Publications
| Practical operation documents | |||||||||||||||||
| Title | Annex D to the Special Commission Report of October 1994 | ||||||||||||||||
| Year of publication | 1994 | ||||||||||||||||
| Publisher | Hague Conference on Private International Law | ||||||||||||||||
| Description (or download in PDF, if available) |
[español]
CHECKLIST OF QUESTIONS WHICH MAY BE USEFULLY EXAMINED WITH A VIEW TO IMPLEMENTING THE HAGUE CONVENTION OF 29 MAY 1993 ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
The purpose of the following Checklist is to highlight certain questions which may be usefully examined with a view to implementing the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. Certain questions will concern more particularly "States of origin", others "receiving States". Of course, the list is not exhaustive and serves only as an illustration of questions which may arise on the occasion of the implementation of the Convention.
CHAPTER I - SCOPE OF THE CONVENTION Article 2 What form(s) of adoption creating "a permanent parent-child relationship" - paragraph 2 - provided for in the internal law of your country cause the "termination of a pre-existing legal relationship between the child and his or her mother and father" (cf. Article 26(1)(c) and (2))?
CHAPTER II - REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS
CHAPTER III - CENTRAL AUTHORITIES AND ACCREDITED BODIES Articles 6 and 7 - Designation of the Central Authority referred to in Article 6(1). - For federal States, States with more than one system of law or States having autonomous territorial units, designation of more than one Central Authority, if they so desire; in that case, specification of the territorial or personal extent of their functions plus designation of Central Authority to which any communication may be addressed (cf. Article 6(2)). - By what means is (are) the Central Authority(ies) to discharge its (their) overall co-ordinating role (cf. Article 33), its (their) non-delegable duties under Article 7(1) and (2), and its (their delegable duties under Articles 8, 9 and 15-21? Article 8 - Which are the public authorities, if any, who will be acting in your country under Article 8? - Specify, where applicable, "improper financial or other gain". - Specify, where applicable, the means of implementing Article 8. Article 9 - Establish the means of implementing the measures listed in Article 9 (the list is not exhaustive: "in particular to -"). Article 10 - Which are the requirements and procedures for granting and maintaining accreditation of the "accredited bodies"? - "To carry out properly" according to what practical criteria? Will the requirements of Articles 11 and 32 be sufficient? Article 11 - An accredited body "shall pursue only non-profit objectives". Which are the "competent authorities" establishing "the conditions and limits" of this criterion? - "Persons qualified by their ethical standards": these standards may have to be specified, e.g. will it be necessary to check their past conduct; by whom and how must complaints about transgressions against standards be established, etc.? - "By training or experience": who will develop and provide such training; who will set standards for such training? - "Be subject to supervision by competent authorities": . designate competent authorities. provide conditions of supervision Article 12 - Which are "the competent authorities" in your country? - When will authorization be given? - Possible co-ordination with competent authorities of other States.
CHAPTER IV - PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION
* According to Article 22(1), the functions of the Central Authority under this Article may be performed by public authorities or by accredited bodies. ** According to Article 22(1), the functions of the Central Authority under this Article may be performed by public authorities or by accredited bodies; if a declaration under Article 22(2) is made, those functions may, subject to paragraph 4, also be performed by the bodies or persons as referred to in that paragraph. - Co-ordination with emigration authorities. Article 19** - Conditions for the preservation of the report when it is sent back: can it be utilized again (see paragraph 3)? Articles 20** and 21**
* According to Article 22(1), the functions of the Central Authority under this Article may be performed by public authorities or by accredited bodies. ** According to Article 22(1), the functions of the Central Authority under this Article may be performed by public authorities or by accredited bodies; if a declaration under Article 22(2) is made, those functions may, subject to paragraph 4, also be performed by the bodies or persons as referred to in that paragraph. Article 22 - As the case may be, make declaration of paragraph 2 with depositary and provide for regular information of Permanent Bureau of names and addresses under paragraph 3, and . determine who "the competent authorities" are (paragraph 2); . how to ensure the observance of the requirements of sub-paragraphs a and b: integrity; professional competence, experience and accountability; ethical standards and training or experience in intercountry adoption (cf. Articles 11 and 32). - As the case may be (States of origin only), make declaration of paragraph 4.
CHAPTER V - RECOGNITION AND EFFECTS OF THE ADOPTION Article 23 - Certificate of conformity of adoption with Convention: see proposed model form. - What is/are the "competent authority/ies" in your country (if the adoption is made there)? Article 25 As the case may be, declaration to be made. Article 27 - Is there reason to regulate the conversion of a "simple adoption" into a "full adoption"? - How to implement sub-paragraph 1 b?
CHAPTER VI - GENERAL PROVISIONS
Article 30 Paragraph 1 - Provide conditions of preservation of information (duration): see supra Articles 15 and 16. - Designate "competent authorities" - provide, for example, cases where this authority would be discontinued and for transfer, in that case, of the information kept by that authority to another authority. Paragraph 2 - Provide conditions of access. Article 32 - Is there reason to specify the requirements of paragraphs 1-3 in greater detail? Article 39 Paragraph 1 - Is your country a Party to any such international instrument? Declaration to be made? Article 45 - Declaration to be made? Other questions - Legalisation: see the attached Note. - Refugee children: see Annex A. INFORMATION SUMMARY
Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (1) brings about a basic simplification of the formalities which otherwise often complicate the utilization of public documents outside the country from which they originate. The Convention applies to virtually all public documents, as specified in its Article 1, originating from a State Party to the Convention: "a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice"); b) administrative documents; c) notarial acts; d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures." For all those public documents, the Convention simply abolishes the requirement of "legalisation", or certification, by the diplomatic or consular agents of the country in which the document is to be used ("produced" in the Convention's language). In other words, States Parties to the Convention may no longer require that a public document originating from another State Party be certified by their diplomatic or consular agents posted in the latter State. Article 2 clarifies what legalisation means for the purpose of the Convention. The only formality that Contracting States may require is the simple delivery of a certificate in a prescribed form, entitled "apostille", a model of which is annexed to the Convention (Articles 3-5). This certificate is placed on the document or on a slip of paper attached thereto, called an "allonge" (the Convention does not prescribe the manner in which this "allonge" must be attached to the document), and is dated, numbered and registered. It is to be issued, not by the diplomatic or consular agents of the country where the document is to be used, but by the "competent authority (authorities)" of the country where the document was prepared, designated by that country (Article 6). This authority will keep a register or card index in which the certificates issued will be recorded so that any interested person will be able to check the authenticity of any document certified under the Convention (Article 7). The Convention has already proved to be very useful, also for countries which, in their own systems of law, do not have the practice of requiring legalisation, since citizens of those countries must often submit to foreign legalisation requirements each time when they wish to utilize their own country's documents before the authorities or courts abroad. The Convention is presently in force for sixty States (2); significant territorial extensions of the Convention have also been made. The Convention is accompanied by a Report written by the French Professor Yvon Loussouarn. This Report, with the text of the Convention, is available on request in English and French from the Permanent Bureau of the Hague Conference, whose address is:
The procedure for accession to the Convention is laid down in Articles 11 and 12. Instruments of accession are to be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
(1) English and French authentic texts published in Hague Conference on private international law, Collection of Conventions (1951-1996), pp. 56-63; English text in TIAS 10072, 20 International Legal Materials (1981), pp. 1405-1419. (2) Please consult the full status report of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents to see for which States it is presently in force. |