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Report on Players Involved in the Illegal Adoption Process in Guatemala Since the Entry Into Force of the Adoption Law (Decree 77-2007)

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Report on Players Involved in the Illegal Adoption Process in Guatemala Since the Entry Into Force of the Adoption Law (Decree 77-2007) Report on Players Involved in the Illegal Adoption Process in Guatemala since the Entry into Force of the Adoption Law (Decree 77-2007) Guatemala, December 1, 2010 Translated from Spanish by Ilma Niederheitmann Bayo International Commission against Impunity in Guatemala - CICIG 2 Report on Players Involved in Illegal Adoption Proceedings in Guatemala since the Entry into Force of the Adoption Law TABLE OF CONTENTS I. PRESENTATION 5 II. EXECUTIVE SUMMARY 7 a. Irregularities detected 7 b. Problems in the framework of the new law 8 c. Recommendations 9 III. INTRODUCTION 11 a. Objective 12 b. CICIG activities in the prevention and prosecution of the crime of trafficking in persons for illegal adoption 13 c. Methodology 14 1. BACKGROUND AND CURRENT CONTEXT OF ADOPTIONS IN GUATEMALA 15 a. Regulatory Background 15 a.1. First period (1963-1977) 15 a.2. Second period (1977-2007) 15 a.3. Third period 2007 to date 18 b. Current rules on adoptions 19 c. Context of adoptions in Guatemala 20 c.1. Financial dimension 23 d. Conclusion 24 2. ADOPTION PROCEDURE UNDER THE LEGISLATION PRIOR TO ENTRY INTO FORCE OF THE ADOPTION LAW 25 a. Procedure 25 b. Institutions involved in the notarial adoption process in effect at the time of the entry into force of the Adoption Law 26 b.1. Office of the Solicitor General of the Nation 26 b.2. Courts for Children and Adolescents 27 b.3. Family Courts 27 b.4. Register of Vital Statistics 27 b.5. Immigration Bureau 28 c. Conclusion 28 3. ILLEGAL ADOPTIONS: ORGANIZED CRIMINAL TRANSNATIONAL CHILD TRAFFICKING AND SMUGGLING NETWORKS FOR IRREGULAR ADOPTION PURPOSES 29 a. Description of how the actors involved in child trafficking and smuggling networks operate in connection with irregular adoptions processed by notaries 30 3 International Commission against Impunity in Guatemala - CICIG b. Conclusion 40 4. ANALYSIS OF ADOPTIONS PROCESSED DURING THE TRANSITION PERIOD 42 a. Background 42 b. Methodology for the analysis of adoptions handled during the transition period: Creation of CICIG Database 44 c. Stages of the Transition Process 45 c.1. First stage (from 3 January to April 2008). 45 c.2. Second Stage (From 8 May to 31 August 2008). Verification Process 49 c.3. Third Stage (From 1 February 2009 to the end of this report) 55 c.4. Conclusions 63 5. ADOPTIONS PROCESSED UNDER THE ADOPTION LAW 64 a. Provisions of the new Adoption Law 64 b. Adoption proceedings under the Adoption Law 67 c. Anomalies identified under the new system 68 c.1. The foster family 69 d. Implementing the 2010-2012 Pilot Plan 71 6. CONCLUSIONS 74 7. RECOMMENDATIONS 78 8. ATTACHMENTS 83 ATTACHMENT A. LIST OF INFORMATION SOURCES 83 ATTACHMENT B. BUILDING THE CICIG DATABASE 85 ATTACHMENT C. NUMBER OF CHILDREN ADOPTED IN THE UNITED STATES 87 ATTACHMENT D. CHRONOLOGY 88 ATTACHMENT E. CHRONOLOGY OF ADOPTIONS PROCESSED DURING THE TRANSITION PERIOD 89 ATTACHMENT F. PARADIGMATIC CASES 90 ATTACHMENT G. NOTICE OF COMMENCEMENT OF VERIFICATION PROCESS 99 ATTACHMENT H. TABLE OF 94 ADOPTION PROCEEDINGS FILED WITH NAC WITHOUT PGN OVERSIGHT 100 ATTACHMENT I. TABLE OF ADOPTION PROCEEDINGS THAT ARE BEING INVESTIGATED BY THE PUBLIC PROSECUTOR’S OFFICE 103 ATTACHMENT J. TABLE OF ADOPTION PROCEEDINGS SUSPENDED BY PGN 105 ATTACHMENT K. CASES WITH IRREGULAR ADOPTABILITY DECLARATIONS 107 ATTACHMENT L. CASES OF IRREGULAR PLACEMENT WITH A FOSTER FAMILY 109 ATTACHMENT M. RECYCLED CASES 110 4 Report on Players Involved in Illegal Adoption Proceedings in Guatemala since the Entry into Force of the Adoption Law I PRESENTATION Latin America is one of the most unequal regions in the world, with one of the highest rates of violence, which affects mainly women and children. In Guatemala, people aged 0-17 represent more than half the total population. Although significant progress has been made, Guatemala has not been able to ensure that children can live free from violence and protected against all forms of abuse or exploitation. Impunity, and thus violence, are marking the lives of children and adolescents in Guatemala. For years, many children have been stolen, missing and/or kidnapped for trafficking under the irregular guise of adoption; their mothers were threatened, deceived or even punished in their communities. An example of the consequences of impunity is the fact that in 2007, 60% of lynchings in Guatemala concerned alleged abductions of children. This problem is one of the main concerns of the International Commission against Impunity in Guatemala (known by its Spanish acronym as CICIG). That was precisely why, to support the considerable efforts made by UNICEF in this area, the “Agreement for Cooperation on Studies on Children and Adolescents” was signed to continue supporting the work of UNICEF and institutions responsible for child protection and investigation of crimes committed against children and adolescents in connection with Guatemalan clandestine organizations and illegal security bodies. That is the context of this study. It sets out the results of investigations conducted by the International Commission against Impunity in Guatemala (CICIG) of all domestic and inter-country adoption proceedings conducted during the transition period that started on 31 December 2007 with the entry into force of the Adoption Law and of the first ones processed under the regulations of the new law. The Adoption Law of Guatemala contains the principles enshrined the Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (Hague Convention), ratified by Guatemala. Reducing violence and impunity in this type of crimes requires not only strong political will in the criminal and investigative area, but also that this will be exercised by all the institutions responsible for the comprehensive protection of children and adolescents. That is why CICIG presents specific recommendations and hopes that they will be followed in keeping with the national and international obligations of each State institution in charge of the comprehensive protection system in favor of Guatemalan children and adolescents. Finally, I thank all the officials of Guatemalan institutions who cooperated with CICIG by providing information for this study and thank all my colleagues at the International Commission against Impunity who worked with great professionalism and commitment in the preparation of this report. Guatemala deserves a country worthy of its children, without violence and with institutions that can be trusted. 5 International Commission against Impunity in Guatemala - CICIG I conclude by quoting the preamble to the Convention on the Rights of the Child: “… recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world... In all countries in the world there are children living in exceptionally difficult conditions, and that such children need special consideration.” Francisco Dall’Anese Ruiz Commissioner International Commission against Impunity 6 Report on Players Involved in Illegal Adoption Proceedings in Guatemala since the Entry into Force of the Adoption Law II EXECUTIVE SUMMARY REPORT ON PLAYERS INVOLVED IN THE ADOPTION PROCESS IN GUATEMALA SINCE THE ENTRY INTO FORCE OF THE ADOPTION LAW (LEGISLATIVE DECREE No. 77-2007) This report is the result of an investigation conducted by the International Commission against Impunity in Guatemala (CICIG) on all domestic and international adoption proceedings during the transition period that started on 31 December 2007, when the Adoption Law went into effect, and the first adoptions processed under the regulations governing the new law. The Adoption Law established a new legal adoption procedure that eliminated the possibility of processing adoptions through a notary public and incorporated the provisions of Article 22 of the Convention on the Rights of the Child and the Convention On Protection and Co-operation in Respect of Inter-country Adoption (The Hague Convention), into the national legal adoption system. These include adoption as a last resort, identification of suitable measures, which include placement with the child’s birth or extended family, preference for national adoption over international adoption and the obligation to conduct compatibility studies between the adoptive family and a child given up for adoption in the best interests of the child. The new adoption law established a transition period during which all adoptions initiated prior to the enactment of this law would be processed under the old legislation. The only requirement was registration with the National Adoption Council (NAC), the new central authority for adoptions under the new law. Therefore, during the transition period, notaries continued exclusively handling adoptions, of which there were 3,342 according CICIG, with the Solicitor General’s Office (known by its Spanish acronym as PGN) acting as a monitoring body. Five months after the entry into force of the Adoption Law, serious illegalities were identified in the transitional proceedings. This led to the creation of a verification process supervised by PGN and NAC. The investigation conducted by CICIG analyzed the illegalities committed and found that the verification process did not prevent many of the same from continuing. a. Irregularities Detected CICIG analyzed various allegedly criminal facts and identified different proceedings used by illegal networks engaged in trafficking for purposes of irregular adoption. These networks are made up, among others, of
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