Defence for Children International
In order to ensure the optimum protection of children in international
adoptions, the Hague Convention provides States with a system of co-operation
which consists of the designation of central authorities and the establishment
of an international procedure, and includes the control of accredited bodies.
Every State party to the Hague Convention must designate a Central
Authority “to discharge the duties which are imposed by the Convention”
(art. 6). This concept is not a new one; central authorities already exist for
other spheres such as the application of the Hague Convention on the Civilian
Aspects of Child Abduction of 25 October 1980.
The Central Authority’s responsibilities consist of. both the
application of the Convention in the country as well as the smooth co-operation
between countries involved in international adoption. The Central Authority
shall ensure that all proper measures be taken when any provision of the
Convention has not been respected or many seriously risk not being respected in
the application of the Hague Convention, moreover, any “competent authority”
shall inform the Central Authority of this (art. 33).
Some of the functions entrusted to the Central Authority may be
delegated to “public authorities or other bodies duly accredited”(art.
9 and 10). The Hague Convention does not give any details, however it seems that
the term “public authorities” may include courts, official services
for the protection of children or for adoption, immigration departments,
passport offices, etc. In spite of the distribution of functions, the
contracting State remains responsible for any violation of the Convention.
The proceedings leading to the adoption of a foreign child are
specifically described in the Hague Convention. It should be applied in the
light of and in accordance with the principles enshrined in the Convention:
shall be prepared relating to the child as well as his or her prospective
adoptive parents (art. 15 and 16);
parents or any other competent person, and if need be, that of the child, must
have been obtained (art. 5);
been counselled as may be necessary” and considered “eligible and
suited to adopt” (art. 17);
origin shall determine whether the envisaged placement is in the best interests
of the child (art. 16 d );
must agree (art. 17 a );
authorisation to leave his or her country of origin and to reside permanently in
the receiving State;
parents shall be protected in cases where, in the State of origin, these
identities may not be disclosed (art. 16, paragraph 2).
Once all these requirements have been met, and if the Central
Authorities of the two States concerned agree that the proceedings be carried
through, the final adoption decision will be taken in the country of origin or
in the State receiving the child, according to applicable legislation (art. 2
and 28). At all stages the Central Authorities of the two States concerned
should facilitate the exchange of information and keep each other informed on
the progress of the adoption proceedings (art. 9 and 20).
If difficulties were to arise in the State of origin during placement
prior to the adoption of the child, alternative long-term care shall be arranged
in consultation with the Central Authority of the State of origin (art. 21).
Control of Intermediaries
The Hague Convention establishes that every Central Authority may
delegate certain functions to public authorities or accredited bodies, “to
the extent permitted by law” (art. 21, see also art. 9). When applying
Chapter II (Requirements for Intercountry Adoptions), the “competent
authorities” still retain a mandate for ensuring that the child is
adoptable, that consent has been given according to the established conditions,
that prospective adoptive parents are eligible and suitable to adopt, and that
the child will be authorised to enter and reside permanently in the receiving
State (art. 4 and 5).
Although the State controls public authorities by definition, often
private services are the bodies that are active in adoption. That is why it is
necessary to control their competence and operations. There are precise
requirements for those “bodies” in order to obtain and maintain their
accreditation: to be capable of properly carrying out the tasks with which they
may be entrusted; pursue only non-profit objectives; to be directed by persons
qualified by their ethical standards and their training; to be subject to
supervision by competent authorities (art. 11 and 12). These conditions apply
both to the granting and the renewal of the accreditation; they are the basis of
the control these bodies shall be subject to. An accredited body in a
Contracting State may act in another Contracting State only if the authorities
of both States have authorised it to do so (art.12).
The delegation of functions by the Central Authority may be quite vast
because it includes the set of tasks described in Articles 15 to 21 of the Hague
Convention. Furthermore, Article 22 of the Convention makes this delegation
possible not only to accredited bodies, but also other entities or persons over
whom there is less strict control and who are not subject to the non-profit
requirement (read art. 22 paragraph 2 and art. 1l together).
The entities or persons other than the “accredited bodies”
cannot however establish the reports on prospective parents and adoptable
children (art. 22, paragraph 5).
The State concerned shall declare the intervention of these “services”
with the depository of the Convention (which is the Ministry for Foreign Affairs
of the Netherlands); it shall also have the obligation to keep the Permanent
Bureau of the Hague Conference on Private International Law informed of the
names and addresses of these bodies or persons (art. 22 paragraphs 3 and 4). On
the other hand, a contracting State may declare to the depository of the
Convention that it will not co-operate with such services when dealing with the
adoption of children residing in its territory (art. 22 paragraph 4).
In the case of a government not wishing to intervene in adoption
proceedings it considers “private matters”, or that seldom occur, the
Central Authority could be a purely administrative body. Other structures would
take over extremely important functions for the respect of children’s rights and
successful adoptions, in particular accredited bodies in the sense of Article 11
of the Hague Convention: preparation of reports, verification of the consent and
of the benefits of the placement envisaged, contacts with bodies in charge of
adoption cases in the children’s and prospective adoptive parents’ countries of
Indeed other “private” services feel their possibilities for
action are diminished in relation to those by accredited bodies (they do not
have the right to prepare reports on the children and prospective adoptive
parents); nevertheless they may have the prerogative of being able to determine
that an adoption abroad corresponds to the child’s best interests.
This delegation of functions, which several international
non-governmental organisations fought against in vain, among them Defence for
Children-International (DCI), is tempered, however, by the fact that any State
party can object to the intervention of these bodies and private persons on
their territory (art. 22 paragraph 3). It is therefore necessary that this
clause is well understood by national authorities in charge of ratifying and
applying the Hague Convention and they should be encouraged to make an objection
in this respect.