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Defence for Children International The Hague Convention 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 AuthoritiesEvery 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 DecisionThe 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 IntermediariesThe 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 EvaluationIn 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 origin. 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.
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