Parliamentary paper 2001-2002 28457 No. 3

28 457

Regulation of conflict of laws regarding adoption and the recognition of foreign adoptions (Adoption Conflict of Laws Act)

no. 3

EXPLANATORY STATEMENT

The advice of the Council of State is not made public, because it reads in agreement without further ado/only contains comments of an editorial nature (Article 25a(4)(b) of the Council of State Act) I. Introduction

International adoption is highly topical in the Netherlands. Due to the shortage of Dutch children who could be eligible for adoption, adopters in the Netherlands usually have to rely on foreign children. The vast majority of the adoptions pronounced in the Netherlands therefore concern international cases. It is therefore no coincidence that the entry into force, on 1 October 1998, of the Hague Convention of 29 May 1993 on the protection of children and cooperation in the field of intercountry adoption (Trb. 1993, 197) and the related implementing legislation (Stb. 1998, 302 and 303) has attracted a lot of attention. That treaty, like the other Dutch regulations in this area, is

The treaty also applies to adoptions of children with habitual residence in the Netherlands by adopters with habitual residence in other contracting states. The implementing act contains some provisions with regard to those adoptions. The number of adoptions of the latter category will probably be small.

The treaty obliges each state that becomes party to it to designate a central authority. The Central Authority is charged with a number of tasks specified in the Convention. She is responsible for the smooth running of intercountry adoption in the territory of the State concerned. The treaty also provides for a system of licenses for intermediary institutions. Only a licensed institution may develop activities in a contracting state other than the state in which it is established. It must be authorized to do so by that other State. The provisions that have meanwhile been made in connection with the implementation of the treaty in a number of countries of origin important to the Netherlands, have led to a significant improvement in cooperation between the Netherlands and those countries. It is therefore of great importance to the Netherlands that as many states of origin as possible become parties to the convention. This consideration played a role in the drafting of this bill.

The treaty does not contain any rules of conflict of law. It is left to the State of origin and the State of reception of the child to determine among themselves, taking into account the basic standards laid down in the Convention and applying the law applicable according to each individual's conflict of laws rules, whether an intercountry adoption may take place. The Dutch conflict of laws with regard to adoption has not been codified so far. In the explanatory memorandum to the Kingdom Act approving the treaty (Parliamentary Document II, 24 810 (R 1577), no. 3, p. 3) it was announced that a bill would be submitted to that effect. The bill thus supplements the regulations related to the treaty. When it shall gain the force of law and enter into force,

The proposed rules of conflict of law will also apply to intercountry adoptions of children from countries not party to the Convention by adopters with habitual residence in the Netherlands, in cases where the adoption is pronounced in the Netherlands. They therefore simultaneously complete the Dutch regulations that (partly) cover this category of adoptions, ie the Foreign Children for Adoption Act.

The bill also concerns cases of adoption in the Netherlands that, although they have an international character, cannot be regarded as intercountry adoption. This concerns cases in which all parties involved in the adoption have habitual residence in the Netherlands, but differ in nationality.

Finally, the bill contains rules for the recognition of adoptions made abroad, insofar as this recognition is not provided for by the aforementioned 1993 Convention. Legal recognition is possible in cases where all parties were habitually resident at the time of the adoption in the foreign state where the adoption was pronounced, and in cases where the adoption was effected either in the foreign state where the adopters were habitually resident, or in the foreign state where the child was habitually resident. A special recognition regime is proposed for cases in which adopters who are habitually resident in the Netherlands have followed the procedure of the Adoption of Foreign Children Act and in which the adoption has taken place abroad.

The advice of the State Commission for Private International Law (hereinafter: the State Commission) has been obtained on the bill. That advice, 1 dated October 16, 2000, can be consulted on the website of the Ministry of Justice. The advice has been adopted on some points. Those points will be discussed below.

II. The development of conflict of laws with regard to adoption in the Netherlands

Since the inclusion in Dutch legislation of the possibility of adoption in 1956, case law and doctrine have struggled with the conflict-of-law problems of adoption. Adoption concerns the status of persons and therefore traditionally falls under the scope of Article 6 of the General Provisions Act (Wet AB), which prescribes application of national law. From that point of view, various solutions are conceivable. Initially, the predominant view was that adoption should comply with the conditions of all relevant national legal systems, that of the parents and that of the child. This cumulative solution made adoption difficult and for that reason could not be reconciled with the nature of adoption as a measure in the best interests of the child. After all, the accumulation of sometimes conflicting requirements of several legal systems will sometimes mean that the adoption requested in the best interests of the child cannot be pronounced. This cumulative system has therefore gradually been abandoned and has been replaced by a distributive system whereby, to the extent to which the interests of the persons concerned are at stake, certain subjects were brought under the control of the national law of the adopters and others under that of the child and his natural parents.

In cases where the distributive system also made adoption more difficult, judges have sought solutions in the best interests of the child and in favor of the possibility of adoption by other means. Appeal to Dutch public order, recourse to re-referral and application of the law of the country of the habitual residence of the child resulted in application of Dutch law and the granting of the application for adoption. In this case law, only one fixed line can often be recognized, namely that the court strives to apply that law that best serves the best interests of the child. In almost all cases, the applicability of Dutch law is then reached. The nature of the adoption, as a measure in the best interests of the child, confers on one's own, Dutch adoption law has a stronger suction power. When the life of the adoptive family after the adoption takes place within the Dutch legal order, it is also very logical that Dutch law is applied. The fact that Dutch law presents itself as applicable is also strongly related to the fact that adoption is covered by a number of guarantees in our law.

The legal development described here has been influenced to some extent by the conclusion in 1965 of a convention prepared by the Hague Conference on Private International Law concerning the competence of authorities, the applicable law and the recognition of decisions on adoption (Trb. 1965, 169). This convention, which has not been ratified by the Netherlands, has regulated the three aspects involved in intercountry adoptions, namely jurisdiction, applicable law and recognition of adoption orders, in a way that deviates somewhat from the pattern observed in the Netherlands. private international law was customary. The treaty was drawn up in the period after the Second World War, when adoptions took place on a relatively large scale within Europe. It has only been ratified by three states, namely Austria, Switzerland and the United Kingdom. The significance of those states as states of origin of adopted children can be neglected. The treaty does not provide adequate guarantees for a favorable course of intercountry adoption of children from less prosperous countries by persons established in Western countries, as it developed strongly in the 1970s. Hence the initiative taken in 1988 to establish a new adoption treaty in The Hague, which does offer such guarantees. As a result, the 1965 treaty has faded into the background and its ratification, which was considered at the time, is no longer an issue. In this regard, reference was made to an advice of the State Commission for Private International Law of 17 March 1981, published in «Staatscommissie ipr,

The unwritten Dutch law with regard to the recognition of foreign adoptions can be briefly described as follows. If the parties to the adoption all have the same foreign nationality, an adoption made abroad in accordance with national law will be recognized in the Netherlands and will be deemed to have the consequences it has under that law. If there is a difference of nationality, the adoption is usually tested against the requirements of the relevant national legal systems. This means that an adoption pronounced abroad to which an adopter with Dutch nationality is a party will not be recognized unless all the requirements of the Dutch Civil Code for adoption have been met (also).

In more recent case law, one can detect a development towards a somewhat broader recognition policy, in the sense that judgments that were made in a state in which the child and the adopters, or at least one of the adopters, are eligible for recognition, are had a close relationship. The requirements of the law of the nationality(ies) of the parties are therefore no longer decisive for the recognition of foreign adoptions. See in this regard ENFrohn, The adoption in the Dutch IPR: an overview, FJR 1994–7. The 1993 Convention allows for recognition adoptions that - subject to the treaty procedures - have been effected either in the contracting state of the child's habitual residence (the State of origin), or in the contracting state of the habitual residence of the adopters (the state of reception). The nationality of the adopters is also not a relevant criterion in the Convention. In formulating the criteria for the recognition of foreign adoptions to be used outside the 1993 Convention, a link has been sought on the one hand with developments in Dutch unwritten law and on the other with the Convention.

III. Principles of the bill

With regard to the general principles of the bill, the following should be noted. The proposal builds on the lines set out by the 1993 Convention. Among other things, that treaty provided inspiration for the definitions included in the bill. In addition, a link has been sought with the main lines of Dutch case law, namely the applicability of the court's own law to the conditions for adoption and the applicability of the child's national law with regard to permission by (or consultation of) parties other than the adopters. . With regard to the establishment of family law relationships between the adopter(s) and the child, as well as the termination of family law relationships between the child and his natural parents, the adoption pronounced in the Netherlands, the consequences determined by Dutch law. Dutch law also applies to the revocation of such an adoption pronounced in the Netherlands.

As far as the recognition of foreign adoptions is concerned, the regime is being amended and broadened compared to what has hitherto been customary under unwritten law. Apart from the cases in which the 1993 Convention provides for recognition, the current primary regulation is the recognition of adoptions made in the state where all the parties involved were habitually resident at the time of the adoption. Secondly, the recognition of adoptions, pronounced in the foreign state where either the adopters or the child are habitually resident at the time of the adoption, is regulated. Thirdly, provision is made for a recognition procedure for foreign adoptions not covered by the Convention by persons who have habitual residence in the Netherlands.

An amendment to the Netherlands Nationality Act, tailored to this recognition scheme, is proposed in a separate Kingdom Act proposal, which concerns the acquisition of Dutch nationality by a child adopted through an adoption to be recognized in the Netherlands outside the Convention, if the adoptive mother or -father is Dutch.

In short, a foreign adoption has the legal consequences in the Netherlands that are attributed to it by the law that has been applied to that adoption. This is especially important for the “weak” adoption. Provision is made for the possibility of converting a 'weak' adoption pronounced abroad into a 'strong' adoption under Dutch law. For a description of the term 'weak' adoption, reference is made to the explanation to Article 2 below.

The bill expressly states that it does not affect the application of the regulations already applicable in the Netherlands regarding intercountry adoption.

IV. articles

Article 1 – Precedence of the regulations on intercountry adoption

1. Purpose of the provision

The 1993 Hague Adoption Convention and the Dutch regulations partly implementing the convention aim to provide material and procedural guarantees for intercountry adoption. Both elaborate on Article 21 of the Convention on the Rights of the Child, concluded on 20 November 1989 (Trb. 1990, 170), to which the Kingdom of the Netherlands is a party. In intercountry adoption, the best interests of the child are central. In the case of intercountry adoption of a foreign child from a treaty state by adopters in the Netherlands, the basic standards of Chapter 2 of the Convention apply primarily, as further elaborated in the provisions of the Foreign Children for Adoption Act.

Its own conflict of laws also applies in cases of intercountry adoption in the Netherlands, by adopters residing in the Netherlands, of children from non-contracting states (which cases are also covered by the Act on the inclusion of foreign children for adoption).

I agree with the State Commission for Private International Law that the complementary and subsidiary nature of the bill should be put first. The primary purpose of Article 1 is to recall that the Convention is always applicable in the situations it covers. In the second place, the article establishes that the Dutch regulations regarding the taking up of foreign children for adoption must be observed, both in treaty cases and beyond, when it concerns cases that fall under those regulations, i.e. cases in which the adopters leave their usual have residence in the Netherlands while the child to be adopted has its habitual residence abroad.

2. Implications of Article 1 for the recognition of foreign adoptions in the Netherlands

Article 1 obviously has an impact on the regulation of the recognition of foreign adoptions. The following notes are appropriate in this regard, in which, in accordance with the advice of the State Commission, a distinction is made according to whether both the convention and the Act on the Acceptance of Foreign Children for Adoption Act, or only the law, are applicable.

a. Treaty Adoption

The convention always applies in the event that the adopters are habitually resident in contracting state A (the receiving state) at the time of the adoption application, while the child is habitually resident in contracting state B (the state of origin). (Article 2 of the Convention). In practice, for the Netherlands, it almost always concerns the situation in which the Netherlands is the host state and not the country of origin. In that situation, the Adoption of Foreign Children for Adoption Act also implements the convention. The procedure involves, among other things, an assessment of the prospective adopters on their suitability to adopt a child from abroad.

In relations between the Netherlands and other contracting states, it is immaterial whether the adoption is ultimately pronounced in the state of origin or in the Netherlands. In both cases, a valid adoption is established.

The treaty provides for the automatic recognition in all contracting states of an adoption pronounced in the contracting state of origin or the contracting state of reception, provided that the treaty procedure has been followed (Article 23). The latter is apparent from a statement issued by the competent authority of the contracting state where the adoption was pronounced. «Adoption duplicates» is prevented.

The treaty allows contracting states to conclude further treaties among themselves in order to streamline procedures (Article 39). However, a derogation from the coordination procedure of Article 17 of the Convention is not permitted. This concerns the coordination between the central authorities of the two states involved in the adoption with regard to the desirability of the adoption. The coordination entails, among other things, that before a decision is made in the state of origin whether the adoption will take place, it is verified whether the child will be admitted to the state of reception and will be allowed to stay there. If an adoption has been effected in a contracting state with disregard for the treaty procedure, then no declaration will be issued on the basis of Article 23 of the Convention with regard to that adoption and the Netherlands or another contracting state is not obliged to recognize the adoption. It is not compatible with the purport of the treaty and the law to provide in the present bill for the recognition of adoptions that have been effected disregarding the provisions of the treaty and/or the Dutch legal provisions implementing it. Partly on the basis of consultation between the central authorities of the Netherlands and the state of origin, it will be necessary to determine the best solution for the child. In exceptional circumstances it is conceivable that such an adoption would be considered valid by the Dutch court on the basis of general principles of private international law. A ground for recognition based on those principles could be that the non-recognition would be an unacceptable violation of the parties' trust or legal certainty. The question of whether the child concerned qualifies for residence in the Netherlands is answered on the basis of the criteria based on the Aliens Act 2000.

b. Non-treaty adoption – international adoption procedure has been followed.

In relations between the Netherlands and non-contracting states, the procedure of the Foreign Children for Adoption Act must also be followed. The difference with the procedure in the case of a treaty adoption consists mainly in the fact that in the country of origin there are no licensed institutions designated on the basis of the treaty, as well as a central authority that, as prescribed by the treaty, must give the green light before the adoption can go ahead. find. In the case of adoption in the Netherlands of a child from a non-treaty state by adopters with habitual residence in the Netherlands, has the procedure of the Adoption of Foreign Children Act been followed and an adoption decision has subsequently been obtained in the State of origin, then, according to the bill, that foreign decision will not be recognized by operation of law, but the legal validity of the adoption can be established by the Dutch court if a number of conditions for recognition to be included in the law are met. In accordance with the advice of the State Commission, it is proposed not to maintain the current system of «adoption doubles» for these adoptions. Legal recognition of the foreign adoption, as provided for in the treaty, would, however, go too far for this category. In the introduction to this explanatory note, reference was already made to the difference in quality of the infrastructure in the field of intercountry adoption between countries of origin that have ratified the convention and countries that have not (yet) done so. In other words, with a treaty adoption it is better guaranteed that the necessary care has been exercised than with an adoption outside the treaty. If the recognition regime for adoptions by adopters in the Netherlands from non-treaty states were to be equated entirely with that for adoptions from treaty states, then in principle a judicial review option would be lost. Moreover, the Netherlands would be sending the wrong signal and states that are considering ratifying the treaty would lack an argument to continue it. I am aware that the flip side of this position is that adopters in the Netherlands who choose a child from a non-treaty state must go through a recognition procedure in the Netherlands.

c. Non-Treaty Adoption; procedure for intercountry adoption was not followed.

It is not compatible with the purport of the regulations on intercountry adoption that the present bill provides for the recognition of an adoption obtained abroad ignoring the procedures involved. As in the treaty cases described above under a, it is conceivable in exceptional circumstances that the Dutch court will regard an adoption obtained outside the law as legally valid, if the non-recognition would be an unacceptable violation of the legitimate expectations of the parties or of legal certainty. On the basis of the criteria based on the Aliens Act 2000, it will be determined whether a foreign child thus adopted is eligible for admission to the Netherlands. Admission will not be possible if there is no question of 'family life' within the meaning of Article 8 of the European Convention on Human Rights. See for an example RvS/AR 29.05.1990, no. RO2.88.1516, NIPR 1991, 371.

d. Non-treaty adoption where all parties are established outside the Netherlands.

Neither the Convention nor the Foreign Children for Adoption Act relates to the case that the child was adopted at a time when the adopters and the child all had their habitual residence outside the Netherlands. The bill (Article 6, first paragraph, under a) therefore provides for the automatic recognition of a foreign adoption not covered by the Convention if the decision was given in the foreign state where the adopters and the child were all habitually resident, or in the foreign state where either the adopters or the child were habitually resident, provided that in the latter two cases the adoption was recognized in the foreign state where the child or the adopters had their habitual residence (Article 6(1)(b)) .

Article 2 – Definitions

For the definition of the legal institution of adoption, this bill primarily seeks to link up with the Hague Adoption Convention of 1993. Under the convention – and under the Dutch regulations on intercountry adoption – only adoptions by spouses (man and woman) or by a person. Article 1, which lays down the priority of those regulations, implies that insofar as it concerns intercountry adoption (i.e. cases in which the child changes habitual residence in connection with his adoption), this bill only concerns adoption by spouses or a person. Joint adoptions by two unmarried persons are not included in the treaty definition. Reference is made to what is set out in this regard in the explanatory memorandum to the bill approving the treaty, Parliamentary Document II,

In the general part of this explanatory memorandum it was already mentioned that the bill does not only concern cases of intercountry adoption. It also applies to adoptions where all parties have habitual residence in the same state (either the Netherlands or another state), but where one or more parties are linked to another state by nationality. An option, also in this category, would be to limit the legal regulation to adoptions by spouses (of different sexes) or by one person. In practice it will undoubtedly be those forms in the vast majority of cases. However, the consequence would be that the Dutch court would also be bound by the aforementioned limitation if it were to rule on a request for adoption in which the parties all have their habitual residence in the Netherlands, but not all have Dutch nationality. I see no compelling reason for that. Nor do I see any reason for this when it comes to the recognition (outside the treaty) of adoptions made abroad.

In connection with the foregoing, it has been decided, as far as the forms of adoption are concerned, in the bill to link up with the definition of Article 227, first paragraph, Book 1 of the Dutch Civil Code as it came to read after the recent amendment in connection with the introduction of the possibility of adoption by persons of the same sex (Law of 21 December 2000, Stb. 2001, 10): it must concern an adoption by two persons together or by one person alone.

The words «Without prejudice to the provisions of Article 1» are included in the preamble of Article 2 to draw the user's attention to the more limited scope of application of the regulations on intercountry adoption.

The definition given in Article 2 is otherwise in line with the 1993 Convention and the Dutch legislation on intercountry adoption, in the sense that "adoption" in all cases means a decision establishing family relationships between the child and the adoptive parents. come. See Article 2, paragraph 2, of the Convention.

The suggestion of the State Commission to speak of a parent-child relationship in this regard has not been adopted. This suggestion is apparently inspired by the term 'permanent parent-child relationship' used in the English treaty text. The French text, which is also authentic, speaks of «lien de filiation». In view of the terminology used in Dutch legislation and the fact that it concerns a link that is on a par with a descent link, it is, in my opinion, advisable to stick to the term 'family relationship', which term is also used in the official translation of the treaty has been used.

The adoption must be effected by a competent authority. This marks the distinction with (actual) foster parenthood and also with legal figures such as recognition and legitimation.

The competent authority need not be a judicial authority. For example, it can be an administrative authority.

Minority should be assessed under the child's national law. However, it follows from Article 1 that in the case of intercountry adoption, the age limit laid down in Article 8, under a, of the Foreign Children for Adoption Act remains unaffected.

The State Commission has suggested that the chapter on recognition of foreign adoptions should also be related to the recognition of foreign adult adoptions. In my opinion, it is preferable to exclude this infrequently occurring form of adoption from the bill. The question about the recognition of an adult adoption can, in any case, be submitted to the court (procedure of Article 26 Book 1 of the Dutch Civil Code). I am not aware of any case law. I do not rule out the possibility that the judge would apply slightly different criteria than in the case of an adoption of minors and I believe that it is preferable to allow him space to do so.

As under the 1993 Hague Convention and the implementing law for the Convention, the term "adoption" also includes "weak" adoption, ie adoption in which the family-law relations with the original family of the child are not completely broken. Reference is made in this regard to Articles 26(c) and 27 of the Convention. The fact that the definition has been chosen so broadly in all respects is mainly explained by the fact that an adoption always has certain factual and legal consequences with regard to the position of the child and that of the adoptive parents. Even if the ties with the natural parents have not been broken by law, the adoption still has certain consequences that the law cannot ignore.

In the system of the bill, 'weak' adoptions that meet the recognition conditions of Article 6 will be recognized as 'weak' adoptions in the Netherlands. They can be converted into an adoption under Dutch law if the child is admitted to the Netherlands and has its habitual residence there. See article 9 and the related amendment proposed to the Netherlands Nationality Act. This meets the objection that these foreign adoptions cannot be equated with Dutch adoptions, which objection manifests itself in particular in nationality law.

Chapter 2 – The law applicable to the adoption to be pronounced in the Netherlands and its legal consequences

Article 3 – The law applicable to the adoption

a. Main rule: applicability of Dutch law

The rule that Dutch law applies to international adoptions pronounced in the Netherlands is in accordance with the strongly predominant view in this regard in case law. Apart from the jurisprudential development, a range of arguments can be put forward for this solution. If one takes the position that in the case of adoption the interest of the child is of such importance that it overshadows other considerations, then the choice is to apply Dutch law, which has carefully arranged the adoption and has surrounded it with guarantees in the best interests of the child, an obvious one. Practice shows that in almost all cases the adopters or one of them has Dutch nationality. Therefore, the choice for Dutch law is usually also a choice for the national law of the adopters or of one of them. To that extent, this solution is in accordance with the principle of Article 6 of the AB Act. An overly principled conception of Article 6 of the AB Act initially led to an accumulation of national legal systems of those involved in the adoption, but, as explained above under «General», the case law and legal doctrine have abandoned that position. Application of a single right fits in with this development. When, as is almost always the case, the life of the adoptive family takes place in the Netherlands, even after the adoption, the application of Dutch adoption law promotes the integration of the child into Dutch society. On that basis, it can be argued that Dutch law should always be applicable when the adoption decision is given in the Netherlands. In most other European countries the conflict of laws regarding adoption has developed in the same direction as the Dutch one, although in some countries the principle of applicability of the national law of the adopters is adhered to more strongly. In my opinion, it is advisable in the bill to seek as much connection as possible with Dutch case law on this point. albeit that in some countries the principle of applicability of the national law of the adopters is adhered to more strongly. In my opinion, it is advisable in the bill to seek as much connection as possible with Dutch case law on this point. albeit that in some countries the principle of applicability of the national law of the adopters is adhered to more strongly. In my opinion, it is advisable in the bill to seek as much connection as possible with Dutch case law on this point.

b. Separate rule for the consent or consultation of parties other than the adopters

From the principle laid down in the first paragraph that Dutch law applies to an adoption to be pronounced in the Netherlands, the second paragraph excludes one subject, namely the consent by and consultation of the child or of persons other than the adopter.

In Chapter II of the 1993 Convention, in the case of intercountry adoption in the relationship between Contracting States, the authorities of the State of origin are given the task of verifying whether intercountry adoption is the appropriate solution for the child concerned and whether all conditions with regard to permission, consultation and information have been met. Article 4 of the Convention provides minimum requirements for the way in which the consents must be given and how the consultation must take place. It leaves open the question of applicable law. That right is primarily determined on the basis of the referral rules of the State of origin. Most systems of private international law – including those of the States of origin – refer to the national law of the child (which in the case of intercountry adoption will almost always be the internal law of the State of origin). However, the receiving state may also impose requirements with regard to permissions and consultation, partly on the basis of its own referral rules.

Dutch legal practice is mainly based on the applicability of the national law of the child. Did they refer, for example, to the judgment of the Supreme Court of 11 April 1980, NJ 1980, 364 (particularly JCS). The neighboring countries also rely on this rule. However, there are also Dutch judgments in which Dutch law is applied to the permissions, based on the connection with the Dutch legal sphere. In view of this, there is reason to prioritize the applicability of the national law of the child. If the child has dual nationality, it is reasonable to apply the law of the effective nationality to the consents. In case the national law (under certain circumstances the law of the effective nationality) does not know the adoption, it is proposed to provide that the Dutch regulations regarding consent and consultation apply. There are also references to this rule in case law. The law applicable to the consent also determines whether, in the absence of consent, it can be replaced by a court decision. In this regard, reference was also made to Article 4(1)(b), (c and d) of the 1993 Convention.

In this regard, the State Commission notes that if replacement consent is not possible, the result may be that the adoption cannot go ahead. That conclusion is correct. In my view, setting a certain limit to the possibilities is justified by the desire to meet fundamental requirements for adoption, as laid down in Article 4(b), c and d of the 1993 Convention.

c. Revocation of the adoption

The third paragraph concerns the revocation. The same reasons that argue that an adoption pronounced in the Netherlands should in principle be governed by Dutch law argue that a revocation of an adoption requested in the Netherlands should also be governed by that law. Since the revocation is not regulated by the Hague Convention of 1993, it is desirable to make an arrangement for it.

The question of which law applies to the revocation of an adoption pronounced abroad has been deliberately left open. If revocation is required, it will generally be preferable to conduct the procedure in the country where the adoption was pronounced.

Article 4 – The legal consequences of an adoption pronounced in the Netherlands

Article 4 concerns the consequences of an adoption pronounced in the Netherlands – and thus with application of Dutch law. At first sight, the rule that those consequences are governed by Dutch law seems so self-evident that the question arises whether a legal provision is necessary to that end. However, there are reasons for including such a provision in the proposal. These are related to the fact that certain consequences of the adoption are subject to different referral rules than those for adoption. For example, if one looks at the name, it can be established that under current Dutch law it is governed by the national law of the person concerned. That law is not necessarily the same as the law applied to the adoption.

If one looks at the maintenance obligations with regard to the child, it can be established that under Dutch law these are in principle governed by the law of the country where the child requiring maintenance has his habitual residence (Article 4 of the Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, Trb. 1974, 86, as well as Article 1 of the Hague Convention of 24 October 1956 on the law applicable to alimony obligations towards children, Trb. 1959, 20). The consequences of the adoption with regard to the maintenance obligations towards the child will therefore, if the child acquires habitual residence in the Netherlands, be governed by the same law as the law applied to the adoption, albeit that a different rule applies to the determination of that law. .

If one looks at the relationship of authority between adoptive parents and the child, it can be established that the Hague Convention of 5 October 1961 concerning the competence of the authorities and the applicable law on the protection of minors (Trb. 1963, 29) may be applicable. which mainly depends on the law of the state where the minor is habitually resident. So here too, if the parties to the adoption have habitual residence in the Netherlands, there will be a coincidence between the law governing the adoption and the law governing the relationship of authority.

If one looks at the law of succession – assuming that this must be counted among the consequences of the adoption – then one should think of the Hague Convention of 1 August 1989 on the law applicable to succession (Trb.1994, 49), which in the absence of a choice of law, the law of the habitual residence of the testator is applicable. The law applicable to the succession may be different from the law applicable to the adoption.

The only subject which, by its very nature, is exclusively governed by the law applicable to the adoption is the family-law relationship, in the strict sense of the term, between the child and the adoptive parent and the severance or weakening of that bond of the child. with his natural parents. For all adoptions that fall under the bill, family law relationships arise between the child and the adopters. As a result of the adoption under Dutch law, the child acquires the same status as a child of the adoptive parents and the family law relations with his original parents are completely broken.

According to the proposed provision, only these consequences will accrue to an adoption pronounced in the Netherlands. Nothing is regulated for the other consequences. It will be necessary to consider on a case-by-case basis which law governs the other consequences of the adoption. Thus the rule is confined to the core of the institution of adoption, the establishment of family law relationships between a child and persons who are not its parents and the severance of family law relationships with the original family.

Chapter 3 – Recognition of foreign adoptions

Article 5 – Recognition of Non-Treaty Adoptions

The recognition of foreign adoptions and the legal consequences thereof are dealt with in four articles. Article 6 concerns legal recognition, the situations in which this is possible and the grounds for non-recognition. It specifies two cases in which it must be assumed that refusal on the grounds of public policy is in any case indicated. On the advice of the State Committee, an Article 7 has been included after Article 6, which provides for recognition by means of a judicial procedure for a certain category of adoptions. Article 8 concerns the legal consequences of the recognition of an adoption. Finally, Article 9 regulates the conversion of a 'weak' adoption established abroad and recognized in the Netherlands into a 'strong' adoption under Dutch law.

For the sake of clarity, in accordance with the advice of the State Commission, it has been specified in Article 5 that the entire Chapter 3 relates exclusively to adoptions that do not fall under the Convention.

Article 6 – Legal recognition of a foreign adoption

For the interpretation of Article 6, the definition of adoption given in Article 2 is essential. The core of this definition is that there must be a decision by a competent authority that establishes family law relationships between a child and the adopter(s). Incidentally, not every adoption pronounced abroad that meets that criterion is suitable for being recognized as such in the Netherlands without further ado.

a. Indirect international jurisdiction; additional recognition requirement in case of difference of habitual residence

To the extent that an adoption is not covered by the 1993 Convention and should not be recognized on that basis (as evidenced by a certificate to be issued by the competent authority of the Contracting State concerned), it must have been pronounced by a locally competent authority of a state that can be deemed to have (indirect) international competence within the meaning of the bill. According to the first paragraph, (indirect) international jurisdiction is assumed if the adoption was pronounced in the foreign state where both the adopters and the child had their habitual residence during the adoption procedure, or in the foreign state where either the adopters or the child in that period of his habitual residence. In the latter case, on the basis of the second paragraph, under b, also requires that the adoption has been recognized in the foreign state of the habitual residence of the child or the adopters. In all these cases there are good reasons to argue that the adoption should in principle be accepted as fait accompli. It may be assumed that there was a sufficient connection with the legal sphere of the state where the adoption was pronounced. It may be assumed that the authorities of the state concerned were able to form an opinion about the desirability of the adoption, and in particular whether it was in the best interests of the child. It may be assumed that there was a sufficient connection with the legal sphere of the state where the adoption was pronounced. It may be assumed that the authorities of the state concerned were able to form an opinion about the desirability of the adoption, and in particular whether it was in the best interests of the child. It may be assumed that there was a sufficient connection with the legal sphere of the state where the adoption was pronounced. It may be assumed that the authorities of the state concerned were able to form an opinion about the desirability of the adoption, and in particular whether it was in the best interests of the child.

In this regard, reference is made to the consequences described above, in the explanation to Article 1, of the subsidiary and complementary nature of the proposed regulations for the recognition of foreign adoptions compared to the regulations on intercountry adoption. A foreign adoption by adopters with habitual residence in the Netherlands , if it was effected in another treaty state, can only be recognized in the Netherlands if it was effected with due observance of the treaty. This also applies to an adoption that has come about between parties with habitual residence in other contracting states than the Netherlands. Article 6 creates a separate recognition regime for cases where the parties have habitual residence outside the Netherlandsand in which the adoption is not covered by the Convention. In practice there is a need, and in my opinion it is also justified to provide for a possibility of recognition by operation of law in these cases, which have taken place outside the Dutch legal sphere. This prevents the need to obtain a new adoption decision in the Netherlands. Insofar as it concerns adoptions in which all parties were habitually resident in the same state at the time of the adoption, the foreign decision can in principle be recognized without further ado. However, if it concerns an adoption (not covered by the treaty) by adopters of a child established in foreign country A established in foreign country A, it will often be difficult to check on the basis of the adoption decision whether the requirements of carefulness, comparable to that of the 1993 Convention, has been met. In connection with this, the additional requirement has been included for those cases that an adoption pronounced in the State of the habitual residence of the child (State of origin) must be recognized in the State of the habitual residence of the adopters (State of reception), or other way around. This prevents adoptions that have been made without the consent of the competent authorities of the two states involved from being eligible for recognition in the Netherlands. In connection with this, the additional requirement has been included for those cases that an adoption pronounced in the State of the habitual residence of the child (State of origin) must be recognized in the State of the habitual residence of the adopters (State of reception), or other way around. This prevents adoptions that have been made without the consent of the competent authorities of the two states involved from being eligible for recognition in the Netherlands. In connection with this, the additional requirement has been included for those cases that an adoption pronounced in the State of the habitual residence of the child (State of origin) must be recognized in the State of the habitual residence of the adopters (State of reception), or other way around. This prevents adoptions that have been made without the consent of the competent authorities of the two states involved from being eligible for recognition in the Netherlands.

Recognition of a foreign adoption will not be possible on the sole ground that the criteria of the common national law of the parties concerned are met. In that respect, the bill deviates from the case law, but follows the system of the treaty, in which the nationality of the parties is also not a relevant criterion. Reference is made to what has been said about this at the end of Chapter II of this explanatory memorandum. The authorities of the foreign state of the habitual residence of the adopters or of the child, or of the adopters and the child, are considered in the best position to verify whether the adoption is in the best interests of the child. It is irrelevant which law is applied under the private international law of that state.

When applying Article 6, the Dutch government administration – in this case the official of the municipal database or the official of the civil registry – may take the copy of the foreign adoption decision as a point of departure, provided that in the case referred to in the first paragraph , under a, documents must also be submitted showing that all parties had habitual residence in the state where the adoption was made during the period in which the adoption was made. If there was a difference in habitual residence (the case referred to in subsection 1, under b), he must submit documents showing that the adoption in the other state concerned (i.e. the state of habitual residence of the adopters or that of the child) is recognised.

Unless there are indications of fraud, the Dutch government administration is not required to submit further documents from foreign bodies involved in the adoption.

As in the 1993 Convention (Article 23), there is talk of recognition by operation of law, which means that the foreign adoption decision, like other foreign state decisions, can in principle be registered by the Dutch government administration. A recognition or exequatur procedure is not necessary. If the registration is refused, the interested parties can challenge the refusal before the court.

b. Due investigation and due process of justice

Two very essential conditions for adoption are expressly qualified by Article 6 as conditions for recognition, namely that the adoption must have been preceded by a proper investigation and due process of law. If the adoption does not meet these conditions, there is reasonable doubt whether it concerns a serious matter.

The requirement of due process of law may be deemed to include obtaining permissions and/or consulting others than the adopters. If this is not apparent, further investigation may be required.

c. No care period

One may wonder whether the conditions for recognition should also include the completion of a certain period during which the child must have been cared for and raised by the adopters. Dutch law has a term of one year (and, in the case of adoption by one person, three years; see Article 228(1)(f) of Book 1 of the Dutch Civil Code). During the negotiations on the 1993 treaty, this question was discussed at length and finally answered in the negative. It was considered undesirable that, after the authorities of the two States involved in the intercountry adoption agreed to transfer the child to the receiving State and entrust it to the care of the adopters, to make the recognition of the adoption pronounced in the country of origin dependent on the expiry of a probationary period. In my opinion, similar considerations apply to adoptions to be recognized outside the treaty and there is reason not to make their recognition dependent on the completion of a probationary period. Many legal systems have no probation period at all or a much shorter probation period than that of the Civil Code.

d. Public order review

A general principle of private international law is that a foreign decision need not be recognized if this would be contrary to public policy within the meaning of private international law, in particular fundamental rules of Dutch adoption law, which are strongly in line with the interests of the child are intertwined. This has repercussions on the question of whether a foreign adoption qualifies for recognition. It is plausible, for example, that a foreign adoption cannot be recognized if the adoptive parents or one of them is less than 16 years old. As in the 1993 Convention, the public policy rule is qualified in such a way that the best interests of the child in (non-)recognition are taken into account during the assessment.

The public order criterion is further elaborated in the third paragraph. It is expressly stipulated that an adoption must be withheld from recognition if it concerns a sham act on the grounds that it is contrary to public order. The State Commission recommends the deletion of this provision, for two reasons. In the first place, she believes that a problem under aliens law or nationality law should not be solved by means of international private law instruments. Unlike the State Commission, I am in favor of an integrated approach to the problem of sham acts or, in other words, the abuse of family law institutes with a view to obtaining a permanent right of residence or Dutch citizenship. Various bodies are involved in tackling this problem. Provisions that are intended to prevent this abuse are therefore found scattered throughout the Dutch regulations. They can be found in the Civil Code, the Municipal Personal Records Database Act, the Dutch Nationality Act and the Aliens Act. The proposed provision must be regarded as an elaboration of Article 20b, first paragraph, Book 1 of the Dutch Civil Code, which paragraph is the counterpart of Article 18b, second paragraph, of that book. Reference is made to the parliamentary documents on the preparation of the revision of the civil status regulations, Parliamentary Documents II 1990/91, 21 847, inter alia no. 6, p. 9 and no. 10, p. 8. I am unable understand why private international law regulation should not contain a provision of this type.

The State Commission is also of the opinion that it is unclear what should be understood by a 'sham act' in the field of adoption. In this regard, it considers it relevant that the adoption is effected by a judicial decision and states that the adoption in other countries is covered by the same guarantees and is regulated in a similar way as in the Netherlands. I think this argument needs to be nuanced. Dutch legal practice can be confronted with judgments from the most diverse countries. There are countries where, for example, adoption within the (wider) family context is more common than in the Netherlands and where adoption is less of a child protection measure than in the Netherlands. The intervention of the judge can also be somewhat different from that of the judge in the Netherlands. The bill offers possibilities for recognition, also of these adoptions. I consider that desirable in itself. However, it cannot be ruled out that the possibilities to be offered will be used to gain access to the Netherlands. Did she realize that it can also concern the adoption of older children. I specify that the aforementioned Article 20b Book 1 of the Dutch Civil Code and the corresponding Article 37, second paragraph, of the Municipal Personal Data Act already provide a handle to counter the abuse referred to here. I consider it important that this is reaffirmed in the PIL legislation. Did she realize that it can also concern the adoption of older children. I specify that the aforementioned Article 20b Book 1 of the Dutch Civil Code and the corresponding Article 37, second paragraph, of the Municipal Personal Data Act already provide a handle to counter the abuse referred to here. I consider it important that this is reaffirmed in the PIL legislation. Did she realize that it can also concern the adoption of older children. I specify that the aforementioned Article 20b Book 1 of the Dutch Civil Code and the corresponding Article 37, second paragraph, of the Municipal Personal Data Act already provide a handle to counter the abuse referred to here. I consider it important that this is reaffirmed in the PIL legislation.

Unlike the State Commission, I see no need to introduce a narrowly defined definition of sham adoption, either in the Civil Code or in this bill. The proposed provision specifically concerns the recognition of foreign adoptions. In the context of the bill, the legal practitioner will be able to imagine without much difficulty what he should understand by a sham act. In doing so, he will orientate himself on the definition of marriage of convenience included in the Civil Code.

e. No conflict of law review

The fourth paragraph of article 6 excludes the so-called conflict of law review. The Dutch rules of private international law are in principle mandatory in nature as regulatory law, but that does not mean that they must also always be applied abroad if the Dutch legal sphere is involved in the case, for example because the adopter(s) or the person to be adopted child possess the Dutch nationality. Moreover, the power to induce the foreign court to do so is lacking and there is no reason to enforce the application of Dutch private international law in adoption cases via the indirect route of withholding recognition from foreign decisions. The less there is reason for this, now that Dutch law has developed in a direction that distances itself from the principle of Article 6 of the AB Act, in short, meaning that national law, as it were, follows the Dutch even when they go abroad. The conflict-of-law assessment has now also been abandoned with regard to other family law decisions. The "sec" test against public order must be sufficient to cut off excesses. The fact that the foreign court has applied a different law under the private international law applicable to it than the Dutch court would have applied cannot in itself give rise to invoking the public policy exception.

Article 7 – Recognition procedure for certain foreign adoptions

At the proposal of the State Commission, an article has been inserted that provides for a recognition procedure before the Dutch court in certain cases that do not qualify for recognition by operation of law. This has already been discussed in the explanation of Article 1.

I would like to agree with the opinion of the State Commission that if adopters who have their habitual residence in the Netherlands have followed the procedure of the Adoption of Foreign Children Act and have subsequently obtained an adoption decision in the country of origin of the child. , there is insufficient reason to oblige them to follow an adoption procedure again in the Netherlands. Instead, in these cases, a judicial procedure is proposed to determine that the conditions for recognition are met and that the recognition of the adoption is in the apparent best interest of the child. The procedure is that of Article 26, Book 1 of the Dutch Civil Code. I would like to point out that these proceedings are usually conducted in cases where an interested party has requested that a court decision or other legal fact laid down in a document be recognized by operation of law, but in which the registrar of births, marriages or deaths municipal database has refused to register the document because it has doubts about its legal validity. In the case of the proposed Article 7, the procedure of Article 26 is mandatory if the adoption decision is to be registered. The court determines whether the conditions for recognition referred to in the first paragraph have been met. The judicial determination of the legal validity of the adoption entails that the adoption has the consequences described in Article 8.

For reasons of efficiency, a provision has been added to the third paragraph of Article 7 that instructs the court that determines that the foreign adoption meets the conditions for recognition to simultaneously, ex officio, register the foreign adoption with the corresponding application of Article 25 et seq. Book 1 of the Dutch Civil Code. to order the child's birth certificate or, in the absence of a registrable foreign birth document, to determine the birth details and to order a replacement birth certificate to be drawn up. A later mention of the adoption will then be placed on the registration certificate of the foreign birth certificate or on the replacement birth certificate.

It has already been stated in the explanation of Article 1 that and why there is reason to maintain a certain difference with the recognition regime for adoptions established under the Convention.

In the opinion of the State Commission, in connection with the proposed Article 7, the question was also raised whether a recognition procedure should also be provided for in certain cases that fall under the 1993 Convention but which do not qualify for recognition under that Convention, because one or more of its conditions are not met. The opinion refers to some passages in Prof. Parra Aranguren's Explanatory Report to the Convention (Actes et documents de la dix-septième Session, Tome II, par. 411 and 413). Mention is made in particular of the case in which unjustified financial or other advantage has been taken from any action in connection with an intercountry adoption. I would like to point out in the first place that this is primarily a question of interpretation of the treaty, in particular Articles 23 and 24. The proposed Chapter 3 of the bill only relates to adoptions that take place in non-treaty countries. I agree with the State Commission that it is not desirable to legislate for the recognition of adoptions that fall under the Convention, but which do not meet all the requirements of the Convention. The treaty aims to create a number of formal and substantive guarantees and to prevent illicit practice in the making of intercountry adoptions. It must be left to the judge whether, if a certain requirement of the Convention is not met, he nevertheless wants an adoption to be considered for recognition.

In summary, it can be said that Articles 6 and 7 represent a substantial advance over case law and past practice, where a foreign adoption was only rarely recognized as such and where only certain legal consequences, such as the relationship of authority and the name, were were taken into account.

Article 8 – Consequences of the recognition

Article 8 deals with the consequences of the recognition of the adoption in the Netherlands. The wording of Article 26 of the 1993 Convention has been followed. What this means is that the adoption has the legal consequences associated with the institution under the (internal) law that has been applied to the adoption. This solution is in accordance with Article 3, second paragraph, which attaches to an adoption in the Netherlands the consequences that accrue to it under Dutch law. In the case of a 'strong' adoption, the foreign adoption also has the consequence in the Netherlands that the family law relations with the original family of the child are broken. If it concerns a 'weak' adoption, in which the family-law relations with the natural parent(s) have not been completely broken, then

It must be assumed that every adoption, as described in the bill, always entails at least one consequence, namely that the adoptive parents who have taken on the care of the child also exercise authority over it. That is also the assumption of the 1993 Convention, which mentions this consequence in so many words in Article 26. It also seems desirable for adoptions falling outside the treaty to be recognized on the basis of this bill to exclude any discussion about this. The proposed rule is in line with that of Articles 1 and 7 of the Hague Convention of 5 October 1961 on the competence of authorities and the applicable law on the protection of minors (Trb. 1963, 29). It is also in line with what is generally assumed in case law,

With regard to the maintenance obligation of the adopters towards the child, it follows from the Hague Convention of 2 October 1973 on the law applicable to maintenance obligations that this is determined according to the law of the habitual residence of the child. As soon as the child has habitual residence in the Netherlands, this maintenance obligation is therefore governed by Dutch law.

Article 9 – Conversion of «weak» foreign adoption into «strong» adoption under Dutch law

Article 9 follows the system of the Adoption Convention of 1993. If a foreign adoption as such qualifies for recognition, but it concerns a 'weak' adoption, those involved are given the opportunity to submit a request to the Dutch court for conversion into an adoption. to be submitted under Dutch law. Article 27 of the Convention and Article 11 of the Implementing Act relate to conversion in the Netherlands as a receiving state, ie the state of habitual residence of the parties after the foreign adoption. Hence the inclusion, for adoptions not covered by the Convention, of the requirement that those involved must have their habitual residence in the Netherlands and that the child must be admitted there for permanent residence. For the rest, reference is made to the explanation of Article 11 of the Implementation Act (Parliamentary Papers II, 24 811, 1995/96, p. 7). Article 3, second paragraph, of the bill applies mutatis mutandis to the consent of the parents whose consent was required. The proposed provision is in line with the legal practice that has developed with regard to adoptions made abroad. This does not prevent an adoption in the Netherlands from being requested again. Adopters, if one of them has Dutch nationality, has an interest in a conversion that gives the child Dutch nationality. See in this regard the proposed amendment to the Netherlands Nationality Act. Apart from this, the adopters may have a justified desire that the adoption pronounced abroad is followed by a conversion, to which all consequences are attached that the Dutch adoption law attaches to it. A «weak» adoption can thus become a «strong one».

V. Transitional law

The regulation contained in the bill can be considered to be largely in line with the applicable law. In general, the Dutch court already applies Dutch law to adoption requests made in the Netherlands and checks whether the required permissions have been given against the child's national law. The proposed regulation with regard to the recognition of foreign adoptions, which is based on somewhat different criteria from the current unwritten law, is undoubtedly considerably broader than what has been prepared in practice so far. In order to avoid transitional problems,

The State Committee recommends that the proposed recognition rules also apply to foreign adoptions that were effected before the bill came into effect. Not the moment of adoption, but the moment of registration for recognition in the Netherlands should then be decisive. As the main argument in favor of this solution, the State Commission mentions the fact that 'adoption duplication' would be avoided in a number of cases. As attractive as this may seem, I believe that in matters of international family law great caution is required when making transitional provisions. The State Commission itself mentions the case in which a second adoption decision was obtained after the foreign adoption in this country. The retroactive effect of the new legislation can present complex problems in that situation. The fact that there are already some examples of Dutch court decisions recognizing foreign adoptions is not a decisive argument in my opinion for opting for retroactive effect of the proposed regulation. The possibility of submitting the question for the recognition of an adoption to the court also exists without a provision being included in the present bill. In my opinion it is preferable to leave it to the judge whether he believes in a specific case that there is reason to recognize a foreign adoption that took place before the entry into force of this Act. In my opinion, this applies to both the adoptions referred to in Article 6 and the adoptions referred to in Article 7.

In this context, a reference is in order to the existing legal regulations on private international law in the field of family law, also quoted by the State Commission. In the Divorce Conflicts Law Act, retroactive effect is excluded on the advice of the State Commission and subsequently of the Council of State. See the advice of the State Commission of 7 July 1978, published in «Staatscommissie IPR, Selected advice», The Hague 1995, p.132. With regard to the Hague Convention on the Ceremony and Recognition of the Validity of Marriages of March 14, 1978 (Trb. 1987, 137) and the Marriage Conflict Law Act, I refer to the advice of February 11, 1987, published in the same volume, p. 28 and 32. It is noted, inter alia, that where parties, without the intervention of an authority, have assumed the nullity of their marriage and, building on that principle, would have divided an estate, for example, the consequences of retroactive effect cannot be foreseen. To the list of statutory regulations can be added the recent Act of 13 December 2000 on the regulation of conflict of laws with regard to the equalization of pension rights in the event of divorce (Stb. 2001,12). That Act also opted to apply only to divorces effected on or after the effective date. Finally, mention may be made of the Conflict of Law Descendancy Act of March 14, 2002 (Stb.153). To the list of statutory regulations can be added the recent Act of 13 December 2000 on the regulation of conflict of laws with regard to the equalization of pension rights in the event of divorce (Stb. 2001,12). That Act also opted to apply only to divorces effected on or after the effective date. Finally, mention may be made of the Conflict of Law Descendancy Act of March 14, 2002 (Stb.153). To the list of statutory regulations can be added the recent Act of 13 December 2000 on the regulation of conflict of laws with regard to the equalization of pension rights in the event of divorce (Stb. 2001,12). That Act also opted to apply only to divorces effected on or after the effective date. Finally, mention may be made of the Conflict of Law Descendancy Act of March 14, 2002 (Stb.153).

The Minister of Justice,

AH Korthals