Abstract
This chapter is concerned with examining how the development of modern adoption policy, law and practice has been influenced by the United Nations Convention on the Rights of the Child (1989) and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986), the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), particularly the Hague Convention. The generic nature of some Convention principles and their broad remit ensures their equal applicability to many jurisdictions.
This chapter begins by defining key aspects of the intercountry adoption phenomenon, providing a brief historical background including a consideration of the role of the parties and countries involved and by tracing the emergence of an international legal response. It considers the law and trends in practice as illustrated by reference to selected countries e.g. the U.S., Russia, and China; Ireland and Romania.
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Notes
- 1.
See, Menozzi, C. and B. Mirkin. Child adoption: A path to parenthood?, p. 4, at http://paa2007.princeton.edu/download.aspx?submissionId=70610
- 2.
See, s 66 of the Adoption and Children Act 2002.
- 3.
See, sections 66 and 87, respectively, of the Adoption and Children Act 2002.
- 4.
See, Bridge, C., and H. Swindells. 2003. Adoption—The modern law. Bristol: Family Law, at p. 314.
- 5.
See, R (Thomson and Others v. Minister of State for Children) [2005] EWHC 1378 (Admin).
- 6.
See, for example, Bean, P., and J. Melville. 1989. Lost children of the empire. London: Unwin Hyman Ltd.
- 7.
See, for example, Robbins, J. 1980. The lost children: A study of charity children in Ireland 1700–1900. Dublin: Institute of Public Administration.
- 8.
See, for example, Humphreys, M. 2009. Empty cradles. New York: Random House.
- 9.
See, for example, Parker, R. 2008. Uprooted: The shipment of poor children to Canada, 1867–1919. Bristol: The Policy Press.
- 10.
See, for example, Milotte, M. 1997. Banished babies: The secret history of Ireland’s baby export business. Co Dublin: New Island Books.
- 11.
See, Bartholet, E. 1993. International adoption: Current status and future prospects. Adoption 3(1—Spring): 90. Also, see, generally Doek, J.E., J.H.A. van Loon, and P. Vlaardingerbroek. (eds.). 1996. Children on the move. Netherlands: Martinus Nijhoff Publishers.
- 12.
See, Menozzi, C. and B. Mirkin. Child adoption: A path to parenthood?, op cit at p. 4.
- 13.
In Ireland, recourse to such options would not be possible within existing law.
- 14.
In other countries, such as France and Ireland, the complete judicial termination of parental rights in respect of children in care is a rarity and, coupled with the shift towards single parents keeping their babies, leads to an established reliance on intercountry adoption. The extent of this reliance has been noted by Menozzi, C. and Mirkin, B.:
In Finland and Italy, for example, respectively 80 per cent and 90 per cent of persons who applied for an intercountry adoption had no biological children of their own. In Australia, nearly 60 per cent of children who were adopted during the period 2003–2004 were adopted by parents with no biological children (Australia, Australian Institute of Health and Welfare, 2004). Op cit at p. 4.
- 15.
See, The Adoption Board. Annual report 2006. Dublin: Stationery Office, at p. 43, Table 14. Note the contrast with Sweden where in 2005, for example, of the 1,083 foreign children between the ages of 0–10 years adopted in Sweden, 773 were from Asia.
- 16.
See, Hubinette, T. 2004. Adopted Koreans and the development of identity in the ‘third space’. In Adoption & fostering. London: BAAF, 28(1): 16–24 where the author refers to the resulting Korean adoption diaspora.
- 17.
See, Hubinette, T. 2004. Adopted Koreans and the development of identity in the ‘third space’. In Adoption & fostering. London: BAAF, 28(1): 19.
- 18.
Ibid, at pp. 18–19.
- 19.
See, for example, Singh v. Entry Clearance Officer, New Delhi [2004] 3 FCR 72 for an illustration of this policy in action in respect of a child whose adoption in India by British relatives was not recognized in the U.K. which refused to issue an entry permit. The Court of Appeal ruled that in this instance the form of adoption constituted ‘family life’ for the purposes of Article 8 of the European Convention and must be recognized as such under U.K. law.
- 20.
Although it has to be said that Hayes was unable to substantiate any such inverse correlation when comparing rates of ICA with domestic adoptions more broadly (ie not specific to child care). See, further, Hayes, P. 2009. Intercountry adoption: A comparative analysis of its effect on domestic adoption rates, Full research report, ESRC end of award report, RES-000-22-1840. Swindon: ESRC.
- 21.
A theme continued in the U.N. Convention (Article 11) and in The Hague Convention (the Preamble).
- 22.
[1965] 1 Ch. 831.
- 23.
See Dicey, Morris, and L. Collins. 2006. The conflict of laws. London: Sweet & Maxwell, at p. 1081. For an account of the difficulties that non- recognition of an adoption can cause see Rose, D. 2002. The final decision on adoption recognition in Europe. Dublin: RD Publishers.
- 24.
In July 2002 Sweden withdrew from the Convention following changes in its national adoption laws allowing for adoption by homosexual couples in a registered partnership, as it determined that this aspect of its new national adoption laws conflicted with Article 6(1).
- 25.
See, Article 4.
- 26.
Subject to the requirement that “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.
- 27.
In 2005, the 4th World Congress on Family Law and Children’s Rights issued a Communiqué, which, while noting the tension between the Convention on the Rights of the Child and some aspects of international adoption, stated that international adoption has a place, even as a last resort, provided it is properly regulated for the protection of orphaned and refugee children. See 4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, 20–23 March 2005 at www.childjustice.org/html/2005.htm
- 28.
See, for example, Dyer, A. 1997. The internationalisation of family law. UC Davis Law Review 30: 625.
- 29.
The other two being the Convention on the Civil Aspects of International Child Abduction 1980 and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996.
- 30.
See, The Permanent Bureau. 2008. The implementation and operation of the 1993 Hague International Adoption Convention: A guide to good practice. The Hague: Family Law, 2008. Also, see publications by the Permanent Bureau in 2012: by the Working Group established to develop a common approach to preventing and addressing illicit practices in intercountry adoption cases’; and by the Expert Group on the Financial Aspects of Intercountry Adoption.
- 31.
A guide to good practice. The Hague: Family Law, 2008, ibid, at p. 22.
- 32.
See, further, at: http://portal.euradopt.org/index.php?option=com_content&view=article&id=6&Itemid=15&lang=en
Note the “Accreditation and Adoption Accredited Agencies: General Principles and Guide to Good Practice”, Hague Conference, is available at http://www.hcch.net/upload/wop/adop2010_pd02e.pdf
- 33.
See, further, Triseliotis, J. 2000. Intercountry adoption: Global trade or global gift? Adoption & Fostering. London: BAAF, 24(2): 45–54.
- 34.
See, Hayes, P. 2009. Intercountry adoption: A comparative analysis of its effects on domestic adoption rates, ESRC end of award report, RES–000-22-1840, Swindon, at p. 1.
- 35.
Ibid, citing: Dickens, J. 2002 The paradox of intercountry adoption: Analysing Romania’s experience as a sending country. International Journal of Social Welfare 11: 76–83; and Bainham, A. 2003. International adoption from Romania: Why the moratorium should not be ended. Child and Family Law Quarterly 15(3): 223–236.
- 36.
Op cit at p. 19; citing Hermann Jr and Kasper, 1992; Triseliotis, 2000; Masson, 2001; Shiu, 2001.
- 37.
Op cit, at p. 20.
- 38.
A considerable body of research testifies to the ability of transracial adoptees to assume the cultural characteristics of the receiving country; see, for example, Feigelman, W., and A. Silverman. 1983. Chosen children: New patterns of adoptive relationships. New York: Praeger, and Saetersdal, B. ‘What became of the Vietnamese “baby life children”’?, Melbourne, paper in conference proceedings on Permanence for Children, (1989). However, this must be set against the evidence from adoptees transnational groups that adulthood often brings difficulties with cultural identity.
- 39.
See, Bartholet, E., in Gibbons, J.L. and K.S. Rotabi. (eds). 2012. Intercountry adoption: Policies, practices, and outcomes. Surrey, UK: Ashgate, at p. 388.
- 40.
Op cit, at p. 19.
- 41.
See, Silberman, L. 2000. The Hague children’s conventions: The internationalization of child law. In Cross currents: Family law and policy in the United States and England, ed. S. Katz, J. Eekelaar, and M. Maclean. Oxford: Oxford University Press, at p. 607; citing D’Amato, A., Cross-country adoption: A call to action. Notre Dame Law Review 73: 1239 and Bartholet, E. 1996. International adoption: Propriety, prospect and pragmatics. Journal of the American Academy of Matrimonial Lawyers 13: 181.
- 42.
See, Triseliotis, J., J. Shireman, and M. Hundleby. 1997. Adoption theory, policy and practice. London: Cassell, at p. 181.
- 43.
See, Estin, A. Families across borders: The Hague children’s conventions and the case for international family law in the United States, at p. 90. See, further, at: http://www.law.uiowa.edu/documents/Estin_BOOK.pdf
- 44.
See, Chou, S., and K. Browne. 2008. The relationship between institutional care and the international adoption of children in Europe. Adoption & Fostering 32(1): 40–48, at p. 45.
- 45.
See, Haimes, E., and N. Timms. 1985. Adoption, identity and social policy. London: Gower, at p. 80.
- 46.
- 47.
Those being: the Convention on the Civil Aspects of International Child Abduction 1980; The Hague Convention on Intercountry Adoption 1993; the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007; and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996.
- 48.
As of December 2009, this Convention had received some 81 ratifications and accessions. Vietnam ratified in February 2012.
- 49.
A prohibition given effect in the 2002 Act by sections 83 and 92–97.
- 50.
The Report of The Hague’s Special Commission on the Practical Operation of the Convention in 2005 recommended that member countries actively discourage direct contacts between prospective adoptive parents and authorities in the child’s country of origin until authorized to do so by those authorities.
- 51.
The Preamble also refers to its links with the 1986 U.N. Declaration.
- 52.
See, Duncan, W. 1995. Regulating intercountry adoption—An international perspective. In Frontiers of family law, 2nd ed, ed. A. Bainham, D.S. Pearl, and R. Pickford. New York: Wiley, at p. 51.
- 53.
In England & Wales recognition is provided under s 66 of the 2002 Act and conversion under s 88 ensures that all Convention adoptions are treated as full adoptions. In order to deal with the diversity of national interpretations encountered in the context of intercountry adoption, s 88 of the 2002 Act also provides a procedure whereby those simple adoptions that are not amenable to conversion, perhaps because evidence of full and informed parental consent is not available, are sifted out and an alternative order is made.
- 54.
See, Bartholet, E. 1993. International adoption: Current status and prospects. The Future of Children 3(1), at p. 91. A view that lost validity in the U.S. with the introduction of the Intercountry Adoption Universal Accreditation Act 2012 on 14th July 2014.
- 55.
Ibid, at p. 92.
- 56.
See, Hollinger, J.H. 2005. Chapter 11: Intercountry adoption: Legal requirements and practical considerations. In Adoption law and practice, ed. J.H. Hollinger. New York: Matthew Bender/Lexis-Nexis as updated.
- 57.
Explanatory Report, paragraph 19.
- 58.
See, Recommendation CM/Rec (2010) 5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. See, Council of Europe Commissioner for Human Rights. 2011, June. Discrimination on grounds of sexual orientation and gender identity in Europe. Strasbourg: Council of Europe Publishing.
- 59.
In 1998 the rate of intercountry adoption, expressed per million of the population in the receiving country was: 116 in New Zealand; 52 in the Netherlands; 26 in Sweden; and 117 for Norway.
- 60.
See, Cretney, S., J. Masson, and R. Bailey-Harris. 2003. Principles of family law. London: Thomson Sweet & Maxwell, at p. 832. The U.N. Population Division then estimated the flow at 40,000 annually.
- 61.
Citing, Selman, P. 2000. The demographic history of intercountry adoption. In Intercountry adoption, ed. P. Selman. London: British Association for Adoption and Fostering.
- 62.
Citing, Second Report to the UN Committee on the Rights of the Child by the UK, (1999), para 7.23.8.
- 63.
See, Selman, P. 2012. In Intercountry adoption: Policies, practices, and outcomes, ed. J.L. Gibbons and K.S. Rotabi. Surrey, UK: Ashgate.
- 64.
See, Selman, P. Trends in international adoption: Analysis of data from 20 receiving countries, 1998–2004. Journal of Population Research 23(2): 183–204.
- 65.
See, Selman, P., in Gibbons, J.L. and Rotabi, K.S. (eds), op cit. Figures from International Social Services (ISS) show a global decline of nearly 50 %, from 43,142 adoptions in 2004 to 21,991 adoptions in 2011.
- 66.
In Russia, political reaction to a number of US disrupted placements (particularly the summary return of Artyom Savelyev, a 7-year-old adopted child, by his American adopter who sent him back alone by plane to Russia) resulted in a reduced flow of children from 5,862 in 2004 to 749 in 2012. In China, changes in policy (rejection of single applicants and of obese applicants) resulted in a fall from 7,038 in 2004 to 2,696 in 2012).
- 67.
See, generally, Gibbons, J.L. and K.S. Rotabi. (eds.). 2012 Intercountry adoption: Policies, practices, and outcomes. Surrey, UK.
- 68.
Research shows that this is the case in nine out of ten such adoptions; see, for example, Hoksbergen. R, F. Juffer, and B. Waardenburg. 1987. Adopted children at home and at school. Lisse: Sweets and Zeitlinger.
- 69.
Joint United Nations Programme on HIV/AIDS, UNICEF and USAID, 2004; as cited in Menozzi, C., and B. Mirkin., ‘Child adoption: A path to parenthood?’op cit.
- 70.
See, Hayes, P. 2008. Openness in Korean adoptions: From family line to family life. Adoption quarterly, 53–78, at 54 and 71.
- 71.
Selman, P. 2012, February. Global trends in international adoption: 2001–2010. Adoption Advocate 44: 1–17.
- 72.
In 1993 Britain and Romania signed a bilateral agreement which had the effect of practically ending the sending of Romanian children to the U.K.
- 73.
See, generally, Doek, J.E., J.H.A. van Loon, and P. Vlaardingerbroek. (eds.). 1996. Children on the move. Boston: Martinus Nijhoff Publishers. Also, see, Selman, P. 2000. The demographic history of intercountry adoption. In Intercountry adoption: Developments, trends and perspectives, ed. P. Selman. London: British Agencies for Adoption and Fostering, at p. 16. See also conference papers entitled ‘Intercountry Adoption in the New Millennium: the ‘Quiet Migration’ Revisited’ delivered at the European Population Conference, Helsinki, Finland, 7–9 June 2001 and ‘Movement of Children for Intercountry Adoption: A Demographic Perspective’ delivered at 24th IUSSP General Population Conference, Salvador, Bahia, Brazil, 18–24 August 2001.
- 74.
See, www.ssb.no/english
- 75.
Statistics cited in Triseliotis, J., J. Shireman, and M. Hundleby. 1997. Adoption theory, policy and practice. London: Cassell, at p. 183.
- 76.
Subject to situations where the laws of a country such as Russia, prohibits the tracing of birth parents after a local adoption. See, Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.
- 77.
See, for example, ‘All God’s Children, International’.
- 78.
[2004] EHRR 275.
- 79.
Recommendation 1443 (2000) International Adoption: Respecting Children’s Rights, adopted by the Parliamentary Assembly of the Council of Europe on 26 January 2000. See www.coe.int
- 80.
See, for example, Flintshire County Council v. K [2001] 2 FLR 476, the ‘internet twins’ case. Note that since April 2008, when the U.S. ratified The Hague Convention, all such agencies are now required to be registered.
- 81.
See, for example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111 which concerned a white British couple who had adopted a baby from a black American couple after paying approximately £17,500 to an American adoption agency. The home study reports, prepared by a British social worker, were criticised by the court as “deeply flawed and inadequate documents” and it also referred to “the evil and exploitive trade” of buying and selling babies.
- 82.
See, ‘Rights of the Child’ in U.N. Concern About the Commercial Sale of Children For Adoption, Commission on Human Rights (59th session), 6th Jan. 2003, at Item 13, p. 25 (at: http://www.originscanada.org/adoption-human-rights/united-nations/united-nations-commercial-sale-adoption/). That ICA practices should be considered such as to fall within the brief of the Special Rapporteur, on the sale of children, child prostitution and child pornography in accordance with Commission on Human Rights resolution 2002/92 is revealing.
- 83.
See, Bartholet, E. 1993. International adoption: Current status and prospects. The Future of Children 3(1), at p. 100.
- 84.
[2006] IEHC 64, [2007] 1 ILRM 81.
- 85.
In its 2005 Draft Guide to Good Practice under The Hague Convention, The Hague Conference on Private International Law points out that States should avoid a position where a child would be left stateless, in the context of traditional intercountry adoption where sending and receiving countries are involved. It draws attention to Article 7(1) of the 1989 United Nations Convention on the Rights of the Child which directs that the child shall have the right to acquire a nationality. See, further at www.hcch.net/index_en.php. Also, see, Duncan, W., ‘Nationality and the Protection of Children Across Frontiers: The Case of Intercountry Adoption’ paper delivered at the 3rd European Conference on Nationality-Nationality and the Child, Strasbourg, 11–12 October 2004.
- 86.
Several countries now require foreign prospective parents, or the social services of the adopting country, to make regular reports on the child’s progress to its country of origin. This “follow-up period” is 10 years in the case of Sri Lanka, four for Peru, three for Paraguay and two for Romania.
- 87.
Globally ICAs fell by 35 % between 2004 and 2009. Spain and France are among the countries that have seen a significant drop in the adoption of foreign babies: falling by 48 % and 14 %, respectively, from 2004 to 2010.
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O’Halloran, K. (2015). Intercountry Adoption and The Hague Convention. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_5
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