1. Introduction
1. Intercountry adoption involves the transfer of a
child from his or her country of origin (“sending country”) to another
country (“receiving country”) for the purpose of adoption,
namely in order to
be received by a new family as its own child via a formal legal
act. As with domestic adoption, parental rights and responsibilities
are thus formally transferred from the biological parents to the
adoptive parents. Ideally, intercountry adoption should be one of
a number of care options considered for children who cannot be cared
for by their families. It may be the best long-term care solution
for some children whose safety cannot otherwise be secured and who risk
remaining in institutional care in extreme poverty or, in the most
serious cases, may be threatened by death, neglect or exploitation
in their home countries. The Guide to Good Practice (2008) relating
to the Hague Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption of 29 May 1993
(“the Hague Convention”) recommends
that intercountry adoption should be part of a State’s national
childcare and protection strategy.
2. Although intercountry adoption is generally seen as a mechanism
which is beneficial for a child, the rights of children may sometimes
be violated or threatened in the framework of the relevant procedures.
These are sometimes insufficient to prevent unethical practices
and outright crimes, such as the sale and abduction of children,
coercion or manipulation of birth parents, falsification of documents
and bribery – a series of crimes also designated as “child laundering”
by international experts.
3. Even in cases where the rights of the child are respected
and the child is welcomed by a loving family, children are often
subjected to traumata linked to the departure from their home country
and usual environment to a world that they do not yet know, to be
received by strangers formally acting as their parents from now
on. It therefore needs to be noted that intercountry adoption is
also a serious interference with the fundamental rights of a child,
whatever the final result of such an intervention may be. The biological
family is under normal circumstances considered the best place for
a child. Public policies undertaken with a view to the well-being
of children should therefore firstly aim to maintain the child within
his or her birth family context. Only if circumstances do not allow
for this stability should alternative care arrangements be made.
4. In the United Nations Convention on the Rights of the Child
of 1989, the States parties to the convention recognise that “the
child, for the full and harmonious development of his or her personality,
should grow up in a family environment, in an atmosphere of happiness,
love and understanding” and provide that “[i]n all actions concerning
children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration”.
From this, one can directly derive
the right of a child to a loving family environment and the need
to give priority to the best interest of children in any decision
concerning them. However, no legal standard provides for a “right”
of adults to a child of their own.
5. With the present report – prepared on the basis of my work
as the Parliamentary Assembly’s current General Rapporteur on Children,
as a member of the German Bundestag and its permanent child commission, and
as a children’s rights activist in numerous charitable organisations
at national level for many years – I would like to show how children’s
rights may be endangered in the framework of intercountry adoption
procedures and what action is needed. I urge the Parliamentary Assembly
to send out another strong signal and a call for committed action
by Council of Europe member States with regard to legal and political
measures to be taken. In doing so, I build upon previous work of
the Assembly, such as its
Recommendation
1443 (2000) “International adoption: respecting children’s rights”
and
Recommendation 1828
(2008) on the disappearance of newborn babies for illegal adoption
in Europe.
6. To illustrate some of the practical issues involved at national
level, I would like to briefly present the situation in my own country,
Germany. I was, in particular, in a position to obtain up-to-date
information on intercountry adoption challenges, as perceived in
Germany as a receiving country, at the annual conference of the
Federal Central Office for International Adoption (Bundeszentralstelle für Auslandsadoption –
BZAA) in Bonn on 23 and 24 November 2011.
2. Intercountry
adoption: development and controversy
2.1. History of intercountry
adoption and current trends
7. Although adoption has existed informally for many
centuries, intercountry adoption is a comparatively new practice.
A trend towards international adoptions developed as a humanitarian
response to the number of children orphaned by the Second World
War. In some countries, such as the United Kingdom, this situation even
led to particularly painful chapters of international adoption.
After a long history of sending British children abroad for adoption,
starting with one hundred children being shipped from London to
Richmond, Virginia, in 1618, the last incidences were observed just
after the Second World War era when approximately 3 300 children
were sent to Australia, while New Zealand, Rhodesia (today Zimbabwe
since 1980) and Canada received a total of 1 000 children.
The fate of these children has been
covered by a number of documentaries which showed the suffering
experienced by many of these “lost children” who were deported,
submitted to mistreatment or abuse or denied access to information
on their true origins and identity.
Even
though such large-scale “child laundering” would encounter more
difficulties under modern social welfare programmes, communication
tools and law enforcement conditions, it is important to keep past
cases in mind and remain aware of children’s vulnerability in such
situations.
8. Child migration for adoption purposes could also be observed
at the end of the Vietnam war: facing famine and the siege of Saigon
by the Vietcong, during the so-called “Operation Babylift” about
2 000 children were flown to the United States, and a further 1 300
to Canada, Europe and Australia in 1975; a great number of these
children were apparently not orphans but had been abandoned at birth
because their fathers were American GIs.
Some years before, the wish to save
children who had been wounded during the war had amongst other things
led to the creation of
Terre des Hommes–Germany
in 1967, which also facilitated the adoption of some of these children.
9. More recently, there was a surge in the number of adoptions
in the early 1990s when countries in central and eastern Europe
opened up and were subsequently flooded with couples and agencies
from western Europe and the United States seeking to adopt children
from orphanages of the region. Since the mid-1990s, the number of
intercountry adoptions worldwide has increased every year, peaking
in 2004 with over 42 000 intercountry adoptions processed in that
year alone.
10. Certain trends and developments in modern societies lead to
more people turning to intercountry adoption. In many countries
the moment of family foundation tends to be postponed to later stages
of life. Mothers and fathers, sometimes for reasons of professional
development and careers, are on average much older than in previous
generations. In the light of the resulting lower reproduction and
fertility rates of older would-be parents (in Germany sometimes
called the “involuntarily childless”), the option of intercountry adoption
becomes more and more attractive in view of the, fully understandable,
wish of the individual – and society as such – to reproduce.
11. In recent years, however, the number of intercountry adoptions
has been in decline.
In 2006, the total number of intercountry
adoptions had fallen to 40 000
and reached an estimated 25 000 in
2011. Countries that have seen large drops in the adoption of foreign
children include Spain and France which fell by 48% and 14% respectively
between 2004 and 2010.
These trends are said to be linked,
at least partly, to changing attitudes and more restrictive government
policies towards intercountry adoption. Globally, experts expect
that, if ever the decline in global adoptions were to be reversed,
the origin was likely to be Africa where Ethiopia has emerged in
recent years as a “top source” of orphans “available” for foreign
adoption.
2.2. Intercountry adoption:
controversy and ethical issues
12. Intercountry adoption is the source of much debate
and is often surrounded by controversy. More than ever before, domestic
care solutions are being sought for children; efforts that are much
appreciated by child protection agencies wherever they truly improve
the situation of children without parental care. UNICEF, for example,
strongly promotes the “subsidiarity rule” set out by the Hague Convention
(see below), meaning that intercountry adoption should never be
carried out at the expense of appropriate domestic solutions. Along
the lines of the Hague Convention, the United Nations agency even
holds that receiving countries should support the development of
family and child protection services in the country of origin.
13. Certain experts are concerned that international adoption
may divert resources away from the development of good-quality domestic
care options.
In some
cases, experts have found that the availability and prominence of
intercountry adoption may have led some parents to abandon their
children in residential care hoping that this would give them access
to a better life in a western country.
Finally, some believe that “intercountry
adoption is under siege by those claiming the human rights mantle”
and that international adoption which “appropriately recognizes
children as citizens of a global community with basic human rights entitlements”
should not be handled too restrictively.
14. Although the number of adoptions processed each year is in
decline, the number of prospective adopters awaiting a child is
not.
In fact, the “demand” for a child by way
of intercountry adoption is stronger than ever leading to long waiting
lists for prospective adoptive parents. This is a cause of great
concern, as there is a fear that high demand creates supply, especially
in the light of the vast amounts of money potential adopters are prepared
to spend to secure an adoption. The unfortunate result is that fraud
and malpractice are stimulated. The influx of western money into
poorer countries makes the adoption “business” a very profitable
one.
15. This poses a most serious risk to intercountry adoption, as
well as to the rights of the children concerned. The most egregious
misconduct encompasses “child laundering”, that is to say the illegal
transfer of children from birth families through child buying or
kidnapping, to “launder” them through adoption systems as “orphans” and
then “adoptees”,
or even the
“production” of children for adoption by way of “baby farms”.
In these scenarios,
the child is nothing more than a commodity to be sold to the highest
bidder.
16. Many efforts have been undertaken in recent years to stop
such illegal practices by suspending relations with certain sending
countries. The United States of America, which historically received
half of the world’s annual international adoptions, saw a decline
of more than 60% to just over 9 000 adoptions in 2011. Negative experiences
with corruption, profiteering and child laundering in the case of
Guatemala for example have led to the fact that intercountry adoptions
from that country to the United States have declined from about
4 000 cases in 2008 to just 32 in 2011; Guatemala was moreover the
first country (followed by others later) concerning which a number
of receiving countries had expressed objections against its accession
to the Hague Convention due to the unacceptable conditions related
to intercountry adoption. A number of years ago, illegal adoption
practices were discovered in India by a group of German adoptive
parents. In this and similar cases in India, it was found that sometimes
even religious institutions were involved, which were justifying
their actions as humanitarian acts.
17. Despite international efforts to fight illegal activities,
“child laundering” remains a “systemic problem in the contemporary
intercountry adoption system”
and harmful to
its legitimacy and viability. Like other criminal issues involved,
“child laundering” inflicts unprecedented harm upon the families
concerned. Abducted children suffer unnecessary separation from
their original families, whilst all parties involved face psychological difficulties
if they learn about the true identity of the child years later.
In order to avoid “child laundering” practices, whether of larger
scale as known from historical cases or on a more individual basis,
it is of utmost importance that the origin and personal identity
of children without parental care be documented in the most comprehensive
manner before and after an adoption of any kind. Finally, another
criminal offence threatening adoptive children, although such cases
are apparently rare, is the sexual or physical abuse of children
by their new parents on whom they entirely depend upon arrival in
the new country.
18. Another unsolved issue of growing concern is the one of the
“adoptability” of children with “special needs” for whom the number
of people willing and able to adopt them is well below the level
required. According to UNICEF, in 2005, Ukraine alone had some 24 000
children on its database of children legally available for adoption
abroad; the vast majority of these children, however, had been diagnosed
with a serious illness or disability, were part of a sibling group
or had not been legally adoptable at a younger age – few of them
are given a realistic chance of being adopted. Adoption processes
regarding such children need to be particularly accountable to ensure
that only applicants with appropriate authorisations are permitted
to submit their dossiers.
19. In view of the controversies and difficulties linked to intercountry
adoption, I believe that a balanced stance should be taken by the
Council of Europe member States: the intercountry adoption system
should be strengthened wherever possible to respond both to the
demand of an increasing number of people willing to adopt and to
the need of children for whom intercountry adoption could be the
best long-term care option, whilst ensuring that relevant procedures
are as transparent as possible and that all stakeholders involved
are protected from illegal and criminal activities.
3. Legal standards
and procedures in the field of intercountry adoption
3.1. The Hague Convention
on Intercountry Adoption
20. The Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption sets out the framework
for international co-operation in respect of intercountry adoption.
It is based on Article 21 of the United Nations Convention on the
Rights of the Child. The aim of the Hague Convention is neither
to encourage nor dissuade persons from entering into intercountry
adoptions; rather it sets out safeguards to regulate the process.
The convention provides that, at all times, the paramount concern
must be the best interests of the child, as set out in the very
first line of Article 1: “The objects of the present Convention
are … to establish safeguards to ensure that the intercountry adoptions
take place in the best interests of the child with his or her fundamental
rights as recognised in international law …”.
It also aims to ensure
that adoptions are transparent and ethical. The convention is binding
only upon those countries which have ratified it; at present 58
countries. With further countries having acceded to the convention,
the number of contracting parties is currently 89.
,
Amongst these are most member
States of the Council of Europe.
21. Concurrent with the overarching principle to act in the best
interest of the child at all times, the Hague Convention enshrines
the principle of subsidiarity. This means care options in the country
of origin take precedence over intercountry adoption. Where possible,
a child should be raised by his or her family or extended family;
if this is impracticable, other forms of care in the country of
origin should be considered, for example placing a child with a
foster family. One consequence of increased ratification of the
convention is the likelihood that the principles therein are becoming
ingrained into national adoption policies of the Hague Convention
countries, including Council of Europe member States. This has resulted
in a shift in intercountry adoption trends. For example in 2005,
14 000 children were adopted from China; within three years of China ratifying
the Hague Convention, this number had fallen to 6 000.
22. In 2010, UNICEF issued a position paper in which it declared
its support for intercountry adoption when pursued in conformity
with the standards and principles of the Hague Convention.
Save the Children, a multinational
non-governmental organisation (NGO), advocates that intercountry
adoptions should only take place when both receiving country and
the country of origin are signatories to the Hague Convention.
This would
have the effect of ensuring that both country of origin and receiving
country adhere to the best international standard, which prioritises
the best interests of the child. Engaging in adoptions with non-Hague Convention
countries cannot guarantee prioritisation of the child’s best interests
to the same degree.
3.2. The European Convention
on Adoption and related Council of Europe texts
23. The first European Convention on the Adoption of
Children (ETS No. 58) came into force in 1967. Due to the considerable
social changes that have occurred within Council of Europe member
States over the past forty years, it was felt the standards in this
area were in need of revision. In 2008, the European Convention on
the Adoption of Children (revised) (CETS No. 202) was opened for
signature. To date, 15 member States are signatories to the revised
convention, seven of which have ratified. The revised convention
deals primarily with domestic adoption law. Its Articles 12 and
15 apply directly to intercountry adoption, and it is hoped the convention
will provide an effective complement to the Hague Convention. Furthermore,
the revised convention confirms that notably the overarching principle
to act in the best interests of the child shall be applicable to
all adoptions, both domestic and intercountry.
24. The continuous illegal activities which may be linked to intercountry
adoption underline the importance of two further legal texts that
should also be rigorously implemented by member States with a view
to fully protecting children against such crimes: the Council of
Europe Convention on Action against Trafficking in Human Beings
(CETS No. 197) and the Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse (CETS No. 201), better
known as the “Lanzarote Convention”.
3.3. The best interests
principle
25. “The child is the fixed star in the adoption constellation.”
In acknowledgment of the
fact that the child is the vulnerable party in an adoptive process
controlled by adults, both the Hague Convention and the European
Convention on the Adoption of Children (revised) provide that the
best interests of the child shall be the paramount concern in the
adoption process. It therefore needs to be kept in mind that the
object of adoption is to find a family for a child and not a child
for a family.
26. Although the best interests principle is of substantial importance,
it remains the subject of widespread misunderstanding.
The Hague Convention
recognises that in achieving the best interests of the child, namely that
children should grow up in a family environment,
permanency is preferable to temporary
measures
and that intercountry adoption may
offer the advantage of a permanent family to a child for whom a
suitable family cannot be found in his or her State of origin.
The misunderstanding lies in
the perception that this interpretation of the best interests principle
is some kind of “trump card” or “super right” which overrides all
other rights. This is not the case.
27. In the case law of the European Court of Human Rights (“the
Court”), the best interests principle is of prime importance. The
Court has based some of its decisions concerning intercountry adoption
on this very principle. The considerable weight the Court attaches
to this principle serves to underline its prominence in the context
of intercountry adoptions as the following examples show.
3.3.1. Pini and Bertani
& Manera and Atripaldi v. Romania
28. This case concerned applications by two adoptive
couples from Italy. They claimed that Romania’s refusal to execute
adoption orders in respect of two Romanian girls violated their
right to a family life under Article 8 of the European Convention
on Human Rights (ETS No. 5, “the Convention”). The Court pointed
to the desire of the children to remain where they were; this was
compounded by the fact that they had never met their prospective
adopters. The Court held that “their interests lay in not having
imposed upon them against their will new emotional relations with
people with whom they had no biological ties and whom they perceived as
strangers”. Thus no violation of the right to a family life could
be found.
3.3.2. Wagner and JMWL
v. Luxembourg
29. This case concerned the decision of a Luxembourg
court to refuse to recognise a Peruvian adoption order. The decision
was rooted in the fact that the child in question had been adopted
by a single woman. Such an order would have been recognised had
the child been adopted by a married couple. As a result, the applicants
encountered obstacles in their day-to-day lives and the child did
not enjoy the legal protection which would have enabled her to fully
integrate into her adoptive family. In coming to its decision on
whether such a refusal constituted a violation of the Article 8
right to family life, the European Court of Human Rights held the refusal
did not take into account the best interests of the child, which
had to take precedence in this case.
30. It is promising to see in the Pini case
that the Court prioritised the best interests of the child over
the Article 8 right to family life, which is otherwise considered
quite a robust protection under the Convention. The Court is exhibiting
a real commitment to ensuring that the best interests of the child
are protected. Via the further promotion of international standards,
it must be ensured that national courts are doing the same. The same
goes for the Wagner case,
which put the best interests of the child before the special status
granted to married couples in Luxembourg law.
3.4. Intercountry adoption
procedures in theory and practice
3.4.1. The typical intercountry
adoption procedure according to the Hague Convention
31. The convention itself contains quite detailed procedural
provisions. In 2008, it was further complemented by the Guide to
Good Practice (Guide No. 1) which may serve as a manual for the
“implementation and operation” of the Hague Convention.
The main structure provided
for by the Hague Convention, which new signatories must put in place,
is a central authority with the responsibility for oversight of
the adoption system and procedures within a country. In addition
to responsibility for communication and co-ordination with central authorities
of other Hague Convention countries, the network of central authorities
is the primary mechanism for the reform of the intercountry adoption
system that the Hague Convention sought to bring about. The central authority,
directly or through public bodies, must prioritise the best interests
of the child and “deter all practices contrary to the objects of
the Convention”.
The
central authority, and those public bodies directly linked to it, is
therefore the convention’s front line defence against practices
which subjugate the best interests of the child.
32. The intercountry adoption procedure prescribed by the Hague
Convention (Articles 14 to 22; procedural requirements) involves
several formal steps ensuring both the capability of prospective
parents to adopt and the need of the adoptive child for this care
option. It typically involves the formal application by prospective adopters
to the central authority, the preparation of a report on their home
situation and eligibility, the identification of a “matching” child,
the verification that all conditions for formal adoption are fulfilled,
the transfer of the child, the decision on any complementary measures
required (such as bonding or probationary periods) and, if required,
the decision on a new placement if the first family chosen was not
the most appropriate placement in the best interest of the child.
33. In intercountry adoptions involving sending and receiving
States which are both parties to the Hague Convention, adopters
can generally rely on the fact that the selection of the child to
be adopted by them, the so-called “matching” process, was undertaken
according to the rules and procedures defined by the Convention.
Of course, the typical procedure is adapted to the specific national
context by public authorities of States Parties and may in some
cases turn out to be insufficiently implemented or supervised. This
may lead to problems representing threats to the best interest of
the child (see below).
3.4.2. The example of
Germany: the challenges of intercountry adoption as perceived at
national level
34. Germany has been a party to the Hague Convention
since March 2002; it has not yet ratified the European Convention
on the Adoption of Children (revised). The central authority for
intercountry adoption is the Federal Central Office for International
Adoption (Bundeszentralstelle für Auslandsadoption
– BZAA) belonging to the Federal Office of Justice (Bundesamt für Justiz – BfJ). It
ensures regular follow-up of all accredited adoption agencies in
the country. These comprise 12 public adoption offices run by the administrations
of regional States (Länder),
which play the role of agents of international adoption and are
in charge of the authorisation and supervision of further adoption
agencies, as well as 13 certified private adoption agencies (NGOs)
in different German regions and cities. In Germany, public adoption
agencies are obliged to deal with adoptions concerning States parties
to the Hague Convention and may deal with non-party adoptions. Private
adoption agencies may also deal with party and non-party adoptions
according to the respective authorisations granted to them (for
each country a specific authorisation is required).
35. An in-depth exchange between all German agencies held at their
last annual conference in Bonn on 23 and 24 November 2011 at the
invitation of the BZAA, provided me with an excellent insight into
the current challenges of intercountry adoption as perceived by
national stakeholders, which I would like to share with the other
members of the Parliamentary Assembly. However, there is a lack
of solid national data in this field. The only figure available
(but which remains below the actual number of adoption procedures
completed) is the number of adoptions recognised by German family
courts (10 164 between 2002 and 2011). Private adoptions, for which
no such formal recognition is required, never appear in any statistics.
Nevertheless, it is known that the most important sending countries
for adoptions to Germany were the Russian Federation, Kazakhstan, Ukraine,
Thailand, Colombia, Turkey, Ethiopia, Haiti and South Africa, which
were each involved in more than 300 adoption cases during the period
concerned.
36. Despite the existence of well-functioning institutions and
mechanisms ensuring a transparent follow-up of intercountry adoption
procedures, mostly accompanied by accredited bodies, a high number
of private (and sometimes illegal) adoptions can still be observed
every year (around 250-280 cases). Aware of the prevalence of such
illegal activities, the BZAA strongly recommends that any potential
adopters refrain from an international adoption which does not involve
an accredited adoption agency. There are in particular grounds for
suspicion if lawyers or other “experts” offer rapid and “unbureaucratic”
help in exchange for considerable amounts of money.
37. Some of the other trends and perceptions in the field of intercountry
adoption currently observed in Germany are:
- there are far more applicants than children in need of
and available for intercountry adoption;
- the age of parents or families searching to adopt is clearly
on the rise;
- adoptive parents increasingly wish to adopt their “dream
child” who must be as young as possible (ideally under one) and
without any visible or expected pathologies;
- potential adoptive parents seem to think that they have
got the legitimate right to adopt a foreign child;
- in view of some of the crisis situations to be observed
throughout the world, potential adopters seem to believe that adopting
a foreign child is a humanitarian act;
- there seems to be little awareness of and empathy with
the trauma that an adoptive child will experience in the process;
- the perception by third parties is often very negative
and not supportive of potential adopters (“How much did you pay
for your child?”).
38. These trends and perceptions represent particular challenges
to be faced by adoption agencies. The high “demand” for adoptive
children leads to the fact that many potential adopters are ready
to pay large amounts of money to receive a child, which makes them
an easy target for illegal and criminal activities and generally
contributes to the global “commercialisation” of children.
39. For various reasons, many adults in Europe postpone starting
a family until later stages of their life; this trend can also be
observed in Germany, which had an overall fertility rate of 1.39%
in 2010.
With an increasing wish for a child
of their own, many “involuntarily childless” couples then turn to
the option of intercountry adoption. This trend leads to the fact
that potential adopters are increasingly older. There is no legal
provision in Germany on the maximum age for adoption or the maximal
age difference between adopters and an adoptive child. However,
a maximum age difference of 40 years between adoptive parents and
children has been strongly recommended by the federal working party
of federal youth welfare offices
(Bundesarbeitsgemeinschaft
der Landesjugendämter).
40. In a context where children are almost treated like a precious
“commodity” for which large sums of money are exchanged in some
cases, the expectations of prospective parents are increasingly
high: they are looking for a child who is as young as possible and
in good health. In practice, however, solutions for the care of
very young children are more easily to be found in the national
context (foster families, national adoptions) and it is sometimes
in particular the older children who are in need of a new family
abroad. The same applies to children with various health problems
(such as the consequences of Foetal Alcohol Syndrome (FAS) increasingly
observed in adoptive children coming from poorer countries) or disabilities
for whom solutions are more difficult to find. Many prospective
adopters exclude accepting a child who is sick. In some cases observed by
agencies in Germany, adoptive parents even tried to be discharged
of their responsibility for a child because they could not cope
with the challenge of a sick child for which they had not been entirely
prepared beforehand. For the child, having to leave an adoptive
family is yet another traumatic experience.
41. According to the experience of German agencies on the ground,
intercountry adoption procedures at national level should not be
limited to a sheer “matching” process between available parents
and available children. Both adoptive parents and children should
receive comprehensive professional support, including psychological
assistance, preparing them for this new life situation. Deceptions
following the non-satisfaction of high expectations at the beginning
of the process may be another traumatising experience both for children and
parents. For this reason, it is considered very important that adoptive
children are followed up well beyond the formal stage of adoption
and as regards their integration into the new family and new cultural
context.
4. Insufficiencies
in legal and political action: threats to the best interest of the
child
4.1. Improper implementation
of the Hague Convention
42. Experts have identified ineffective implementation
of the Hague Convention as the primary cause of the continuing incidence
of abusive adoption practices; this also includes premature ratification
of the convention, namely before internal mechanisms are brought
up to date. Not only sending countries, where criminal acts of child
laundering actually occur, are guilty of fundamental lapses of implementation,
but receiving States, encompassing many Council of Europe member
States, have failed children through a lack of thorough supervision
of adoption processes.
Sending
and receiving States must therefore, through close and continuous
co-operation, jointly take responsibility for ensuring that the
best interest of the child remains a primary consideration throughout
any intercountry adoption procedure.
43. International adoption practice also shows that the mere existence
of a central authority and other formal features of the Hague Convention
are not always sufficient to prevent malpractices, in particular
child laundering, as the example of India shows.
India continues to be plagued with adoption
scandals, even after the ratification of the Hague Convention in
2003. The Indian Central Adoption Resource Authority (CARA) issued
a moratorium on adoptions on 1 July 2011 in order to submit its
system to an in-depth reform. This example once again shows the
importance of fully transparent adoption procedures, involving a
complete file about the child and its origins and the right of the
child to consult his or her file at the latest at the age of legal maturity.
4.2. Non-Hague country
adoptions
44. Just as national practice does not forbid intercountry
adoptions with non-Hague Convention countries (see the example of
Germany above), the Hague Convention does not prohibit bilateral
adoption agreements between Hague Convention countries and non-Hague
Convention countries, so long as the agreement does not run contrary
to the letter of the convention. For example, France has a lawful
bilateral agreement with Cambodia concerning intercountry adoption.
However, the safeguards in such agreements are not commensurate
with those contained in the Hague Convention and should not be understood
as appropriate substitutes.
45. Furthermore, the Hague Convention does not prohibit independent
adoptions even if they are strongly advised against by many national
central authorities. In an independent adoption, prospective adopters
are approved as fit to adopt by the central authority but there
is no further involvement by the central authority or another accredited
agency. The prospective adopters source the orphanage hosting their
future adoptive child and travel to the country independently, which
involves many risks for them: without the expert guidance that an
authorised agency provides, adopters may fall victim to dubious
intermediaries and the legitimacy of the circumstances in which
they find an “adoptable” child cannot be guaranteed.
46. UNICEF is against independent adoptions on the grounds there
are no valid arguments in favour of independent adoptions from a
child rights standpoint.
The Hague Convention Guide to Good
Practice criticises independent adoptions as undermining the safeguards
of the convention, in particular to protect the best interests of
the child, and for that reason advocates their prohibition by Hague
Convention countries.
Governments
of all Council of Europe member States should be invited to establish
procedures aimed at removing some of the threats generated by independent
adoptions. Certain receiving countries prohibit their citizens from
adopting in a foreign country without engaging the services of an
accredited adoption agency. Similarly, certain countries of origin
also require prospective adopters to engage a recognised adoption agency.
4.3. Moratoria
47. A country of origin may temporarily suspend adoptions
for a certain period. Moratoria are often issued in response to
allegations or suspicions in relation to the legitimacy and transparency
of national adoption systems. Moratoria also provide the State with
the opportunity to conduct an investigation into, and reform of, the
system. Likewise, intercountry adoption procedures may be suspended
by receiving countries if they consider that the safety of children
originating from certain distant countries is not fully ensured.
This was, for example, the case after the 2010 earthquake in Haiti
following which several European member States suspended intercountry
adoption procedures with this country (see below).
48. While reforms of adoption processes are of huge benefit to
the integrity of adoption systems in the long term, the suspension
of adoptions may have substantial negative short-term consequences
for children in a procedure at the time of the suspension. This
is particularly so in the case of children who have already been deemed
as adoptable by the central authority or an accredited body, and
therefore in need of a family and long-term care solution. Such
“pipeline cases” can sometimes be stalled for a lengthy period which
is certainly not consistent with the best interests principle. In
some cases, bonding between child and adopters may even have already
taken place, and the adoption can be said to be at an advanced stage.
To stop an adoption at this late stage could have unprecedented
negative effects on a child in need of a loving family and prolong
its suffering.
49. The 2008 Hague Convention Guide to Good Practice (No. 1) acknowledges
the balance that must be struck when issuing a moratorium and recommends
that the best way to deal with these difficulties is to ensure open
communication between central authorities. Therefore, if a moratorium
is foreseen, this information will be conveyed to other central
authorities and in this way adoptions in advanced stages may be
fast-tracked before the moratorium begins.
4.4. Humanitarian disasters
50. In the aftermath of a humanitarian disaster such
as war or a natural disaster, very often a large number of children
become separated from their parents. In such instances, tracing
is of the utmost importance and intercountry adoption should only
be considered after efforts to trace family for the child have been unsuccessful.
Records from Haiti show that many adoptions were expedited in the
aftermath of the 2010 earthquake.
Accordingly,
the issue of humanitarian disasters has also been covered by the
Parliamentary Assembly in its
Resolution
1850 (2011) “What Europe can do for children in the aftermath of
natural disasters and crisis situations: the examples of Haiti and
Afghanistan”.
51. In Haiti in particular, an American NGO, the New Life Children’s
Refugee Group had tried to “rescue” children and transport them
to the Dominican Republic for institutional care. The group was
eventually arrested by Haitian authorities and imprisoned for a
number of crimes, including child abduction and trafficking.
This example illustrates that, in
many crisis situations, there is a strong risk that children are
declared “adoptable” despite the fact they have living family members
because, due to the adoption process being “fast-tracked”, there
have been inadequate tracing efforts. This stance is shared by UNICEF,
the Office of the United Nations High Commissioner for Refugees
(UNHCR), the United Nations Committee on Rights of the Child, the
Hague Conference on Private International Law, the International
Committee of the Red Cross and international NGOs such as Save the
Children and International Social Service (ISS).
At
international level, a common stance on intercountry adoption in
the wake of humanitarian disasters should be adopted.
5. Conclusions
52. In certain circumstances, intercountry adoption may
be an interesting long-term care option for children without parental
care. Due to uncertainties linked to intercountry adoption procedures,
the trend to adopt foreign children has rather been on the decrease,
but remains an option considered by many in the western world where
people are starting families increasingly late in life and where,
subsequently, many people are “involuntarily childless” and happy
to receive a foreign child as their own.
53. Substantial texts concerning intercountry adoption and national
adoption exist, but have not been ratified by all Council of Europe
member States and are not always implemented in the most rigorous
manner through national legislation and policies. The practice of
intercountry adoption shows that too many procedures still take place
in an opaque or even illegal manner and do not fully respect the
best interest of the child.
54. In some cases, children’s human rights are clearly violated
because they become victims of criminals abducting or trafficking
children for the purpose of drawing financial benefits from illegal
adoption procedures, of exploiting these children or of handing
them over to people intending to do so. Especially in the context
of humanitarian disasters or moratoria on intercountry adoption,
children are not fully protected or may be left in “legal vacuums”;
such situations further facilitate illegal practices related to
intercountry adoption.
55. Despite numerous efforts already made, Council of Europe member
States should once again be called on to further reinforce national
legislation and policies in this field, taking into account specific
problems arising from unsolved issues (such as the alternative care
options open to children with special needs). They must also strengthen
international co-operation in order to exchange best practices in
intercountry adoption and be able to jointly and efficiently prosecute
any criminal players in this field.
56. National intercountry adoption procedures should follow the
lines provided for by the Hague Convention – to be ratified by further
countries, including Council of Europe member States – the recommendations
of the Hague Convention Guide to Good Practice 2008 (No. 1), and
the UNICEF Guidance note on Intercountry Adoptions in the CEE/CIS
Region, as well as relevant recommendations put forward by the Council
of Europe and its Parliamentary Assembly. This will ensure that
these procedures are made watertight as regards the consideration
of children’s best interests and the protection of their rights.
The substantial work undertaken in this field by international NGOs
such as Save the Children must not be neglected either.
57. Strong procedures and policies should lead to a situation
where the demand of prospective adopters for a child of their own
is “matched” with the need of many children for a long-term alternative
care option in the most balanced manner, ensuring respect for the
best interests of the child in all steps of the process and also facilitating
the search for care solutions for children with special needs, either
by supporting national child protection policies in the countries
of origin or by identifying prospective adopters ready to welcome
such a child with special needs.
58. At Council of Europe level, member States should ensure that
the issue of intercountry adoption be taken into consideration in
the framework of the Strategy on the Rights of the Child (2012-2015)
and its implementation process as one of the serious issues threatening
the best interest and well-being of children. Relevant intergovernmental
activities should also promote the exchange of best practice in
this field and both support the development of strong national child
care and protection policies in the countries of origin and allow countries
to jointly develop strong and transparent intercountry adoption
procedures.