Private and independent adoption: Perspectives of the HCCH 4th Workshop of the German Research Center on Adoption Munich, 15 June 2016 Laura Martínez-Mora Principal Legal Officer

What is the HCCH? An intergovernmental organisation; origin goes back to 1893; working towards “progressive unification of the rules of private international law” Drafts and approves Hague Conventions (normative work) There are currently 38 Conventions and Protocols, as well as 1 soft law instrument Provides Post-Convention work Very practical, directly benefits “people’s lives” (adults, children, commercial parties and investors) NORMATIVE WORK Research (identifying legal needs in areas within mandate) Proposals (for new instruments) Experts’ Discussion & Negotiation (drafting process leading to new legislative instruments: Conventions, Protocols, soft law) POST CONVENTION WORK Promotion (of HCCH / its instruments) Monitoring (Special Commissions on practical operation) Publications (Guides to Good Practice, Handbooks, etc.) Technical Assistance (implementation & practical operation)

81 Members of HCCH 80 States + 1 Regional Economic Integration Organisation (EU) Admitted State Applied for membership, admitted by affirmative vote, must still accept Statute  Candidate State Applied for membership (six-month voting period)  Member State NB: Boundaries on this map are based upon those used by the UN Cartographic Section. The number of States reflects the Parties as recorded by the Depositary (NL MFA). Neither should be taken to imply official endorsement or acceptance.

148 States “Connected” with HCCH A “Connected” State is either a Member or a Contracting State to one or more of the Hague Conventions  Member State “Connected” State  Non-Member “Connected” State Latin America Regional Office Buenos Aires (2005) Main Office The Hague Asia Pacific Regional Office Hong Kong (2012) NB: Boundaries on this map are based upon those used by the UN Cartographic Section. The number of States reflects the Parties as recorded by the Depositary (NL MFA). Neither should be taken to imply official endorsement or acceptance.

The Hague Intercountry Adoption Convention of 1993 The Convention: Continued relevance and fundamental importance Broad acceptance as the international benchmark for ICA Significant, positive impact on laws and practices relating to intercountry adoption Regulated, rule-based system which strives “to ensure that ICAs are made in the best interests of the child and with respect for his or her fundamental rights”

1993 Intercountry Adoption Convention Minimum standards for the protection of children who are the subject of intercountry adoption, according to their best interests Gives effect to Article 21 of the UNCRC A tool to prevent the abduction, the sale of, or traffic in children, and to eliminate profiteering and other abuses associated with intercountry adoption Establishes a system of co-operation amongst Contracting States Ensures the automatic recognition of adoptions in all States parties

Neither should be taken to imply official endorsement or acceptance. 1993 Hague Convention: 96 States parties 2/3 countries are States of origin (“SO”); 1/3 countries are receiving States (“RS”). All major receiving States are party 3 States have signed, but not yet ratified the Convention: the Russian Federation (2000), Nepal (2009) and the Republic of Korea (2013) The UN Committee on the Rights of the Child regularly recommends that States join the 1993 Convention In light blue, States that have signed but not yet ratified the Convention NB: Boundaries on this map are based upon those used by the UN Cartographic Section. The number of States reflects the Parties as recorded by the Depositary (NL MFA). Neither should be taken to imply official endorsement or acceptance. 7

Major States of origin* Number of ICAs Major States of origin* 1998 2004 2008 2013 China Russia Vietnam Korea COLOMBIA India Guatemala ROMANIA Brazil Ethiopia China (13 405) Russia (9 384) Guatemala (3 427) Korea (2 242) Ukraine (2 019) COLOMBIA (1 714) Ethiopia (1 524) Haiti (1 159) INDIA (1 079) Kazakhstan (877) CHINA (5 875) GUATEMALA (4 186) Russia (4 132) Ethiopia (3 888) Viet Nam (1 721) COLOMBIA (1 608) Ukraine (1 569) Korea (1 367) Haiti (1 332) INDIA (756) CHINA (3 400) Ethiopia (2 025) Russia (1 767) Ukraine (641) Congo DRC (583) COLOMBIA (566) PHILIPPINES (521) Haiti (471)# BULGARIA (419) POLAND (310) 2014 sin Italia (2500 no CLH) China 2,770 Ethiopia 983 Haiti 571 Ukraine 561 South Korea 499 Philippines 437 Russia 410 Colombia 382 Viet Nam 289 Thailand 269 India 253 Poland 111 Kazakhstan 57 Brazil 33 Guatemala 32 In capital letters and blue, States Parties to the 1993 Hague Convention (from the year of the entry into force). * Sources: HCCH website and P. Selman, Key Tables for Intercountry Adoption: Receiving States 2001-2013 and States of Origin 2003-2013, Newcastle University, 2014. This data is subject to possible future updating. # The Convention entered into force in Haiti in 2014. 8 Source:. 8

Major receiving States* 1998 2004 2008 2014 USA (15 774) Italy (2 233) FRANCE (3 777) CANADA (2 222) SPAIN (1 487)   NETHERLANDS (825) SWEDEN (928) NORWAY (643) USA (22 884) ITALY (3 402) FRANCE (4 079) CANADA (1 949) SPAIN (5 541) NETHERLANDS (1 307) SWEDEN (1 109) NORWAY (706) USA (17 438) ITALY (3 977) FRANCE (3 271) CANADA (1 916) SPAIN (3 156) NETHERLANDS (767) SWEDEN (793) NORWAY (304) USA (6441) ITALY ( 2206) FRANCE (1069) CANADA (905) SPAIN (824) (354) SWEDEN (345) GERMANY (227) 31 710 (21 States) 45 383 (24 States) 34 538 13 460 In capital letters and blue, States Parties to the 1993 Hague Convention (from the year of the entry into force). Source: P. Selman, Key Tables for Intercountry Adoption: Receiving States 2001-2014 and States of Origin 2003-2014, Newcastle University, March 2016. This data is subject to possible future updating. 9

A fundamental principle: Subsidiarity Always examine the possibility of permanent, family alternative care … A child should be raised by his or her birth family or extended family whenever possible Importance of the support for birth families (i.e. birth mothers) First duly consider suitable permanent family care in the State of origin Only thereafter may Intercountry adoption be determined as being in the particular child’s best interests Bearing in mind that: A permanent home abroad is, in most cases, preferable to a temporary home or institutional care in the State of origin

Some additional guarantees Offer a family to a child, and not a child to a family … Ensure that adoptions take place in the best interests of the child and with respect for his or her fundamental rights Placement within home country preferred (subsidiarity - Art. 4) Establish adoptability of child; all counselled and duly informed; free consent, of mother only after birth (Arts 4, 16) Involvement of both SO and RS authorities in all adoptions (Art. 17)

Art. 29 of the 1993 HC To prevent inappropriate or illegal practices before matching: Art. 29 prohibits any contact between the PAPs and any person whose consent might be influenced, intentionally or otherwise, by the PAPs Exceptions: in-family adoptions or if the competent authority sets some conditions for contact There shall be no contact between the PAPs and the child's parents or any other person who has care of the child until the child has been declared adoptable and PAPs eligible and suited to adopt unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin. The power to set conditions for contact should be used sparingly.

prospective adoptive parents Private adoptions Adoptions arranged directly between biological parents and prospective adoptive parents Private adoption: in this Guide, the term “private adoption” refers to one where arrangements for adoption have been made directly between a biological parent in one Contracting State and prospective adopters in another Contracting State. Private adoptions arranged directly between birth parents and adoptive parents come within the scope of the Convention if the conditions set out in Article 2 are present (inter alia, the child has been, is or will be moved from the State of origin to the receiving State), but such adoptions are not compatible with the Convention. A distinction is made in this Guide between purely private adoptions and “independent adoptions” (see above). For further explanation, see Chapter 8.6.6.

Independent adoptions (GGP) without the assistance Adoptions where the PAPs are approved as eligible and suited to adopt by their Central Authority or accredited body in the receiving State Then, they travel independently to a country of origin to find a child to adopt, without the assistance of a Central Authority or an AAB in the State of origin Independent adoption: in this Guide, the term “independent adoption” is used to refer to those cases where the prospective adoptive parents are approved as eligible and suited to adopt by their Central Authority or accredited body. They then travel independently to a country of origin to find a child to adopt, without the assistance of a Central Authority or accredited body in the State of origin. Independent adoptions, as defined, do not constitute good practice. They do not satisfy the Convention’s requirements and should not be certified under Article 23 as a Convention adoption. A private adoption (see below) could never be certified by Article 23. In practice, sometimes no distinction is made between the terms “independent adoption” and “private adoption” and this may cause confusion.

Alternative definition of “independent adoption” by some NGOs : ICA where an AAB is not involved. In this definition, PAPs adopt through CAs.

In practice Private and independent adoptions are not compatible with the Convention Private and independent adoptions do not satisfy the Convention’s requirements Private and independent adoptions should not be certified under Article 23 as being in accordance with the Convention Sometimes no distinction is made between the terms “independent adoption” and “private adoption” and this may cause confusion

Risks The risk of direct contact between the birthparents and the applicants is increased, which also increases the risk of direct payments, abuse and child trafficking Intercountry adoption may not be in the child’s best interests Subsidiarity may not be followed There may not be a proper determination of adoptability of the child, and thus increased risk of illicit practices

Risks The PAPs may not be appropriately declared eligible and suitable Absence of a meaningful matching process; the PAPs may not be suited for the child Allowing unauthorized bodies or persons to assist applicants in the procedures means that there is no control and therefore no monitoring connected to actions that are in conflict with national legislation or the Hague Convention. Increased risk of improper financial or other gain

2005 Special Commission recommendations 15. The Special Commission recommends that States actively discourage direct contacts between PAPs and authorities in the State of origin until authorised to do so. Exceptionally, such contact at the appropriate time may be desirable, for example in the case of a child with special needs.

2010 Special Commission recommendations 1. Concerned to prevent, in the context of intercountry adoption, the abduction, sale and traffic in children and their illicit procurement, the Special Commission draws the attention of States to the following as essential features of a well regulated system: g) prohibition on private and independent adoptions;

2010 Special Commission recommendations 22. Adoptions which are arranged directly between birth parents and adoptive parents (i.e., private adoptions) are not compatible with the Convention. 23. Independent adoptions, in which the adoptive parent is approved to adopt in the receiving State and, in the State of origin, locates a child without the intervention of a Central Authority or accredited body in the State of origin, are also not compatible with the Convention. 24. It was strongly recommended that training be provided for judges and other authorities or persons exercising functions under the Convention. This training should address in particular the problems surrounding private and independent adoptions, as well as other possible ways in which the procedures and safeguards of the Convention are circumvented.

2015 Special Commission recommendations 46. Recalling 2010 SC C&R Nos 22 and 23 and the fact that private and independent adoptions are not compatible with the Convention, the SC encouraged Contracting States to move towards the elimination of private and independent adoptions.

Areas with specific challenges Financial issues of intercountry adoption have led in the past to many issues and abuses Problems include those arising from costs, but contributions, co- operation projects and donations as well There is a need for transparency and reasonability in this area Preventing and addressing illicit practices: Importance of a frank and open dialogue, Sharing good practices Co-operation and co-ordination between States is key to preventing illicit practices Accreditation and authorisation of adoption accredited bodies – extremely important to prevent abuses

Suggestions Private and independent intercountry adoptions are not consistent with the 1993 Hague Convention. Therefore, States parties should try to eliminate them and create the necessary safeguards in order that they are not possible in practice. It is important that the general public is aware of the risks of these adoptions. It is also key that professionals and authorities are properly trained on this issue.

Publications GGPs and Brochure

”Intercountry Adoption Section” www.hcch.net ”Intercountry Adoption Section”

Thanks for your kind attention Laura Martínez-Mora – lmm@hcch.nl www.hcch.net