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The Best Interests of the Child in Intercountry Adoption: a Constructivist and Comparative Account

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Title Page Title: The Best Interests of the Child in Intercountry Adoption: A Constructivist and Comparative Account Author: Sarah Sargent This thesis is submitted in partial fulfilment of a PhD degree in Law The degree is awarded by De Montfort University Submitted October 2009 Table of Contents List of Tables and Figures i Acknowledgements ii Abstract iii Chapter One- The Best Interests of the Child in Intercountry Adoption: Introduction to a Comparative and Constructivist Research Project Introduction 1 Hague Convention on Intercountry Adoption 2 2005 Special Session and Guide To Good Practice 3 Child Welfare and Intercountry Adoption 8 New Ways of Looking at Intercountry Adoption: A Review of Literature 13 Feminism 14 Post-Colonialism 16 Empirical Research 19 The Voice of Those Adopted Through Intercountry Adoption 24 Normative Meaning and Normative Usage of the Best Interests Standard 25 In Intercountry Adoption Constructivism 26 Overview of Constructivism in International Relations 29 International Relations ‘Collateral Benefits’ of Intercountry Adoption Engagement ? 30 International law and International Relations 33 Network Theory 37 Conclusion 39 Chapter Two- Constructivist Methodology: Empirical Analysis and Comparative Legal Analysis Introduction 41 Statement on Ethics Approval 41 Methodology Used: Overview 42 Selecting a Paradigm 43 Research Paradigms 44 Positivistic Paradigms and Constructivist Paradigms 44 Selecting a Paradigm for Legal Research 45 Positive Law 46 The Place of Empirical Legal Research: A Pandora’s Box? 47 Methodology and Empirical Legal Research 52 Issues in Comparative Legal Analysis 54 Methodology and Comparative Legal Analysis: ‘Incoherence’ 54 Functionalism 55 Other Methodological Approaches to Comparative Legal Analysis 57 The Use of Constructivist Grounded Theory 63 The Decision to Use Grounded Theory 64 Doing Grounded Theory 70 Use of Computer Programs in Coding and Analysing Data 74 Constructivist Grounded Theory as Legal Methodology 75 Elite Interviewing and Constructivist Grounded Theory 78 Interviews and Constructivist Approaches 79 Data Collection for Interviews 84 Selection of Interview Participants 88 Coding and Concept Building 90 Coding of Text 92 The Question of Theoretical Saturation 93 Thesis Data Collection 97 Justifying A Constructivist Grounded Theory Approach to Intercountry Adoption Research 101 The Appropriateness of Comparative Law an Inquiry Basis for Research Question 102 Inherent Comparative Elements in Intercountry Adoption 102 Summary 104 Chapter Three—Interviews on Intercountry Adoption Introduction 105 Relational Statement One 105 Relational Statement Two 106 Relational Statement Three 106 Relational Statement Four 106 Relational Statement Five 107 Discussion of Relational Statements 107 Intercountry Adoption Playing Field 109 What is on the menu? 109 Organisations 110 Carrying out Business Under the Hague Convention on Intercountry Adoption 115 Conclusion 118 Chapter Four—Intercountry Adoption: A Comparative Analysis of Seven States Using Constructivist Grounded Theory Introduction 123 China: Introductory Overview 123 Relational Statement One 126 Relational Statement Two 127 Relational Statement Three 128 Relational Statement Four 128 Discussion 129 Guatemala: Introductory Overview 129 Relational Statement One 131 Relational Statement Two 132 Relational Statement Three 132 Relational Statement Four 133 Discussion 133 India: Introductory Overview 134 Relational Statement One 135 Relational Statement Two 135 Relational Statement Three 136 Discussion 137 South Africa: Introductory Overview 137 Relational Statement One 138 Relational Statement Two 139 Relational Statement Three 139 Relational Statement Four 139 Relational Statement Five 140 Relational Statement Six 140 Discussion 141 South Korea: Introductory Overview 141 Relational Statement One 142 Relational Statement Two 143 Relational Statement Three 144 Relational Statement Four 144 Relational Statement Five 145 Discussion 145 Sweden: Introductory Overview 146 Relational Statement One 147 Relational Statement Two 147 Relational Statement Three 148 Discussion 148 United States: Introductory Overview 149 Relational Statement One 150 Relational Statement Two 150 Relational Statement Three 151 Relational Statement Four 151 Discussion 152 Emergent Categories from Relational Statements 152 Internal and External Relations 154 Power Relationships and the Exchange of Children in Intercountry Adoption 155 State’s Identity 157 Best Interests Standard 158 Chapter Five—Motivations for State Engagement in Intercountry Adoption: A Constructivist Theory Introduction 159 Explanation of Key Theory Concepts 161 Relationship between sending and receiving states 162 International Relations: The Goals 164 Common Elements 167 The Creation of a National Charter 167 Cultural Diversity: Multiethnic and Polyethnic Forms of Cultural Plurality 172 Formation of National Identity 174 The Best Interests Standard as an International Relations Policy 179 Sending State Synopsis 182 Cultural Trauma 182 Marginalisation and Exclusion 183 The Exclusion of Children 187 Kinning and De-Kinning 188 Intercountry Adoption Perpetuates the Effects of Cultural Trauma 193 National Self-Esteem and Self-Image of Sending Countries 194 Cultural Trauma in Sending Countries 195 Receiving State Synopsis 197 National Identity of Receiving States 198 National Type of Receiving States 199 Intercountry Adoption: Who Can be a Member of a Receiving State 200 Conclusion 204 Chapter Six—The Best Interests of the Child in Intercountry Adoption: A Constructivist Theory Introduction 206 Theory statement 206 The Theory: Transnational Network of Intercountry Adoption and the Best Interests of the Child Standard 208 Understanding Normative Cycles 215 Three Phases of Normative Cycles 217 Stage One--The Creation of Norms: Not From ‘Thin Air’ 217 Stage Two: Norm Cascade 218 Norm Meaning by Intercountry Adoption State-to-State Dyad 220 Norm Meaning by Domestic Intercountry Adoption Actors and International Actors 227 Transfer of Normative Meaning 230 Transfer from International to Domestic Domains 230 Reasons For Norm Adherence 232 Conformity and Esteem 234 Stage Three—Internalisation of Norms 235 Creating Normative Legitimacy for Meaning in Use 237 Reflections 245 Limitations 247 Future Research 248 Summary 253 Appendix A 258 Appendix B 280 Bibliography 286 List of Tables and Figures Figure 3.1 Influences on Best Interest Standard Meaning 120 Figure 5.1 State Motivation Theory 161 Figure 5.2 Attributes of Sending and Receiving States 177-178 Figure 5.3 Cultural Trauma in Sending States 195-196 Figure 6.1 Network Theory of Adoption 211 i Dedication This thesis is dedicated to the memory of my god-mother Rebecca Vaughan and to my god-father Fritz Vaughan, and to my parents Joseph and Nancy Sargent, and the vision that they gave to me of hope, kindness and caring in the world. I would like to thank Professor Trevor Buck for his supervision, guidance and insight during the research process. ii Abstract This thesis examines the motivations for states to become involved in intercountry adoption. This includes both states that send children in intercountry adoption and states that receive children. The thesis explores the dynamic cycle of events that lead states to intercountry adoption participation. It then explores the ramifications of those for the application and interpretation of the ‘best interests of the child’ standard. This thesis includes empirical work through data gathered by interviews and analysed by constructivist grounded theory methodology. It also includes a comparative analysis of seven different states involved in intercountry adoption. The comparative analysis is again undertaken with the use of constructivist grounded theory methodology. The thesis presents a theory that explains state motivation to engage in intercountry adoption and the effects that these have on the normative meaning that is given to the ‘best interests of the child’ legal standard when used in intercountry adoption. This thesis makes an original contribution of knowledge by examining the motivation of states to enter into intercountry adoption and providing a theory that traces the pathways of how states become involved. It makes further original contributions to knowledge by examining how these motivations impact the normative meaning given to the standard in domestic, international and transnational settings. Yet another original contribution to knowledge is in providing a theory and network map of the normative meanings that are ascribed to the standard in an intercountry adoption setting. iii Sarah Sargent Chapter One The Best Interests of the Child in Intercountry Adoption: Introduction to a Comparative and Constructivist Research Project Purpose Statement1: The purpose of this grounded theory research is to identify the influences on intercountry adoption operation and decision-making at the state level, and the implications of those for the interpretation and application of the best interest of the child standard, and to generate a substantive theory on this process. Research Question2: What motivates or influences a state to engage in intercountry adoption? How does this in turn effect how the intercountry adoption best interests of the child standard is interpreted and applied? Introduction This thesis discusses the best interests of the child standard in an intercountry adoption context. It examines the motivations of states to engage in intercountry adoption as either sending
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