Adoption abroad The new father must
A woman from Frankfurt brought a child with her from Africa. However, the Frankfurt Higher Regional Court does not recognize the adoption that took place there because her husband was not present. This contradicts all principles of child welfare-oriented procedures.
The biological father had agreed, the High Court of the West African state had ruled in favor of the decision - and yet the Higher Regional Court (OLG) of Frankfurt does not recognize the adoption of a girl from Africa by a Frankfurt couple. Since the husband of the adopting couple was not present when the court in Africa made its decision, the adoption process violates the ordre public international - in other words, international values. The child's welfare was so disregarded in the local proceedings that it was not possible to remedy the violations, the court ruled in a decision now published (dated September 24, 2019, ref. 1 UF 93/18).
The woman had taken the girl from a West African country in shortly after her birth while she was in the country. The biological father had agreed to the transfer of custody and stated that the mother had died shortly after the birth. So the country's High Court ruled that the couple could adopt the little girl. However, she had never seen the husband before.
Strong contradiction to the German legal system
The couple now wanted the African court's decision to be recognized in Germany. However, the Frankfurt Higher Regional Court ruled, as the local district court had previously done, that the decision of the High Court there was incompatible with international public policy. This is always the case when "the result of the application of foreign law in a specific case is in such strong contradiction to the basic principles of the German regulation and the notions of justice contained therein that it appears intolerable from a German perspective."
In the case of adoption, the Higher Regional Court continued, it is of fundamental importance that the decision is based on the welfare of the adopted child. The suitability of the adoptive parents must also be examined - and not just according to formal criteria such as financial security, lack of criminal records and health. Rather, it is about "ability to raise children, willingness and ability to integrate, possibility of support, the social environment and other aspects of the personal relationship with the child who is not one's own." None of this was ever examined, which is why there are such deviations from German law that it can no longer be assumed that the procedure is orderly and based on the rule of law.
The child’s welfare is crucial
It is also not possible to remedy the procedural deficiencies in the recognition procedure, because this does not replace the adoption procedure, but is limited to the examination of obstacles to recognition according to Section 109 of the Law on Proceedings in Family Matters.
In addition, "it should be borne in mind that it is in the interest of all potentially affected children that international adoptions take place in a legal and child-welfare-oriented process," stresses the Higher Regional Court. It is therefore necessary to repeat the adoption process or carry out the adoption in Germany despite the difficulties involved.
The Senate has allowed the appeal to the Federal Court of Justice. The question of whether an incomplete child welfare assessment in the foreign adoption procedure can be made up for within the recognition procedure requires a decision by the appeal court.