JOR.062 Hague Conf Bk Cover_6 20/8/08 14:19 Page 1 The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention GUIDE TO GOOD PRACTICE Guide No.1 b THE IMPLEMENTATION AND OPERATION OF THE 1993 HAGUE INTERCOUNTRY ADOPTION CONVENTION: GUIDE TO GOOD PRACTICE Guide No 1 THE IMPLEMENTATION AND OPERATION OF THE 1993 HAGUE INTERCOUNTRY ADOPTION CONVENTION: GUIDE TO GOOD PRACTICE Guide No 1 under the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption Published by Family Law A publishing imprint of Jordan Publishing Limited 21 St Thomas Street Bristol BSI 6JS For the Hague Conference on Private International Law Permanent Bureau 6, Scheveningseweg 2517 KT The Hague The Netherlands Telephone +31(0)70 363 3303 fax +31(0)70 360 4867 e-mail [email protected] website http://www.hcch.net © Hague Conference on Private International Law 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN 978 1 84661 144 5 Printed in Great Britain by Anthony Rowe Limited. Cover picture by Marcus Luis Frost Jorgensen, aged 5, of Denmark. TABLE OF CONTENTS Page GLOSSARY 15 INTRODUCTION 17 PART I: THE FRAMEWORK OF THE CONVENTION 19 CHAPTER 1 – PRELIMINARY MATTERS 21 CHAPTER 2 – GENERAL PRINCIPLES OF THE CONVENTION 27 CHAPTER 3 – KEY OPERATING PRINCIPLES 40 CHAPTER 4 – INSTITUTIONAL STRUCTURES: CENTRAL AUTHORITIES AND ACCREDITED BODIES 45 CHAPTER 5 – REGULATING THE COSTS OF INTERCOUNTRY ADOPTION 60 PART II: THE FRAMEWORK FOR PROTECTION OF CHILDREN (THE NATIONAL AND INTERNATIONAL FRAMEWORK) 67 CHAPTER 6 – THE NATIONAL CHILD CARE CONTEXT AND NATIONAL ADOPTION 69 CHAPTER 7 – THE INTERCOUNTRY ADOPTION PROCESS UNDER THE CONVENTION 79 CHAPTER 8 – LEGAL ISSUES SURROUNDING IMPLEMENTATION 99 CHAPTER 9 – POST-ADOPTION MATTERS 123 CHAPTER 10 – PREVENTING ABUSES OF THE CONVENTION 131 PART III: ANNEXES 137 INDEX OF CONVENTION ARTICLES Index 1 6 DETAILED TABLE OF CONTENTS Page GLOSSARY 15 INTRODUCTION 17 PART I: THE FRAMEWORK OF THE CONVENTION 19 CHAPTER 1 – PRELIMINARY MATTERS 21 1.1 The need for the Convention 21 1.2 Brief history of the Convention 22 1.3 Purpose of the Convention 24 1.4 Contemplating becoming a Party to the Convention 24 1.5 Assessment of the current situation 24 1.6 An implementation plan 24 1.7 Developing an implementation plan 25 Diagram of the process towards implementation 26 CHAPTER 2 – GENERAL PRINCIPLES OF THE CONVENTION 27 Outline of general principles 27 2.1 Ensuring adoptions take place in the best interests of the child and with respect for his or her fundamental rights 28 2.1.1 Subsidiarity 29 2.1.2 Non-discrimination 30 2.1.3 Measures supporting the best interests principle 31 2.1.3.1 Ensuring the child is adoptable – meeting the requirements of Convention Chapters II and IV 31 2.1.3.2 Preserving information 31 2.1.3.3 Matching with a suitable family 31 2.2 Establishing safeguards to prevent abduction, sale and trafficking in children for adoption 32 2.2.1 Protection of families 32 2.2.2 Combating abduction, sale and trafficking in children 33 2.2.3 Ensuring that proper consents are given 34 2.2.3.1 Obtaining consents without inducement 35 2.2.3.2 Preventing solicitation 35 2.2.3.3 Payment of expenses of birth family 36 2.2.4 Preventing improper financial gain and corruption 36 2.3 Establishing co-operation between States 37 2.3.1 Co-operation between Central Authorities 38 2.3.2 Co-operation regarding Convention procedures 38 7 2.3.3 Co-operation to prevent abuses and avoidance of the Convention 38 2.4 Ensuring authorisation of competent authorities 38 2.4.1 Competent authorities 39 2.4.2 Central Authorities 39 2.4.3 Accredited bodies and approved (non-accredited) persons 39 CHAPTER 3 – KEY OPERATING PRINCIPLES 40 3.1 Progressive implementation 40 3.2 Resources and powers 41 3.3 Co-operation 41 3.3.1 Improving co-operation internally 41 3.3.2 Improving co-operation externally 42 3.3.3 Improving co-operation through meetings and exchange of information 42 3.4 Communication 42 3.5 Expeditious procedures 43 3.6 Transparency 43 3.7 Minimum standards 44 CHAPTER 4 – INSTITUTIONAL STRUCTURES: CENTRAL AUTHORITIES AND ACCREDITED BODIES 45 A. CENTRAL AUTHORITY 45 4.1 Establishing and consolidating the Central Authority 46 4.1.1 Establishment of the Central Authority 46 4.1.2 Powers and resources 46 4.1.3 Designation 46 4.1.4 Designations for Federal States 47 4.1.5 Choosing the Central Authority 47 4.1.6 Personnel 48 4.1.7 Material resources 48 4.2 Role of a Central Authority 50 4.2.1 Suppression of improper financial gain 50 4.2.2 Provision of information about the adoption process 51 4.2.3 International co-operation and co-ordination 52 4.2.4 Collection and maintenance of statistics 52 4.2.5 Central Authority role in individual adoptions 53 4.2.6 Central Authority role in independent adoptions 53 4.2.7 Other procedural functions 53 B. ACCREDITED BODIES AND APPROVED (NON-ACCREDITED) PERSONS 54 4.3 Accredited bodies 54 4.3.1 Functions of accredited bodies 55 4.3.2 Standards 55 4.3.3 Criteria for accreditation 56 8 4.3.4 Supervision and review of accredited bodies 56 4.3.5 Authorisation of accredited bodies to operate in States of origin 56 4.4 Approved (non-accredited) persons 58 4.5 Intermediaries 59 CHAPTER 5 – REGULATING THE COSTS OF INTERCOUNTRY ADOPTION 60 5.1 Payments for adoption services 60 5.2 Operational funding for intercountry adoptions 60 5.3 Setting reasonable fees and charges 63 5.4 Contributions to support child protection services 64 5.5 Donations 65 5.6 Corruption 66 PART II: THE FRAMEWORK FOR PROTECTION OF CHILDREN (THE NATIONAL AND INTERNATIONAL FRAMEWORK) 67 CHAPTER 6 – THE NATIONAL CHILD CARE CONTEXT AND NATIONAL ADOPTION 69 6.1 Phase one : Child’s entry into care 69 6.1.1 Child’s entry into care : identification of children and families in need 69 6.1.2 Abandonment and abduction 70 6.1.3 Voluntary relinquishment 71 6.2 Phase two: Family preservation 72 6.2.1 Family preservation and reunification 72 6.2.2 Strategies to assist family preservation and unification 72 6.2.3 Keeping families intact 73 6.2.4 Family reunification 73 6.2.5 Developing family preservation programmes 73 6.2.6 Provision of services 73 6.2.7. Utilising other resources 73 6.2.8 Co-operative agreements 74 6.3 Phase three: Temporary care and institutionalisation 74 6.3.1 Reasons for temporary care 74 6.3.2 Facilities for temporary care 75 6.4 Phase four: National adoption or permanent care 75 6.4.1 Permanency planning 75 6.4.2 Delaying permanency planning not in the child’s best interests 76 6.4.3 Designing a national adoption system 76 6.4.4 Promoting national adoption 77 6.4.5 Training and approval of adoptive families 77 6.4.6 Matching children and families 77 6.4.7 Provision of services 78 9 CHAPTER 7 – THE INTERCOUNTRY ADOPTION PROCESS UNDER THE CONVENTION 79 7.1 The intercountry adoption process 79 7.1.1 Summary of the procedure in Convention Chapter IV 80 7.1.2 Avoiding undue delay 81 7.2 The child 81 7.2.1 Establishing that a child is adoptable (Art. 4 a)) 81 7.2.2 Ensuring that any necessary consents have been obtained 83 7.2.3 Preparation of report on the child 84 7.2.4 Ensuring accurate reports 84 7.2.5 “Matching” child and family 86 7.2.6 Transmittal of report on child 88 7.2.7 Acceptance of the match (Art. 17 a) and b)) 88 7.2.8 Agreement that the adoption may proceed (Art. 17 c)) 89 7.2.9 Authorisation to enter country and reside permanently 89 7.2.10 Entrustment of child to parents (Art. 17) 90 7.2.11 Transfer of child to receiving State 90 7.2.12 Issuing the Article 23 certificate of conformity 90 7.3 Children with special needs 91 7.3.1 The special needs child 91 7.3.2 The prospective adoptive parents for the special needs child 91 7.3.3 Co-operation to assist the adoption 92 7.3.4 Some factors to be considered in the pre-adoption and post-adoption stages 92 7.4 The prospective adoptive parents 93 7.4.1 Application by and evaluation of adoptive family 93 7.4.2 Preparation of prospective adoptive parents 94 7.4.3 Preparation of report on the prospective adoptive parents 95 7.4.4 Transmission of report on adoptive parents 96 7.4.5 Receipt of application in the State of origin 96 7.4.6 Notification of the matching 97 7.4.7 Acceptance of the match and agreement of the Central Authority (Art. 17 a) and b)) 97 7.4.8 Migration procedures for the child (Arts 5, 17 d), 18) 97 7.4.9 Agreement of Central Authorities that the adoption may proceed (Art. 17 c)) 97 7.4.10 Travel to the State of origin 98 7.4.11 Issuing the Article 23 certificate of conformity 98 CHAPTER 8 – LEGAL ISSUES SURROUNDING IMPLEMENTATION 99 8.1 The general nature of the Convention 99 8.1.1 Basic procedures and minimum standards 99 8.1.2 The Convention is not a uniform law of adoption 100 10 8.2 Placing limits on intercountry adoption 100 8.2.1 Contracting States are not bound to engage in any particular level of intercountry adoption 100 8.2.2 Is a country of origin obliged to make intercountry adoption arrangements with all receiving countries which are Parties to the Convention? 101 8.2.3 Is a receiving country obliged to make intercountry adoption arrangements with all countries of origin which are Parties to the Convention? 101