ࡱ> @B?9 ,bjbj"D(l(((((((< <t44444444}N n(44444z((44zzz4j(4(4}z4}z6z1((}4( ^n<I}0Q,X"}z<<((((International Adoption Working Session Harvard Law School January 25, 2008 Some Reflection and suggestions Jaap E. Doek February 2008 After a full day of rather intensive discussions on the various aspects of inter-country adoption there was little time left for some reflections and/or for suggestions for action. It is good to have another meeting in April next year in New York, but I think we should consider some more targeted actions in the interim. During the session there was a lot of attention given to inter-country adoptions by us citizens; this was understandable given the fact that the USA recently became a party to the Hague Inter-country Adoption Convention (officially: XXXIII Convention on the protection of children and co-operation in respect of inter-country adoption). At the same time a lot of concern was voiced regarding the rather regular negative publicity around inter-country adoption because of (alleged) abuses. These abuses have resulted in a limitation, suspension or even prohibition of inter-country adoption. As an understandable reaction the supporters of inter-country adoption feel a need to defend this form of child-care including sometimes by downplaying the seriousness of the abuses. Another important aspect of inter-country adoption is what has been called priority setting. In other words: if a child is left without parental care which forms of alternative care should be considered first and which are (should be) the last options. Finally UNICEF has been criticized for its position in this regard. Personally I think UNICEFs position is very clear, well balanced and is in accordance with the CRC. Inter-country adoption is not only a legal issue but also a sometimes very emotional matter because it is all about children in often very urgent need of alternative care. With reference to agenda item V of the working sessions I like to make some suggestions for moving forward in a positive way to address inter-country adoption (IA) issues. 1. Guidelines for inter-country adoption as an option The overarching principle of the CRC is that a child, for her/his full and harmonious development, should grow up in a family environment (preamble 6). If a child is temporarily or permanently deprived of his or her family environment the State Party to the CRC shall ensure alternative care for such a child. This care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for care of children (art. 20 CRC). With regard to this article 20 CRC the following observations can be made: - art. 20 seems to indicate a certain order or preference when alternative care should be provided from the legally less far reaching (foster care) to the legally most permanent (foster care) to the legally most permanent (adoption) while institutional care is presented as a last resort option (after other options and if necessary); - the options presented in par. 3 of art. 20 are not linked to the temporary or permanent nature of the deprivation of the family environment. But it should be assumed that adoption is not an option in case the deprivation is temporarily. One of the problems is that it is often not clear whether the deprivation is temporary or permanent . It means that a temporary foster care may become more and more permanent (comparable to simple adoption, see hereafter); - concerning the option of domestic or inter-country adoption one should keep in mind that there is no legally binding obligation under the CRC to accept adoption as a form of alternative care. Article 21 CRC only sets the rules for States Parties that recognize and/or permit the system of adoption. In addition: even if a country permits adoption it is not under an obligation to permit also inter-country adoption. But they shall (if they permit the system of adoption) recognize that inter-country adoption may be considered ( my emphasis) as an alternative means of childs care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the childs country of origin. Finally: if a system of adoption is permitted it is not an obligation to have exclusively the so-called full adoption that is the alternative care that terminates a pre-existing legal parent-child relationship (see art. 26, 27 Hague convention on IA). A State can limit its system of adoption to the so-called simple adoption (leaving legal parental child relationship in tact and therefore a form of permanent foster care); - inter-country adoption should take place with safeguards and standards equivalent to those existing in the case of national adoption. Although the term equivalent is open for some interpretation this rule indicates that inter-country adoption should not be more difficult than national adoption (e.g. by submitting it to heavier safeguards or standards except for the special rules set in art. 21 under d. (ensure that IA is carried out by competent authorities or organs). All the above does raise quite a number of questions such as: - if a country does not permit adoption what does that mean for its policy and investment in establishing alternative family care? Should e.g. the CRC Committee recommend States Parties without adoption to permit a system of adoption that should include IA? For practical reason I would suggest not to include countries that dont have adoption because of the Sharia law. And my assumption is that there are not that many non Islamic countries that do not have some form of adoption - if a country has a system of adoption (including IA) when should domestic or inter-country adoption become an option? Or in other words: how much time should be allowed to find a domestic alternative care (foster care or domestic adoption) before moving to inter-country adoption as an option? To be concrete: at birth a child is abandoned and placed in an institution for child-care. There is an international consensus that a stay of a child during the first 3 5 years of her/his life in an institution will result in lasting harm to her/his development (and that may be devastating if the quality of care is (far) below minimal standards of care). See e.g. Rebecca Johnson, Young children in institutional care at risk of harm, Trauma, Violence and Abuse, Vol. 7 No. 1 January 2006, 1-26. It means that national authorities should urgently undertake efforts to find a suitable domestic alternative family care. How much time can they take in the light of the often quoted slogan: The child cant wait (when it comes to the provision of the care and protection he/she needs). For instance: if a domestic option is not available within 6 12 months (depending on the age of the child) after the placement of the child in an institution, the road to inter-country adoption should be opened? More questions can be raised and I suggest that a next step could be to undertake efforts to develop guidelines for inter-country adoption as an option within a policy to provide children deprived of family environment with an alternative family care that is in her/his best interest taking into account the desirability of continuity in the childs upbringing and the childs ethnic, religious, cultural and linguistic background (art. 22, par. 3 CRC, which requires further elaboration/interpretation). In this regard the following information: the CRC Committee devoted its annual day of General Discussion in 2004 to Children without parental care. As a result of that discussion work is underway to draft Guidelines for the care and protection of children without parental care. The government of Brazil has taken the responsibility together with some other countries to submit a final version of these guidelines to the 63rd session of the General Assembly of the UN (fall 2008) for approval. Another step to consider: request the CRC Committee to draft a General Comment on in particular art. 20 and 21 CRC. 2. Compatibility of IA with efforts to improve supportive Social Service This matter was discussed under Agenda item III and I will be rather short. I think it is not very helpful to discuss inter-country adoption as an instrument that yes or no can improve existing social services. The acceptability of inter-country adoption should not depend on the degree of its possibility to contribute to improvement of existing social services etc. It is an internationally recognized option when trying to provide a child with alternative family care when needed. An instrumental approach of IA does not make sense to me. The best approach is in my opinion to make inter-country adoption an integral part of a comprehensive policy and practice aiming at providing children deprived of family environment with the most suitable form of alternative family care in full accordance with the relevant CRC provisions and the Hague Convention on inter-country adoption. 3. Inter-country adoption, good governance and private agencies Under the CRC there is no reason to outlaw private agencies or intermediaries operating in the field of inter-country (or domestic) adoption or in other areas of child-care and protection. The CRC Committee devoted its day of general discussion in 2002 to The private sector as service provider and its role in implementing child rights. I refer for further information to the Recommendations adopted by the Committee after that discussion (Report on the 31st session of the Committee, paragraphs 630-653) and quote from General Comment No 5 (General Measures of Implementation; CRC/GC/2003/5) par. 44: The Committee emphasizes that enabling the private sector to provide services, run institutions and so on does not in anyway lessen the States obligation to ensure for all children within its jurisdiction the full recognition and realization of all rights in the Convention. This requires according to the Committee a rigorous inspection to ensure compliance (of the private sector) with the Convention, e.g. via a permanent monitoring mechanism. This means e.g. that private adoption agencies that violate the rules and standards set by the government can be shut down. It does not necessarily mean that all domestic or inter-country adoption should be suspended or prohibited. So far some of my comments and suggestions hopefully useful in a discussion on next steps. '  gy""b##% '6'8'S'T'\'))+),,CJH*OJQJmH sH >*CJOJQJmH sH CJOJQJmH sH mH sH 'MNno|} 0   Fe   ","^#_###%'']'^'(}+e,f,,, 1h. 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