RESPONDING TO ILLEGAL ADOPTIONS: A PROFESSIONAL HANDBOOK COPYRIGHT International Social Service Quai du Seujet 32 1201 Geneva Switzerland Published by: International Social Service Quai du Seujet 32 1201 Geneva Switzerland The designations employed and the presentation of the material in this handbook do not imply on the part of the commissioners or authors the expression of any opinion whatsoever concerning the legal status of any country or territory, or of its authorities or the delimitation of its frontiers. Any part of this handbook may be freely reproduced with the appropriate acknowledgement. Permission to translate all or any part of this handbook should be obtained through ISS: International Social Service Quai du Seujet 32 1201 Geneva Switzerland Editors: Christina Baglietto, Nigel Cantwell and Mia Dambach Cite as: Baglietto C, Cantwell N, Dambach M (Eds.) (2016). Responding to illegal adoptions: A professional handbook. Geneva, Switzerland: International Social Service (please refer to author contributions when relevant) ISBN 978-2-9700976-7-9 ACKNOWLEDGEMENTS The research, collaboration, consultation and drafting of this publication involved many partners and contributors, and the editors would like to express their sincere gratitude to all who helped to bring this work to fruition through their time, expertise and contributions. We are also very grateful to the numerous individuals and organisations who gave their time and expertise to provide feedback and/or review sections of earlier drafts. We have included all authors’ names in each individual contribution with a short biography at the end. We trust that the product of this joint exercise will unite professionals to ensure that ethical and adequate responses to illegal adoptions are offered to those affected. FOREWORD Unequivocally, adoption in a rights framework as a child protection measure, offers many advantages to children who cannot be cared for by their family of origin. The Convention on the Rights of the Child outlines safeguards necessary to ensure that the best interests of the child shall be the paramount consideration in adoption. The Optional Protocol on the sale of children, child prostitution and child pornography stipulates, in the context of sale of children, that States must ensure that the improper inducement of consent, as an intermediary, for the adoption of a child, in violation of applicable legal instruments on adoption, is covered by their criminal law. The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides more detailed guidance in cases where children are placed in another country. The 1993 Hague Convention stresses the importance that significant efforts be made to ensure children remain in families of origin and that national family-based solutions are exhausted before considering intercountry adoption. Regrettably, despite such an international framework, thousands of children continue to be adopted illegally. For example, the consent of mothers or parents is not being obtained, children are fraudulously considered orphans, fraudulent birth certificates are issued, professionals involved in the process are being bribed, and systematic improper financial or other gain are widespread. This situation results in immense suffering for the child, families of origin and adoptive families. Many of these cases are widely documented. Whilst efforts have been undertaken to address such violations of International Law – mostly of a disparate and fragmented nature – a comprehensive resource for professionals dealing with such tragedies has been lacking till now. We wholeheartedly welcome this professional handbook on illegal adoptions as the first attempt to provide a consolidated overview of potential avenues for remedies, reparation and above all prevention. The handbook recognises that the path to healing and restoration is likely to be long, painful and challenging, as demonstrated by various testimonies and contributions. Yet, what is most encouraging is that the story of those involved has not stagnated at the discovery of an illegal adoption. The handbook offers broad solutions from various perspectives – legal, psychosocial, social and political – thereby acknowledging that each journey for dealing with such tragedies is unique. Importantly, a number of promising practices focus on the joint responsibility of countries of origin and receiving countries. Innovatively, the handbook likewise provides insights from lessons learned for the practice of international surrogacy arrangements, which, when unregulated, can lead to the sale of children. This handbook provides hope in what would otherwise be a rather gloomy reality. We unreservedly encourage all professionals working in alternative care, adoption and international surrogacy arrangements to read this publication and take courage. Our hope is that we can learn from our past, to ensure that adoption is truly used as a child protection measure. Benyam Dawit Mezmur Maud de Boer-Buquicchio Chairperson of the Committee Special Rapporteur on the sale of children, on the Rights of the Child child prostitution and child pornography April 2016 3 SYMBOLS AND ACRONYMS 1993 Hague Convention Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption 1996 Hague Convention Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children AAB Accredited adoption body ACERWC African Committee of Experts on the Rights and Welfare of the Child ACHR American Convention on Human Rights (‘Pact of San José, Costa Rica’) ACtHPR African Court on Human and Peoples' Rights African Charter African Charter on Human and Peoples' Rights African Commission African Commission on Human and Peoples' Rights AU African Union AUC African Union Commission CA Central Authority CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Committee on the Rights of the Child CoE Convention Council of Europe Convention on Action against Trafficking in Human Beings against Trafficking Directive 2011/36/EU Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA ECHR European Convention on Human Rights ECtHR European Court of Human Rights EMDR Eye Movement Desensitisation and Reprocessing EU European Union Genocide Convention Convention on the Prevention and Punishment of the Crime of Genocide Guidelines Guidelines for the Alternative Care of Children HCCH Hague Conference on Private International Law HCCH Guide to The Implementation and Operation of the 1993 Intercountry Adoption Convention: Good Practice No. 1 Guide to Good Practice No 1 HCCH Guide to Good Accreditation and Adoption Accredited Bodies: General Principles and Guide to Practice No. 2 Good Practice No 2 IACITM Inter-American Convention on International Traffic in Minors IACtHR Inter-American Court of Human Rights ICA Intercountry adoption 4 SYMBOLS AND ACRONYMS ICCPR International Covenant on Civil and Political Rights ICPPED International Convention for the Protection of All Persons from Enforced Disappearances, International Convention for the Protection of All Persons from Enforced Disappearance Inter-American Inter-American Commission on Human Rights Commission ISA International surrogacy arrangement ISS International Social Service ISS/IRC International Social Service / International Reference Centre for the rights of children deprived of their family NGO Non-governmental organisation OAS Organisation of American States OP3 Optional Protocol to the Convention on the Rights of the Child on a communications procedure OPSC Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Protocol to the Protocol to the African Charter on Human and Peoples’ Rights on the African Charter Establishment of an African Court on Human and Peoples’ Rights UN United Nations UN Protocol on Trafficking United Nations Convention against Transnational Organised Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children UNCRC Convention on the Rights of the Child UNICEF United Nations Children’s Fund 5 CONTENTS FOREWORD SYMBOLS AND ACRONYMS CHAPTER 1: INTRODUCTORY AND HISTORICAL CONSIDERATIONS 1.1 HANDBOOK OUTLINE 1.2 METHODOLOGY 1.3 HANDBOOK OBJECTIVES Historical considerations: Irregularities in intercountry adoption CHAPTER 2: LEGAL CONSIDERATIONS 2.1 RIGHT TO SEARCH FOR INFORMATION: INTERNATIONAL AND REGIONAL PROVISIONS 2.1.1 International instruments and bodies 2.1.2 Regional instruments and bodies 2.2 LEGAL REMEDIES: INTERNATIONAL AND REGIONAL 2.2.1 International instruments 2.2.2 Regional instruments 2.3 NATIONAL EXAMPLES: SEARCHING FOR ORIGINS AND LEGAL REMEDIES Promising practice: Spain, the search for origins and legal remedies Promising practice: Argentina takes responsibility for forced disappearances Promising practice: Australia’s National Apology for forced adoptions Promising practice: Legal paths to justice in the Netherlands 2. 4 CONCLUDING REMARKS CHAPTER 3: PSYCHOSOCIAL CONSIDERATIONS 3.1 INTRODUCTION 3.2 FIRST QUESTION: IN WHAT WAY CAN THE PSYCHOSOCIAL CHARACTERISTICS OF ADOPTIVE NORMALITY – ALREADY PRESENT IN THE ADOPTED