibid., p. 84. enters the care system.224 In addition to basic assessment, some receiving countries use the ‘preparation 225 ibid.

The report should provide invaluable of prospective adopters’ as a form of self- 226 The 2010 information not only for the adoption assessment process (see section 4.4.6. below). Special Commission process but also for the children concerned, “emphasised the need for country should they wish to find out about their specific preparation 225 Children must benefit past later in life. and for prospective from systematic and adoptive parents 4.4.4. Assessment of prospective to have some developmentally knowledge of the adoptive parents culture and his or her language of the An assessment of prospective adoptive appropriate preparation child in order to parents is carried out in the receiving for adoption. communicate with country to establish their overall fitness to the child from the adopt, and to determine the characteristics matching stage”. Each receiving country sets out its Hague Conference of the children for whom they would be eligibility requirements for prospective on International suitable parents. A thorough and impartial adoptive parents, but additional or more Private Law (2010), p. 2. assessment is, therefore, an essential stringent requirements may also be component of efforts to ensure that an applied by the country of origin. China, 227 US Department adoption is likely to meet the best interests for example, requires a married couple of State, Office of of the child. As a result, it must cover with any history of divorce to have been Children’s Issues, legal, medical, social and psychological Intercountry married to each other for five years before Adoption website. dimensions, as well as more material applying to adopt.227 In many countries, http://adoption. questions, and should be conducted by a being married is an essential requirement State.gov/country/ multidisciplinary team of professionals. for intercountry adoption. Interestingly, china.html#who1

however, more than 100 countries allow 228 United Nations, A key step in determining parents’ eligibility single people to adopt through both Department of for adoption is the home study, which must domestic and intercountry adoptions.228 In Economic and Social Affairs, Population contrast, virtually all countries of origin be completed by a licensed assessor, such as Division (2009), an experienced and qualified social worker. forbid adoption by homosexual parents at pp. 38-39. While similar tools may be used to assess present.229 To the extent that their potential adoptive parents for domestic objections stem from fears over the 229 Information provided by the and intercountry adoption, issues specific potential developmental and psychological Permanent Bureau to intercountry adoption must also be impact on the adopted child, the findings of the Hague addressed, such as ability to travel, views of emerging research initiatives on this Conference on Private International about how to broach the child’s country relatively new issue should clarify matters Law on 14 January of origin and culture within the family, from the standpoint of the child’s best 2011. and thoughts about language issues.226 interests.230 230 The necessary 4.4.5. Preparation of the child potential Particular attention needs to be paid to the contribution prospective adopter’s propensity to care A best interests approach dictates that of further research for children with disabilities, behavioural children must benefit from systematic and is expressed, for problems and/or those who have spent developmentally appropriate preparation example, in European long periods in an institutional setting. for adoption. The country of origin is Parliament Clearly, a full and honest evaluation of responsible for ensuring that professional Directorate-General such capacities is vital to prevent serious staff are assigned this specific task. The (2009). ‘International Adoption in the issues for discussion vary according to the difficulties or breakdowns in an adoptive European Union’, relationship and is, therefore, crucial for age of the child, but may include explaining pp. 110-112.

64 Determining Children’s Best Interests in Intercountry Adoption

to children what they may gain by having Europe’s receiving countries (Belgium, a parent, helping them to understand Denmark, Ireland, Luxembourg, Malta, their past, involving them in the decision- the Netherlands, Slovenia and Sweden) making process in line with their evolving implement compulsory training pro- capacities, and providing them with facts grammes for adoptive parents. The issues about adoption and the process.231 covered in the training span the adoption triad, as well as the attachment and the background of adoptive children.238 Allowing children to be Sweden’s central authority has published involved in the planning a manual detailing the contents of the training sessions it runs for adoptive may help them to explore parents.239 This manual is a key component feelings of loss, anger and of the compulsory training programme that Swedish adoptive parents must follow once confusion and support the home study and assessment phase has their empowerment. been completed. 231 Chestang, L.W. The preparation phase can also give and Heymann, I Information can be provided in several applicants a chance to reconsider their wish (1976); Hanna, M.D. stages, and allowing children to be involved to adopt once they have all the information, (2008). in the planning may help them to explore enabling them to withdraw from the 232 Henry, D.L. feelings of loss, anger and confusion and process without negative consequences for (2005). ‘The 3–5–7 232 support their empowerment. Such their self-esteem. Model: Preparing discussion can also help children with children for close ties to their families, or other children permanency’, Taking inspiration from elements in Children and Youth and personnel in residential settings to the Hague Guides to Good Practice, all Services Review, understand – and mourn – the changes that adoptive families should receive training in 27(2): 197–212. 233 adoption brings. the following core areas: 233 Hague Conference A useful tool to help the child is a • the legal and social process of on Private ‘lifebook’ which provides a detailed International Law adoption in the country of origin and outline of the child’s life before adoption. (2008). the receiving country Prospective adoptive parents who plan to 234 European adopt internationally are encouraged to • issues of abandonment, separation, Parliament 234 collaborate in the lifebook’s preparation. grief, loss and mourning; under- Directorate-General standing that the psychological (2009), p. 137. consequences for the child might occur 4.4.6. Preparation of the prospective 235 Roby, J. L. adoptive parents only later, when parents think such (2007). issues have been resolved Being placed in a family well prepared for 236 Farber, M.L.Z., • the adoptive family life cycle and adoption is in the child’s best interests, Timberlake, E., as it will ensure a better ‘fit’, as well as unique issues in adoptive family Mudd, H. P. and better day-to-day care and responses formation Cullen, L. (2003). 235 to the child’s needs. An accredited • unique issues of identity, which vary 237 Bledsoe, J.M. adoption body in the receiving country according to the age and developmental and Johnston, B.D. is responsible for helping to prepare stage of the adopted child (2004). prospective adoptive parents, although • culture and ethnicity 238 European countries of origin may also develop Parliament preparatory training programmes which • attachment in adoption, including Directorate-General adoptive parents are obliged to attend. methods to promote attachment at an (2009), p. 136. Training activities may be planned early stage 239 Swedish and delivered by social workers or • outcomes and risks in intercountry National Board of psychologists;236 when preparation entails adoptions, focusing on the health, Health and Welfare a medical focus, physicians and nurses development, behavioural and educa- (2007). ‘Special will also be involved as presenters.237 Parents for Special tional needs that may be experienced Children’, Edita A recent study found that many of by children from institutions Vastra Aros.

65 The Best Interests of the Child in Intercountry Adoption

• dealing with unresolved infertility While the child’s ethnic identity should issues (if applicable) be considered in every case, and matching • resources for a single adoptive parent should take this into account, this does not (if applicable) imply the need for placement in a family of the same ethnic background. But it does • the short- and long-term effects of entail a full assessment of prospective neglect, abuse and trauma experienced parents, coupled with preparatory and by the child before adoption, to help post-adoption services to support them prepare adoptive parents to meet any in this task.244 Evidence also indicates that challenges. positive ethnic identity development is aided by travel to the child’s country of 4.4.7. The matching process origin, role models who share the child’s Matching is the process of assessing which race or ethnicity, enrolment in a racially 240 International Social Service prospective adopters would best meet diverse school and, above all, contact with and International 245 the needs of a child for whom adoption is birth relatives. Resource Centre envisaged. In keeping with the paramountcy for the Protection principle, the best interests of the child are To accomplish a positive, child-centred of Children in Adoption (2004). the most important consideration and the match, the process should be conducted in ‘The Rights of the matching process is to be child-centred: the country of origin by a multidisciplinary Child in Internal finding the most appropriate family for the team of professionals familiar with the child; and Intercountry child rather than the most ‘suitable’ child it should not be left to any one individual.246 Adoption. Ethics and Principles; for the family.240 Slovakia’s central authority, for example, Guidelines and has created a commission of specialists Practice’. Preliminary matching is based on the (comprising a psychologist, social worker assessment reports of the child concerned and legal expert) who select the most suitable 241 Lammerant and Hofstetter (2008). and of prospective adopters, which family for an individual child from a list

247 underscores the importance of ensuring that of prospective candidates. The matching 242 Lind and these reports are accurate and complete. A process should be confidential and only the Johansson (2009), match based on false or missing information final outcome should be shared. p. 250.

could cause major problems for the child, 243 Hague 241 the family or both. No uniform guideline exists on the age of Conference prospective adoptive parents, but there on Private Matching should be a “balancing act are two general approaches.248 The first International Law (2008), p. 87, para. between acceptance of the limitations in … addresses age limits for the prospective 357. applicants’ ability to love every child and a adoptive parent(s): many countries have requirement for them to be able to do just a minimum age and some also stipulate 244 Evan B. that, but also between the ambition to achieve a maximum age. Prospective adoptive Donaldson Adoption Institute as much likeness between the adoptive parents in India, for example, should be at (2009). parents and their child as possible and least 30 and no more than 55 years old. The the ambition to accommodate applicants’ second approach uses the age difference 245 ibid. preferences.”242 Applicants’ preferences between the child and prospective adoptive 246 Hague should be accommodated only when these parent(s). The minimum age difference in Conference are also in the child’s best interests. some countries is 15 years; in others it is as on Private high as 21 years. A combination of these International Law It is poor practice to make ‘blind’ matches, two approaches is often used; for example, (2008), p. 29, para. 49. in which prospective adoptive parents are in Luxembourg, adoptive parents must

unaware of the identity of the matched have reached the age of majority and be at 247 European child until they arrive in the country of least 15 years older than the child. Parliament origin, or are offered a child only upon Directorate-General (2009), p. 137. arrival, with too little time to decide Matching decisions must be based on a clear

whether or not to proceed with the policy that prohibits preferential treatment 248 United Nations, adoption.243 Administrative decisions that of specific families referred by a particular Depaartment of result in blind matching – in contrast to the agency or individual. Again, the best Economic and Social Affairs, professional decisions made by specialists – interests of the child principle is central to this Population are rarely based on a real assessment of the process. To avoid a certain adoptive family Division (2009), best interests of the child. being favoured, Article 29 of the 1993 Hague pp. 36-38.

66 Determining Children’s Best Interests in Intercountry Adoption

Convention specifies that prior contact least two weeks before an adoption decree between the prospective adoptive parents is pronounced. Psychologists or social and the birth parents or guardians must be workers assist during the bonding period, avoided, unless the adoption takes place helping to build the relationship between within the family or complies with conditions the child and the adoptive family. After the set by the competent authority.249 Similarly, first meeting, both sides are observed by there should be no contact between adoptive a psychologist in their daily interactions – parents and the authorities of the country of including play, negotiation and expression origin, except in specific circumstances, such of affection. Observations span three days as certain cases where the child involved in the case of children up to 6 months of has special needs.250 age, rising to a maximum of five days for children older than 1 year, with the caveat Matching decisions are in no way to be that any challenges encountered will seen as final. They should lead to a phase further prolong the process.251 during which the child and the prospective adopters are given the opportunity to bond. It is clear that adherence to the best interests The adoption should only proceed if this principle will be enhanced if the reactions subsequent bonding process is positive. of the prospective adopters are garnered This is another reason why the removal in a setting where they can express of children from an emergency situation themselves freely, and without feeling to the care of potential adopters who have pressured to proceed with the adoption if not been through the bonding process with they have serious doubts. Depending on them is particularly risky and unlikely to the age and capacities of the child, his or be in the best interests of the child. her views should also be solicited in a child- friendly context immediately after the first 4.4.8. Bonding meeting and after subsequent meetings, if The initial meeting between prospective necessary. If any problems are observed adopters and the child with whom they or reported, the professional staff must have been matched is the first step in the devise plans for how to proceed. It may be bonding process. It should take place in enough to work with the child to aid his the country of origin, and a professional or her adjustment or with the prospective should facilitate and supervise the meeting. adopters to ease the transition. However, The bonding process is, in essence, the the adoption may need to be delayed or practical test of the matching decision. abandoned depending on the views of the 249 Hague Convention prospective adopters and the child about on Private International If its results are positive, the adoption will Law (1993). proceed – which occurs in most cases where the meetings. the preliminary matching has been carried 250 Hague Conference out in a professional way. At the same It follows that the practice of ‘escorting’, on Private International where a staff member or volunteer ‘delivers’ Law (2008), p. 87. time, if serious bonding problems arise, the adoption process can be halted early the child to the receiving country, is not in 251 Instituto 252 enough to avoid traumatic consequences the child’s best interests, particularly Colombiano de for the child. if there has been no bonding process Bienestar Familiar beforehand in the country of origin. In any (2007). ‘Lineamientos de Adopción’, case, ‘escorting’ could well add to the child’s Bogota. If serious bonding problems anxiety. It also denies adopting parents the arise, the adoption process valuable insights gained by being with the 252 Groza, V. and child in his or her current surroundings C. Proctor (2007). ‘Escorting children in can be halted early enough and through informal conversations with inter-country adoption’, to avoid traumatic caregivers. Information that is not usually in J. Pati, ed. Adoption: recorded in official records can be elicited Global perspectives consequences for the child. and ethical issues. in this way, such as dietary preferences and New Delhi, Concept 253 how best to calm the child. Publishers, pp. 177–88. Colombia offers a positive example of how 253 Hague Conference to facilitate a first meeting. Adoptive parents on Private International must stay in the country with the child for at Law (2008).

67 The Best Interests of the Child in Intercountry Adoption

4.4.9. Entrustment of the child and the Philippines and Thailand, which finalization of adoption requires a six-month probationary period 257 Entrustment refers to the placement in the receiving country. Should bonding of the child in the care of adoptive not be successful during that period, the parents. Adoption under the 1993 Hague consequences for the child may be more Convention has an important safeguard in traumatic and difficult to resolve because he Article 17(c), which provides that the best or she is already in a foreign country. How interests of the child should be respected such an arrangement ties in with the child’s before this entrustment takes place. This best interests is therefore questionable. is to be ensured by an agreement based on the acceptance of the matching by the 4.4.10. Post-adoption issues adoptive parents, confirmed by the country Ensuring the best interests of the child of origin, the approval of that decision during the post-adoption phase demands by the authority in the receiving country a focus on support services for the child (if required), the establishment of the and adoptive family, post-placement eligibility and suitability of prospective reports, responses in cases of irredeemable adoptive parents to adopt, and the breakdown in the adoptive relationship, granting of permission for the child to live and the search for origins. Post-adoption permanently in the receiving country.254 support services must be wide-ranging and sufficient to address the multiple and 254 Hague Convention on Normally, entrustment should occur intertwined needs of adoptees and their Private International before the child is transferred to the new adoptive families258 across the child and Law (1993), Art. 17. country of residence.255 And, as mentioned family life cycle.259 These services are to be provided by receiving countries, and 255 Hague in the previous section, it is good practice, Conference on and in the best interests of the child, for may be formal (e.g., case management, Private International adoptive parents to travel to the country of services offered by a licensed mental health Law (2008), p. 119, origin to spend time with the child before professional or agency) or informal (e.g., para. 545.

260 accompanying him or her to the new home. parent support groups). 256 International Social Service (2007). Most countries require adoptive parents ‘The Conformation to travel to the child’s country only once, Good post-adoption of Matching, the Meeting and the during which visit the entrustment, support includes an element Probationary Period’, probationary period and final decision will Fact Sheet No. 43. all take place. However, some countries of community education. require prospective adopters to travel to 257 Hague Conference on the child’s country twice: first to accept the Formal services should include regular Private International matching and to bond with the child during face-to-face contact between the adoptive Law (2008), p. 118, a ‘probationary period’, and second for the family and professionals for several para. 543. decision on adoption. This option confronts months after the child’s arrival, to assess 258 ChildONEurope the child (and family) with disruption how he or she is faring and how the family Secretariat (2007). and a period of separation, which may be is adjusting. Offering comprehensive ‘Guidelines on post- extremely detrimental, particularly if the post-adoption support services requires adoption services’. Florence: Istituto gap between the trips is very long.256 professionals who can deal with degli Innocenti. medical, developmental, educational A few countries stipulate a longer and behavioural issues. Social-work 259 Rosenberg, E. probationary period – as is commonplace case management may also be needed (1992). The Adoption Lifecycle: The children in domestic adoption – which must take to assist families with early intervention and their families place in the receiving country. In that case, programmes to prevent problems from through the years. the child usually meets the prospective arising or progressing. It is good practice New York: Free adopters in the country of origin and then to evaluate all families and children Press.

travels to the receiving country to spend immediately after placement to ascertain 260 Palacios, J. (2009) an extended period with the selected any needs and to develop a system of in G.M. Wrobel and family before the adoption is finalized periodic check-ins or opportunities for E. Neil, pp. 71–94; (whether in the receiving country or families to seek more help. Dhami, M.K., D.R. Mandel and country of origin). They include Panama, K. Sothmann (2007).

68 Determining Children’s Best Interests in Intercountry Adoption

More widely, good post-adoption support goes unreported, so data are scarce on includes an element of community whether the best interests of the child are education or the encouragement of upheld effectively in such circumstances. community support. Parents might require targeted, specialist support to address identity and transracial issues and to help A key issue is whether to adopted children preserve links with their allow adoptees access to cultural traditions. information on their rights. Each country of origin determines its time frame and requirements for post-placement Adoption-related issues may surface reporting: these range widely, from no throughout the adopted child’s lifetime.265 more than one year following placement A key issue is whether to allow to the time the child reaches adulthood. adoptees access to information on their The Philippines, for example, requires origins. The overwhelming tendency post-placement reports two, four and six among professionals is to recognize months after the adopted child arrives the psychological need for adoptees to in the receiving country, while Ukraine have access at least to non-identifying demands annual reports for the first three information about their origins, to years and then once every three years consolidate their identity. This is not 261 US Department until the child reaches the age of 18.261 The universally accepted, however, and access of State (2008). 2005 Hague Special Commission, while to such information is not formalized Intercountry Adoption, 266, 267 recommending that receiving countries explicitly as a right by the CRC. ‘Ukraine Country encourage adopters to comply with post- Information’. adoption reporting requirements, also Each Hague contracting state must 262 Hague proposed that countries of origin “limit the preserve documents that relate to the Conference on period in which they require post-adoption adopted child’s family and medical Private International reporting in recognition of the mutual history (Art. 30(1)) with a view to the child Law (2005), para. 18. confidence which provides the framework having access to this information at some 263 International 262 for co-operation under the Convention.” point if he or she so desires. This is clearly Social Service considered to be in the best interests of (2007). ‘Intercountry In general, it is considered good practice the child. At the same time, ensuring Adoption: Post- adoption follow-up’, to require regular reporting over no more such access is not an absolute obligation, Fact Sheet No. 46. than three years.263 In addition, post- and is applicable only “in so far as [this] adoption reporting has proved to be of is permitted by the law of that State.” 264 Hague little value, in reality, from the standpoint (Art. 30(2)). Indeed, practices around the Conference on Private of the best interests and protection of the world vary: some countries prohibit the International Law individual child, as almost no reports search for origins outright; others have a (2008), p. 129, submitted contain information that has coherent policy on the preservation and para. 604. provoked concern. sharing of information at different stages, 265 Rosenberg, E. or envision supervised country visits.268 (1992). In cases where the adoption breaks down Services that handle adoptees’ requests 266 International (i.e. legal rights to the adopted child are for the search for origins should be staffed Social Service relinquished by the adoptive parents) the by trained professionals with extensive (2007a). receiving country and country of origin knowledge of intercountry adoption must collaborate to prepare a permanency issues in both the country for origin and 267 Brodzinsky, D., L.M. Singer and 269 plan or alternative placement that is in the receiving country. A.M. Braff (1986), in the best interests of the child. Ultimate P.D. Ashmore and responsibility for planning the child’s D.M. Brodzinsky, eds. future lies with the receiving country’s competent authorities, and only in extreme 268 International circumstances should a child return to his Social Service (2007b). or her country of origin.264 However, the breakdown of intercountry adoptions often 269 Roby, J. (2002).

69 The Best Interests of the Child in Intercountry Adoption

4.5. What is the real importance The ‘environment’ in which given to the best interests of the intercountry adoptions are child in intercountry adoption? carried out is also of great importance. Whether it be from the standpoint of

overall policy or the situation of a specific The next chapter therefore examines some child, this chapter has outlined the wide key elements in that ‘environment’ that range of factors that need to be reviewed also need to be addressed – by countries of in each case if the best interests of the child origin and receiving countries alike – as a and of children are to be the ‘paramount pre-condition for intercountry adoption to consideration’ in decision-making. In so be undertaken in a manner consistent with doing, it has shown, either explicitly or the ‘best interests principle’ and the human implicitly, that this is frequently not the rights of children. case in reality, and that the full practical implications of subscribing to the ‘best interests principle’ have, undeniably, been barely acknowledged in many quarters so far.

But it is not only the insufficient attention given to proper assessment – of laws, policies, procedures and the circumstances of individual children – that has failed to place best interests systematically at the heart of decisions around the intercountry adoption of children. The ‘environment’ in which intercountry adoptions are carried out is also of great importance – the extent to which circumstances and actions tend to favour the thorough determination of best interests or, on the contrary, to jeopardize or even run counter to that requirement.

70 UNICEF Office of Research

Ensuring the Right Conditions for a Best Interests Determination 5ǀ in Intercountry Adoption

Key points

ÌÌ Robust foundations must be in place to ensure that the best interests of the child are truly paramount in intercountry adoption, as required by relevant human rights instruments, but the ‘environment’ is by no means always favourable to their proper functioning.

ÌÌ The challenges to countries of origin include scarce human and other resources, the lack of domestic options, an unquestioning attitude in cases of ‘abandonment’ and/or ‘relinquishment’, and the continued influence of a largely unregulated private residential care sector.

ÌÌ However, receiving countries also need to put their own houses in order, ensuring that they in no way pressurize or incentivize countries of origin to allow more children to be adopted by their citizens. They must also achieve consensus among themselves on the minimum criteria to be met for the intercountry adoption process to be considered acceptable from the stand- point of the best interests of the child.

71 The Best Interests of the Child in Intercountry Adoption

The previous chapters have set out the Intercountry adoption in Ireland, specific roles that best interests can play, while being an arduous process for validly, in a human rights context and how prospective adopters, is in some those roles can be considered for policy ways more accessible than domestic development on intercountry adoption, adoption. This is because a child is safeguards throughout the adoption generally available for adoption process, and determining whether or not in an intercountry context, such is intercountry adoption should be pursued the extent of deprivation in many for any given child. countries, whereas in Ireland the numbers of children that are placed for The operationalization of these roles at adoption are very low.270 each of those levels will be well-nigh impossible, however, unless a number In contrast, Smolin argues that not only is of basic conditions are met to create an there “a palpable cruelty to taking away the ‘enabling environment’ for this to happen. children of the poor”, but also: The current environment is surprisingly hostile to the proper consideration of Such an act exploits the vulnerability children’s best interests in relation to of those deprived of their basic human their wider rights. This chapter pinpoints right to an adequate standard of living, key issues to be addressed if that and uses this deprivation of rights as enabling environment is to be secured justification for a further deprivation of – an environment where best interests rights: the rights of parents to retain the 270 Law Reform assessment and determination are the true care and custody of their children.271 Commission, foundation for decisions about the adoption Ireland (2008). Law Reform of children abroad, as international Along the same lines, Fuentes et al. state: Commission, standards prescribe. Ireland (2008). It is essential to put an end to the Aspects of There are three basic issues: policy Intercountry reasoning that poverty alone is suffi- Adoption Law. approaches; conditions in the country of cient for relinquishment, abandonment Dublin: Law origin; and actions to be taken primarily and finally, for an adoption. In too Reform by receiving countries. many cases, relinquishment and Commission (our emphasis). abandonment wrongly turn into adoption, with or without the proper 271 Smolin, D consent of birth parents.272 (2007). 5.1. Policy approaches 272 Fuentes, F, Chapter 4 examined important factors that Such calls have found a forceful echo at Boéchat, H. and determine overall policy on intercountry international level. The CRC Committee, Northcott F. (2012). adoption and their impact on the extent having reviewed Nepal’s State Party ‘Investigating the to which the best interests of the child Grey Zones of Report in 2005, for example, recommended Intercountry are a genuine consideration. There are the country to: Adoption’, at least two other policy questions that International Social need to be raised to preclude the intrusion …abolish the provisions in the Service, Geneva, of any unwarranted elements into a best p. 20. Conditions and Procedures made to interests assessment: the response to provide Nepalese Children to Foreign 273 Committee poverty and the relationship between Nationals for Adoption (2000), that on the Rights of children and families. states that poverty of the parents the Child (2005b). ‘Concluding of a child can be a legal ground for Observations: 5.1.1. The ‘family poverty’ argument adoption.273 Nepal’ (CRC/C/ As shown in Chapter 1 of this study, 15/Add.261), para. 54(c). material poverty has long been used to In that vein, and more proactively, justify the removal of children from parental Guatemala’s 2007 law on adoption 274 Government of care, or to accept their relinquishment stipulates that “the situation of poverty Guatemala (2008). unquestioningly. And it is still often seen as or extreme poverty does not constitute Adoption Law (Ortega’s Law), a valid reason, on its own, for intercountry sufficient motive for placing a boy, girl or entry into force 1 adoption. For example: adolescent for adoption”.274 January 2008, Art. 6.

72 Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

For their part, the 2009 Guidelines for the as with adults, understandably, do not Alternative Care of Children set out the have a right to a family per se under principle in question for the first time in an international law.279 international instrument: She goes on: Financial and material poverty, or ...Although a child has a right to conditions directly and uniquely respect for his or her existing family imputable to such poverty, should life, a child does not have a right per never be the only justification for se to a family life. The consequence the removal of a child from parental of this is that children do not in care, for receiving a child into international human rights law have alternative care, or for preventing his/ a right to be adopted.280 her reintegration, but should be seen as a signal for the need to provide Therefore, under the CRC, children’s rights 275 appropriate support to the family. in relation to the family concern only their family: the child’s right, as far as possible, to In other words, material poverty should know and be cared for by his or her parents not be seen as a key element in determining (CRC Art. 7.1); the right to preserve his or whether or not intercountry adoption is in her identity, including family relations (CRC the best interests of a child. Consequently, Art. 8.1); and the right not to be subjected to it is not included explicitly in the factors arbitrary or unlawful interference with his proposed for the BID process in Chapter or her family (CRC Art. 16.1). ‘Their family’ 4, though it would normally inform the naturally includes an adoptive family, but evaluation of the level of stability and only after the adoption has taken place. security provided by the child’s day-to- day living environment.276 Allowing it to While the CRC also sets out conditions remain as a major consideration in adoption (e.g. in Art. 9) under which children’s 275 UN General decisions will inevitably and significantly ties with their parents may be justifiably Assembly (2010), para. 15. falsify the BID process. suspended, partially or wholly, or even annulled for good, nowhere does it stipulate 276 See 4.3.1 5.1.2. The ‘right to a family’ argument a child’s right to then live in a substitute above, Table 1 family environment. ‘Proposed The key international standard – the CRC – is checklist for a clear about the desirability of having children best interests grow up in a family environment, for “the Clearly, the requirement is that the child’s assessment and determination full and harmonious development of his or right to his or her own family should be the basis of policy when approaching a BID process on her personality” and “in an atmosphere of intercountry happiness, love and understanding”.277 Such process, save in exceptional circumstances. adoption’, statements have been portrayed in some This is even more important in intercountry key issue 3. quarters – including many concerned with adoption because, as discussed in section 5.2.3 below, most children adopted abroad are 277 United intercountry adoption – as conferring a ‘right Nations (1989). to a family’ on every child. While seeking, neither orphans nor have they been removed Convention on 281 first and foremost, family-based solutions from parental care ‘in their best interests’. the Rights of the Child, Preamble. for children who cannot live with their parents is a fully accepted policy orientation 278 ibid. Art. and objective,278 it is wrong to view this as 5.2. Conditions in the country 20.3 implicitly stemming from a ‘right’. suggests this, for of origin example.

Among a number of commentators, Van The realities of most countries of origin, as 279 Van Bueren, G. Bueren has been particularly forthright on they stand, are not conducive to ensuring (1998), p. 93 (our emphasis). this issue: that a BID process can take place under ideal – or even acceptable – conditions. This 280 ibid., p. 95, Although children have a right under a section reviews four of the most troubling (our emphasis). variety of treaties to respect for family systemic problems: those that relate to 281 Cf. United life, and to protection against unlawful operational issues more than to isolated Nations (1989), interference with the family, children, instances of illegal activity. Arts 9.1. and 20.1.

73 The Best Interests of the Child in Intercountry Adoption

5.2.1. Limited domestic options on type and quality. As noted in Chapter To maximize the usefulness of the BID 3, many countries of origin have been process, there needs to be in place a whole inspired to develop in-country alternative spectrum of preventive and protective care options on becoming a state party to responses that can be considered before the 1993 Hague Convention. In particular, deciding that intercountry adoption may countries as diverse as China, Guatemala, Kenya and Moldova have developed be in the child’s best interests. family-based responses. These include the promotion of domestic adoption for The Guidelines for the Alternative Care of children who will never again be able to Children emphasize the need for countries benefit from parental or kinship care. An to “implement effective measures to prevent effective step towards such an approach child abandonment, relinquishment and can be simply removing financial hurdles, separation of the child from his/her family”282 such as administrative charges and travel and list a variety of potential family costs, which may be prohibitive for nationals support and strengthening programmes.283 who are otherwise willing and fit to adopt. The provision of such services stretches the available resources in many countries, but this can be eased in various ways. These Many countries of origin include the judicious implementation of have been inspired to social protection schemes to reduce family poverty, assisting the community to provide develop in-country day care, and enlisting the conciliation and alternative care options on counselling skills of community leaders and elders. In some contexts, it may be becoming a state party to appropriate to mobilize international the 1993 Hague Convention. development cooperation in such efforts, including ’South–South’ cooperation (e.g. While the impact of such initiatives can to kick-start community day-care initiatives only be progressive, their importance is based on successful experiences elsewhere). particularly critical in ensuring a meaningful Combined with an enhanced recognition BID process for intercountry adoption. of traditional informal care options (see section 3.3.1), affordable schemes can be 5.2.2. Private residential care provision developed to avoid recourse to formal care 282 United Nations Formal alternative care provision in most placements or adoption. General Assembly countries of origin consists mainly of (2010), para. 34. privately run residential facilities, with The Guidelines also point to the need for the exception of countries in Central and 283 ibid. a “range of alternative care options … Eastern Europe and the Commonwealth 284 ibid., para. 54. for emergency, short-term and long-term of Independent States. It is not unusual 284 care” that come into play when efforts for such facilities to be involved directly 285 ibid., para. 55. to prevent short or long-term family in intercountry adoptions – indeed, some separation fail. This range spans foster care 286 For example, are established or financed by adoption according to Save and other family-based arrangements, as agencies themselves or are supported the Children, the well as suitable forms of residential care. through donations from prospective number of The availability and quality of such care adopters. Frequently, such residential care residential facilities options determines whether or not the for children in facilities are not registered or authorized Ghana increased subsidiarity of intercountry adoption to as being fit to care for children either from ten in 1996 domestic solutions can be adhered to in professionally or ethically, let alone subject to more than 140 in practice. Too often, the reality in countries to inspection and supervision, as demanded 2009, and by a factor of 11 in Liberia over of origin is that no such range exists, with 285 by the Guidelines. the same period. residential facilities offering almost the See Save the only form of care provision (see section This essentially unregulated and growing Children (2009). 5.2.2 below). Development assistance sector286 jeopardizes any attempts to carry Keeping Children out of Harmful programmes should also be mobilized to out a fully fledged BID process. Above all, Institutions. support the establishment of such a viable it is at the heart of the active recruitment of London: Save the range of options, in line with the Guidelines children into alternative care, whether or Children UK.

74 Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

not this is necessary for those concerned. that most children in ‘orphanages’ still Parts of this sector also try to ensure, have one or both parents. Save the Children by any means necessary, that as many records that at least four out of every five children as possible can be presented as children in institutional care worldwide ‘adoptable’, in response to demand from have one or both parents alive, with that abroad. In recent years, scandals over such proportion often being even higher in child procurement have erupted in many individual countries or regions: 90 per cent countries of origin, including Cambodia, in Ghana and even 98 per cent in Central Ethiopia and Haiti. The fact is that the best and Eastern European countries of origin, interests of the child are not on the agenda for example.287 of such residential facilities.

The problems to be overcome if BID is to It is now a well-established become a reality in such circumstances are clear. Private provision is destined to fact that most children in remain the core feature of alternative care ‘orphanages’ still have one systems in those countries of origin for the foreseeable future. It exists primarily or both parents. because the state in those countries is unable or unwilling to devote resources This reality has generated the highly to care provision (and to the prevention of dubious term ‘social orphans’ to describe recourse to alternative care) and because the status of these children, in an attempt outside funding can be accessed with ease. to legitimize a view of them as being in a In most such countries, therefore, it is similar situation to that of genuine orphans. unlikely that state resources will be made Given that the likelihood of a child being available on the scale required to ensure orphaned increases with age, most true meaningful oversight and the conditions that would make the BID process a realistic orphans are older and therefore more proposition. difficult to place with adoptive families, particularly in the case of sibling groups. Possible responses to this, while not resolving the situation fully, may at In most African and Asian countries of least improve it. They include: increased origin, and some countries elsewhere, it is international cooperation to enable rare for parents to be formally deprived of countries of origin to assess, authorize their parental responsibilities as a result of and inspect care providers systematically maltreatment of their child, in part because and on the basis of comprehensive criteria; the social work and legal systems are prohibiting the establishment or funding insufficiently developed to undertake such of residential facilities by agencies engaged interventions. As a result, very few children in intercountry adoption and their clients; in such countries become legally adoptable and sensitizing foreign donors to the for this reason. paradox of funding the kind of facilities that would be discouraged or outlawed in It follows that most of the children adopted their own countries – in essence promoting abroad are declared to be either ‘abandoned’ the very type of care provision that leads – with their parents recorded as unknown to the concerns they express about the – or ‘relinquished’ by their parents who number of children in institutional care. have, at least in principle, given their free and informed consent to their child’s 5.2.3. Reasons given for pronouncing adoption. Clearly, it is extremely difficult ‘adoptability’ to verify whether or not a child has truly The vast majority of children who are been ‘abandoned’ anonymously: all kinds adopted abroad are neither orphans, in of ploys have been used to make it almost the sense that both parents have died, nor impossible to trace parents. Relinquishment have they been removed from parental is also subject to much abuse, with forgery, care because of serious abuse or deliberate coercion and misleading information all neglect. It is now a well-established fact playing a part in many signed consent forms. 287 ibid.

75 The Best Interests of the Child in Intercountry Adoption

But what is particularly significant from 5.2.4. Lack of human and other the best interests angle is the way that resources to undertake a best interests national legislation influences whether determination abandonment or relinquishment is used It is clear that a BID assessment on each to justify a child’s adoptability – in other child for whom intercountry adoption is words, an opportunistic approach can often envisaged needs considerable and timely determine the registered status of children investment. It is also obvious that, when and, therefore, their future. annual intercountry adoptions from an economically disadvantaged country are Before Guatemala’s ratification of the 1993 no longer an ‘exceptional measure’ but Hague Convention became effective, very a daily occurrence for possibly up to 10 few ‘abandoned’ children were adopted children or more,291 any such country abroad from that country, because would struggle to provide qualified abandonment had to be declared by a staff to assess each child’s situation and court and the process was unusually long. determine his or her real need to be cared Almost all intercountry adoption cases for permanently in a family elsewhere. were processed directly and solely by lawyers, and few of the latter would handle This is all the more important when cases of abandonment “due to the lengthy adoptions from a given country have and unwieldy process of having a child escalated within a few years, and the declared legally abandoned.”288 Because a country in question is not bound by Hague signed consent form was, initially, enough requirements. Adoptions abroad from the for a child to be declared ‘relinquished for Democratic Republic of Congo, for example, adoption’, this was invariably the chosen rose from just one each month in 2004 to (extra-judicial) path taken by lawyers and well over one per day by 2012 (at least 460 to prospective adopters. France, Italy and the United States combined during that year), completely outpacing any In stark contrast, most children adopted developments in allocated resources. abroad from Nepal had been registered as ‘abandoned’, essentially because it As a result, it is untenable for countries was difficult to prove otherwise. In 2010, of origin or receiving countries to affirm however, the US government and others that intercountry adoptions under such 288 Bunkers, K.M. determined that “the documentation conditions have been approved and (2005). ‘Fostering children prior to presented for children reported abandoned undertaken with the best interests of the adoption: The case 289 in Nepal is unreliable”, and all receiving child as ‘the paramount consideration’. of Guatemala’, countries have since refused to process the Early Childhood intercountry adoption of children reported There seem to be three main ways to Matters, 105: 42–44.

as ‘abandoned’ from that country – leading confront this kind of situation, though none 289 US Citizenship inevitably to a sharp reduction in the is by any means entirely satisfactory. and Immigration number of adoptees, as that ‘abandonment’ Services and had, invariably, been fabricated.290 First and most obviously, the country of Department of State, news release, origin may limit the number of intercountry 6 August 2010. Only one conclusion is possible if a adoptions to a level that the system can BID process is to be achieved: receiving cope with. Madagascar, for example, uses 290 For example, countries must examine very carefully this approach preventively, but the remedy for France, from 19 in 2010 to 0 in not only the procedures and realities that has been more usually applied only once 2012; for the US, underpin the justifications provided for the system is overwhelmed. This may from 30 in 2010, ‘adoptability’ in each country of origin, result in a ‘stop–go’ approach which then 63 (mainly but also the tenor and implications of generates problems of its own. pending from before) in 2011, the legislation in force, which may down to 3 in 2012. determine how children are channelled Second, attempts can be made to increase most easily into intercountry adoption. resources to undertake BID and other tasks 291 For example, This is especially vital in relation to non- related to intercountry adoption, with 4,397 children from Ethiopia were Hague countries of origin. receiving countries offering training and adopted abroad in other assistance, for example. However, 2010, an average of this prioritizes intercountry adoption 12 per day.

76 Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

assessments over other welfare initiatives react as best they can and despite all the and can create an undesirable imbalance in odds noted in the preceding sections of the use of scarce human resources, such as this study. In the following sub-section social workers and members of the medical we recall the major concerns that must be professions. tackled by receiving countries in particular to create a BID-friendly environment. Third, receiving countries could be more proactive in the BID process to compensate for the lack of local resources, Intercountry adoption but this would be a highly debatable happens at the initiative of move for many reasons, including: the jurisdictional and legal status of such receiving countries, not as interventions; the need for in-depth a result of requests from knowledge of culture and mores; and the countries of origin. perceived or actual conflict of interests involved. Indeed, few receiving countries carry out case-by-case investigations, even 5.3.1. Financial incentives to maximize where there are serious concerns, because intercountry adoptions of the restricted mandates and resources Over and above illegal payments made of their representations in the countries to secure children for adoption and/or to concerned, and the logistical problems expedite the adoption process, policies often involved. and laws in some countries create systems that involve financial obligations. These, The dilemma is clear. On the one hand, perversely, constitute officially sanctioned putting a fully-fledged BID process in incentives to carry out the maximum place could divert resources in the country number of intercountry adoptions. of origin from more fundamental welfare issues. On the other hand, without such While these systems vary in nature, they a process, there is no guarantee that the revolve around the idea that agencies subsidiarity principle will be respected and/or prospective adopters are required to and that the best interests of the child will make a ‘contribution’ or are encouraged to be upheld. make a ‘donation’ to an authority (central, regional or local) or to a specific residential child care facility for adoptions to be 5.3. Actions taken by receiving processed. It is immaterial whether the contribution or ‘gift’ is made before, during countries or after the adoption process: the knowledge that it is coming at some point incites While it is natural that countries of origin, those involved to procure and ‘process’ according to international standards, children to that end. Meanwhile, the firm must be the sole decision-makers as to expectation on the part of the contributor when intercountry adoption is in the or donor that an ‘adoptable’ child will best interests of their children, this does be allocated creates a similar climate of not absolve receiving countries of all pressure to make a child available. responsibility. In general, and in theory at least, receiving countries accept this. The problem can be particularly severe What they are more reluctant to accept is when agencies work closely with the fact that countries of origin have been specific residential facilities and where, put in that position because this is what as is often the case, the transfers are potential or actual receiving countries have made in cash with no accountability. 292 See, for obliged them to do. Intercountry adoption Contributions or donations per child example, US happens at the initiative of receiving adopted may be the subject of bargaining Embassy Hanoi countries, not as a result of requests from and each facility concerned benefits (2008). ‘Warning Concerning countries of origin. Receiving countries by providing the highest number of Adoptions in act, and countries of origin can then only children possible.292 Vietnam’.

77 The Best Interests of the Child in Intercountry Adoption

Such is the level of overall concern about Independent adoptions the unequal influences of money and the best interests of the child in adoptions were excluded deliberately that the Permanent Bureau of the Hague from the Hague Convention Conference is developing a Note on the Financial Aspects of Intercountry because they had been Adoption, based on the conclusions of shown to involve a an Expert Group set up specifically to particularly high risk of examine the question.293 This covers all the questions outlined above and a wide malpractice. range of associated issues. The Hague Special Commission has called One important requirement that for a total “prohibition on private and transpires is the fundamental need to independent adoptions”294 and the Council ensure that expenditure related to an of Europe’s former Commissioner for adoption must be limited to the costs of Human Rights has recommended services directly involved and nothing specifically that states “ensure that more. Any financial support to an authority intercountry adoption is carried out only or facility for general child protection, through accredited and authorised agencies for example, should be kept completely and explicitly ban non-regulated and private separate from intercountry adoption, and adoptions from any country of origin”.295 should never be demanded of, or accepted from, bodies or individuals involved in There is no question that these recommen- an adoption. dations must be acted upon by all receiving countries if they are serious about the best Competent authorities in receiving interests of the child being the paramount countries must systematically refuse consideration in intercountry adoption. any proposed arrangement with a country of origin that does not respect Independent adopters may use the services this separation, and must also ensure of individuals who are not registered, that all actors comply with this rule in authorized or monitored in the chosen practice. Unless and until this incentive country of origin. They have no way of to maximize the number of children for verifying the legality of the various steps adoption abroad is removed, there is no undertaken, and they are likely to play realistic possibility of ensuring that a an inappropriate role in determining 293 The original discussion paper BID process can take place under proper which child they seek to adopt, ‘selecting’ a child rather than being ‘matched’ with a on this question conditions or, therefore, that children was presented to are adopted to the receiving country ‘in child. The activities of individuals in the the Expert Group their best interests’. country of origin are far more difficult to in 2012. See Hague monitor than those of a single accredited Conference on agency representing many prospective Private International 5.3.2. Independent adoptions Law (2012b). adopters. If such adopters return home Intercountry adoptions carried out ‘Discussion paper with a child, it is likely that the adoption on the financial privately or independently – without will be recognized or that the child will be aspects of going through an accredited agency granted permission to remain, whatever intercountry adoption’. The or being under the direct and effective has happened in the country of origin, since supervision of a central authority – are Hague: HCCH the ‘best interests of the child’ at that late Permanent Bureau. not covered by or compliant with the stage usually dictate that the child will not The ‘Note’ is 1993 Hague Convention. Any possibility be returned to that country. In addition, scheduled for of such independent adoptions was independent adopters may have no access publication in 2014.

excluded deliberately from the Hague to specialized post-adoption assistance. 294 Hague Convention because they had been Conference on shown to involve a particularly high risk In sum, the existence of independent International Private of malpractice from a variety of standpoints. adoptions has no justification from a Law (2010), 1.g.

children’s rights standpoint. By their very 295 Council of nature, they severely compromise any Europe (2011).

78 Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

attempt to ensure the systematic deter- intercountry adoption a condition of mination of children’s best interests. assistance programmes; and transmitting, or permitting the transmission of, 5.3.3. Accreditation of agencies and applications from prospective adopters competition that outnumber the requirements for Agency involvement in intercountry intercountry adoption from the country of adoptions is not any guarantee that origin concerned, creating an intimidating procedures and standards will be respected. backlog of files to be handled. Good Practice Guide No. 2 issued by the Hague Conference296 is a response to the Under the 1993 Hague Convention, it is not clear need for stricter accreditation and the role of central authorities to encourage authorization of agencies, according to other countries to undertake intercountry wide-ranging criteria and with special adoptions in any way. When such attention to the ethics, professional quality encouragement is expressed and is directed and scope of the services they provide. towards countries that are not parties to that Convention – and where a proper BID process is unlikely – it is all the more Agency involvement in reprehensible on best interests grounds. intercountry adoptions 5.3.5. Relations with non-Hague is not any guarantee that countries Every country that allows adoptions but has procedures and standards not yet acceded to the 1993 Hague Convention will be respected. is urged to do so by the UN Committee on the Rights of the Child in its Concluding Observations on state party reports. It is also important to ensure that the number of accredited agencies is not greater Clearly, ratifying the Hague Convention than is required to process adoptions to will not, of itself, eliminate overnight the the receiving country concerned and that problems outlined in this study. However, the number authorized to operate in a it is valid to question the reasons why some given country of origin corresponds to a countries of origin have not felt it necessary realistic assessment of needs. Although or desirable to accede to the treaty; it is authorization is the prerogative of the unlikely that these include the protection of country of origin concerned, receiving the best interests of the children concerned. countries can make sure that countries of origin understand the consequences of authorizing too many agencies, and can Ratifying the Hague also take their own action to limit that Convention will not, of number. For example, in countries where more than 50 agencies have permission to itself, eliminate overnight process adoptions, such as Ethiopia, Haiti the problems outlined and Viet Nam, a highly competitive climate is inevitably created, which can spawn in this study. child procurement and, therefore, negate any efforts to assess the best interests of Ideally, receiving countries should the children in question. not consider putting in place adoption programmes from countries that are not 5.3.4. Pressure from receiving countries Hague compliant, and where the basis Receiving countries can and do exert for a BID process is, at best, shaky. At pressure on countries of origin in various the very least, they should apply Hague ways to launch or develop intercountry principles rigorously in all cases and adoption programmes. These include: should examine very closely the motives of diplomatic missions to encourage a country that remains outside the Hague 296 Hague Conference on ‘cooperation’ on the issue; making the framework, together with the impact this Private International establishment or enhancement of may have on a BID. Law (2012c).

79 The Best Interests of the Child in Intercountry Adoption

Adherence to Hague principles, including and strongly in the 1993 Hague Convention BID, should be specified in any bilateral and the best interests requirement. agreement drawn up with a non-contracting state. At the same time, no such agreement First, they must never take advantage of should supplant the Hague Convention the temporary absence or fragility of the itself, nor should it reduce motivation to competent national authorities to seek, proceed with accession to the treaty or implement, condone or allow measures provide an excuse not to do so. that circumvent international standards to evacuate or otherwise remove children 5.3.6. Responses in post-disaster from their country of origin with a view to situations their adoption. The urgent cross-border displacement of children is warranted only when their lives Second, they must ensure that prospective are clearly at risk, and when internationally adopters are fully prepared and able to agreed principles governing this measure care for children who have experienced are respected. This includes children whose the trauma of a disaster, including those final adoption order had already been adopters who have already bonded with a legally granted before the emergency. The child before the event. best interests of all children are served, in the first instance, by ensuring appropriate responsive support in a human and physical 5.4. Creating consensus over best environment that is familiar to them. interests in intercountry adoption

Children whose intercountry adoption has been formally and legally approved for One of the advantages of ensuring the specified adopters should be united with proper and systematic determination of them under conditions that resemble as far as the best interests of the child within the possible those that would have applied under human rights framework at both policy normal circumstances. These include travel and case-by-case levels is that this would by the adopters to the country of origin to bring about a less disparate view among accompany the child to the receiving country receiving countries, in particular, of what is – although the issuance of travel documents acceptable practice. may be expedited if conditions so permit. The disturbing lack of a common approach Affected children who are at an advanced towards problematic situations in countries stage in the intercountry adoption process, of origin often results in some receiving and particularly those who have bonded countries halting intercountry adoptions with specific prospective adopters, should unilaterally, while others continue, flying in be enabled to complete the adoption the face of official pronouncements that the process in as expeditious a manner best interests of the child are the paramount as possible, but still fully respecting consideration. This conflict in approaches is international standards and safeguards. the result of competing factors that are seen differently by each country, with the rights- The situation of affected children who based best interests of the child sometimes are at the ‘matching’ stage or earlier side-lined in favour of political or other should be reassessed once the immediate considerations. This sends a disturbing consequences of the disaster have been message to countries of origin: that it is not eased and the procedures that were already necessarily the best interests of their children foreseen can be assured. This may involve that motivate their adoption abroad. a (further) best interests assessment to take account of the new, post-disaster, reality. Putting an agreed and fully-fledged BID Under no circumstances should these process at the very heart of intercountry children be evacuated for adoption. adoption could not eliminate diverse approaches entirely, but it would surely In post-disaster situations, receiving reduce the breadth of the divergences and countries bear two major and special respon- the frequency of discord, and thus their sibilities, both of which are grounded clearly negative ramifications for children.

80 By Way of Conclusion: 6ǀ Paradoxes and Dilemmas

Discussion of intercountry adoption issues • The concept of the ‘best interests today is too often a conflict, and often of the child’ comes from an era fruitless. This is in good part because the before children were granted human differing views expressed are widely, rights, and was seen as a criterion simplistically and wrongly ascribed to for protective action in the absence ‘pro’ and ‘anti’ stances on the practice of such rights. Today, however, it is itself.297 In fact, most conflicts of opinion seen as a key principle underlying all do not stem from diametrically-opposed those rights. standpoints on whether intercountry adoption is an acceptable or desirable • ‘Best interests’ as a concept is measure in itself. unknown in international human rights law, save in relation to children, but little has been done until recently The differing views to identify how, in practical terms, expressed are widely, it should underpin or contribute to the fulfilment of the human rights simplistically and of children. wrongly ascribed to • While the process of determining, ‘pro’ and ‘anti’ stances and the outcomes of applying, best on the practice itself. interests are left deliberately vague in international texts – in recognition of diverse socio-cultural realities and Digging a little deeper, the underlying individual situations – intercountry and sometimes profound discord revolves adoption involves actors from very around what is implied by the term different socio-cultural contexts ‘best interests of the child’, and therefore who have to agree, in principle, on under what conditions best interests one outcome based on those best point to intercountry adoption as a interests. positive solution. This is relevant not only to decisions about individual • Despite all of the above, the best children, but also to the place given to, interests of the child – vague as they or restrictions placed on, intercountry are – are to be the decisive factor in adoption in a country’s overall child determining whether or not a child protection policy, and the appropriateness should be adopted abroad. of the way in which the adoption process is carried out. • The proper determination and protection of those best interests As is clear from this study, however, demands timely intervention and 297 See, for example, an examination of how to respond to considerable qualified human Bartholet, E. (2007), those diverging views, by developing investment. However, for many op. cit., pp. 151-203 (referring passim objective ways to determine ‘best interests’, countries of origin, building the to “opponents of reveals a whole series of paradoxes and human resources for this task would international dilemmas: involve diverting professionals adoption”).

81 The Best Interests of the Child in Intercountry Adoption

whose efforts could and should be While this study cannot resolve such directed to strengthening families paradoxes and dilemmas, it has set out to and, where necessary, securing pinpoint and confront them, and to propose suitable alternative care and adoption a number of responses to maximize possibilities within their country. compliance with the best interests principle in a human rights context in the case of • Receiving countries that, by intercountry adoption. ratifying the 1993 Hague Convention and – bar one – the CRC, have Unless we tackle these issues, it will be committed to ensure that the best just as difficult for those who deplore interests of the child are the para- violations of the best interests of the mount consideration for intercountry child to find global support for their adoption still tend to seek out claims as it is for those who declare that (non-Hague) countries of origin that those best interests are being upheld. are not bound by the procedures designed to enable that best interests We may not be certain or in agreement obligation to be fulfilled. today about what applying the best interests principle really means for • Countries of origin maintain decisions on intercountry adoption. But systems, and receiving countries we are duty bound to move as swiftly agree to conditions, comprising as possible along the road to clarity and elements that inevitably relegate the consensus. best interests of the child to second place, only adding to the problems of determining those best interests even within a supportive framework.

• Perhaps the most striking paradox of all is the fact that most of the ‘best interests’ dilemmas now faced by countries of origin stem simply from their acceptance of overtures made by receiving countries, and not from any deliberate or active effort on their part to secure the adoption of their children abroad.

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