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. Core funding is provided by the Government of Italy, while financial support for specific projects is also provided by other governments, international institutions and private sources, including UNICEF National Committees. Requests to translate or reproduce extracts or figures should be addressed to: Communications Unit, [email protected] Suggested citation: Cantwell, Nigel (2014). The Best Interests of the Child in Intercountry Adoption, Innocenti Insight, Florence: UNICEF Office of Research. Design and layout: Parker Design www.parker-design.co.uk Cover photo: © Thinkstock Chapter photo: © Shutterstock © 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 made a 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