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Defence for Children International The Hague Convention 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 inseparable. 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:
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,
adoptable ( art. 4 a );
be placed or adopted in his or her country of origin (art. 4 b ); otherwise,
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.
cooperation
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