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Main Index
Index:
* CONFLICT PREVENTION IN LONG TERM CONTRACTS
AND STRATEGIC ALLIANCES
* INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
section 1 of 2
* INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
section 2 of 2
* CONFLICT PREVENTION IN LONG TERM CONTRACTS
AND STRATEGIC ALLIANCES
| BY: THIERRY GARBY G A R B Y V I A L A R S D U P A S P a r i s |  |
Chicago 2006
CONFLICT PREVENTION IN LONG TERM CONTRACTS
AND STRATEGIC ALLIANCES
BY
THIERRY GARBY
G A R B Y V I A L A R S D U P A S
P a r i s
Specificity of Long Term Contracts and Strategic Alliances
The phases of a strategic alliance:
- investment;
- recouping the investment ;
- profitability;
- possibly over-profitability.
The duration is essential to the profitability of a strategic alliance.
One must by all means prevent the early termination of the contract or an interruption of its performance
The structure of a long term contract:
- the profit will grow with the time;
- but the profitability may remain stable ;
- generally high interests involved ( lease of premises, distribution, franchise, gency etc.)
- the termination may cause serious damages to one or more party
The management of disputes during the contract and of the terms of its termination are essential to the profitability of a long term contract.
The disputes
One needs instruments to manage:
- all disputes
- envisaged or not
- foreseeable or not
Various techniques are necessary for these various types of disputes.
The parties These disputes may oppose:
- all or part of the members of the alliance/contract to a third parties;
- all or part of the members of the alliance to the client;
- the members/parties between them.
This will generate two types of agreements:
- conflict prevention and resolution clauses in contracts
- partnering/alliancing contracts (to be presented by Franck Carr)
Traditional solutions
Court litigation and arbitration:
1. Resolution not prevention
2. Implies termination of the relationship
3. The quality of the solution demands time: relationship cannot be resumed
4. Cannot manage the performance of the contract
5. Only deals with claims: no creative solution
6. Solution arrives when it is not needed anymore.
Urgency procedures
In all legislations: limited possibilities
Examples :
- Conservatory measures
- Absence of serious arguments
The ICC and other pre-arbitration procedures are valid for all decisions.
But:
They imply an arbitration clause by the ICC or other institution
They may open the right to appeal rotherwise challenge the decision
Basic Concepts for Dispute Management in Long Term Contracts and Strategic Alliances
1. Coersion is not a valid solution:
- Resolution not prevention
- Implies termination of the relationship
- The quality of the solution demands time: relationship cannot be resumed
- Cannot manage the performance of the contract
- Only deals with claims: no creative solution
- Solution arrives when it is not needed anymore.
2. Necessity of contractual solutions
- Agreement after the beginning of the dispute
- Agreement before the beginning of the dispute
- Agreement in the original contract
3. The intervention of a third party may be useful for reaching agreements
- evaluation
- facilitation
- adjudication
4. The intervention of the third party may be useful before any dispute
The techniques
1. Structured negotiation To resolve a dispute, one needs at least:
- To identify the dispute(s)
- To identify the members of the alliance which are involved in the origin of the dispute
- To identify those who are affected by their consequences
- To identify those who can provide solutions
- To identify the individuals who have the technical expertise to resolve the dispute
- To identify the individuals who have the authority to take the necessary decisions
- To organize the communication between the stakeholders (claim, identification of stakeholders, meeting or other ways of communication, etc.)
Clauses structuring the negotiation
They must provide:
How a claim is made?
- Which means of communication? Minutes, registered mail, email etc.?
- Addressed to whom? Everyone? The members at the origin of the dispute? Those who are affected by the consequences? Those who can provide solutions? etc.
Who must participate in the negotiation:
- Each one invited?
- If not, who makes the choice?
Who are the individuals who must take part in the negotiation? The experts? The managers? The decision makers?
Organize equal treatment of various organizations: one should not have a
negotiation between a CFO and a worker
The procedures for escalation
The organisation of the drafting of the agreement:
- The agreements which impact third party
- The agreements which modify the original contract
- Who does the drafting? Who signs?
Clauses structuring the negotiation
They must provide:
The procedures for escalation
Possibly the logistics of the negotiation: place, number of rooms, services, catering, etc.
The organization of the drafting of the agreement:
- The agreements which impact third parties
- The agreements which modify the original contract
- Who does the drafting? Who signs?
Assisted negotiation / mediation There is an authority problem to structure the negotiation:
Who has the authority?
- A party? Which one?
- A third party? The client?
Advantages of a third party:
- His decisions are legitimate
- He structures the negotiation
- He can facilitates the negotiation
- He can advise the parties
Facilitation
- It reduces the aggressiveness of parties: separates the people from the problem
- Its helps distinguish interests and positions
- It may help identify the nature of the problem: structural, evaluative, interests, relationship, information
- It helps negotiate on interests
- It may help the search for solutions
Third party may suggest solutions
Early neutral evaluation
Case: the parties cannot negotiate because they have very different evaluations
- Of their rights
- Of a technical/financial problem
- Of a fair solution
- Of the consequences of their actions
Example: is this a violation of an intellectual property right and, if so, what are the
consequences?
Object: to give the parties a starting point for negotiation by helping them sharing the same evaluations
Early neutral evaluation
Procedure: to be agreed by the parties or decided by the evaluator
Purpose
- To help the parties resume negotiation
- based on a common evaluation of the disputed point
Form
- The evaluation may be open or not
- The evaluation may be binding or not
- The evaluation may be confidential or not
Adjudication
- Decision of a third party on the dispute
- To allow the performance of the contract to continue
- It is immediately binding on the parties
- But only until they agree otherwise or there is a court decision or arbitral award
- Possibility to limit the right to litigate:
- - FIDIC: only if there has been a declaration for challenging the adjudication within a short period of time
- - Only after completion of the work.
In England and Wales, an adjudication clause is implied in all construction contracts.
Legal nature of adjudication:
- it is not arbitration ( not under New York Convention).
- It results from the contract.
- The decision is deemed to be contractual: the parties give the power to the neutral to modify their contract ( see the ICC rules for the adaptation of contracts or article 1592 of the French Civil Code).
How to manage conflicts in your long term contracts and strategic alliances?
Some centers
providing conflict resolution and prevention services:
- ICC rules for the adaptation of contractsfor hardship cases (never used)
- ICC ADR rules: only for resolution
- ICC Dispute boards
- Centre de Mdiation et dArbitrage de Paris (CMAP): all services
- Centre for Effective Dispute Resolution (CEDR) in London: but no arbitration
- Other providers?
Up
Main Index
* INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
section 1 of 2
CHICAGO
18-22 September 2006
INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
GOOD PRACTICES FOR RECEIVING STATES UNDER THE
HAGUE INTERCOUNTRY ADOPTION CONVENTION
Jennifer Degeling
Principal Legal Officer
Hague Conference on Private International Law
The Hague, Netherlands
GOOD PRACTICES FOR RECEIVING STATES UNDER THE HAGUE
INTERCOUNTRY ADOPTION CONVENTION*
I. INTRODUCTION
II. GENERAL PRINCIPLES OF THE CONVENTION
III. GOOD PRACTICES FOR THE OPERATION OF CENTRAL AUTHORITIES
AND ACCREDITED BODIES
IV. GOOD PRACTICES FOR ADOPTION PROCEDURES IN A RECEIVING
STATE
V. AVOIDING BAD OR ILLEGAL PRACTICES
VI. CONCLUSION
* For the preparation of this paper, I have drawn extensively from the Draft Guide to Good Practice
for the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry
Adoption: Implementation, prepared by the Permanent Bureau, Preliminary Document 2 for the
Special Commission of September 2005.
Good Practices For Receiving States Under The Hague Intercountry Adoption Convention 2
I. INTRODUCTION
1. Who and what is Hague Conference on Private International Law
The 1993 Hague Convention on Protection of Children and Co-operation in respect
of Intercountry Adoption was developed by the Hague Conference on Private
International Law, an international inter-governmental organization, established
in 1893. The organisation currently has 65 Member States, and the European
Union will soon be admitted as a member and defined as a Regional Economic
Integration Organisation. A diversity of legal traditions is represented in the
organization: civil law, common law, secular and religious systems, and federal
and unitary systems.
The Hague Conference has developed 36 private international law conventions
since 1954. The organisation works through global networks of States (Members
& non Members of the organisation), national experts and delegates at its
international meetings, Central Authorities established under its conventions, and
national authorities, as well as other professionals and academics and interested
parties and non-government organisations.
The best known and most widely ratified conventions of the Hague Conference
are (1) the Childrens Conventions: the1980 Convention on the Civil Aspects of
International Child Abduction, the 1993 Convention on Protection of Children and
Co-operation in respect of Intercountry Adoption and the 1996 Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
respect of Parental Responsibility and Measures for the Protection of Children; (2)
the Judicial and Administrative Co-operation Conventions: 1961 Convention
Abolishing the Requirement of Legalisation for Foreign Public Documents, the
1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, the 1970 Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters. The most recent conventions are: the
2006 Convention on the Law Applicable to Certain Rights in respect of Securities
held with an Intermediary and the 2005 Convention on Choice of Court
Agreements. A new convention on the international recovery of child support will
be concluded in 2007. At present, 122 countries are parties to one or more of the
Hague Conventions.
At intervals of approximately 4 years, Special Commission meetings are held in
The Hague to review the practical operation of the main Conventions. The
meetings are attended by Member States of the Hague Conference, Contracting
States of the Convention under discussion, interested States and international
intergovernmental and non-government organisations.
2. Background to the Hague Intercountry Adoption Convention
The need for a new convention on intercountry adoption became apparent in the
1980s when it was recognised that there had been a dramatic increase in
international adoptions in many countries in the previous two decades to such an
extent that intercountry adoption had become a worldwide phenomenon involving
migration of children over long geographical distances and from one society and
culture to another very different environment. It was also recognised that this
phenomenon was creating serious and complex human and legal problems and
the absence of existing domestic and international legal instruments indicated the
need for a multilateral approach.1
A draft Convention was unanimously approved on 29 May 1993. Despite the wide
range of views on intercountry adoption, the participating States were all joined
by a common will to achieve a result which would help the homeless children of
the world to find a family, and this with full respect for their rights.2
The States recognised that growing up in a family was of primary importance and
was essential for the happiness and healthy development of the child. At the
same time, there was acceptance that intercountry adoption should be regarded
as a subsidiary means of finding a family for a child. The child should ideally be
raised in his or her family of birth. If that is not possible, then a family should be
sought in his or her country of origin. When that is also not possible, then
intercountry adoption may provide the child with a permanent, loving home.
Finally, the States realised that measures of protection were essential to ensure
that intercountry adoptions are made in the best interests of the child and to
eradicate abuses.3
The 1993 Hague Convention gives effect to Article 21 of the United Nations
Convention on the Rights of the Child4 by adding substantive safeguards and
procedures5 to the broad principles and norms laid down in the Convention on the
Rights of the Child. The 1993 Convention establishes minimum standards, but
does not intend to serve as a uniform law of adoption. While making the rights of
the child paramount, it also respects the rights of families of origin and adoptive
families.6
In November / December 2000, the first Special Commission meeting on the
practical operation of the Convention was held. At that time, there were 41 States
Parties. As at August 2006, with 69 States Parties, there has been a 60%
increase in the number of Contracting States in a 5 year period. There are now 48
ratifications, 21 accessions and 3 signatures.
During the 2nd Special Commission meeting in September 2005, the Peoples
Republic of China confirmed that on 16 September 2005 it deposited its
instrument of ratification of the 1993 Hague Convention with the Netherlands
Ministry of Foreign Affairs. The Chinese Ministry of Civil Affairs is designated as
the Central Authority and the functions under Articles 15 to 21 of the Convention
are delegated to the China Centre of Adoption Affairs.
The US is expected to ratify the Hague Intercountry Adoption Convention in 2007.
Regulations have been published for comment and at least one accrediting body has been appointed. The Department of State is to be the federal Central
Authority.
1 See Explanatory Report to the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, by G. Parra-Aranguren, Hague Conference on Private
International Law, Proceedings of the Seventeenth Session, Tome II, 1994, at p. 538, (hereinafter,
Explanatory Report), at paragraph 6; See also the Report on Intercountry Adoption, drawn up by
J.H.A. van Loon, Prel. Doc. No 1, 1990.
2 See J.H.A. van Loon, International Co-operation and Protection of Children with regard to
Intercountry Adoption, Recueil des cours de lAcadmie de droit international de La Haye, Vol. 244
(1993-VII).
3 See Explanatory Report, supra note 1, at paragraphs 38-47.
4 United Nations Convention on the Rights of the Child, G.A. Res. 44/25, UN GAOR, 61st Plenary
Meeting, Annex. Available at www.ohchr.org
5 See J.H.A. van Loon, supra note 6. See also W. Duncan, The Protection of Childrens Rights in
Intercountry Adoption, Chapter 8.3 in L. Heffernan (ed.), Human Rights - A European Perspective,
The Round Hall Press / Irish Centre for European Law, 1994.
6 Draft Guide to Good Practice for the 1993 Hague Convention on Protection of Children and Cooperation
in respect of Intercountry Adoption: Implementation, prepared by the Permanent Bureau,
Preliminary Document 2 for the Special Commission of September 2005, p.8.
II. GENERAL PRINCIPLES OF THE CONVENTION
The general principles of the 1993 Convention apply to all entities or individuals
involved in intercountry adoptions arranged under the Convention, whether they
be Contracting States, Central Authorities, public authorities, accredited bodies or
non-accredited persons or bodies. Briefly these principles are: the best interests
of the child as the primary consideration; the development of safeguards to
prevent abduction, sale, and traffic in children; effective co-operation between
authorities, and the authorisation of intercountry adoptions only by competent
authorities.
1. Best interests and rights of the child are paramount
A fundamental principle of the Hague Intercountry Adoption Convention is the
protection of the childs best interests. The Hague Convention establishes
safeguards to ensure that an intercountry adoption is in the best interests of the
child. It could be said that the effective and combined operation of all principles,
procedures and obligations together create a sound framework to protect a childs
best interests during the adoption process. Within that framework, particular
safeguards may be identified as critical to the support or protection of the best
interests principle and the fundamental rights of the child.
These include:
(a) Implementing the principle of subsidiarity (Preamble to the Convention
and in Article 4 b);
(b) Implementing the principle of non-discrimination (Article 26(2));
(c) Ensuring the child is adoptable (meeting the requirements of Chapters II
and IV, in particular Articles 4 a) and 16(1));
(d) Preserving information about the child and his/her parents (Articles 9 a)
and 30)
(e) Making a proper evaluation of the prospective adoptive parents and
matching the child with a suitable family (Articles 15 and 16(1)(d));
(f) Imposing additional safeguards where needed by Contracting states to
protect the child.
The subsidiarity principle is discussed in more detail below. Implementing the
principle of non-discrimination ensures that the child concerned in an intercountry
adoption enjoys safeguards and standards equivalent to those existing in the case
of national adoption.
Ensuring the child is adoptable is one of the most important measures to protect
the childs best interests in adoption and at the same time to combat abduction
of, sale of and trafficking in children. Every effort should be made in States of
origin to ensure that a child to be adopted is genuinely adoptable.
Preserving information about the child and his or her family is important for the
short and long term welfare of the child. The best interests of the child who is the
subject of an intercountry adoption will be best protected if every effort is made
to collect and preserve as much information as possible about the childs origins,
background, family, and medical history.
Making a proper evaluation of the prospective adoptive parents is vital for the
welfare and interests of any child to be adopted, as is matching the child with a
suitable family. Matching the needs of the child with the qualities of the adoptive
parents and family is essential for the best interests of the child and should be
done professionally. Prospective adoptive parents should be thoroughly and
professionally assessed as eligible and suitable to adopt a child, particularly if the
child has special needs.
2. Subsidiarity
Subsidiarity in the Convention means that Contracting States recognise that a
child should be raised by his or her birth family or extended family whenever
possible. If that is not possible or practicable, other forms of permanent care in
the country of origin should be considered. Only after due consideration has been
given to national solutions and it is clear that the child cannot in any suitable
manner be cared for in his or her country of origin, should intercountry adoption
be considered, and then only if it is in the childs best interests. The subsidiarity
principle is referred to in the Preamble and Article 4 b) of the Hague Convention
and Article 21 of UN Convention on the Rights of the Child.
The subsidiarity principle should have a place in the national child care, protection
and adoption systems of all Contracting States as part of a comprehensive policy
on intercountry adoptions. Experts at the 2005 Special Commission meeting in
The Hague agreed that the four phases of a national child protection system -
the childs entry into care, family preservation or reunification, temporary child
care or institutionalization, and national (domestic) adoption - have an important
place in the Guide to Good Practice: Implementation.7 Intercountry adoption is
the next phase in that continuum. The four phases refer to the internal child care
and protection system and encompass services that States may offer
independently of intercountry adoption. They demonstrate the sequential
approach to intercountry adoption and the practical application of the subsidiarity
principle. Many experts noted that consideration must always be given to the
ultimate objective of protecting children and for this reason, good practices in
national adoption must be examined as a good foundation for intercountry
adoption.8
3. Prevention of trafficking in children and improper financial gain
An important object of the Convention is to establish a system of co-operation
amongst Contracting States to ensure that safeguards are respected and thereby
prevent the abduction and sale of, or traffic in children.9
Receiving States and States of origin should co-operate to prevent trafficking in
children10 and improper financial gain11 for the purpose of adoption. It is
recognised that some developing countries and countries in transition which do
not have an effective or integrated national child protection system, may face
more challenges to implement effective protective measures and safeguards.
Receiving States can play their part by ensuring there is adequate regulation and
supervision of their own accredited bodies and individuals involved in adoptions
and by acting on any information or complaints about them by authorities in the
State of origin or by the adoptive parents. Central Authorities also are required to
take directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption, and to deter all
practices contrary to the objects of the Convention.12
Contracting States could also prevent these illegal or unethical practices by
protecting birth families from exploitation or undue pressure. Protective measures
are envisaged in the Convention to prevent undue pressure on, or coercion,
inducement or solicitation of birth families to relinquish a child. The Convention is
clear that the decision to place a child for adoption should not be induced by
payment or compensation of any kind.13 This applies equally to Receiving States
and to States of origin, and to individual or group practices. These matters are
related to the question of improper financial gain and must be dealt with through
the implementing legislation of each country.
Other measures in the Convention which contribute to the elimination of
trafficking and improper financial gain include the requirements to obtain proper
consents,14 ensuring a child is genuinely adoptable,15 and the regulation of
adoption agencies through a system of accreditation.16
7 See footnote 6.
8 Report on the Second Special Commission on the Practical Operation of the Hague ConventionoOf 29
May 1993 on Protection of Children and Co-operation In Respect of Intercountry Adoption, 17-23
September 2005, prepared by Jennifer Degeling, Principal Legal Officer, August 2005, p. 26
9 Article 1 b).
10 Article 1
11 Article 32
12 Article 8
13 Articles 4(c)(3) and 4(d)(4)
14 Articles 4 b), 16(1)(c) and 16(2)
15 Articles 4 and 16(1)
4. Cooperation
Co-operation is a key element in the effective operation of the Convention. The
system of co-operation envisioned under the Convention is one in which all
Contracting States work together to ensure the protection of children. The
Convention makes clear that Receiving States and States of origin must share
equally the burdens and benefits of developing a stricter regime to safeguard the
interests of children who are the subject of intercountry adoptions.
Co-operation between Contracting States is essential to ensure the effectiveness
of any safeguards put in place.17 In practice, this principle is implemented first
through international co-operation between Central Authorities, and between
other public authorities and accredited bodies performing the functions of Central
Authorities;18 second, through intra-State co-operation between authorities and
agencies regarding Convention procedures;19 and third, through co-operation to
prevent abuses and avoidance of the Convention.20
The co-operation envisaged may include co-operation regarding Convention
procedures and co-operation to prevent breaches and avoidance of the
Convention. In order to achieve effective co-operation, it is important that
Contracting States have legal and administrative measures that complement and
strengthen the protections implemented by other Contracting States. States
should consider the impact that their regulation of adoption, or lack thereof, may
have on other States, and be prepared to co-operate with other Parties to
address interim arrangements, emergency situations, and enforcement of
criminal sanctions.
A number of different government authorities and private agencies will be
involved in the protection of children, whether or not as part of an intercountry
adoption process. Co-operation between such authorities and agencies within a country is necessary to achieve the requirements of the Convention and facilitate
the intercountry adoption process.
Concerning the principle of co-operation, the majority of experts at the 2005
Special Commission agreed that in order to increase the level of co-operation
between States, an exchange of information on the processes of other States and
a centralisation of this information are necessary.21 A recommendation was made
as follows:
The Special Commission stresses the importance of enhancing co-operation
and exchange of information between Central Authorities, public authorities,
accredited bodies and any bodies and persons under Article 22(2), notably
with a view to promoting good practice and to ensuring that illegal and
unethical procedures prior to the adoption of a child be effectively and
systematically combatted.22
16 Articles 10, 11, 12, 13, 22 and 32
17 Article 1 b)
18 Article 7
19 Article 7(1)
20 Article 33
21 Report (see footnote 9) p.19
22 Recommendation 10
5. Competent Authorities
Only competent authorities should be designated to authorise intercountry
adoptions.23 Contracting States have an obligation, direct or implied, to appoint or
designate competent authorities with appropriate powers to enable them to fulfil
their functions and to achieve the objects of the 1993 Convention (see for
example Articles 1, 4, 5, 6, 11, 22, 23).
Within each Contracting State there could be a number of different competent
authorities for different Convention functions. For example, a competent authority
could be a court when the function is to make a final adoption decree or order.
On the other hand, the competent authority to make the Article 23 certification
could be the Central Authority. The Article 23 procedure certifies that a completed
adoption has conformed to Convention procedures. It guarantees the recognition
in all Contracting States of adoptions made in accordance with the Convention.
The Convention sets up a system of accreditation for bodies which provide
intercountry adoption services. Where accredited bodies perform Central
Authority functions, those bodies may be the competent authority for certain
functions.
III. GOOD PRACTICES FOR THE OPERATION OF CENTRAL
AUTHORITIES AND ACCREDITED BODIES
1. Outline of the procedure for a Convention adoption
The prospective adoptive parents must apply to the Central Authority in the State
of their habitual residence (the Receiving State).24 The competent authority will
determine the eligibility and suitability of the prospective adoptive parents to
adopt (eligibility / suitability).25
If satisfied that the parents are eligible and suited to adopt, the Central Authority
prepares a report on the family, and transmits the report to the Central Authority
of a country of origin (eligibility / suitability).26 It is implicit in the Convention that the adoptive parents habitual residence country will have laws and procedures to assess that the prospective adoptive parents are eligible and suitable to adopt a child. This assessment should be done by professionals with appropriate qualifications and expertise.
The State of origin determines if a child being considered for adoption is indeed
adoptable, that the proper consents to adoption have been obtained and that the
child cannot be suitably cared for in the State of origin (adoptability /
subsidiarity).27 The authorities in the State of origin should have a register of
children declared adoptable through intercountry adoption. The Central Authority
undertakes the matching of the adoptable child with the adoptive parents who
have the qualities and skills best suited to the needs of that child. It is implicit in
the Convention that the country of origin will have laws or procedures by which to
determine if a child is adoptable.
If it is satisfied that the child is adoptable, the Central Authority in the State of
origin prepares a report on the child, ensures that proper consents have been
obtained, matches the child with appropriate adoptive parents, and determines
whether the envisaged placement is in the child's best interests (matching).28
The Central Authority then transmits the report on the child to the Central
Authority of the Receiving State,29 which must determine that the prospective
adoptive parents agree with the proposed placement,30 and may, if necessary,
approve the proposed placement (placement).31 Provided that both Central
Authorities have agreed that the adoption may proceed32 and the child has been
authorised to enter and reside permanently in the Receiving State,33 the physical
entrustment of the child to the adoptive parents, and the adoption itself, may
now go ahead, depending on the law of the State of origin (entrustment). If the
adoption must be finalised in the State of origin,34 the legal procedures, including
court procedures, for the adoption must be completed before the child is
authorised to leave the State of origin (adoption).
When an intercountry adoption is certified as having been made in accordance
with the full provisions of the Convention, it is automatically recognised under the
law of all Contracting States (certification).35
23 CRC, Art. 21(a)
24 Article 14
25 Article 5 a)
26 Article 15
27 Article 4
28 Article 16(1)
29 Article 16(2)
30 Article 17
31 Article 17 b)
32 Article 17 c)
33 Article 17 d)
34 Article 28
35 Article 23
2. Role of Contracting States
a) To ensure the Convention requirements are followed
A Contracting State as the treaty partner has an overarching role to ensure that
the requirements of the Convention are implemented. The requirements include
the principles of the Convention referred to above (in Part II) as well as the
objects of the Convention stated in Article 1. Reference should also be made its
purposes as implied in the Preamble. Requirements also include the direct
obligations as specified in the Convention for which particular actions or
implementing measures need to be taken, for example, designating the Central
Authority as required by Article 6.
In September 2005, the Special Commission meeting was informed by the
delegation of the USA that it has its legislation in place and is currently
establishing the national framework for accreditation of bodies. The delegation of
the US observed that although work is continuing on its implementation
measures, their country is already acting in accordance with the major principles
of the Convention. In this regard the Special Commission was assured that the
US Government supports the issue of subsidiarity, that is, the consideration of
intercountry adoption for a child who needs a permanent family placement and
who cannot find a suitable one in his or her home country. The delegation
declared that the last part of this statement was equally important as the first
and the US supports efforts of countries of origin to promote domestic adoption.36
b) To ensure safeguards are applied effectively
To ensure safeguards in the Convention are applied effectively, the necessary
legal and administrative measures must be implemented. The necessary
measures are any which, directly or indirectly, will protect the best interests of
the child in intercountry adoption, including measures to combat the abduction,
sale and traffic in children and improper financial gain. These safeguards are not
the sole responsibility of the State of origin.
From the perspective of a Receiving State, the measures may include
appointment of accredited bodies which operate at the highest professional and
ethical standards, a requirement of transparency in the financial aspects of
adoption, and measures of co-operation to prevent undue pressure on a State of
origin to supply children for adoption. A Receiving State could also implement the
Recommendations of Special Commission meetings, for example, the
recommendation that Contracting States apply the standards of the Convention to
non-Convention adoptions.
In September 2005, the Special Commission meeting in The Hague was informed
by the delegation of the USA that the US implementing measures are intended to
ensure that those involved in intercountry adoption do not engage in improper
financial activities. Under their implementation plans, all third persons whether
as members of accredited bodies or providing adoption services on an individual
basis, will be under government oversight and will carry a designation as
accredited or approved.
The US delegation declared that its Government was also mindful of the need, as
noted in the draft Guide to Good Practice: Implementation, to ensure that the
financial assistance of a donor country does not influence the intercountry
adoption policy of a country of origin. An expert of the US assured the Special
Commission delegates that the development assistance for child welfare provided
by USAID is provided for capacity building in general with no link to whether
the receiving government permits intercountry adoption.37
36 Report (see footnote 8) p.17
37 Ibid
c) To provide the Central Authority with adequate powers and
resources to perform its functions effectively
The creation of a Central Authority to facilitate the operation of the Convention is
mandatory for all Contracting States.38 It is important that the Central Authority
should be established and functioning, with adequate powers and resources,
when the Convention enters into force for a new Contracting State. Even if most
functions are to be performed by accredited bodies or other public bodies, the
Central Authority must still be established as the principal point of contact for the
Convention.
The role of the Central Authority, both national and international, must be clearly
defined. Under the Convention, certain functions must be performed only by
Central Authorities. Other functions may be performed by public authorities or
delegated to accredited bodies.
3. Role of Central Authorities and Accredited Bodies
The Convention provides for a system of Central Authorities in all Contracting
States and imposes certain obligations on them. Central Authority obligations of a
general nature include co-operation with one another through the exchange of
general information concerning intercountry adoption, the elimination of any
obstacles to the application of the Convention,39 and a responsibility to deter all
practices contrary to the objects of the Convention.40 Central Authorities also
have specific obligations in Chapter IV in respect of individual adoptions.
38 Article 6(1) states that Contracting States ''shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such authorities'' (emphasis added).
a) Prevent improper financial gain
Central Authorities are responsible for taking, directly or through public
authorities, all appropriate measures to prevent improper financial or other gain
in connection with an adoption and to deter all practices contrary to the objects of
the Convention.41
The Central Authority may in particular have a role in some or all of the following
steps to prevent improper financial gain. It should:
i regulate the non-profit objectives of accredited bodies;42
i ensure compliance with the general prohibition on improper financial
gain;43
i verify that only costs and expenses including reasonable professional
fees of persons involved in the adoption are paid;44
i establish safeguards to prevent directors, administrators and
employees of bodies involved in an adoption from receiving
remuneration which is unreasonably high in relation to services
rendered;45
i establish safeguards to prevent consents of persons, institutions or
bodies from being induced by payment or compensation of any
kind;46
i establish safeguards to prevent the consent of the child from being
induced by payment or compensation of any kind;47
i require an accredited body or non-accredited person to provide a list
of their fees or costs, for publication on a website or in brochures.48
39 Article 7(2) b)
40 Article 8
41 Article 8. See the responses of Norway and Canada (Saskatchewan) to question No 10(1) of the
2005 Questionnaire, according to which information on costs, expenses and fees is freely available
and accessible to prospective adoptive parents and competent authorities.
42 Article 11 a)
43 Article 32(1): no one shall derive improper financial gain from intercountry adoption.
44 Article 32(2)
45 Article 32(3)
46 Article 4(c)(3)
b) Obligations concerning co-operation and information
Central Authorities also have obligations to co-operate with each other and
promote co-operation amongst national agencies.49 In addition they must provide
information about the adoption process.50
The Special Commission made a recommendation in 2005 as follows:
The Special Commission stresses the importance of enhancing co-operation
and exchange of information between Central Authorities, public authorities,
accredited bodies and any bodies and persons under Article 22(2), notably
with a view to promoting good practice and to ensuring that illegal and
unethical procedures prior to the adoption of a child be effectively and
systematically combatted. (Recommendation 10)
c) Perform procedural functions in Chapter IV of the Convention
The procedural requirements for each intercountry adoption under the Convention
are prescribed in Articles 14 to 22 of the Convention (Chapter IV). In some
countries, it is the Central Authority itself which performs, or is responsible for
the performance of, all the adoption procedures. However, Chapter IV provides
that the functions of the Central Authority, unless otherwise stated, may be
performed by public authorities or accredited bodies as provided for in
Article 22(1) or non-accredited bodies or persons as provided for in Article 22(2).
However, before they can perform Central Authority functions, the designation of
bodies or persons must have been made as required by Articles 13 and 22.
d) Give agreement that an adoption may proceed
The obligations under Article 17, in particular Article 17 c), are among the most
important in the Convention. Article 17 stipulates that no child shall be entrusted
to the adoptive parents until the Central Authority of the Receiving State has
ensured that the adoptive parents agree to the placement, and until the Central
Authorities of both States agree to the adoption. In some cases, the Central
Authority of the Receiving State may also be required to approve the
entrustment.51 Article 17 repeats the requirements of Article 5 that the parents
must be eligible and suited to adopt and that the child is or will be authorised to
enter and reside permanently in the Receiving State.
It is at this point that, if it becomes apparent that this proposed adoption is not in
the best interests of the child or if an illegality or defect in the procedure has
been identified, the Central Authorities must not give their agreement under
Article 17 c) that the adoption can proceed.
As is stated in the Explanatory Report on the Convention at paragraph 337, the
intention behind Article 17 c) is to enable both States, the State of origin or the
Receiving State, to stop an adoption from going ahead if it appears to either that
it presents major legal obstacles.
47 Article 4(d)(4)
48 Articles 11 a) and 32(2)
49 Article 7(1)
50 Article 7(2)
51 See, for example, Germany (Adoption Convention Implementation Statute, Section 5 (1)).
e) May in some Contracting States be the competent authority to
issue the Article 23 certificate of conformity.
A Central Authority may, in some States, be authorised to issue the Article 23
certificate. The certificate, issued in accordance with Article 23 of the Hague
Convention, certifies that the adoption has been made in accordance with the
Convention. This implies that all the steps necessary to complete the adoption
should be taken before the certificate is issued.
The certificate is an important document. The absence of a certificate has caused
difficulties for recognising the adoption and for according the child the nationality
of the Receiving State. However, at the Special Commission meeting in
September 2005, it was said that in some States a certificate was given
automatically or very easily while in other States adoptive parents had to apply
for it. There should be no doubt as to the mandatory nature of the requirement to
issue the certificate. A model form for the Article 23 certificate of conformity has
been developed.52
f) Advisory and supervisory roles
In some countries, Central Authorities may advise on the development of policy,
procedures, standards and guidelines for the adoption process. They may also be
responsible for the accreditation, control, and review of agencies or bodies
operating within their own country, or authorised to operate in a sending country.
continue in next section
Up
Main Index
* INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
section 2 of 2
INTERNATIONAL BAR ASSOCIATION ANNUAL CONFERENCE
CHICAGO
18-22 September 2006
INTERNATIONAL ADOPTION: A US PERSPECTIVE
THE GOOD, THE BAD AND THE UGLY
GOOD PRACTICES FOR RECEIVING STATES UNDER THE
HAGUE INTERCOUNTRY ADOPTION CONVENTION
*********************
...
4. Regulating Accredited Bodies
In many countries, accredited bodies will perform the functions of Central
Authorities in relation to particular adoptions under this Convention. There is no
obligation in the Convention to accredit bodies for the purpose of intercountry
adoption. However, if accredited bodies are to be used, the Convention sets out a
regulatory framework of minimum standards for their operation in Articles 10, 11
and 32. Additional standards may be imposed by Contracting States. The process
of accreditation of bodies is one of the Conventions safeguards to protect
children in adoption.53
Not all functions of Central Authorities can be performed by accredited bodies. For
example, functions in Articles 7 and 8 cannot be delegated to accredited bodies.
Note that Chapter IV functions may be carried out by Central Authorities, public
authorities or accredited bodies. Bodies or persons approved under Article 22(2)
are not accredited and may only perform the functions of Articles 15 to 21, and
these may only be performed under supervision of the competent authority of the
Contracting State.
Any private body or agency wishing to operate in the field of intercountry
adoption must be accredited and accountable to a supervising or accrediting
authority (see Articles 9-13). The selection of bodies which will operate at the
highest professional and ethical standards is vital for the success of the
Convention. They must play an effective role in upholding the principles of the
Convention and preventing illegal and improper practices in adoption.
As a matter of good practice, accredited bodies should be required to report
annually to the competent authority concerning in particular the activities for
which they were accredited. The review or re-accreditation of accredited bodies
should be carried out periodically by the competent authority.54
Authorisation of accredited bodies of Receiving States to operate in States of
origin must be specifically given by the competent authorities of both the
receiving country and the sending country (Article 12). The sending country may
impose its own conditions or criteria for such authorisation.55
The authority or authorities competent to grant accreditation, to supervise
accredited bodies or to give authorisations should be designated pursuant to clear
legal authority and should have the legal powers and the personal and material
resources necessary to carry out their responsibilities effectively.56
The legal powers should include the power to conduct any necessary enquiries
and, in the case of a supervising authority, the power to withdraw, or recommend
the withdrawal of, an accreditation or authorisation in accordance with law.57
The issues surrounding accreditation were documented in a Discussion Paper On
Accreditation Issues,58 prepared for the Special Commission of September 2005.
The meeting made a recommendation for a future Part of the Guide to Good
Practice on accreditation including financial matters and a set of model
accreditation criteria. The Special Commission recommended that:
the Permanent Bureau should continue to gather information from different
Contracting States regarding accreditation with the view to the development
of a future Part of the Guide to Good Practice dealing with accreditation. The
experience of non-governmental organisations in this field should be taken
into account. Such information should include financial matters and should
also be considered in the development of a set of model accreditation
criteria.59
The Special Commission reaffirmed that:
Accreditation requirements for agencies providing intercountry adoption
services should include evidence of a sound financial basis and an effective
internal system of financial control, as well as external auditing. Accredited
bodies should be required to maintain accounts, to be submitted to the
supervising authority, including an itemised statement of the average costs
and charges associated with different categories of adoptions.60
47 Article 4(d)(4)
48 Articles 11 a) and 32(2)
49 Article 7(1)
50 Article 7(2)
51 See, for example, Germany (Adoption Convention Implementation Statute, Section 5 (1)).
54 Ibid, p. 35
55 Ibid
56 See Report of the 2000 Special Commission, supra at note 37, Recommendation 4a.
57 See Report of the 2000 Special Commission, supra at note 37, Recommendation 4b.
58 Prel. Doc. 3, Drawn up by Jennifer Degeling, Principal Legal Officer, with the assistance of Carlotta
Alloero, Intern
59 Recommendation 4
60 Recommendation 5, reaffirmed Recommendation No 6 of the Special Commission 2000
IV. GOOD PRACTICES FOR ADOPTION PROCEDURES IN A
RECEIVING STATE
The Hague Convention sets out the minimum standards to be observed within the
intercountry adoption process. The requirements for intercountry adoption in
Chapter II, the standards for Central Authorities and accredited bodies in
Chapter III, and the procedural requirements for intercountry adoption in
Chapter IV of the Convention constitute a basic framework, not a comprehensive
one.
It is for individual States to decide what safeguards and requirements are needed
for their particular circumstances over and above those set out in the Convention
itself. It is also for individual States to decide how best to strengthen and give
effect to some of the central principles of the Convention.
In supplementing the provisions of the Convention, States should be guided by its
objects, as stated in Article 1, and in particular the priority to be given to the best
interests of the child.
1. Professional evaluation of the adoptive parents
An adoption within the scope of the Convention shall take place only if the
competent authorities of the Receiving State have determined that the
prospective adoptive parents are eligible and suited to adopt.61
The Convention requires that competent authorities perform these functions. In
most States such services are provided by qualified social service professionals,
with the results of the evaluation being reviewed and approved by competent
authorities to ensure they are satisfied of the applicants eligibility and
suitability as required by Article 15. States employ various mechanisms to
require, review and approve evaluations of prospective adoptive parents.62
Countries of origin intending to give their children for adoption into the care of
the Receiving State need to be assured that the individuals or couples selected by
the Receiving State as prospective adoptive parents have been properly and
thoroughly assessed as suited and suitable to adopt.63
2. Thorough preparation of adoptive parents for an intercountry
adoption
The Convention also requires competent authorities to ensure that prospective
adoptive parents receive counselling about adoption, as may be necessary.64
Counselling in this context refers to preparation for the adoption and may
include training and education.
Training and education in adoptive parenthood should be provided to prospective
adoptive parents, to prepare them for the benefits and challenges of adopting a
child. There will be many issues for which the prospective adoptive parents may
need special assistance and preparation. For example, there are basic issues of
learning to communicate with the child, and more serious issues if the child has
been living for an extended period in an institution; if the child has suffered
severe psychological trauma such as the loss of his family in a natural disaster; if
the adoption means the child is to be separated from friends (or worse still, from
siblings) in the orphanage; if the child is mentally or physically disabled; if
physical, mental or medical problems emerge which were not apparent at the
time of the adoption.65
Children with special needs need adoptive parents with different skills and more
specific services, including methods to actively look for suitable parents. Special
needs children could also receive priority above others for adoption. In the
adoption process, there should be specific matching procedures. There should
also be specific post-adoption services, and opportunities for adoptive parents to
obtain professional support. Older children could be adopted through simple or
open adoptions, which would give older children a family while keeping some
links with their biological family.66
At the Special Commission 2005, it was recognised that a better exchange of
information was needed between Receiving States and States of origin,
concerning categories and needs of adoptable children and the availability and
skills of adoptive parents. The following recommendations were made:
The Special Commission recognises the importance of States of origin
sending information to receiving States on the needs of children to better
identify prospective adoptive parents.( Recommendation 12)
The Special Commission recognises that as a matter of good practice,
authorities in receiving States should co-operate with authorities in States of
origin in order to better understand the needs of children in States of origin.
(Recommendation 13)
61 Article 5 a)
62 See, for example, Australia (Western Australia, Adoption Act 1994, Section 40) Assessment of
applicants for adoptive parenthood.
63 Guide to Good Practice (see footnote 6) p.60. See also the response of Sri Lanka to question No
4(g) of the 2005 Questionnaire ...the applicants are further investigated once they come to Sri
Lanka.
64 Article 5b)
3. Preparation of an accurate report on the adoptive parents
The Convention requires Central Authorities to prepare a report on the adoptive
family that includes information about their identity, eligibility and suitability to
adopt, background, family and medical history, social environment, reasons for
adoption, ability to undertake an intercountry adoption, as well as characteristics
of the children for whom they would be qualified to care.67 In most cases, this
report is also written by the social service personnel who assess if the parents are
both eligible and suited to adopt.
Emphasis was placed on the need for thoroughness and objectivity by authorities
in the receiving country in the assessment and preparation of the prospective
adopters, and in drawing up the report on the applicants in accordance with
Article 15.68 Accurate reports on the adoptive parents assist the State of origin to
make an informed decision regarding matching.
At the 2005 Special Commission it was proposed that a standard form be created
for the evaluation of the applicants for an intercountry adoption. Several experts
noted the need for uniform standards for the contents of the reports. A
recommendation was made to this effect.
The Special Commission recommends that the Permanent Bureau, in
consultation with Contracting States and non-governmental organisations,
develop a model form for the consent of the child (Article 4(d)(3)) as well
as model forms or protocols regarding the operation of Articles 15 and 16
of the Convention.( Recommendation 7)
65 Guide to Good Practice (see footnote 6) p.60
66 Report (see footnote 8) p.33
67 Article 15(1).
68 See Report of the 2000 Special Commission, supra at note 37, Recommendation 14.
4. Advice or assistance to adoptive parents about the child referred
to them by the State of origin
A formal acceptance by the prospective adoptive parents of the child proposed or
matched to them is necessary, as the adoptive parents must confirm to the
Central Authority that they accept the child proposed to them. The Central
Authority must confirm their acceptance under Article 17. This procedure creates
an opportunity for the prospective adoptive parents and the Central Authority /
accredited body to discuss the proposed match. Matching occurs in a moment in
time, and after that moment, both the parents and the child could have a change
in their circumstances requiring proper consideration. For example, the child can
develop problems not previously identified, or the financial or emotional
circumstances of the adoptive parents can change.69
At the 2005 Special Commission, there was support for the view that the
matching should be communicated first to the Central Authority or an accredited
body of the Receiving State before any notification to the prospective adoptive
parents. As a general rule Central Authorities/ accredited bodies of States of
origin should not give information to adopters about the match before first
informing the authorities of the Receiving State.70 A specific recommendation on
this issue was made as follows:
The Special Commission recommends that States actively discourage direct
contacts between prospective adoptive parents and authorities in the State
of origin until authorised to do so. Exceptionally, such contact at the
appropriate time may be desirable, for example in the case of a child with
special needs. (Recommendation 15)
5. Discourage travel by prospective adoptive parents to State of
origin before a referral of a child has been made.
It was said that some countries require the prospective adoptive parents to travel
to the country to have the child proposed to them in person. Whether or not
this is a requirement of the accredited body or the State authorities, the
requirement appears to contravene the Convention if travel is required before the
matching is done (see Article 16(1)), and before the Central Authority of the
Receiving State has seen the report on the child as required by Article 16(2), or
discussed the report with the parents.71
69 Report (see footnote 8) p. 29-30
70 Ibid p. 29
71 Canada (Manitoba) reported this practice. It is referred to in the Discussion Paper on Accreditation
Issues, p.14
6. Prevent contact by prospective adoptive parents with the birth
family or legal guardians before a referral has been made by the
state of origin.
At the 2005 Special Commission, comments were made on the matter of parents
travelling to a country of origin and making contact with a child before a match is
made. Article 29 provides that there shall be no contact between the prospective
adoptive parents and the child's parents or any other person who has care of the
child until the requirements of Article 4, sub-paragraphs a) to c), and Article 5,
sub-paragraph a), have been met. Exceptionally, contact may be permitted if the
adoption takes place within a family or if the contact is in compliance with
conditions established by the competent authority of the State of origin.
The purpose of Article 29 is to prevent inappropriate practices before the
matching, by prohibiting any contact between the adoptive parents and any
person whose consent might be influenced, intentionally or otherwise, by the
adoptive parents. The only exceptions to this rule are for cases of relative
adoptions, where the parties obviously know each other, or if the competent
authority sets some conditions for contact and those conditions are complied
with.
7. Use only reputable intermediaries or representatives in the State
of origin.
Many Receiving States use private intermediaries or representatives in sending
countries to assist with adoption arrangements. Often these arrangements could
not be made without their assistance. Questionnaire responses for the 2005
Special Commission noted that there is a lack of regulation and supervision of
intermediaries in the State of origin. There is a lack of clarity in their
involvement, the part they actually play, and the fees they charge.72
In their Questionnaire response, Quebec (Canada) noted that, despite all its
efforts, there are still difficulties in reviewing and controlling the activities of
accredited bodies and intermediaries in the State of origin. It states that in some
cases, it seems difficult, even for the accredited body, to supervise the costs and
activities of its intermediaries abroad.73 However Quebec also reported the good
practice of Lithuania where a limit is set on the amount that an intermediary can
charge and the Central Authorities of Quebec and Lithuania consulted each other
over the choice of a Lithuanian intermediary.74
8. Post-adoption reports should be provided to States of origin if
required.
The Convention obligations imposed on Contracting States do not cease with the
transfer of a child to the adoptive parents. The Convention requires States to
undertake a range of other general functions that may be relevant to particular
adoptions, such as the provision of counselling or post adoption reports, or that
may be relevant to a general review of the operation and implementation of the
Convention, such as the collection of statistics.
Article 9 provides, inter alia, that Central Authorities shall provide each other with
general reports about intercountry adoption and reply, in so far as is permitted by
the law of their State, to justified requests for information about a particular
adoption situation. From a legal point of view, there is no obligation in the
Convention for the sending of post-adoption reports. However, it is a legal
requirement in many States of origin. In this respect, the provision of postadoption
reports cannot merely be regarded as a moral obligation as was
suggested by some experts at the 2005 Special Commission. The inclusion of
this requirement in the bilateral agreements or arrangements between
Convention countries also highlights its importance to the States of origin.75
Experts from States of origin at the 2005 Special Commission described
mandatory post-adoption reporting requirements in their national legislation.
These experts highlighted that the prospective adoptive parents commitment to
providing these reports is a condition of the intercountry adoption. They
presented their reasons for needing post-adoption reports, including: improving
domestic public opinion on international adoption, which is sometimes perceived
as a national failure; better preparation of children for adoption, as well as
prospective adoptive parents; and to determine with which States the
intercountry adoptions are most successful. It was noted that the reports provide
a sense of reassurance to Central Authorities and communities in States of origin
that intercountry adoption is an appropriate solution for some children, and the
Convention process provides some safeguards. Experts from Receiving States
appreciated these explanations as this information is important for Central
Authorities of Receiving States in explaining to prospective adoptive parents the
reasons that certain States of origin need post-adoption reports.
Experts from Receiving States, for their part, explained that certain legal
reporting requirements imposed by States of origin on adoptive parents create a
heavy burden on the latter, as well as on the Central Authorities of the Receiving
States who are asked to enforce the requirements. The view of Receiving States
was not a desire to prohibit post-adoption reporting, but simply limiting the
period of reporting time to one or two years in order to achieve a fair balance.
Many experts from Receiving States indicated that the right to privacy of the
parents is fundamental in their countries and Central Authorities cannot interfere
in the private lives of families and do not have the power to oblige the adoptive
parents to provide reports. It was also noted that the protection of the child after
an adoption has taken place is not the responsibility of the State of origin, but
rather of the Receiving State, which must be trusted to carry out this duty.
The debate highlighted that a balance must be found between the control over
adoptions and the respect for privacy. As legislative constraints exist in Receiving
States and States of origin, these requirements cannot be ignored. A compromise
was needed, based on mutual trust. A recommendation was made on postadoption
reporting to reflect the compromise that was needed in this matter.76 It
states as follows:
The Special Commission recommends to receiving States to encourage
compliance with post-adoption reporting requirements of States of origin; a
model form might be developed for this purpose. Similarly, the Special
Commission recommends to States of origin to limit the period in which they
require post-adoption reporting in recognition of the mutual confidence
which provides the framework for co-operation under the Convention.
(Recommendation 18)
69 Report (see footnote 8) p. 29-30
70 Ibid p. 29
71 Canada (Manitoba) reported this practice. It is referred to in the Discussion Paper on Accreditation
Issues, p.14
75 Report (see footnote 8) p.38
76 Report (see footnote 8) pp.39-40
9. Co-operate with States of origin to ensure the number of files sent is
not unreasonably high compared to the number of children needing
a family through intercountry adoption.
Adoption agencies accept more homestudy requests than they are actually able to
process. In its 2005 Questionnaire response, ISS reported that according to
UNICEF, worldwide (...) the adoption applications seem to exceed the number of
adoptable children as far as young healthy children are concerned. The opposite
seems, nonetheless, the case for children considered hard to place (children with
special needs: aged, ill or handicapped, in sibling groups), for whom there is a
serious lack of prospective adoptive parents.77
Agreement is necessary between sending and Receiving States to limit the
number of files sent from Receiving States to an appropriate and manageable
number.78 If too many files are sent by a receiving country, the burden on the
resources of the Central Authority may be too great. Additional pressure may
then exerted by the receiving country to process the files or process them more
quickly.
V. AVOIDING BAD OR ILLEGAL PRACTICES
1 Preventing undue pressure on States of origin
Reference is made in the previous section to the problems created when too
many files are sent compared to the number of adoptable children. Undue
pressure on States of origin may occur in a number of other situations. For
example:
Too many accredited bodies operating in the State of origin;
Pressure by foreign accredited bodies for authorisation to operate
in the State of origin;
Pressure to supply children in response to excessive numbers of
applications;
Pressure to accept applications from unsuitable applicants (those
who have not been properly assessed or who do not meet the
eligibility criteria of the State of origin);
Pressure to accept applications for categories of children who are
not available for adoption (such as babies under 12 months)
Pressure through representations by government officials of the
receiving country for individual applicants.
When large numbers of accredited bodies from one country contact
a single State of origin Central Authority for the same information
The number of files sent also appears to be linked to the number of accredited
bodies or adoption agencies operating. Information in 2005 Questionnaire
responses and from the Hague Conference website indicates that in some
countries the number of accredited bodies appears to be disproportionate to the
numbers of adoptable children. In effect, the numbers of accredited bodies
appears to be linked to the numbers of prospective adoptive parents with
consequential pressure on sending countries to supply children.
States of origin should if possible identify the number of accredited bodies needed
in their country in relation to the number of adoptable children.79 If receiving
countries are informed of this, they should then adjust or limit the number of
bodies accredited and authorised for particular sending countries. Quebec
reported in its Questionnaire response the good practice of Belarus in this
regard.80
These matters need to be dealt with through co-operation between the
appropriate authorities in receiving and sending countries. Central Authorities and
States should also work together to prevent pressure on sending countries by
foreign accredited bodies seeking authorisation. States of origin should report
incidents of pressure to the accrediting country. Authorisation to operate in the
State of origin can be refused or withdrawn by both countries, or by the State of
origin alone, when accredited bodies or persons act improperly or if the number
of accredited bodies exceeds the requirements of the State of origin.
Central Authorities of receiving and sending countries should work co-operatively
to ensure the number of accredited bodies is linked to the number and category
of children adoptable through intercountry adoption. States of origin should first
identify the number of accredited bodies needed in their country in relation to the
number of adoptable children before giving authorisation. If receiving countries
are informed of the numbers needed, they should then adjust or limit the number
of bodies accredited for particular sending countries.
77 N. Cantwell, Intercountry Adoption A Comment on the Number of adoptable Children and the
Number of Persons seeking to adopt internationally, International Child Protection. The Judges
Newsletter, published by the Hague Conference, t. V, Spring 2003, pp. 69-73, on the Hague
Conference website at www.hcch.net
78 Discussion Paper on Accreditation Issues, p.16 (see footnote 58)
2. Co-operate with States of origin concerning reasonable fees and to
prohibit any practices which may lead to improper financial gain
At the 2005 Special Commission, there was general support for the principle that
achieving transparency in costs and fees would be a significant step towards
preventing improper financial gain. The problem is that when costs and fees are
unregulated there is potential for abuse. Delegates appreciated the emphasis
given to cooperation between countries of origin and Receiving States to have an
exchange of information about costs and fees charged. They agreed there had to
be transparency between Receiving States about their own costs and not just
pressure on countries of origin to be open and transparent. It was suggested that
if countries can clearly identify who may charge fees, it will clarify who should be
involved in the adoption process and who should not.81
Greater transparency in financial matters may be achieved by Contracting States
or Central Authorities:
Exchanging information about actual adoption costs and publicising
the information
Imposing requirements of financial transparency and accountability
on accredited bodies and intermediaries
Requiring an accredited body or non-accredited person to provide a
list of their fees or costs, for publication on a website or in a
brochure.
79 See the response of Estonia to question No 23 to the 2005 Questionnaire (It has been difficult to
understand for other countries that intercountry adoption number is low because of the lack of
adoptable children not because of intention to keep children in institutional care. Because of that
Estonia has been quite closed to new co-operation partners and it has been difficult to explain to
possible Receiving States).
80 See response of Canada (Quebec) to question No 2(a) to the 2005 Questionnaire.
81 Report (see footnote 8) p. 42
3. Regulate family / relative adoptions
Article 2 states the scope of the Convention. It applies to all cases where a child
habitually resident in one Contracting State has been, is being, or is to be moved
to another Contracting State for the purpose of adoption.
In-family adoptions do fall within the scope of the Convention and the Convention
procedures in Chapter IV and other safeguards must be applied to them.
Children to be adopted by a relative should benefit from those safeguards. In the
intra-family cases it must still be verified that the adoption is in the childs best
interest. It should not be automatically presumed that an adoption by a relative is
always better for a child than adoption by another family. The detailed report on
the prospective adopters required by Article 15 is necessary in the case of
adoption by relatives to determine whether a possible adoption is in the childs
best interests.82
4. Private adoptions are not compatible with Convention standards and
procedures83
Private adoptions are those where arrangements for adoption have been made
between a biological parent in one Contracting State and prospective adopters in
another Contracting State. Under the national laws of certain Contracting States
private adoptions of this nature are permitted, while they are prohibited in many
others. They will come within the scope of the Convention, as stated in Article 2,
if such adoptions involve the movement of a child from one Contracting State to
another Contracting State for the purpose of adoption, and they will then be
subject to Convention requirements.
This means that all the requirements of Articles 4 and 5 must be met, including
for example that due consideration should have been given to possibilities for
placement of the child within the State of origin, the biological parents should
have been properly counselled, the consent of the mother should have been given
only after the birth of the child and it should have been determined that the
prospective adoptive parents are eligible and suited to adopt.
Equally the procedural requirements of Chapter IV of the Convention apply,
including the reciprocal transmission of reports on the child and the adoptive
parents. Article 17 is also critical. The Central Authorities of both States must be
satisfied that essential procedures have been followed before giving their
agreement that the adoption may proceed.
However, their very nature as private adoptions means that the competent
authorities in each Contracting State are excluded from the process. Such
adoptions are therefore not in accordance with the Convention and an Article 23
certificate of compliance cannot be issued. Accredited bodies should not be
involved in arranging private adoptions.84
82 Report (see footnote 8) p.37
83 See the draft Guide to Good Practice: Implementation at Chapter 7.6.5 (see footnote 6)
84 Discussion Paper on Accreditation Issues, p.17 (see footnote 58)
Good Practices For Receiving States Under The Hague Intercountry Adoption Convention 22
5. Prohibit internet advertising of children for adoption
The undesirable practice of advertising offers of children over the Internet has
been raised by Switzerland.85 Advertising with photographs of children for
adoption and choosing the child from a photograph on the Internet would appear
to contravene all the safeguards put in place by the Convention to establish a
procedure to ensure intercountry adoptions are made in the best interests of the
child and with respect for his or her fundamental rights.86 It is questionable
whether adoption agencies or individuals who advertise children in this way could
meet the basic standards of accreditation for ethical standards, training or
experience to work in the field of intercountry adoption.87
In this context, it is noted that Contracting States agreed in Recommendation 11
of the 2000 Special Commission that Convention standards should, as far as
practicable, be applied to non-Convention adoptions.
VI. CONCLUSION
There are many advantages for the US in joining the 1993 Convention. Of
immediate benefit, to the State and to individual parents, will be the automatic
recognition of Convention adoptions in all other Contracting States. For the State
itself, there will be no need in future for separate agreements with each State of
origin. However, supplementary agreements will be possible, either to improve
the bilateral operation of the Convention or to apply additional safeguards or
requirements in the interests of the child.
On a day to day basis, the Central Authorities and accredited bodies involved in
adoption will be part of and have the support of an international network. They
will have more experience to draw from and to develop best practices.
Over time, the US authorities and adoptive parents will enjoy the benefits of a
more uniform approach. The Convention provides greater predictability for
adopters by setting out clear procedures. By regulating intercountry adoption,
with its safeguards to prohibit improper financial gain and to prevent the
abduction, sale of, or traffic in children, all parties may have greater reassurance
that illegal and unethical practices will gradually be eliminated.
What is remarkable about the Convention is that it has, from the beginning,
attracted countries of origin and receiving countries in equal numbers. This is a
convincing indication that the Convention has managed to strike the right balance
between the concerns of the States of origin and the Receiving States a
prerequisite for the confidence needed for its successful operation.
85 See its 2005 Questionnaire response.
86 Article 1 a) and Preamble to the Hague Convention of 29 May 1993 on Protection of Children and
Co-operation in respect of Intercountry Adoption.
87 Articles 11 b) and 22(1)(b)
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