RP: Summary of Opinion on Subsidiarity

In short: Nigel and ISS want individual decisions per child (micro level), while the Ministry/RSJ must look from the perspective of the macro-level.

The RSJ does quote from my article about the differences between UNCRC, Hague. But does not take that further.

They chicken out, and say it "subsidiarity cannot be properly observed"

But, whatever... RSJ killed the Hague subsidiarity, but also art 21b of the UNCRC.

They fully killed it all. Knowingly or unknowingly.

R. Post: Perverse Effects November 2008

In the meantime Romania had started reviewing its child rights legislation. Already in 2001 an international working group was establish to advise the Romanian government (Hague Conference, UNICEF, USAID, World Bank, EU). During a daylong meeting, with an American tape recorder at the table, it became clear that opinions were divided. The most important point of discussion: in which case children should be made available for intercountry adoption? Most of the participants considered foster care or residential care not suitable. The EU negotiators, however, felt these care options if implemented correctly, based on experience in the then 15 EU member states, were appropriate (Post, 2007, p. 112).

This important stumble block stems from the difference in approach between The Hague Adoption Convention and the UN Convention on the Rights of the Child (UNCRC), article 21b. This article indicates that intercountry adoption may be an option, in countries that know/use adoption, if there is no suitable care available in the country itself, such as foster care, local adoption or residential care. The preamble of the Hague Convention deals differently with this by making intercountry adoption subsidiary to national adoption, hereby excluding foster and residential care.

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At first glance the Romanian adoption law improved the rules for intercountry adoption and limited the circumstances under which it could occur (subsidiarity). But in practice it effectively cemented the place of intercountry adoption by making it a child protection measure.

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Romania chose for the original interpretation of article 21b of the UNCRC and opted for incountry care. There was no longer a direct subsidiarity between national and intercountry adoption. Adoption agencies feared that other countries would follow that example. The Romanian decision came under heavy fire. It is beyond this article to fully describe the well-organised adoption lobby, but this has been detailed in my book. In short it means that this lobby can successfully influence politicians. The intercountry adoption issue became in this way part of diplomatic pressure, often done in the framework of international trade agreements and other international relations.

Nigel's opinion on subsidiarity mail 17 June 2015:

A positive take on applying the subsidiarity principle, on the other hand, seeks to ensure that attention is paid primarily to examining the necessity and suitability of any proposed measure on a case-by-case basis. Obviously one must start by looking at the feasibility of family maintenance or reintegration, kinship care, fostering etc. but in (what should be) exceptional cases where intercountry adoption might be warranted, it would then have to be justified for positive reasons of necessity and suitability rather than, to all intents and purposes, be tantamount to condemning a child to a so-called "last resort" solution.

DCI NL 17 July 2016

Subsidiarityy prinicple of UNCRC must be leading prinicple

Defence for Children – ECPAT recommends to review the Wobka in such a manner that the subsidiarity principle of the UNCRC takes the lead wordt. The Central Authority must ensure this. The subsidiarity principle of the Hague Adoption Convention has as result that children do not get alternative care in the country of origin, but are adopted abroad. The Netherlands, as receiving country must check if the child would have been "adoptable" according to its own norms. In the Netherlands alternative care is provided by foster care and when necessary in residential care. Adoption is not considered a measure of child protection and intercountry adoption of a Dutch child is only possible when it concerns an intra-family adoption. For children from other countries no other norms should be applicable.

ISS Report August 2016

The ISS/IRC therefore believes that it is important, when giving the principle of subsidiarity due regard in practice, that this depends on each child’s individualised needs, with their best interests being the paramount consideration. Discussions should move away from last resort towards finding the solution that is in the best interests for each individual child

RSJ Report Nov 2017

A couple of macro-level arguments against intercountry adoption are decisive in the Council’s view. Multiple scientific studies have demonstrated the ‘pull’ effect of adoption. The system of intercountry adoption creates a supply of children in children’s homes. In addition, intercountry adoption undermines focusing on the solution preferred under the CRC (a family of the child’s own culture, in the child’s own country). Intercountry adoption impairs the implementation and advancement of a youth protection system in the country of origin. The Council believes that these arguments count more heavily than arguments related to individual children benefitting from intercountry adoption. The fact that most of the children adopted into the Netherlands do well does not change the fact that the CRC (Article 20) considers it better for these – and other – children to do well in their own countries.

Finally, the Council attaches great value to the principle of subsidiarity: adoption of the child should only be considered if no other solution can be found. The Council believes that the principle of subsidiarity cannot, in practice, be properly observed, meaning that this Principle of subsidiarity- argument is, to the Council, a convincing argument against intercountry adoption.

The Council is of the opinion that intercountry adoption is not the best way of protecting children and calls upon the government to shift its focus and to protect these children by supporting the implementation and advancement of the youth protection system in the country of origin. This ideal scenario is referred to as the ‘Family in country of origin’ scenario by the Council. With respect to the question ‘Which of the future intercountry adoption scenarios outlined by AEF is preferable?’, the Council advises that the government selects none of the four scenarios presented by AEF, but adopts the aforementioned ‘Family in country of origin’ scenario. Considering these four future scenarios presented, the Council advises that the Minister adopts scenario 4 (‘A public service’). This scenario is best able to remove the concerns with respect to the principle of subsidiarity (to the extent possible).

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