Hague Conference on Private International Law Convention on Protection of Children and Co-operation in respect of Inter-country Adoption

Purpose of presentation Is to obtain Parliament’s approval for South Africa to accede to this Convention to be ratified and considered in terms of section 231(2) of the Constitution

South Africa ratified the UN Convention on the Rights of the Child (CRC) on 16 June The UNCRC contains a comprehensive set international norms for the protection and well being of children BACKGROUND

Cabinet, on 15 May 2002 supported the ratification of the above mentioned Instrument as it would guarantee the protection of the fundamental rights of children from being sold or trafficked between parties or countries BACKGROUND

The Hague Convention in Respect of Inter-country Adoption applies to all children under the age of 18 years and is in line with Section 28(2) of the Constitution BACKGROUND

Child Care Act 72 of 1983, Section 18(4)(f) presently implies that only South African citizens or where one of the applicants is a South African, may adopt a child This Section in the Child Care legislation however was found to be unconstitutional by the Constitutional Court during May 2000 and scrapped it. The decision of the Constitutional Court had immediate effect in that inter-country adoptions had to be considered despite the fact that South Africa had no legislation to deal with such adoptions.

Convention on Inter-country Adoptions n Inter-country adoptions may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin n Only adoptions, which creates a permanent parent-child relationship are covered n It also promotes the protection of children against being abducted, sold or trafficked

Objects of the Convention (Article 1) n To establish safeguards to ensure that inter- country adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; n To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children; n To secure the recognition in Contracting States of adoptions made in accordance with the Convention

Article 2 The Convention applies where a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

Responsibilities of the State of origin(Article 4) n Has to establish that the child is adoptable; n Should determine, after having considered possibilities for placement of the child within the State of origin, that an inter-country adoption is in the child’s best interests n Ensure that the consenting parties receive counselling

Ensures that n consent was given freely; n consents have not been induced by payment or compensation of any kind and have not been withdrawn, and Responsibilities of the State of origin(Article 4)

n Ensures that the child, depending on his or her age and or maturity, has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required; n Consideration has been given to the child’s wishes and opinions Involvement of the child(Article 4)

n Should determine that the prospective adoptive parents are eligible and suited to adopt n Ensures that the prospective adoptive parents have been counselled as may be necessary; and n have determined that the child is or will be authorised to enter and reside permanently in that State. Responsibilities of the receiving State (Article 5)

Central authorities and accredited bodies(Article 6) n A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities

Co-operation between Central Authorities (Article 6(2) n They shall take directly all appropriate measures to - – provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms; – keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application

Articles 7, 8, 9, 10….. Roles and Responsibilities of the Central Authorities n Accreditation of bodies n Monitoring n Ensures proper financial management n Facilitate, follow and expedite proceedings with a view to obtaining the adoption n Preparation of reports

Discussion n The text of this Hague Convention is not in conflict with the domestic laws and policies of South Africa n The Registrar of Adoptions has registered inter-country adoptions since May 2000 n Once the Convention is ratified the Central authority will have the power to regulate adoptions to and from SA

Monitoring and Evaluation n The ORC in the Presidency, which is responsible for the co-ordinating and monitoring the UN Convention on the Rights of the Child, could be charged with the monitoring the implementation of this Convention

Recommendation n That the Parliamentary Committees support the ratification of the Hague Convention on protection of children and co-operation in respect of Inter- Country Adoption