DCI – Hague Convention

Defence for Children International

The Hague


International Co-operation

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.

Central Authorities

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 Decision

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:

a report with relevant information

shall be prepared relating to the child as well as his or her prospective

adoptive parents (art. 15 and 16);

the consent of the biological

parents or any other competent person, and if need be, that of the child, must

have been obtained (art. 5);

prospective adoptive parents “have

been counselled as may be necessary” and considered “eligible and

suited to adopt” (art. 17);

the authorities of the State of

origin shall determine whether the envisaged placement is in the best interests

of the child (art. 16 d );

the prospective adoptive parents

must agree (art. 17 a );

the child shall have received

authorisation to leave his or her country of origin and to reside permanently in

the receiving State;

the identity of the biological

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).

Critical Evaluation

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.

Recognition of Adoptions