Special Commission of October 1994
|Special Commission meetings|
|Ano de publicação||1994|
|Descrição (ou download em PDF, se disponível)||
REPORT OF THE SPECIAL COMMISSION ON THE IMPLEMENTATION 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
1 The Special Commission met at the Peace Palace in The Hague, 17-21 October 1994, pursuant to the Decision of the Seventeenth Session of the Hague Conference on Private International Law, which appears under Part 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 The Working Group referred to in the last paragraph of this Decision, convoked in consultation with the Office of the United Nations High Commissioner for Refugees, met at The Hague from 12-14 April 1994. It drew up a draft Recommendation which, together with a Report of the work of the Working Group drawn up by the Permanent Bureau and dated September 1994, was examined by the Special Commission. On this basis, the Special Commission drew up the Recommendation which, together with a Report drawn up by the Permanent Bureau in consultation with the Office of the United Nations High Commissioner for Refugees, is attached to this Report as Annex A.
3 In addition to its work on refugee children, the Special Commission in conformity with the Wish expressed in Part E of the Final Act, on the basis of drafts prepared by the Permanent Bureau, drew up two uniform model forms in order to promote the proper and uniform application of the Convention by the competent authorities of the Contracting States, in particular concerning the consents required under Article 4 c of the Convention and concerning the certification that the adoption has been made in accordance with the Convention under Article 23, paragraph 1, of the Convention. The model forms appear as Annexes B and C, respectively.
4 Finally, the Special Commission held a short general discussion in the course of which reference was made to the "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" drawn up by the Permanent Bureau and dated September 1994. A slightly adapted version of this Checklist, which was not discussed in any detail, is attached to this Report as Annex D.
5 Forty-five countries were represented at the meeting of the Special Commission, including eighteen non-Member States of the Hague Conference, all of which, with the exception of Morocco and the Slovak Republic, 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), two other intergovernmental organizations (the United Nations Committee on the Rights of the Child and the International Commission on Civil Status (CIEC)) were represented by observers. Nine international non-governmental organizations also took part in the Special Commission: International Bar Association (IBA), International Social Service (ISS), International Society of Family Law (ISFL), International Federation "Terre des Hommes" (FITDH), Defence for Children International (DCI), International Union of Latin Notaries (UINL), International Association of Voluntary Adoption Agencies and NGO's (IAVAAN), EurAdopt, and the Committee for Cooperation within the Nordic Adoption and Parent Organizations (NCA).
6 Mr C.D. van Boeschoten, Vice-President of the Netherlands Standing Government Committee on Private International Law, opened the meeting and welcomed all participants. He commenced by marking the loss of Mr J.C. Schultsz, who had suddenly passed away on 12 September 1994. Mr Schultsz had been the President of the Netherlands Standing Government Committee since 1973 and had presided over the last five Sessions of the Hague Conference on Private International Law, including the Centenary Session in 1993. The participants stood in tribute of the memory of Mr Schultsz.
Mr Van Boeschoten proposed that Mr T.B. Smith, QC (Canada) be elected as Chairman of the Special Commission, and Mr Smith was elected. On the proposal of the Chairman, Mrs Borrás (Spain) was elected as Vice-Chairman.
I STATUS OF THE CONVENTION
7 A round-table discussion took place on the progress for ratification of the Convention in the different countries. It was noted with great interest that Mexico had both signed and ratified the Convention, and that the Romanian parliament had approved the bill for ratification. Twenty-seven other countries stated that they intended to sign or ratify the Convention as soon as possible. The rest of the participating countries were studying the question.
As of 5 April 1995, the following States had ratified the Convention: Mexico, Romania, Sri Lanka and Cyprus. The Convention will enter into force on 1 May 1995 for Mexico, Romania and Sri Lanka, and on 1 June 1995 for Cyprus. In addition, the following States had signed the Convention: Brazil, Costa Rica, Colombia, Uruguay, Israel, Netherlands, United Kingdom, United States, Canada, Finland, Burkina Faso, Ecuador, Peru, Switzerland, Spain and France.
8 A proposal for an additional protocol to the Convention to extend its scope to forms of alternative child care which do not create a permanent parent-child relationship, in particular the Kafala of Islamic law, was submitted by the experts of Morocco. The proposal met with interest and support, but the Special Commission considered that a decision on this matter went beyond its mandate and was to be taken by the Special Commission on General Affairs and Policy of the Conference, which would meet from 20-23 June 1995. It was also suggested that the proposal might, or might perhaps better, be taken up by the Special Commission on the Protection of Minors and Incapacitated Adults and, following up on that suggestion, the Moroccan experts at the meeting of that Special Commission held 6-17 February 1995 submitted a communication concerning the Kafala, which was discussed by the Special Commission and resulted in a tentative decision to include a specific reference to the provision of care by Kafala or an analogous institution in the revised 1961 Convention on the Protection of Minors.
9 The observer from International Social Service, Mme Chantal Saclier, presented the initiative taken by her organization to create an international resource center for the protection of children in intercountry adoption. This center, based at the ISS Secretariat in Geneva, is presently preparing a comparative analysis of legislation in the field of domestic and international adoption, a series of studies per country in order to collect basic information needed by authorities and practitioners involved in child protection in relation to adoption, a publication of a series of leaflets providing information on the Hague Convention and the UN Convention on the Rights of the Child, a computerized data bank, and the training of experts dealing with intercountry adoption. An outline of the programme is attached to this Report as Annex E.
The proposal was warmly welcomed by the Special Commission. The Special Commission expressed the wish that the center would benefit from sufficient and stable funding so that it might successfully implement its programme.
II REFUGEE CHILDREN AND OTHER INTERNATIONALLY DISPLACED CHILDREN
10 The Special Commission discussed extensively the draft Recommendation submitted to it by the Working Group. The discussion centred essentially around the following main points.
a Definition of the children to be covered by the Recommendation
11 The draft Recommendation purported to apply to "refugee children" and to "other children who are internationally displaced especially as a result of disturbances in their countries". The Commission decided to delete the word "especially" so as to provide a more precise definition of the children covered by the Recommendation.
12 The draft Recommendation included a prohibition of discrimination specifically related to the application of Article 2, paragraph 1 of the Convention. Discussion took place on a proposal to include a general provision on non-discrimination and the Convention. Most experts, however, thought that such a provision would go beyond the scope of the Recommendation and the proposal was therefore rejected.
13 A suggestion was made to the effect that the competent authorities of the State to which a child has been displaced should, before any intercountry adoption procedure is initiated, check whether the placement of the child within a family belonging to his or her community of origin would not be feasible. This proposal was not accepted because it was felt on the one hand that the concept of "community of origin" lacked sufficient precision and on the other hand that a general rule to give preference to placement in the local community of origin over intercountry adoption might not be desirable. Moreover, Articles 4 b, 15 and 16, paragraph 1 b of the Convention seemed to be sufficiently wide to allow the competent authorities to consider such a placement, in appropriate cases, before proceeding to an intercountry adoption.
14 Finally, the draft Recommendation proposed by the Working Group was adopted with minor amendments. It is to be noted that the Recommendation not only aims at protecting refugee children in those circumstances where the Convention applies, i.e. where the child and the prospective adoptive parents have their habitual residence in different Contracting States, but more generally also in cases where the child and the prospective adoptive parents habitually reside in the same State. (See Annex A.)
III RECOMMENDED MODEL FORMS
15 The Special Commission was well aware that the model forms which it was to recommend would need to prove their utility in practice and that, moreover, this practice might vary considerably from one country to another. The forms, therefore, are in no way binding upon States or authorities and each State remains completely free to adapt the models to its own particular needs. It is possible that practical experiences with these model forms may lead a future Special Commission meeting, convened to review the practical operation of the Convention (Article 42), to propose amendments to the recommended model forms.
STATEMENT OF CONSENT TO THE ADOPTION
16 The Special Commission saw as the primary purpose of the consent form to protect and assist the parent(s) and/or legal guardians where they have to decide and express their decision on giving consent to the adoption of the child. Care was therefore taken to concentrate on the essential elements of the declaration, to use clear and simple language and to include only those statements which the parents and legal guardians would feel they could make freely and with full knowledge of the consequences.
17 The Special Commission also realized that in practice the form would be used as an important element of proof of consent, in particular in the receiving State when the adoption took place in that State. It was realized that such a use of the statement of consent might give rise to questions of confidentiality. Several proposals were therefore discussed for the inclusion of language which would serve to protect the confidentiality of the parents and legal guardians. It was concluded, however, that the Convention (in particular Article 16, paragraph 2, and Article 31) would afford the necessary protection and that no specific language was needed in the statement of consent.
c Application to adoptions generally - paragraph I-2
18 Although the recommended model form refers in its heading to the Hague Convention on Intercountry Adoption, it may be used in other cases of international adoption not covered by the Convention and, indeed, to adoptions generally, whether international or domestic. In fact, at the time when a parent or legal guardian gives his or her consent, the prospective adoptive parents may not yet have been identified, nor may it be known whether the child will be adopted internally or abroad. Paragraph I-2 therefore refers to an adoption abroad merely as a possibility. A suggestion to allow the person whose consent is required to express preference for national or for intercountry adoption was discussed, but not accepted, because it was felt that this might create an expectation which it would not be possible to meet in all circumstances, and particularly not where such preference might interfere with the child's best interest. In any event, relevant information concerning the views of a parent could be included in the report drawn up under Article 15.
d Effect of consent - paragraph I-4
19 Paragraph I-4 gave rise to extensive discussion. It may be that the internal law of the State of origin does not provide for a form of adoption that terminates the pre-existing legal parent-child relationship between the child and his or her mother and father, in other words only provides for simple adoption. Such a State may wish to co-operate only with a receiving State whose laws are likewise limited to simple adoption. In that case, the former State might wish to restrict the wording of paragraph I-4 so as to limit it to the consent to adoptions that do not (fully) terminate the pre-existing legal parent-child relationship. Most receiving States, however, provide in their laws for adoptions which do terminate the pre-existing legal parent-child relationship (full adoption). This was an important reason to include Article 27 in the Convention which permits the "upgrading" of a simple adoption into a full adoption in the receiving State. Article 27 requires, as a condition for the conversion of a simple into a full adoption, that consent has been or will be given to a full adoption. The Special Commission therefore decided to maintain paragraph I-4, while recognizing that certain States of origin might wish to adapt its wording so as to give parents or legal guardians the option of limiting their consent to a simple adoption.
e Withdrawal of consent - paragraph I-5
20 Article 4(c)(3) of the Convention emphasizes that the consent must not have been withdrawn. Although it was recognized that the possibility of withdrawal of consent depends upon the applicable law, and that not all applicable laws provide for such withdrawal or indeed may not allow the consent to be withdrawn, this matter was considered to be of such importance that it was decided to retain paragraph I-5.
f Declaration of witnesses - paragraph II
21 A declaration of witnesses confirming that the person or persons whose consent is required has (or have) given the required consent to the adoption may or may not be required by law. The Special Commission decided to include a suggestion that in any event, in special circumstances and in particular in the case of illiterate or handicapped persons, a declaration by witnesses confirming the statement of consent would be desirable.
g Certification to attest consent - paragraph III
22 Many laws provided for certification of the consent by an authority authorized to attest the consent. The Special Commission considered that such a certification should, as a rule, only be made in the presence of the person giving his or her consent and of the witness or witnesses, and this explains the language chosen for this statement.
CERTIFICATE OF CONFORMITY OF INTERCOUNTRY ADOPTION
a Identity of the child - paragraph 2
23 A discussion took place concerning the best means of identifying the child. It was realized that some countries do not recognize the difference between family name and first name, and that such countries may wish to amend the form accordingly. It was also realized that the date and place of birth may not always be known. It was however decided to maintain these items as an encouragement to the authorities to try and ascertain these details which are so essential for the life of the child.
b Creation of the adoption - paragraph 3
24 Most systems of law provide that the adoptive relationship is established by a decision of a judicial or administrative authority. The Special Commission therefore decided to phrase paragraph 3 accordingly, but to include a reminder in italics for cases where adoptions are created otherwise, for example as the result of a private agreement or contract.
c Effects of the adoption - paragraph 6
25 Paragraph 6 was included, even though Article 23 of the Convention does not impose upon the authority certifying the conformity of the adoption the obligation to specify the effects of the adoption. It was felt, however, that such a specification was very useful and informative, particularly in cases where the adoption decision would not itself specify the effects of the adoption.
A model form for the certification by the competent authority of a conversion of an adoption, in accordance with Article 27, was proposed but could not be discussed because of lack of time.
d Function of the certificate
26 An extensive discussion took place on the function of the certificate of conformity. While some experts thought that this certificate could replace the original adoption decision, most experts were of the opinion that, from a legal point of view, the certificate and the adoption decision were to be separated. It was agreed however that in actual practice the certificate might be considered as evidence of a prima facie conformity of the adoption with the Convention's system and that it would be desirable if States would accept the certificate, for all practical purposes, as a "passport" which would suffice as evidence of the child's status.