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TitleReport of the Working Group of April 1994 to study the application to refugee children of the Intercountry Adoption Convention
Year of publication1994
PublisherHCCH
Description
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REPORT OF THE WORKING GROUP
TO STUDY THE APPLICATION TO REFUGEE CHILDREN
OF THE HAGUE CONVENTION OF 29 MAY 1993 ON PROTECTION OF CHILDREN
AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

 

 

drawn up by the Permanent Bureau

 

 

INTRODUCTION

1 The Working Group was held at the Peace Palace in The Hague, 12-14 April 1994, pursuant to the Decision of the Seventeenth Session of the Hague Conference on private international law, which appears under C in the Final Act, and which reads as follows:

"The Seventeenth Session of the Hague Conference on private international law;

Considering that the Convention on Protection of Children and Co-operation in Respect of intercountry Adoption will apply to children habitually resident in the Contracting States under the circumstances described in Article 2 of the Convention;

Concerned that refugee children and other internationally displaced children be afforded the special consideration within the framework of this Convention that their particularly vulnerable situation may require;

Considering the consequent need for further study and possibly the elaboration of a special instrument supplementary to this Convention;

Requests the Secretary General of the Hague Conference, in consultation with the United Nations High Commissioner for Refugees, to convoke in the near future a working group to examine this issue and make specific proposals which might be submitted to a Special Commission of the Hague Conference to ensure appropriate protection of these categories of children."

2 Twenty-seven countries were represented, including ten non-Member States of the Hague Conference, all of which, with the exception of Morocco, had also been represented at its Seventeenth Session and had participated in the negotiations leading to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. In addition to the United Nations High Commissioner for Refugees (UNHCR), one other intergovernmental organisation, the European Union (Commission), and three international nongovernmental organisations (INGOs), International Social Service, International Catholic Child Bureau and the Lutheran World Federation, were represented by observers.

3 Mr J.C. Schultsz, President of the Netherlands Standing Government Committee on Private International Law, opened the meeting and welcomed all participants. He gave a special welcome to the experts from Morocco, Morocco being represented for the first time as a Member State at a meeting of the Hague Conference. He continued in order to explain the reason for this meeting, namely pursuant to the Decision of the Seventeenth Session to make specific proposals for the meeting of a Special Commission to be held from 17-21 October 1994. Mr T.B. Smith, QC (Canada) who had also chaired the negotiations leading to the Convention was unanimously elected as Chairman of the Working Group. He was assisted by the members of the Permanent Bureau and the Reporter of the Convention, Professor G. Parra-Aranguren (Venezuela).

4 The Working Group had before it a Report drawn up by UNHCR, dated 14 March 1994, in English and French. In addition, statistical data and maps on the world situation of refugees were made available, as well as copies of relevant working documents distributed during the preparation of the Convention. During the meeting several working documents were submitted. The Working Group decided to propose to the Special Commission that it adopt the Recommendation which is attached to this Report.

5 The Report drawn up by UNHCR was the principal basis for the discussions at the meeting. It was introduced by the representatives of UNHCR. They stressed that a discussion of the needs of refugee and other internationally displaced children for protection in the context of intercountry adoption should begin with an understanding of the phenomenon of exile as experienced by these children and their families. It is estimated that there are approximately 20 million refugees, including 10 million refugee children, of which at least 250,000 are unaccompanied minors. The central fact of the refugee experience is forced displacement either internally or, as the cases of Bosnia and Rwanda among others show, also internationally. Unlike others their age, refugee children have been uprooted from their homes and country as a result of grave human rights abuses, threat of persecution or armed conflict. In addition, many refugee children are involuntarily separated from their parents or other relatives during flight or because there was no time to get together beforehand.

6 A child is considered "unaccompanied" by UNHCR when he or she is separated from both parents and not under the care of an adult responsible for the child by law or custom. UNHCR avoids the term "orphan" which should be reserved for the situation where both parents are dead and this has been formally established and verified. UNHCR gives high priority to preserving the unity and integrity of the family which comprises keeping the family together during flight and tracing family members for reunification after separation. Tracing and reunifying family members is often difficult, especially in war situations. Since adoption, and intercountry adoption in particular, usually has the irreversible effect of severing the legal bonds with the original family and establishing new family relationships between the child and the adoptive parents, adoption should not be considered lightly. Due to the possible re-emergence of the parents, the importance of more temporary or "non-permanent" solutions should be stressed.

I - "REFUGEE CHILDREN AND OTHER INTERNATIONALLY DISPLACED CHILDREN"

7 The question of the form of a possible legal instrument being reserved for the moment (see infra No 34), the meeting first turned to the question of the definition of "refugee children". The UNHCR observers explained the development of the definition of "refugees" in UNHCR, as well as in other, regional contexts.

8 (a) The United Nations Convention Relating to the Status of Refugees of 28 July 1951, 189 UNTS 137, provides a definition of refugees in its Article 1, as follows:

"Article 1 - Definition of the term "Refugee"

A 2) [Any person who]... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion, is outside the country of his nationality and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ..., is unable or, owing to such fear, is unwilling to return to it. (As amended by Article 1(2) of the 1967 Protocol)"

This article should be read in conjunction, in particular, with Article 33, which reads as follows:

"Article 33 - Prohibition of expulsion or return ("refoulement")

1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

The Protocol Relating to the Status of Refugees of 4 October 1967, 606 UNTS 267, extends the scope of the 1951 Convention by removing the date line of 1 January 1951 contained in the definition of the term "refugee" in Article 1A(2), thus making the Convention applicable to people who become refugees after that date. The Protocol also provides that it be applied by States Parties without any geographic limitation. However, if States have opted when becoming a Party to the 1951 Convention, to limit its application to events occurring in Europe (Article 1B (1) (a)), that limitation also applies to the 1967 Protocol.

9 (b) The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969 (UNTS 14691), adopts a broader definition of the term "refugee", than that found in the 1951 Convention and 1967 Protocol. It does not include any temporal or geographical limitations, nor any reference to earlier categories of refugees. It reads as follows:

"Article 1 - Definition of the term "Refugee"

1. [Definition as in Article 1 A(2) of the 1951 Convention]

2. The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality."

10 (c) A colloquium of experts and representatives from ten governments held in Cartegena, Colombia, from 19-22 November 1984, to search for solutions to the acute refugee problems in the region, adopted the Cartegena Declaration on Refugees. Like the OAU Convention, the Cartegena Declaration broadens the definition of the term "refugee" found in the 1951 Convention. Although a non-binding instrument, the Declaration has been accepted and is being applied by the Latin-American States to the degree that it has entered the domain of international law. Conclusion 3 of the Declaration reads as follows:

"Conclusion 3

To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order."

11 (d) Finally, the Member States of the European Communities, in Dublin on 15 June 1990 signed the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities. In Article 2 of the Dublin Convention, Member States of the European Communities reaffirm their obligations under the 1951 Convention and the 1967 Protocol, with no geographic restriction of their scope, and restate their commitment to co-operate with the UNHCR in applying these instruments.

12 UNHCR applies the above varying definitions in the different regions. However, UNHCR and the INGOs present at the meeting of the Working Group have noted that countries faced with large migration groups tend to restrict their definitions of refugees. They sometimes treat persons, and children in particular, seeking refugee status as "guests" without recognising their refugee status. Or they refuse refugee status to refugees who have entered illegally. It is because of this lack of uniformity both of the definition of refugees and of its practical application, that UNHCR uses the term "other internationally displaced children" so as to not unduly restrict the category of children for which it has responsibility.

13 The Working Group considered that for the purpose of applying the Hague Convention of 29 May 1993, it did not need to take a stand on the definition of "refugee children". The point was rather to ensure (1) that the protection of the Convention was provided to any child in circumstances comparable to those of a refugee child stricto sensu and (2) that their special needs were taken care of.

14 According to the Convention's Preamble, "each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin" and "intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State ( ... )". The Convention applies, without distinction, to children habitually resident in a Contracting State under the circumstances referred to in its Article 2. Provided the requirements of Article 2 are met, the Convention affords protection to refugee children, however defined, as well as other internationally displaced children. However, in applying the safeguards, procedures and co-operative framework of the Convention to these children, their vulnerable situation should be taken into account. Therefore, the Working Group agreed that the Convention should be applied to refugee children and to other children who are internationally displaced, especially as a result of disturbances in their countries, in a manner that takes into account their particularly vulnerable situation. See the Preamble of the Recommendation.

 

II - APPLICABILITY OF THE HAGUE CONVENTION OF 29 MAY 1993

15 The Working Group discussed at length the question of the scope of application of the new Convention in relation to refugee children and other internationally displaced children (hereinafter generally together referred to as "refugee children").

16 It was noted that the Convention

- covers only adoptions which create a permanent parent-child relationship and not adoptions which are adoptions in name only, nor other protective measures such as foster care (either temporary or permanent) which do not create such a permanent relationship (Article 2(2));

- covers both "full" adoptions - which terminate the pre-existing legal parent-child relationship - and "simple" adoptions - which do not terminate that relationship (Article 2(2)).

17 It was further noted that the Convention

- applies only to children habitually resident in a Contracting State irrespective of their nationality, but not to children having the nationality of a Contracting State without being habitually resident in a Contracting State (Article 2(l));

- applies only to situations where children habitually resident in one Contracting State move to another Contracting State to live with adoptive parents habitually resident in that other State (Article 2(l)).

18 It follows that the Convention

- applies to the situation where a refugee child flees his or her home country A (whether or not a Contracting State), acquires a habitual residence in the State of refuge B (that State being a Contracting State, "the State of origin" in the terminology of the Convention), and is subsequently moved to a third State C (also a Contracting State, "the receiving State") in order to live in that State C with his or her adoptive parents;

and, as pointed out by the experts from Viet Nam, also

- applies to the situation where a refugee child flees his or her home country A (that State being a Contracting State), acquires a habitual residence in the State of refuge B (a Contracting State, "the State of origin"), and is subsequently moved back to State A (now: "the receiving State") in order to live there with adoptive parents habitually resident in A.

It was pointed out, however, that while the Working Group's primary mandate was to study the application of the Convention to both of the above-mentioned situations, those were in actual fact not the most frequent and typical cases which arose in refugee situations.

19 The most frequent and typical case arising in refugee situations was that where the child fled his or her home country A, settled in the State of refuge B, and was subsequently adopted by adoptive parents (mostly within the refugee community) habitually resident there. Even if both State A and State B in the example just given were to be Contracting States under the Convention, however, this was a case which fell outside the scope of the Convention, because the adoption was not, in terms of Article 2 of the Convention, an intercountry adoption. The Working Group, therefore, first turned to an examination of the application of the Convention to the situations referred to supra No 18, and made proposals for those situations. In the end, however, the Working Group decided that its recommendations should also address the more frequent and typical case of this paragraph (see infra No 35).

 

III - APPLICATION OF ARTICLE 2(l) OF THE CONVENTION. "HABITUAL RESIDENCE". "THE STATE OF ORIGIN"

20 The Working Group readily agreed that the mere fact that a child was a refugee child (according to the definition applied to the child by the State of refuge), or an internationally displaced child on the territory of the State of refuge, should not, for determining whether that child was habitually resident in that State in the sense of Article 2(l), constitute a relevant factor. In other words, Contracting States should not, when applying the safeguards and procedures and the co-operative framework of the Convention to children habitually resident on their territories, discriminate between refugee children and other children. This is the purpose of paragraph 1 (a) of the Recommendation.

21 Nevertheless, a difficulty arose as a result of differences in terminology between on the one hand the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, and on the other the Hague Convention:

- According to Article 12(l) of the Refugee Convention

"The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence."

So, if a refugee has no domicile in the State of refuge, mere residence is sufficient to justify the application of the local law to the personal status of the refugee. On the other hand, the Hague Convention of 29 May 1993, and Hague Conventions generally, use the habitual residence as the connecting factor.

- In current UNHCR terminology, "the State of origin" refers to the State from which a refugee fled away, and not the State of refuge. In the terminology of the Hague Convention of 29 May 1993, "the State of origin" is the Contracting State in which the child is currently habitually resident, and from which he or she moves to live with adoptive parents in "the receiving State", which may be a third State or the State from which the child originally fled (cf. 18 supra).

22 As far as the terms "residence" and "habitual residence" are concerned, the Working Group concluded that the difference in meaning may be more apparent than real. The purpose of Article 12(l) of the Refugee Convention is clearly to offer to a child the protection of the State of refuge in "all situations in which a child is not promptly repatriated". The child is then settled in that country and "[t]here can be little dispute that a child "settled" - that is, identified and cared for for any substantial period of time - in a (... ) country is "habitually resident" there". For the purpose of the 1961 Hague Convention on the Protection of Minors, the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and many others including the Hague Convention of 29 May 1993, "habitual residence" constitutes the "centre of gravity" of a child's life, the place where the current centre of a child's life is located. Despite the difference in terminology, both the 1951 Convention and its Protocol and the Hague Conventions, aim to afford a person the protection of the settlement country.

23 The Working Group agreed that for the purpose of applying the Hague Convention of 29 May 1993, the term "the State of origin" should be understood in the way it is defined in Article 2(l) of that Convention. The reason is simply that, whereas in UNHCR terminology "country of origin" refers to the State of the former (habitual) residence of the child, the Hague Convention defines the State of the current habitual residence of the child as the State of origin. It is up to the authorities of the State of this habitual residence to make the verifications and determinations referred to in Articles 4 and 16 including the determination, after possibilities for placement of the child within that State have been given due consideration, that an intercountry adoption is in the child's best interests (Article 4 b).

24 Paragraph 1 (b) of the Recommendation reflects the Working Group's conclusions as related above. It aims to ensure the application of the Convention's safeguards, procedures and co-operative framework to refugee children when, after being displaced, they settle in a Contracting State, the State of origin in terms of the Convention (without being promptly repatriated or resettled elsewhere).

 

IV - APPLICATION OF ARTICLES 4 AND 16 OF THE CONVENTION. TRACING. REUNIFICATION. CONSENTS. IDENTIFICATION OF THE CHILD

25 The Working Group then turned to the special needs for protection of refugee children which require attention when the Convention is to be applied to those children. These special needs relate in particular to four components of the adoption procedure, as prescribed in Articles 4 and 16 of the Convention, which therefore are of high importance and complexity where refugee children are involved. These are: the determinations and verifications to be made by the competent authorities and the Central Authority, respectively, of the State of the habitual residence of the child concerning (a) the adoptability of the child, (b) the question whether intercountry adoption is in the child's best interests, (c) the consents necessary for adoption, and (d) the information about the identity of the child.

a Adoptability. Tracing

26 The Working Group agreed that adequate tracing of absent family members is essential before it is established, according to Article 4 a of the Convention, that a refugee child is eligible for adoption. It is critical in refugee situations that separation should not be considered equivalent to abandonment, even where a parent has deliberately sent the child away to safety. Tracing the relatives of refugee children who have been separated from their parents may necessitate additional efforts not required when non-refugee children are concerned. When refugee children are separated from their families, the separation often, although not always, occurs involuntarily and in circumstances such that the whereabouts and even the survival of the other family members is unknown to the child (e.g. because those relatives may have to hide themselves), and vice versa. The UNHCR experts observed that in some situations, such as that of the Vietnamese "boat people", tracing has generally been quite straightforward and could often be done by exchange of letters with the child's family; in some cases, visits by UNHCR or a co-operating agency to the village of origin were necessary. In situations of ongoing civil war, as prevailed in Cambodia around 1980, however, tracing can be extremely difficult and may require intensive efforts and considerable staff resources. The International Committee of the Red Cross plays a very important role in this connection. The INGO experts present at the Working Group meeting argued that there was a need for more co-operation, and for common standards of professionalism and experience among the various agencies involved in tracing activities. They also stressed the importance of adequate and timely registration of refugee children so as to facilitate and speed up tracing.

27 As to the period during which tracing should be continued, the UNHCR observers noted that this depended on the nature of the particular refugee situation and on the particular circumstances of the refugee child and his or her family. When UNHCR has recommended that tracing normally be conducted for a minimum period of two years before a placement that could lead to a permanent severing of links with the natural family is envisaged, what matters is more the quality of tracing that is to be attempted than the time period. A much shorter period than two years may be appropriate for an infant found in circumstances clearly indicating abandonment; in some cases a longer period may be advisable for older children whose parents are thought to be alive in the country from which the child has fled, for example when that country is still affected by a civil war. This is the background of paragraph 2 (a) of the Recommendation.

b Intercountry adoption in the child's best interests? Repatriation possible?

28 According to Article 4 b of the Convention, the competent authorities of the State of the habitual residence of the child must give due consideration to possibilities for placement of the child within that State before determining that an intercountry adoption is in the child's best interests. In the case of refugee children, particular consideration should be given to possibilities for placement of the child within the extended family or the refugee community. UNHCR's experience with unaccompanied refugee children tends to show that placements with their family within the refugee community itself often best serves the interests of the refugee child and that such possibilities have generally been found within the refugee community. Besides placement in the refugee community, however, the possibility of placement in the country from which the child has fled must also be considered and, where appropriate, pursued. Voluntary repatriation, when circumstances permit, is the most desirable solution to refugee problems and may be in the best interests of the refugee child. However, where repatriation would jeopardise the child's security or would not offer the child adequate care, the child should not be returned. Where neither placement within their community nor repatriation are possible, intercountry adoption may be in the child's best interest. See paragraph 2 (b) of the Recommendation.

c Consents

29 According to Article 4 c of the Convention, the competent authorities of the State of the habitual residence of the child should ensure that the relevant persons, institutions and authorities be counselled and informed of the effects of their consent, and have verified that those consents have been given freely and have not been induced by payment or compensation of any kind. In the case of a refugee child, informed consent to the adoption may require special counselling as well as material assistance. When refugee parents, guardians or relatives have themselves undergone dramatic experiences, such as the lack of basic subsistence requirements, and are uncertain about their future, they may conclude that the only way to provide for the child's welfare is to surrender him or her for adoption. Both counselling and humanitarian assistance are necessary in such situations to ensure that consent to adoption by parents or guardians is truly free. In cases where a refugee parent voluntarily chooses to give up the child, it is also important to ensure that that parent understands fully the legal consequences of this decision, as well as to ensure, where necessary, that the other parent and other relevant parties are duly notified and give their consent. This may be particularly difficult where relevant parties are still within the child's home country, and may then also pose a dilemma, in view of the need to protect those persons (see infra No 32). However, it is essential that the law applicable to adoption in the State of refuge to other than refugee children be fully and effectively applied also to the refugee child (cf. Nos 20-24 supra). These considerations led the Working Group to adopt paragraph 2 (c) of the Recommendation.

d Information about the identity of the child

30 According to Article 16, paragraph 1, of the Convention, the Central Authority of the State of the habitual residence of the child shall, if it is satisfied that the child is adoptable "a prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child;" and "b give due consideration to the child's upbringing and his or her ethnic, religious and cultural background".

The Working Group agreed on the crucial importance of adequate and early registration of refugee children by the authorities of the country of refuge. Where such registration is lacking, it may not be possible to determine the identity of the child, and therefore, to determine whether the child is adoptable. It was recognised that in emergency situations co-operation between authorities, especially across the borders, and communication generally may be limited or impossible. Nevertheless, the Working Group felt that a serious effort must be undertaken to collect the information required by Article 16(l), in order to enhance, as much as possible, the chances of success of intercountry adoption of a refugee child. Hence, the Working Group adopted paragraph 2 (d) of the Recommendation.

31 The Working Group agreed that the determinations and verifications to be made by the competent authorities of the State of the habitual residence of the child (referred to supra (a)-(d)) might require an additional effort on behalf of the competent authorities and the Central Authority to co-operate with other national and international bodies, in particular UNHCR (cf. infra No 33). See the Recommendation, paragraph 2, last sentence.

 

V - THE PRINCIPLE OF CONFIDENTIALITY IN ADOPTION PROCEEDINGS INVOLVING REFUGEE CHILDREN

32 The Working Group recognised that refugee children and their families may be particularly vulnerable because of their situation, particularly, vis-à-vis the authorities of the State that they have fled. Attempts to trace and reunify the child with his or her parents or family members in that country, obtaining the consents in the home country and collecting the information about the child's identity and background all should be conducted with due regard for the need for confidentiality, in view of the particular vulnerability of those family members, who may fear persecution if such information is revealed or even simply by being contacted from the State of refuge. On the other hand, the principle of confidentiality must be reconciled with the adopted refugee child's right to have access later in life to information concerning the identity of his or her parents and other aspects of his or her family background (Articles 30 and 31 of the Convention). The above considerations led the Working Group to adopt Recommendation 3.

 

VI - THE APPROPRIATE ROLE OF UNHCR IN INTERCOUNTRY ADOPTIONS INVOLVING REFUGEE CHILDREN

33 The Working Group agreed that States should facilitate the fulfilment, in respect to refugee children and other internationally displaced children, of the protection mandate of the United Nations High Commissioner for Refugees. While it was acknowledged that UNHCR had no power to make any of the decisions or determinations referred to in the Convention, in particular Articles 4 and 16, it was agreed that UNHCR had a crucial role to play in intercountry adoptions involving refugee children. In particular, it was acknowledged that to the extent compatible with the character of the adoption proceedings:

a UNHCR should be given notice of such proceedings by the competent authorities, where refugee children were involved;

b access to UNHCR by any refugee child who is the subject of a contemplated adoption proceeding and by all interested parties to the proceedings should be ensured and facilitated;

c UNHCR should be invited to participate in the adoption proceedings and to provide advice to the competent authorities, particularly regarding the adequacy of family tracing and efforts to identify appropriate alternative placement possibilities, the determination that a refugee child is adoptable, the adequacy of counselling and the giving of consent and the evaluation of the best interests of the child;

d UNHCR should be permitted to provide counselling to the child and interested parties, and to provide information to appropriate parties concerning principles and norms relevant to the protection of refugee children.

This led the Working Group to adopt paragraph 4 of the Recommendation.

 

VII - FORM AND SCOPE OF THE INSTRUMENT

34 The Working Group discussed the relative advantages and disadvantages of a formal, binding instrument, such as a Protocol to the Hague Convention of 29 May 1993 or an informal non-binding Recommendation. It was unanimously agreed that in the present case, an informal non-binding Recommendation was to be preferred. First, the experience with Recommendations within the Hague Conference tends to demonstrate that they are generally followed, so their effect comes close to that of a binding instrument. Secondly, the international community's understanding of the needs of unaccompanied minors continues to evolve and deepen. It may be necessary to revise the conclusions of the Working Group and the Special Commission in a few years, but that would be very difficult if the binding form of a Protocol were chosen. Thirdly, the Recommendation form, being non-binding, leaves the States some flexibility in applying them, which the special circumstances of refugee children and their families may require. Fourthly, a Recommendation offers the advantage of being available to be applied immediately, even pending the entry into force of the Convention, and also to situations not envisaged by the Convention, such as that described supra 19.

35 Paragraph 5 of the Recommendation defines the Recommendation's scope of application, in a manner that extends beyond that of the scope of the Hague Convention of 29 May 1993. In particular, it also addresses the situation not covered by the Convention described supra 19. This is in fact the most frequent and typical case arising in refugee situations, i.e. where the child flees his or her home country A, settles in the State of refuge B, and is subsequently adopted by adoptive parents, usually within the refugee community, habitually resident in State B. Paragraph 5 of the Recommendation in effect suggests that the procedures and safeguards contained in the preceding paragraphs also be applied to that situation.

 



Annex

 

 

PROPOSAL OF THE WORKING GROUP

 

Gathering at The Hague from 12 to 14 April 1994 in order to study the specific questions concerning the application to refugee children and other internationally displaced children of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption,

The WORKING GROUP convened pursuant to the Decision taken by the Seventeenth Session of the Hague Conference on private international law,

Proposes to the Special Commission of the Conference which will meet from 17 to 21 October 1994 that the following Recommendation be adopted:

 

RECOMMENDATION

 

Considering that the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption should be applied to refugee children and to other children who are internationally displaced, especially as a result of disturbances in their countries, in a manner that takes into account their particularly vulnerable situation,

Recalling that according to the Preamble of the Convention each State should take as a matter of priority appropriate measures to enable the child to remain in the care of his or her family of origin, and that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State,

The Hague Conference on private international law recommends to the States which are or become Parties to the Convention that they take into consideration the following principles:

1 a For the application of Article 2, paragraph 1, of the Convention, a State shall not discriminate in any way in respect of refugee children or other internationally displaced children in determining whether such children are habitually resident in that State.
b With respect to refugee children and other internationally displaced children, the State of origin referred to in Article 2, paragraph 1, of the Convention is the State where the child is residing after being displaced.

2 Before any intercountry adoption is undertaken, the competent authorities of the State to which the child has been displaced shall verify with particular care that:

a all reasonable measures have been taken in order to trace and reunite the child with his or her parents or family members where the child is separated from them;
b the repatriation of the child to his or her country, for purposes of such reunion, would not be feasible or desirable, because of the fact that the child cannot receive appropriate care, or benefit from satisfactory protection, in that country;
c the consents referred to in Article 4 c of the Convention have been obtained;
d the information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, the child's upbringing, his or her ethnic, religious and cultural origins, and any special needs of the child, has been collected in so far as is possible under the circumstances.

To this end, these authorities will seek information from the international and national bodies, in particular the United Nations High Commissioner for Refugees.

3 The competent authorities shall take particular care not to harm the wellbeing of persons still within the child's country, especially the child's family members, in obtaining and preserving the information collected in connection with paragraph 2, as well as to preserve the confidentiality of that information according to the Convention.

4 The States shall facilitate the fulfilment, in respect to children referred to in this Recommendation, of the protection mandate of the United Nations High Commissioner for Refugees.

5 States should further consider the application of these principles to adoptions not covered by the Convention of refugee and other internationally displaced children.