DCI – Hague Convention 1

Defence for Children International

The Hague


The Reinforcement of Children’s Rights

Right from the start the Preamble and Article 1 of the Hague Convention

establish the framework in which the instrument shall be interpreted and

applied. In particular, its objective is “to establish safeguards to ensure

that intercountry adoptions take place in the best interests of the child and

with respect for his or her fundamental rights as recognised in international

law (art. 1 a ).

In this manner the Hague Convention confirms that international adoption

is a field of action that has to fit in with the rights of the child from the

beginning to the end of the proceedings. The adoption of a child relinquished by

foreign parents cannot be considered unless it is in keeping with the best

interests of the child and if it can be carried out in conformity with the

child’s fundamental rights. These two conditions henceforth are cumulative and


The most sensitive point, which tainted many adoptions and gave rise to

the drafting of this Convention is mentioned straightaway: the prevention of the

abduction, the sale of; or traffic in children by respecting these safeguards

and by establishing a system of co-operation amongst States (art. 1 b ).

To obtain the application of children’s rights the Hague Convention

imposes a certain number of measures and verifications on States to be

undertaken at different stages of the proceedings:

a. It enumerates the order of priorities for the protection of children:

first of all, to provide

appropriate measures to enable the child to remain in the care of his or her

family of origin (Preamble, paragraph 3); it this were to fail,

to establish that the child is

adoptable ( art. 4 a );

to determine whether the child can

be placed or adopted in his or her country of origin (art. 4 b );


to ensure that an

intercountry adoption is “in the child’s best interests” (art. 4 b


b. It specifically describes the other essential element which is the

protection of the biological link between the child and his or her parents,

i.e., the consent of authorised persons (cf. art. 4 c) and d),

the latter dealing with the child’s consent). Furthermore, to ensure that the

different decisions given in Article 4 be taken with complete freedom, the Hague

Convention prohibits all contact between prospective adoptive parents and

biological parents and any other persons who have custody of the child; such

contact can only take place after the proceedings provided for in Article 4 a)

to c) have been completed, and once it is determined that “the

prospective adoptive parents are eligible and suited to adopt”;

c. Lastly, the Hague Convention encourages States to establish a system

for the control of expenses and professional fees due to international

adoptions, and confirms the condemnation of “improper financial gain”

(art. 8 and 32). However it does not make a provision for sanctions to be

applied to offenders.