Annex A to the Special Commission Report of October 1994
RECOMMENDATION CONCERNING THE APPLICATION TO REFUGEE CHILDREN AND OTHER INTERNATIONALLY DISPLACED CHILDREN OF THE HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
adopted on 21 October 1994
Pursuant to the Decision of the Seventeenth Session of the Hague Conference on Private International Law, held at The Hague from 10 to 29 May 1993, to convene a Special Commission 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 Special Commission gathering at The Hague from 17 to 21 October 1994, in consultation with the Office of the United Nations High Commissioner for Refugees,
Adopts the following Recommendation -
Whereas the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption was concluded at The Hague on 29 May 1993,
Considering that in the application of the Convention to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced, account should be taken of 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 in applying the Convention with respect to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced -
1 For the application of Article 2, paragraph 1, of the Convention, a State shall not discriminate in any way in respect of these children in determining whether they are habitually resident in that State.
With respect to these 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 The competent authorities of the State to which the child has been displaced shall take particular care to ensure that-
a before any intercountry adoption procedure is initiated,
- 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; and
- 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;
b an intercountry adoption only takes place if
- the consents referred to in Article 4 c of the Convention have been obtained; and
- 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.
In carrying out the requirements of sub-paragraphs a and b, these authorities will seek information from the international and national bodies, in particular the Office of the United Nations High Commissioner for Refugees, and will request their co-operation as needed.
3 The competent authorities shall take particular care not to harm the well-being 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.
The Hague Conference also recommends that each State take these principles and those of the Convention into account for adoptions creating a permanent parent-child relationship between, on the one hand, spouses or a person habitually resident in that State and, on the other hand, a refugee or internationally displaced child in the same State.
REPORT ON THE RECOMMENDATION CONCERNING THE APPLICATION TO REFUGEE CHILDREN AND OTHER INTERNATIONALLY DISPLACED CHILDREN OF THE HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
1 Throughout the negotiations on the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption in which the Office of the United Nations High Commissioner for Refugees took part as an observer, special attention was given to the specific questions to which the Convention's application to refugee children might give rise. Several proposals were examined aiming at the inclusion of provisions dealing specifically with these questions. In the end it was concluded the Convention as drafted established the essential safeguards and procedures needed for the protection of all children including refugee children, but that within the framework of the Convention the particularly vulnerable situation of refugee children and other internationally displaced children required further examination. Therefore, the Seventeenth Session of the Hague Conference on Private International Law on 29 May 1993 adopted the following Decision (Final Act, under Part C):
"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 The Working Group referred to in the final paragraph of this Decision was convened in consultation with the Office of the United Nations High Commissioner for Refugees and met at The Hague from 12-14 April 1994. Twenty-seven States took part in this Working Group and several international organizations attended as observers. The Working Group drew up a draft Recommendation which was, together with a report drawn up by the Permanent Bureau, submitted to the Special Commission of the Hague Conference which was convened, again in consultation with the Office of the United Nations High Commissioner for Refugees, from 17-21 October 1994. Forty-five States and twelve international organizations attended this meeting. At the close of the meeting on 21 October, the preceding Recommendation was unanimously adopted. This Report was drawn up by the Permanent Bureau in consultation with the Office of the United Nations High Commissioner for Refugees.
I THE RECOMMENDATION FORM
3 After 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 had been given due consideration, it was decided that in the present case, an informal non-binding Recommendation was to be preferred. First of all, the international community's understanding of the needs of unaccompanied minors continues to evolve and deepen; it may be necessary to revise the Recommendation in a few years, but that would be very difficult if the binding form of a Protocol were chosen. Moreover, 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. Finally, a Recommendation offers the advantage of being available to be applied immediately, and also to situations not envisaged by the Convention, such as that described in the next paragraph.
4 The closing paragraph 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 case where the child flees his or her home country A, settles in the State of refuge B, and is subsequently adopted by adoptive parents, habitually resident in that same State B. It is recommended that the principles of the Recommendation and the procedures and safeguards of the Convention also be applied to that situation (see infra Nos 29-31).
II PREAMBLE - REFUGEE CHILDREN AND OTHER INTERNATIONALLY DISPLACED CHILDREN
5 An understanding of the needs of refugee and other internationally displaced children for protection in the context of intercountry adoption should be based upon a comprehension 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. 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.
7 The definition of "refugees" has undergone a significant development 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 can also be applied to the 1967 Protocol.
9 (b) The Organization 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:
... [I]n 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 generalized 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 UNHCR in applying these instruments.
12 UNHCR and other international bodies have noted that some countries, particularly when faced with large flows, have tended to restrict the definition of "refugee" or in other ways to deny to refugees the standards of treatment associated with recognition of refugee status. The use of the term "other internationally displaced children" is intended to ensure the broad application of this Convention and its recommendation.
13 The Special Commission 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 Special Commission agreed that the Convention should be applied to refugee children and to other children who are internationally displaced as a result of disturbances in their countries, in a manner that takes into account their particularly vulnerable situation.
III PARAGRAPH 1 - APPLICATION OF ARTICLE 2(1) OF THE CONVENTION. "HABITUAL RESIDENCE". "THE STATE OF ORIGIN"
15 The Special Commission 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(1), 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 of the Recommendation.
16 Nevertheless, a difficulty arises 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(1) 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 or country of origin" refers to the State from which a refugee fled, 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. infra No 30).
17 As far as the terms "residence" and "habitual residence" are concerned, the Special Commission concluded that the difference in meaning may be more apparent than real. The purpose of Article 12(1) 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.
18 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(1) of that Convention. The reason is simply that in UNHCR terminology "country of origin" refers to the State from which a refugee fled, which is normally also the State of the former (habitual) residence of the child. However, 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).
19 Paragraph 1 of the Recommendation, therefore, aims to ensure the application of the Convention's safeguards, procedures and co-operative framework to refugee children when, after being displaced, they settle - without being promptly repatriated or resettled elsewhere - in a Contracting State (the State of origin in terms of the Convention).
IV PARAGRAPH 2 - APPLICATION OF ARTICLE 4 OF THE CONVENTION. TRACING. REUNIFICATION. CONSENTS. IDENTIFICATION OF THE CHILD
20 The special needs for protection of refugee children which require attention when the Convention is to be applied to those children, relate in particular to four components of the adoption procedure, as prescribed in Article 4 (and Article 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 (i) the adoptability of the child; (ii) the question whether intercountry adoption is in the child's best interests; (iii) the consents necessary for adoption; and (iv) the information about the identity of the child.
Determinations and verifications to be made before any intercountry adoption is initiated
(i) Adoptability. Tracing
21 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.
UNHCR has 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. Still, there is a need for more co-operation, and for common standards of professionalism and experience among the various agencies involved in tracing activities. Adequate and timely registration of refugee children is vital so as to facilitate and speed up tracing.
22 As to the period during which tracing should be continued, this will depend on the nature of the particular refugee situation and on the particular circumstances of the refugee child and his or her family. A flexible approach should be adopted regarding the required duration of tracing efforts. 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. However, 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. The quality of tracing that is attempted is a critical factor.
(ii) Intercountry adoption in the child's best interests? Repatriation possible?
23 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 or 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 jeopardize 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.
Determinations and verifications to be made when the adoption effectively takes place
24 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 traumatic experiences and lack 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 27). 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 15-19 supra).
(iv) Information about the identity of the child
25 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".
Adequate and early registration of refugee children by the authorities of the country of refuge is of crucial importance. 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. In emergency situations co-operation between authorities, especially across the borders, and communication generally may be limited or impossible. Nevertheless, a serious effort must be undertaken to collect the information required by Article 16(1), in order to enhance, as much as possible, the chances of success of intercountry adoption of a refugee child.
26 The determinations and verifications to be made by the competent authorities of the State of the habitual residence of the child (referred to supra (i)-(iv)) may require an additional effort on behalf of the competent authorities and the Central Authority to cooperate with other national and international bodies, in particular the Office of the UNHCR.
V PARAGRAPH 3 - THE PRINCIPLE OF CONFIDENTIALITY IN ADOPTION PROCEEDINGS INVOLVING REFUGEE CHILDREN
27 Refugee children and their families may be particularly vulnerable, because of their situation, vis-a-vis the authorities of the State from which 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).
VI PARAGRAPH 4 - THE APPROPRIATE ROLE OF UNHCR IN INTERCOUNTRY ADOPTIONS INVOLVING REFUGEE CHILDREN
28 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, the Special Commission 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 are 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.
VII CLOSING PARAGRAPH - APPLICABILITY OF THE RECOMMENDATION
29 As already noted before (supra No 4) the Recommendation has, in relation to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced, a wider scope of application than the Convention, which
- only covers 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)); and
- only applies 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(1)).
30 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 also
- 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.
31 However, while the Convention formally only applies to both of the above-mentioned situations, those are in actual fact not the most frequent and typical cases which arise in refugee situations. The most frequent and typical case arising in refugee situations is that where the child flees his or her home country A, settles in the State of refuge B, and is 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 is a case which falls outside the scope of the Convention, because the adoption is not, in terms of Article 2 of the Convention, an intercountry adoption.
The Recommendation deals with this case in its final paragraph, which recommends that each State take its principles and those of the Convention into account for adoptions between on the one hand, spouses or a person habitually resident in that State and, on the other hand, a refugee child or internationally displaced child in the same State.