Annex D to the Special Commission Report of October 1994
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
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State of origin Article 4 - Which are in your country the "competent authorities" under Article 4? - There may be occasion to include the following minimum requirements of Article 4 in the implementing legislation and/or to specify, as the case may be: paragraph a - adoptability according to which psycho-social criteria? |
Receiving State Article 5 -Which are in your country the "competent authorities" under Article 5? -There may be occasion to include the following minimum requirements of Article 5 in the implementing legislation and/or to specify, as the case may be: paragraph a -"the prospective adoptive parents are suited": psycho-social requirements? |
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State of origin paragraph b - "after giving due consideration"; see also Preamble, paragraphs 2 and 3; paragraph c . establishment, if they do not already exist, or development of adoption counselling services (cf. Article 9 c)? . what is "the required legal form"? . provide means of expressing or evidencing consent in writing (see proposed model form); . how to make sure that the consents "have not been induced by payment or compensation of any kind"? . provide, where applicable, a special provision concerning the consent of mother - "after the birth of the child"; - additional provisions concerning the consent by the child: . how to take into consideration the child's wishes and opinions? |
Receiving State paragraph b - establishment, if they do not already exist, or development of adoption counselling services for prospective adoptive parents (cf. Art. 9c)? paragraph c - requirements for the authorization for the child to enter and reside permanently in the receiving State and the form of such authorization. Possible co-ordination with the immigration authorities. |
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
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State of origin |
Receiving State Article 14* - How should prospective adoptive parents apply to the Central Authority? Expeditious handling of applications (cf. Article 35); feedback to prospective adoptive parents. |
| Article 15**
- Provide preservation of confidentiality of the report prepared in accordance with paragraph 1 and transmitted according to paragraph 2, taking into account Article 19(3) (cf. Article 31)? |
Article 15** - Implementation of paragraph 1? Who provides "home study"? Who sets standards for "home study" and report? - Indicate in report public policy requirements for adoption in your country (cf. Article 24). - How to expedite transmission under paragraph 2 (cf. Article 35)? - Provide preservation of confidentiality of the report (cf. Article 31)? - Where applicable: take measures for implementation of Article 22(5). |
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Article 16** - Implementation of paragraph 1. Standards for report? - Provide conditions for preservation of the report (in particular duration). Provide for access (cf. Articles 30 and 31)? - How to expedite transmission under paragraph 2 (cf. Article 35)? - When applicable, take into account Article 22(5). |
Article 16** - Provide conditions for preservation of the report prepared in accordance with paragraph 1 and transmitted according to paragraph 2, taking into account Article 19(3). Provide for access (cf. Articles 30 and 31)? |
* 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**
| State of origin | Receiving State
-Establishment or development of post-adoption services (cf. Article 9 c). -Services offered and/or responsibilities assumed to help prevent disruption including re-placement of child in 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.
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
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State of origin Article 28 Does your country have a law as referred to in this article?
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Receiving State |
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Article 29 - Where applicable, designate "competent authority" charged with establishing conditions of contact. - Provide information on conditions of contact. |
Article 29 - Where applicable, provide information to prospective adoptive parents on contact. |
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:
Permanent Bureau
Hague Conference on Private International Law
6, Scheveningseweg
2517 KT The Hague
The Netherlands
Telephone: (31/70) 363 3303
Telefax: (31/70) 360 4867
E-mail: secretariat@hcch.net
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.