Hague Convention on Cooperation in the Area of Inter-State Adoption of Children of 1993

31.10.2018

The 1993 Hague Convention  had been signed by Russia in September 2000, but  had not been ratified.  It consists of 7 chapters, 48 articles. Art. 1 defines the three objectives of the Convention:

  1. To establish safeguards to ensure that intercountry adoption takes place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
  2. To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
  3. To secure the recognition in Contracting States of adoptions made in accordance with the Convention.

Best interests of the child There had been an opinion that adoption is primarily for the interests of adopters, as the word ‘adoption’ originates from the Latin verb ‘ad optare’ which stands for ‘to choose among’.  Since the twenties adoption had been seen primarily as a service for childless couples – a way of providing them with a substitute child to satisfy their emotional needs. This viewpoint still survives. But at the same time, after the Second World War  the new view of adoption emerged focused on a child. This approach may be expressed by the following expression: ‘Adoption provides family for a child, not a child for a family’.   The Convention does not define  the term ‘best interests of the child’, as from a psychological point of view, interests of a child always revolves around the child in a particular situation.

It is to be noted that the Convention 1993 alongside with the best interests of the child, refers to the ‘fundamental rights, as recognized by international law’.  Recommendation 1443 (2000) of the Council of Europe ‘International Adoption: Respecting Children’s Rights’ states that ‘all children have rights, as set out in the United Nations Convention on the Rights of the Child, and, in particular, the right to know and be brought up by their parents in so far as this is possible. The purpose of international adoption must be to provide children with a mother and a father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price; there can be no right to a child’ (art. 1).

The subsidiarity principle is a core principle of international adoption. It is stated in art. 4  (b)  of the 1993 Convention and paras 2 and 3 of its Preamble.  The hierarchy of forms of children’s placement established by the Convention 1993,  went contrary to the position of the Russian decision-maker which relied on the art. 21 (b) of the CRC and thus prioritized a foster care in Russia over an intercountry adoption.

The system of cooperation between the states through the Central Authorities is laid down  in Chapter  II .

Independent adoption Independent, or private adoption, is considered to be contributing to the traffic of children. Methods to obtain children illegally, such as: abduction of babies or infants; identification of potentially vulnerable mothers; fraudulent information about stillborn or dead babies[1] etc may be put into practice through  adoption procedure  without accredited agencies.  So art. 29 of the Convention says that ‘There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, sub-paragraphs a) to c), and Article 5, sub-paragraph a), have been met, unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin’.

The Chapter V of the Convention Recognition and Effects of Adoption implements the objective stated in art. 1 (c) to ‘secure recognition in Contracting States of adoptions made in accordance with the Convention’. The most important aspect of the legal relationship created by adoption is parental authority of the adoptive parents. This effect has to be recognized for all adoptions whether or not they result in termination of a pre-existing legal relationship between the child and its parents. Article 27 s (1)  Where an adoption granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving State which recognises the adoption under the Convention, be converted into an adoption having such an effect –

a) if the law of the receiving State so permits; and

b) if the consents referred to in Article 4, sub-paragraphs c and d, have been or are given for the purpose of such an adoption.

 

 

 

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