Internal minutes EC - Hague meeting
EUROPEAN COMMISSION
DIRECTORATE-GENERAL JUSTICE, FREEDOM AND SECURITY
Directorate C : Civil justice, rights and citizenship
Unit C1 : Civil Justice
Brussels, 6 October 2005
JLS.C.1/ME/ic – D/05/10685
MISSION REPORT
Object:
Special Commission concerning the Hague Convention of 29 May 1993 on
co-operation in respect of inter-country adoption
The Hague, 17-23 September 2005
I attended the Special Commission concerning the application of the 1993 Hague Convention
on inter-country adoption which took place in the Hague 17-23 September. Approximately
230 participants from 66 States attended the conference. To date, 67 States have ratified or
acceded to the Convention (all EU Member States except Greece). The seminar was highly
interesting and the role of the European Commission with regard to the new Romanian law
on adoption was invoked on several occasions.
1.
Introduction
The Special Commission, which was organised by the Hague Conference on Private
International Law, was devoted to the functioning and implementation of the 1993 Convention
on Protection of Children and Cooperation in respect of Inter-country Adoption (“the 1993
Hague Convention”). The Convention, which been in force for ten years, is ratified by 67
States. China, which has the largest number of inter-country adoption (over 11.000 children in
2003), deposited its instrument of ratification on the eve of the meeting. The discussions took
place on the basis of a Draft Practice Guide drawn up by the Secretariat of the Hague
Conference on Private International Law.
Statistics presented at the Special Commission showed that inter-country adoption is steadily
increasing at a global level. The U.S., which adopts an increasing number of children (21.000
children in 2003) have signed but not yet ratified the Convention. Although inter-country
adoption predominantly remains a movement of children from poorer to richer countries, cultural
differences remain. Hence, no Islamic State has ratified the Convention since the notion of
“adoption” is not recognised in Islam. Moreover, very few African States have ratified the
Convention, since there is little or no inter-country adoption in Africa due to cultural factors.
2.
General structure and objectives of the 1993 Hague Convention
The 1993 Hague Convention does not intend to serve as a uniform law on adoption, but to
establish general principles and minimum standards. The over-riding principle is that inter-
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country adoption shall take place “in the best interests of the child” with respect for his or
her fundamental rights. The purpose of the Convention is to define substantive principles for the
protection of children, establish a legal framework of co-operation between authorities in the
Sending States and the Receiving States and, to a certain extent, unify private international law
rules on inter-country adoption. However, the fact that many questions are regulated by national
law has led to divergent interpretations of certain key concepts under the Convention, such as
“improper financial gain”. This led certain delegations to call for unification or clear guidelines
with respect to e.g. fees and accreditation.
Another inherent weakness of the Convention seems to be that it does not require acceding
States to present an implementation plan how they intend to fulfil the obligations enshrined in
the Convention. As an example, Guatemala acceded to the Convention in 2002, despite
objections of several States, although it was clear that the situation in Guatemala was such that
the Convention could not be applied properly. Another example is Turkey, which acceded to the
Convention in 2004, but had not yet designated a central authority as required by the
Convention.
The 1993 Hague Convention refers only to “Contracting State” without making any distinction
between “Sending States” and “Receiving States”. However, these concepts are commonly
used and influenced the discussions. Hence, the Receiving States had a certain tendency to
approach a question from the point of view of the adoptive parents. This perspective did not
necessarily coincide with the perspective of the Sending States.
3.
Inter-country adoption within the European Union
3.1.
The role of the European Community
Interestingly, the European Union comprises now both “Sending States” and “Receiving
States”. The Eastern European States are all Sending States (except Romania, see point 3.2.)
whereas the “old” Member States are all Receiving States. Within the European Union, France,
Italy, Spain and Sweden have the highest number inter-country adoptions. Inter-country
adoptions have doubled in Spain during the recent years (4.000 children in 2004). Sweden has
the highest number of inter-country adoptions per capita (approximately 1.000 children per
year).
There is currently no Community instrument dealing with inter-country adoption. Adoption is
for example explicitly excluded from the scope of Regulation (EC) No. 2201/2003 on parental
responsibility. The subject is therefore a matter of national competence. All EU Member States,
except Greece, have ratified or acceded to the 1993 Hague Convention.
At a general level, I explained that child protection is a key priority for the European
Commission and Vice President Frattini. In this context, I informed the participants of the
future Commission Communication on Children’s Rights which will be presented at the end
of 2005 or beginning of 2006. This was met with interest and I discussed with several NGO’s,
UNICEF and the Hague Conference of Private International Law on their possible involvement
in this project.
In the context of enlargement, I mentioned that children’s rights form part of the political
criteria that all candidate countries must fulfil. I recalled that the Community acquis in the
form of the Charter of Fundamental Rights and the 1989 UN Convention on Children’s
Rights (UNCRC) constitute crucial references and benchmarks for the Commission in the
assessment of the situation in candidate countries. This implies that all Member States, in line
with the UNCRC, are bound to have sufficient protection in place for children who are
temporarily or permanently deprived of parental care.
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3.2
The new Romanian law on inter-country adoption:
Although not being an item on the agenda, the new Romanian law on inter-country adoption
was frequently invoked during the meeting. The new law, which entered into force on 1 January
2005, limits inter-country adoption from Romania to grandparents living abroad.
I explained that the Commission has actively encouraged the Romanian reform of its child care
sector by financial assistance (the PHARE programme) and that Bulgaria has been given similar
support. The Commission has supported the efforts made by the Romanian government to
reform its child protection policy by closing down large, old-style residential institutions
and replacing them with alternative measures, including smaller homes and foster homes, and
large awareness-raising campaign. I explained that the Commission and the Romanian
government had been advised on the reform by an Independent Panel of Family law expert from
different Member States.
I underlined that the Commission will continue to support the Romanian authorities in their
efforts and that the new Romanian law on inter-country adoption brings it into line with the
practice of EU Member States. The new law is also in line with the principle of subsidiarity
enshrined in the 1993 Hague Convention and Article 21 of the UNCRC, which implies that
inter-country adoption can only be the last resort after all other solutions have been
exhausted, i.e. not only national adoption but also e.g. foster care. Inter-country adoption
shall thus be based solely on the best interests of the child and scrupulously respect the
principle of subsidiarity. I finally assured that the Commission will continue to support current
and future candidate countries in their efforts to respect the rights of the child.
Following my intervention, certain participants (e.g. Nordic Adoption Forum) took the floor and
advocated a broader interpretation of the principle of subsidiarity, implying that inter-
country adoption should not be the last resort, but a possibility whenever the biological family
cannot take care of the child in the State of origin. A permanent home in a receiving State would
always be preferable to a provisional home in the State of origin. Some Receiving States also
argued that the Sending States did not have the necessary resources to take care of their children
and that such efforts must not be at the expense of the welfare of the children.
Although the Hague Conference on Private International Law and other participants were
generally very supportive of action of the European Commission with regard to Romania,
which has led to considerable progress, certain people voiced concerns that the new Romanian
law was “too strict” and not sufficiently flexible.
I was later told by the Romanian delegation that the Hague Conference on Private
International Law has expressed some doubts on the compatibility of the new Romanian
law with the 1993 Convention. However, as is stated in the Draft Practice Guide, the
ratification of the Convention does not in itself entail a duty to organise inter-country adoption.
3.3.
The so-called Romanian “pipe-line” cases
During the conference, certain delegations, notably Germany, Austria and Israel, openly
requested the Romanian authorities to clear so-called “pipeline” cases where applications
had been introduced during the moratorium 2001-2004. The U.S. delegation emphasised the risk
of letting children wait too long as a result of “pipe-line” cases.
To Romanian delegation explained that the moratorium on international adoptions which was
in place between October 2001 and December 2004, was introduced to tackle the wide-spread
abuse and corruption that took place in Romania during the 1990’s. During the moratorium, the
Romanian government approved the international adoption for the cases registered before the
moratorium. Despite the fact that Romania had no legal framework for processing new cases of
international adoptions during the time of the moratorium, foreign families continued to file
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requests to adopt Romanian children based on false expectations that the ban on
international adoptions would be lifted. These applications were pure administrative acts
and did not signify approval of the request since no decision on “matching” had taken place as
prescribed by the 1993 Hague Convention. To clarify the situation of these cases, a Working
Group of Romanian specialists has been set up which will analyse each file to assess the
situation of each child. The Group will publish its final report before the end of this year.
4.
Other issues
Fees and charges
The 1993 Hague Convention allows Receiving and Sending States to charge “reasonable fees
and charges” for services provided. Concerns arise when fees and payments are not properly
regulated and/or adoptive parents pay families of origin directly. In certain States, it is common
practice that adoptive parents are asked for high “donations”. It was generally called for clear
and harmonised criteria to tackle the problem of corruption, falsified documents and the sale of
children. It was also recognised that financial aid, if not correctly channelled, may lead to abuse
and pressure on Sending States to accept more applications. As an example, the Estonian
delegation explained that Estonia does not accept monetary help from accredited bodies, since
“they want our children in return”. Certain countries would offer babies and healthy children to
applicants who offer the higher fees or even sell children using falsified documents.
Accreditation
The 1993 Hague Convention allows designated bodies, and in some cases, non-accredited
persons to perform some of the functions of the Central Authority. All bodies must meet the
standards set out in the Convention, e.g. only pursue non-profit objectives and be subject to
supervision by competent authorities. The great majority of States use accredited bodies to
perform certain tasks. However, the U.S. consistently uses non-accredited bodies for the purpose
of inter-country adoptions. Certain States, e.g. Austria, Australia and Malta, do not use
accredited bodies at all, but work only through central authorities.
The “right” to adopt
The representative of UNICEF stressed that the term “applicant” used in the 1993 Convention
and the Draft Practice Guide is misleading, since it gives the impression that a couple who have
submitted an application to register as potential adoptive parents have an unconditional right to
adopt. The applications should be treated merely as an offer to receive a child. UNICEF stressed
also that the concept of the “child best interests” should not be seen in isolation from the child’s
fundamental rights, e.g. the right to identity and the right to be cared for by one’s parents.
The right to information concerning “available adoptive children”
Many Receiving States emphasised the rights of adoptive parents and their need to have reliable
information on the number of “available adoptive children” and their profile (e.g. whether they
are young and healthy) from the receiving States so that prospective adoptive parents would not
have “false hope” on the “availability of children”.
However, as e.g. Slovakia pointed out, such information would not only be impossible to
provide, but it would be problematic from an ethical point of view, since it would convey the
misleading message to prospective parents that they have an unconditional right to adopt these
children. The Sending States explained that they could only give an estimate on the number of
applications that their central authorities can handle.
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The right to post-adoption reports
The practice of sending a report on the situation of the adoptive child to the Sending Country is
not regulated in the 1993 Hague Convention. However, it is wide-spread practice in many
Sending States to request adoptive parents to present such reports, sometimes several times a
year until the child reaches the age of majority. The representative of UNICEF pointed out the
risk that post-adoption reports replace a careful control before the adoption.
This question caused a certain tension between Sending and Receiving States. Certain Receiving
States, e.g. Austria, Germany, Finland and the U.S., emphasised the adoptive parents’ right to
private life and argued that they could not be legally obliged to submit a report. The Sending
States tried to explain the reasons why they ask for such reports. Lithuania explained that they
may help to change the very negative attitude of the general public towards inter-country
adoption. Kazakhstan argued that they wanted such reports in view of their experiences when
children had gone missing and been abused after inter-country adoption. Also Brazil mentioned
the risk of sexual abuse as an objective reason for these reports. There are also differences of
national law, since the laws of several Sending States require post-adoption reports whereas such
reports are unknown under the laws of Receiving States.
5.
Conclusion
It was very useful that a COM representative attended the 5-days meeting, which treated topics
that are highly relevant for the Commission’s current and future activities in the field of
children’s rights. The question of inter-country adoption is also very topical in the context of
Romania’s accession. In view of the sensitive political nature of the latter question, it would be
useful that a representative from DG ELARG attend meetings of this kind. The meeting
also allowed for very interesting discussions and contacts concerning the Commission’s future
Communication on Children’s Rights.
(Signed)
Monika Ekström
Copy: Unit C1, Mr Tenreiro, Mr Fonseca Morillo, Mr Nielsen, Mr Trousson, Ms Knudsen,
Ms Zwaenpoel (DG JLS)
Ms Schmitt (CAB)
Mr De Lobkowicz, Mr Summa, Mr Wild, Ms Tuominen, Ms Post (DG ELARG)
Ms Neagu (DG RELEX), Delegation of the European Commission in Bucharest
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.