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The Best Interests of the Child

in Intercountry Adoption
Nigel Cantwell
The UNICEF Office of Research works to improve international understanding of issues
relating to children’s rights and to help facilitate full implementation of the Convention on
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The Best Interests of the Child
in Intercountry Adoption
Nigel Cantwell
Acknowledgements
Many of the foundations of this study were built up through an expert consultation, research carried out and texts
compiled during the period 2008–2012, and these various contributions are acknowledged with much appreciation
below.† Although the study now has an emphasis and focus that diverge to some extent from the thrusts initially
foreseen, it has benefited greatly from that process as well as from the wide-ranging consultations effected over those
years.†† Rachel Bentley and Dawn Watkins played particularly key roles in teasing out main issues from a vast array
of detailed material. The combined results of all these efforts have in no way been lost: they are reflected at various
points of the present publication, and particularly in many parts of Chapter 4.

Special thanks are due, in addition, to those who have given inputs to this final version of the study. At UNICEF
headquarters, Susan Bissell and Kendra Gregson made a host of useful suggestions and comments, as did Laura
Martínez-Mora at the Permanent Bureau of the Hague Conference. Ron Pouwels, who had led the ‘best interests
determination’ exercise at the UNHCR, provided valuable feedback on the checklist of issues in section 4.3. Thanks
are also due to those who took time to review the final text: David Smolin of Samford University, and Rita Shackel
of Sydney University.

Susan Bissell was the original supervisor of the development of the project, under the overall guidance of the
then Innocenti Research Centre Director, Marta Santos Pais. This final version of the study was drawn up under
the supervision of Andrew Mawson, with overall guidance from UNICEF Office of Research Director Gordon
Alexander. It was reviewed by Andrew Mawson and edited by Angela Hawke. Claire Akehurst was responsible for
administrative questions throughout the project.

The financial and other support of the Swiss National Committee for UNICEF was critical to producing this document
and is greatly appreciated.

† Development of the study was initially led by Chantal Saclier. Further work was contributed by Kelley McCreery Bunkers,
with the collaboration of Victor Groza.

†† During the initial four-year period, a wide range of specialists provided inputs and comments. Anne-Marie Crine,
Jonathan Dickens, Aaron Greenberg, Femmie Juffer, Isabelle Lammerant, Benyam Dawit Mezmur, Rosa Maria Ortiz and
Karen Rotabi made expert contributions. Information was also obtained from a number of researchers and practitioners,
in particular, Yolanda Galli, Angelo Moretto, Dan O’Donnell, Françoise Pastor, Peter Selman and Jean Zermatten.

Several UNICEF staff-members were also actively involved as the project progressed. Kendra Gregson made a
substantial contribution and Jawad Aslam, Joanne Doucet, Eduardo Gallardo, Rosana Vega and Elena Zaichenko
gave valuable assistance. Partnerships with the Better Care Network (Ghazal Kesharvazian), International Social Service
(Hervé Boechat, Mia Dambach, Cécile Maurin and Stéphanie Romanens Puythoud) and the Permanent Bureau of the
Hague Conference on Private International Law (Trinidad Crespo Ruiz, Jennifer Degeling and Laura Martínez Mora)
were also crucial to developing the material during that period.

ii
About the Author
Nigel Cantwell has been working on issues related to the protection of children’s rights in intercountry adoption
for over 25 years. As founder of Defence for Children International (DCI) and coordinator of the group of
non-governmental organizations that helped to shape the Convention on the Rights of the Child during the 1980s, he
began taking a special interest in rights violations in the context of children’s adoption abroad.

He represented DCI at the meetings to draw up the 1993 Hague Convention, and has been UNICEF’s delegate to all
sessions of the Special Commission responsible for reviewing the practical operation of that treaty, as well as to expert
meetings on specific aspects of the issue organized by the Permanent Bureau of the Hague Conference. UNICEF
designated him as lead consultant on the drafting of the Guidelines for the Alternative Care of Children that were
approved by the United Nations General Assembly in 2009.

With a colleague from International Social Service (ISS) and the active support of UNICEF, in February 1991 he
undertook the first mission to Romania designed to assist the authorities in responding to abuses of the intercountry
adoption process, and he continued to advise UNICEF-Romania on policy in this sphere for the following 15 years.
He has undertaken many field assessments of adoption systems for or in cooperation with UNICEF and ISS, notably
in Ghana, Guatemala, Haiti, Moldova, Kazakhstan, Kyrgyzstan, Sierra Leone and Viet Nam, and with ISS for the
Organisation for Economic Co-operation and Development (OECD) in Ukraine.

As a consultant to the Innocenti Research Centre, he authored the very first UNICEF publication on intercountry
adoption – Innocenti Digest No. 5, issued in 1999 – and from 1998 to 2003 he headed up the Implementation of
International Standards Unit at the Centre. Among his other writings on this topic is the Issue Paper on ‘Adoption and
children: a human rights perspective’, published by the Council of Europe’s Commissioner for Human Rights in 2011.

Since 2003, as an independent consultant on child protection policies, he has continued to work closely with UNICEF
in the overall field of the rights of children without parental care, as well as on juvenile justice issues.

iii
Contents
Acronyms and Abbreviations v
Foreword vi
Executive Summary 1

1. Best Interests, Human Rights and Intercountry Adoption 4


1.1. What is contentious about the best interests principle? 5
1.2. The chequered legacy of invoking best interests 6
1.3. The best interests principle gives way to human rights – except for children 9
1.4. The purpose of this study 10

2. The Role and Purpose of the Best Interests Concept in a Human Rights Context 11
2.1. Best interests in human rights instruments 12
2.2. Best interests in private international law 13
2.3. The best interests of the child in the Convention on the Rights of the Child 14
2.4. Compliance of best interests with human rights provisions 18
2.5. A two-fold challenge 24

3. The Changing Role and Purpose of Intercountry Adoption 25


3.1. Key phases in the development of intercountry adoption 26
3.2. The viewpoint and main thrusts of international standards 30
3.3. The subsidiarity of intercountry adoption to suitable in-country care 31
3.4. Prohibition or severe limitation of intercountry adoption 35
3.5. The best interests of the child in adoptions from non-Hague countries 42
3.6. Bilateral agreements 44
3.7. Policy and practice in emergency situations 45
3.8. If best interests are a requirement, so is their objective determination 48

4. Determining Children’s Best Interests in Intercountry Adoption 49


4.1. Factors that influence policies on intercountry adoption 50
4.2. Putting the best interests of children at the heart of intercountry adoption policy 52
4.3. Determining the best interests of individual children 54
4.4. Preserving the best interests of the child during the intercountry adoption process 60
4.5. What is the real importance given to the best interests of the child in intercountry adoption? 70

5. Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption 71
5.1. Policy approaches 72
5.2. Conditions in the country of origin 73
5.3. Actions taken by receiving countries 77
5.4. Creating consensus over best interests in intercountry adoption 80

6. By Way of Conclusion: Paradoxes and Dilemmas 81

Bibliography 83

iv
Acronyms and Abbreviations
BID Best Interests Determination

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CHR UN Commission on Human Rights

CEE and CIS Central and Eastern Europe and the Commonwealth of Independent States

CoE Council of Europe

CPED International Convention for the Protection of All Persons from Enforced Disappearance

CRC Convention on the Rights of the Child

CRIA Child Rights Impact Assessment

CRPD Convention on the Rights of Persons with Disabilities

ICAB Inter-Country Adoption Board (Philippines)

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights

ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families

JCICS Joint Council on International Children’s Services (USA)

USAID US Agency for International Development

v
Foreword
The ‘best interests of the child’ is a ringing phrase that is widely seen as emotionally capturing the intent of the
Convention on the Rights of the Child (CRC), putting into a mere five words the combined purpose of all of its
articles. Perhaps because of this emotional power, it is not often asked why the principle is enshrined in the CRC in
the first place, and nor are the wide-ranging and sometimes unexpected ramifications of its inclusion in this human
rights treaty often considered.

This is the fascinating point of departure for Nigel Cantwell’s study on the application of the best interests
principle in intercountry adoption. His approach is to tackle upfront a two-fold fundamental problem with this
principle: the fact that it still carries the legacy of its pre-human rights form – a notion with no clear limits yet still
the benchmark for making decisions about children, used to justify bad practices as well as good; and the fact that,
although international human rights law now places best interests within the boundaries of all the other rights of the
CRC, the way the principle is to be operationalized has remained necessarily undefined.

If the best interests principle thus poses major challenges in itself, these are magnified considerably when we look
at its application as the determining factor in the practice of intercountry adoption, which has been one of the most
hotly debated measures in the sphere of child protection.

UNICEF’s Office of Research Innocenti, through its Insight series and other publications and initiatives, has a long
history of taking up challenges such as these. The Insight series offers experts the space to put forward critical
but constructive analysis of conventional wisdom on ‘sensitive’ issues, ranging from poverty in the industrialized
countries to the realities of the ‘transition’ in Central and Eastern Europe, juvenile justice and traditional practices
harmful to children’s health. Indeed, Nigel Cantwell has already authored a well-received Innocenti Insight study,
‘Starting from Zero: The promotion and protection of children’s rights in post-genocide Rwanda’, published in
1997, which also addressed some controversial areas of child protection.

While the present study is aimed at helping to determine what role the best interests principle should play in
intercountry adoption and the overall conditions required for it to do so in keeping with the rights of the child, the
discussion clearly has far wider relevance. The order of wording in the title is deliberate: the emphasis is on
unravelling the best interests of the child, taking its application to intercountry adoption as the practical example
in this case. But it goes to the heart of the use of the principle in all areas in which best interests need to be assessed
within a human rights framework in order to arrive at appropriate solutions for children.

Our intent in publishing this study, while first seeking to contribute to improving practice in intercountry adoption,
also reflects this broader perspective. We hope it will provoke discussion among a wide readership.

Gordon Alexander
Director, Office of Research

vi
Executive Summary
This study responds, in particular, to one key question: what is it that enables a policy, process, decision or practice
to be qualified as either respectful or in violation of the best interests of the child in intercountry adoption?

There is universal agreement, embedded in international human rights law, that the best interests of the child
should be a primary consideration in any decisions made about a child’s future. In the case of adoption, which
represents one of the most far-reaching and definitive decisions that could be made about the future of any
child – the selection of their parents – international law qualifies the best interests of the child as the paramount
consideration. The implications of this obligation are all the greater in the context of the intercountry form of
adoption, since this involves in addition the removal of a child to a new country and, usually, a new culture.

However, there is no universal agreement on who is ultimately responsible for determining what is in a child’s
‘best interests’, nor on what basis the decision should be made.

With specific reference to intercountry adoption, this study sets out to demonstrate the dangers for children’s rights
that are inherent in the lack of such consensus, and to contribute concrete proposals for addressing the problem in
its various facets. It focuses on the precise role that the best interests principle should play in intercountry adoption
to ensure that the human rights of children are upheld at every stage.

It seeks to move debate beyond so-called ‘pro’ and ‘anti’ stances towards intercountry adoption, and therefore
does not assess the overall merits of this measure to fulfil the best interests of the child. Most conflicts of opinion
about intercountry adoption in fact revolve around the conditions to be met if the ‘best interests of the child’ are
to point to intercountry adoption as a positive solution for a child. This matters not only for decisions about
individual children and the way in which the adoption process is carried out, but also for the place given to, or
restrictions placed on, intercountry adoption in national child protection policies. The study therefore calls for
the systematic and rigorous appraisal of best interests in the sphere of intercountry adoption both at policy level
and for each child concerned.

In addition, the study aims to clarify important issues and propose ways forward that would enable intercountry
adoption to better fulfil its role as an exceptional protective measure when a child’s general adoptability has been
shown to be legally possible, warranted and desirable. In other words, intercountry adoption is one possible
component of wider child care and protection provision, to be used only when no suitable alternatives exist or can
be created in that child’s own country.

The scene is set in Chapter 1, which gives examples of the ‘chequered history’ of policy and programmes justified
by invoking the notion of children’s best interests, with special reference to the removal of children from parental
care and their transfer abroad. This notion originated well before the codification of human rights, and served
as the key basis for decision-making. With the advent of internationally agreed human rights, the ‘best interests’
approach was deemed redundant for adults, but not for children. Quite the contrary: in their special case the
notion was turned into a principle, notably through the right to have best interests taken into account as contained
in the Convention on the Rights of the Child (CRC). At the same time, implicitly, its ascribed role changed from
being the benchmark in itself to becoming one means of achieving the benchmarks set by all the other rights in
the treaty. However, the legacy of the paternalistic and often simplistic approach originally behind the notion is
still very much alive and can lead to serious violations of the rights of the child today.

Chapter 2 looks at how the best interests principle came to be such a wide-ranging and significant element of
human rights law relating to children. It reviews how the scope of its application evolved and expanded from
the limited reference in the 1959 Declaration on the Rights of the Child through to the broad role it is assigned

1
The Best Interests of the Child in Intercountry Adoption

in the final version of the CRC, and the designation of ‘best interests’ as a General Principle of that treaty by the
Committee on the Rights of the Child. The rationale and repercussions of the deliberate flexibility of the concept
are analysed, as is its relationship with children’s other rights, especially the ‘right to be heard’.

There follows an examination of the reasons behind the enhanced status afforded to best interests as ‘the paramount
consideration’ uniquely as concerns adoption. This stemmed in good part from changing attitudes towards
intercountry adoption during the 10-year drafting process of the CRC, as a result of an increasing preoccupation over
the way it was being carried out. The chapter ends by emphasizing that the best interests of the child are relevant not
only to decisions on individual children, but also to laws, policies and procedures affecting children as a group.

Against this background, Chapter 3 uses a best interests lens to review how intercountry adoption has evolved from
a humanitarian response into a child protection measure since it began in the aftermath of the Second World War,
assessing the extent to which the best interests of the child have shaped this development.

Initially carried out under conditions tantamount to a legal void, intercountry adoption first became the explicit
subject of international treaties in the 1960s. Quickly, however, these texts became obsolete because of the rapid
demand-led expansion of the practice and the new problems this raised. By the mid-1980s, the need for more
comprehensive regulation to protect children’s best interests and basic rights was recognized, leading to the
decision to draft what became the 1993 Hague Convention. The steady rise in intercountry adoption numbers
continued until 2004, but has since declined equally steadily. On the one hand increasing ratification of the 1993
Hague Convention has invariably led to stricter procedures; but on the other, new non-Hague countries of origin
have been sought where best interests safeguards are generally less effective.

The chapter also deals with a number of key issues that have arisen in light of experience over the six decades
during which intercountry adoption has been practised to date. Among these is the debate on how the ‘subsidiarity
rule’ – established under the CRC and the 1993 Hague Convention, and stipulating that intercountry adoption can
only take place if no ‘suitable’ care option can be found in the child’s own country – should be implemented with
the best interests of the child in mind. A similar debate is ongoing about the ramifications for the best interests of
the child of imposing severe limitations or moratoria on intercountry adoptions. In addition, the fragile nature
of respect for international standards in emergency situations was highlighted by the post-earthquake evacuation
of children from Haiti for adoption abroad, again raising serious concerns about the level of importance given to the
best interests and human rights of the children involved.

This historical perspective demonstrates clearly that what has been missing is a globally accepted and well-defined
basis for determining the best interests of the child in relation to intercountry adoption, and Chapter 4 addresses
this question on three levels.

First, it considers elements to be taken into account when evaluating policies and laws relevant to intercountry
adoption against a best interests criterion. Here, special reference is made to the child rights impact assessment
advocated by the Committee on the Rights of the Child, which can be used by legislators, government officials and
monitoring bodies alike.

Second, it draws on pertinent sources to propose a detailed checklist of issues to be considered when determining
the best interests of each child for whom adoption abroad may be envisaged. Emphasis is placed on the need
for the determination process to be carried out systematically for every child in that situation. Further, it should
be conducted by qualified and specially trained professionals, ideally in a multidisciplinary team, and the final
decision should not be in the hands of one individual alone.

2
Executive Summary

Finally, this chapter discusses the implications of the procedure required by the 1993 Hague Convention – from
determining adoptability to ensuring post-adoption support – for preserving the best interests of the child
throughout the intercountry adoption process.

Such systematic assessments are clearly vital if the best interests of the child are to be truly ‘the paramount
consideration’ in intercountry adoption, but they require substantial investment and an ‘enabling environment’
in order to function adequately. Chapter 5 points to a range of elements in the current environment that, far from
being ‘enabling’, are actively or passively hostile to the required attention to best interests. These relate not only to
prevailing conditions in countries of origin – such as limited domestic care options, laws that strongly influence
the reasons given for pronouncing adoptability, and resource constraints – but also to the approach taken by
receiving countries, including the pressure they exert, and the conditions they accept, in order to secure children
for adoption. Without tackling these issues as well, the best interests of the child can only remain a secondary
feature of decision-making on the intercountry adoption of many children in the years to come.

As concluding Chapter 6 indicates, differing perceptions of the best interests of the child in a human rights
framework are the essential cause of conflicting opinions as to when recourse to intercountry adoption is
warranted. At the same time, attempts to develop globally accepted bases on which those best interests can
be determined will have to confront a number of paradoxes and dilemmas that the study brings to light, and
which are briefly recalled at this point in order to signpost the way forward.

3
The Best Interests of the Child in Intercountry Adoption

1ǀ Best Interests, Human Rights


and Intercountry Adoption

Key points
ÌÌ While there is general agreement that
the best interests of the child should
be the paramount consideration in
intercountry adoption, there is no
consensus on who decides what is in a
child’s best interests or on what basis
that decision should be made.

ÌÌ The notion of best interests pre-dates


the international codification of human
rights, and many decisions justified by
best interests considerations alone have
had very damaging consequences for
children.

ÌÌ It is essential, therefore, to define clearly


the role of the best interests of children
in intercountry adoption as a principle
within a human rights framework,
to avoid ‘hit-and-miss’ decisions that
determine children’s entire future.

4
Best Interests, Human Rights and Intercountry Adoption

There is general agreement that measures principle is unlikely to be overcome solely as a


to protect and ensure the healthy result of this move, welcome though it may be.
development of children – whether
initiated by parents, caregivers, third If this lack of consensus has worrying
parties or the state – must be guided by implications for crucial decision-making on
the best interests of those children. adoptions in general, its significance is all
the greater when it comes to intercountry
It may seem obvious, therefore, that adoptions adoption in particular. First, the joint decision-
should only take place when they are in making required usually involves actors
the best interests of the children concerned. from very different socio-cultural realities
Indeed, authorizing an adoption – in essence that will have shaped their respective
choosing a child’s parents – is one of the most outlooks on what the application of best
drastic and definitive decisions that could interests might entail. Second, there are
be made about a child’s future. Not only many additional and complex factors to be
might it seem evident that this ‘best interests’ considered when contemplating moving a
condition should be fulfilled, but there child definitively – not just to a new family,
is also now an absolute obligation, anchored but also to an entirely new country and culture.
firmly in international human rights law,
for the best interests of the child to be the Yet there are frequent warnings about a
‘paramount consideration’ – the decisive worrying lack of respect for best interests in
factor – where adoption is concerned. And intercountry adoption, despite the notable
this is reflected in the legislation of most absence of any common understanding on
countries that permit adoption. what, precisely, the principle means in practice.

A 2012 situation analysis by the African


1.1. What is contentious about the 1 Committee on the
Child Policy Forum, for example, expressed Rights of the Child
best interests principle? concern that: (2013). General
Comment No. 14,
Despite clear consensus on the need to uphold The right of the
...despite the fact that the continent’s
the principle of the best interests of the child, child to have his or
laws, policies and practices are generally
there is a persistent lack of consensus on her best interests
ill-equipped to uphold the best taken as a primary
how, precisely, those best interests are to be
interests of children, Africa is becoming consideration
decided. International standards themselves (CRC/C/GC/14).
the new frontier for intercountry
do not specify any criteria at all on how and by
adoption. With globalisation, there are
whom these interests should be determined, 2 More details on the
or on who should be responsible for making also indications that illicit activities that recommendations
the final decision. As a result, perceptions violate children’s best interests on of this General
the African continent are on the rise, Comment are
of what constitutes the best interests of the given at various
child have varied widely over the decades, encouraged by a shortage of adoptable points of this
and still do. It was fully 23 years after the children in other parts of the world, the study, including
Convention on the Rights of the Child (CRC) shifting focus of intercountry adoption in particular in
to Africa, increasing poverty in Africa, sections 4.2 and
came into force in 1990 that the Committee 4.3.1 below.
on the Rights of the Child tried to fill this and accompanying weak institutional
gap through General Comment No. 14,1 law enforcement capacity of African 3 African Child
issued in 2013, which sets out how the best State institutions.3 Policy Forum
(2012a). Africa:
interests of the child should be taken into The new frontier for
account in implementing the Convention.2 The Parliamentary Assembly of the intercountry adoption.
Council of Europe, having already felt it Addis Ababa: The
necessary in 2000 “to alert European public African Child Policy
Perceptions of what opinion to the fact that, sadly, international Forum. p. v
(our emphasis).
constitutes the best interests adoption may prove to be a practice that
disregards children’s rights and that
of the child have varied does not necessarily serve their best
4 Council of Europe
(2000). ‘International
widely over the decades. interests”,4 returned to the theme in 2012, adoption:
Respecting
preoccupied by “persisting reports of cases children’s rights’,
But the impact of a long and entrenched of intercountry adoption where the best Recommendation
history of confusion and disagreement on this interest of children has evidently not been 1443 (our emphasis).

5
The Best Interests of the Child in Intercountry Adoption

the paramount consideration or where based on best interests notions are still
their human rights have been severely seen as positive today. For example, while
violated”.5 a certain view of best interests underpinned
the now widely discredited institutional care
In the absence of any formal consensus for children separated from their families, it
on the subject, we need to clarify the was the concept of best interests, rather than
basis on which such statements might be a human rights approach, that spurred efforts
valid. This means answering the following in some industrialized countries to begin to
crucial question: What is it that enables a phase out large residential facilities and
policy, process, decision or practice to be replace them with foster care and similar
qualified as either respectful or in violation arrangements as far back as the 1890s.7
of the best interests of the child in the Analyses of past policies and practices
particular case of intercountry adoption? that are now condemned have often been
acknowledged to have at least some good
1.2. The chequered legacy of intentions behind them, even if combined with
other less honourable motives. The degree
invoking best interests
of ‘flexibility’ afforded by the concept of
The notion of best interests (and similar best interests is still looked on positively, as it
approaches) pre-dates the development of allows the adjustment of the desired outcome
internationally accepted human rights. It to respond to advances in knowledge, evolving
has invariably been used as the basis for attitudes and diverse socio-cultural contexts.8
decisions about people deemed incapable
of making rational decisions for themselves, Nonetheless, when decisions based on best
as well as for actions intended to help them interests are grounded predominantly in
protect themselves or improve their lives. contemporary thinking among decision-
Persons with disabilities and children have makers, with few boundaries set by other
been the main, though by no means the considerations, the results become somewhat
only, groups dealt with in this way. ‘hit-and-miss’. This is unacceptable in the
case of any child, and particularly those
The notion of best interests who might be adopted to another country;
vulnerable children simply should not be
pre-dates the development part of an ‘experiment’ that will determine 5 Council of Europe
(2012). ‘Intercountry
of internationally accepted their future prospects. adoption: Ensuring
that the best interests
human rights. However many examples there may be of of the child are
upheld’, Resolution
initiatives that had a positive outcome in the 1909, para. 4 (our
Decisions ostensibly inspired by notions end, reliance on notions of best interests or emphasis).
of best interests have, in essence, reflected similar terms to justify a particular action
6 The same could
prevailing attitudes towards both groups has a clear legacy of misuse, abuse and
be said in relation
of people in question and the desirability failure. The negatives include outcomes to persons with
of particular protective actions. In relation that are now condemned from a human disabilities until
to children, such decisions could be – and rights standpoint. Nowhere has this been the advent of the
Convention on the
certainly were – unfettered by human rights more apparent, perhaps, than in policies Rights of Persons
considerations until the codification of their and initiatives involving the large-scale with Disabilities.
rights (including their right to be involved removal of children from their parent(s) for
7 See, for example,
in the decisions affecting them) in the CRC.6 placement in various forms of ‘alternative
‘The history of
Until that point, decisions about children care’, whether in-country or in a foreign Barnado’s’ at http://
tended to be driven by unilateral individual land, so that they might have ‘a better life’. www.barnardos.org.
initiatives or contemporary views on uk/barnardo_s
_history.pdf
desirable and appropriate solutions. In addressing the subject, therefore, it is
useful to recall examples of what are now 8 For a review of
Although attitudes and knowledge develop invariably termed ‘abuses’ but that were, in arguments in favour
of the flexibility of
and change over time, and differ from place the not-so-distant past, promoted as being in the concept, see
to place, some of the outcomes of decisions the best interests of the children concerned. section 2.3.3.1 below.

6
Best Interests, Human Rights and Intercountry Adoption

1.2.1. Best interests used to justify the Tellingly, the wording of the National
removal of children from parental care Apology adopted by the Senate and House
One obvious example of an action once seen of Representatives makes no mention at
all of best interests as a basis for future
as positive and now seen, quite rightly, as
policy in this sphere, placing the emphasis
disastrous lies in the account of ‘forced
rather on the protection of rights:
adoption’ produced by an Australian
Senate committee in February 2012,9 which
We resolve, as a nation, to do all
led to the national apology for the practice
in our power to make sure these
by the country’s then prime minister, Julia
practices are never repeated. In facing
Gillard, one year later.10 future challenges, we will remember
the lessons of family separation.
An estimated 150,000 babies born to unwed Our focus will be on protecting the
mothers in Australia were the victims fundamental rights of children and on
of forced adoptions between the late the importance of the child’s right to
1940s and the early 1980s – the result of a know and be cared for by his or her
government policy sanctioned by churches parents.14
and charities.11
Haskins and Jacobs also give examples
The Senate report sets out the way in which of the best interests leitmotif behind the
the best interests of the child were invoked removal of indigenous children from
to justify the practice, which was grounded parental care in both Australia and the USA:
in “the belief that if children were born to
people of ‘low moral standard’ or poverty, In each case, government authorities
forcibly removed children from their 9 Australian
they should be adopted by infertile couples Senate, Community
families for the stated purposes of
of better social standing so as to ensure the Affairs References
educating them or improving their Committee (2012).
best interest of the child were [sic] being
lives... ‘Commonwealth
looked after” (para. 2.21). One adoptee is contribution to
quoted as saying, “My true mother was former forced
As a central component of the
told to give me away because it was in the adoption policies
assimilation agenda in the United and practices’.
best interests of the child” (para. 4.7). States and of absorption plans in Commonwealth of
Australia, child removal became a Australia: Canberra.
That principle also underpinned the so- systematic government policy toward
10 National
called ‘clean break’ approach: removing indigenous peoples in both countries Apology for
children early and abruptly from their in the nineteenth and twentieth Forced Adoptions,
mothers’ care – often immediately after centuries. Using the rhetoric of delivered by
birth, to prevent bonding. Here, best Australian
protecting and saving indigenous
Prime Minister Julia
interests presumed that “the interests of children, reformers and government Gillard, Parliament
the child of an unmarried mother was officials touted child removal as House, Canberra,
[sic] well-served by adoption by a married a means to “uplift” and “civilize” 21 March 2013,
couple” (para. 7.32). A major Australian available at: http://
indigenous children...
resources.news.com.
charity, The Benevolent Society, is quoted au/les/2013/03/21/
in the report as agreeing that adoption After World War II, the [US] 1226602/365475-
practices “which were seen at the time to government revived assimilation aus-file-forced-
be in the best interests of a child, are now adoptions-apology
policy under a new name –
.pdf
acknowledged as cruel and damaging to termination and relocation. Although
both the mother and her child/ren”.12 many boarding schools remained in 11 Australian Senate,
operation, Indian child removal now Community Affairs
In her official apology address, Gillard noted References
more often manifested itself in the
Committee (2012).
that the practice of forced adoption “had its form of social workers who removed
beginnings in a wrongful belief that women Indian children from families they 12 ibid., para. 9.32.
could be separated from their babies and it deemed unfit, to be raised in white
would all be for the best” and she criticized 13 National Apology
foster homes.
(2013).
“the bullying arrogance of a society that
presumed to know what was best”.13 14 ibid.

7
The Best Interests of the Child in Intercountry Adoption

Child removal [in Australia] was Canada was not resumed after the Second
aimed ostensibly at making Aboriginal World War, between 7,000 and 10,000
children into “decent and useful children were sent to Australia and 549
members of the community” and to New Zealand from 1947 to 1967.18 The
couched in the language of benevolent Committee’s report notes that the best
welfare policy. Thus, the New South interests principle was not the only motive
Wales (NSW) Aborigines Protection for such forced migration, but may well
Board had the power to secure custody have been invoked to mask other, far less
and control of any Aboriginal child palatable, intentions:
“if it is satisfied that such a course is
in the interest of the moral or physical The motivation underlying child
welfare of such child”.15 migration policy was mixed. On
the one hand, there was a genuine
A similar approach was used in Switzerland, philanthropic desire to rescue children
where children from the Jenisch travelling from destitution and neglect in Britain
population were routinely removed from and send them to a better life in the
their families from the late 1920s until the Colonies. This went hand in hand with
early 1970s – a measure seen as being for a wish to protect children from ‘moral
their own good: danger’ arising from their home
circumstances – for instance, if their
In 1926, together with a number mothers were prostitutes... Child
of charitable associations and with migration was also seen to be of
the support of the Confederation, economic benefit both to Britain
the Œuvre des enfants de la grand- (because it relieved the burden on
route [Action for travelling children] public finances of looking after
... began the systematic removal these children) and to the receiving 15 Haskins, V.
of children from Jenisch families countries (because child migrants and M.D. Jacobs
(approx. 800), placing them with (2002). ‘Stolen
were seen as being potential members Generations and
foster families, in psychiatric hospitals of a healthy and well-trained work- Vanishing Indians:
or even in prisons, to turn them into force). Evidence shows that they The removal of
a ‘settled’ population. It was only in indigenous children
were actually used as cheap labour.
1973 that, with the help of the media, as a weapon of war
(paras 15–16) in the United States
the persons affected were able to bring
and Australia,
this practice to a halt.16 1870–1940’, in J.
However mixed the arguments in favour
Marten, ed. Children
of the practice may have been, the report
With such a prevailing mindset, it was and War: A historical
finds that: anthology. New
only logical that the forced migration of
York: New York
children ‘in their best interests’ would also University Press,
It was the charitable and religious
be envisaged. pp. 227–29.
organisations who maintained the child
migration policy, often apparently 16 ‘Dictionnaire
1.2.2. Best interests used to justify the motivated by the need to keep the historique de la
forced migration of children to other institutions overseas financially viable. Suisse ’, available at:
http://www.hls-
countries (para. 20) dhs-dss.ch/textes/f/
The United Kingdom was the source of F8247.php (our
Tellingly, after qualifying such forms of translation).
some of the worst examples of the long-
term forced migration of children to other cross-border displacement of children
17 UK Parliament
countries. According to the report of a as “a bad and, in human terms, costly Select Committee
Parliamentary Committee set up to examine mistake” (para. 98), the report draws on Health (1998).
parallels between the past practice of Third Report, 23
the practice in depth, an estimated 150,000
July 1998, para. 11.
children were subjected to this practice in forced migration and today’s intercountry http://www.public
the nineteenth and twentieth centuries, adoption: ations.parliament.
two-thirds of whom were sent to Canada uk/pa/cm199798/
Potential future difficulties related cmselect/cmhealth
and the remainder to Australia, New
/755/75502.htm
Zealand and other British dominions to inter-country adoptions which
or colonies.17 While child migration to may mirror some of the current 18 ibid., para. 13.

8
Best Interests, Human Rights and Intercountry Adoption

concerns of former child migrants That said, the CRC, in particular, sets
about their identity and past were boundaries to the kinds of measures that
brought to our attention in both New may be envisaged in the name of best
Zealand and Australia... Removing interests. Having them taken into account
children from their country of birth is now a fully fledged right within the
should not be seen as an alternative CRC itself, and its implementation is,
to appropriate child care or occur therefore, totally inter-dependent with
because insufficient aid or assistance all the other rights contained in the
is available. (para.101) Convention. These protections have been
reinforced substantially in relation to
Indeed, very similar concerns are still intercountry adoption, through specific
raised to this day about the validity of procedural requirements set out in the 1993
the reasons given for placing some children Hague Convention. Taken in combination,
– in particular – for intercountry adoption. these provisions might be expected to
consign the chequered history of applying
1.3. The best interests principle a best interests approach to the past.
gives way to human rights –
However, the dangers of the paternalistic
except for children and often simplistic approach that
spawned the principle of best interests
With the development of human rights
still contribute to attempted or actual
instruments, and particularly since the
violations of the rights of the child today.
1970s, invoking ‘best interests’ as regards
With the concept deliberately, and to
adults has become something of an
some extent understandably, being
anathema. The very fact of having human
left undefined to take account of diverse
rights has been viewed as negating the need
individual situations and different socio-
and justification for using best interests as
cultural perceptions, the vague nature of
a basis for decision-making. Arguments
the obligations implied by best interests is
based on the concept are even deemed, in
a breeding ground for misconception and
the worst cases, to threaten the promotion
manipulation.
and protection of human rights (see, for
example, the introduction to 2.1 below).
Such vagaries are a special concern in
It is noteworthy, therefore, that the notion intercountry adoption, given that the
of best interests has been retained within assessment of best interests is, supposedly,
international human rights law solely the paramount consideration. They
in relation to children. The principle is are also a wider concern in the overall
enshrined in the CRC itself, but also in the promotion and protection of all child
small number of more general instruments rights, with best interests now designated
that refer to certain children’s issues. as one of four General Principles of the
This is certainly, in part, a legacy of CRC by the Committee that monitors
the charitable approach to children’s the treaty’s implementation by states
issues that prevailed in the nineteenth parties, alongside non-discrimination, the
and twentieth centuries – a legacy that right to life, survival and development, and
continues to make itself felt in any and all respect for the views of the child.
decisions concerning children. This legacy
is complicated by the real dilemma that The way the best interests principle is to
the capacity of children to exercise their be approached and used today – essentially
rights on their own behalf depends upon to ensure the best possible protection
their evolving capacities. Many children of rights – stands in stark contrast to its
adopted abroad are very young, and adults origins, when it was designed to fill in or
are called upon to make decisions on compensate for the absence of rights.
their behalf. The question thus becomes:
to what extent, and when, must those
decisions rely on a best interests approach
rather than simply being ‘rights based’?

9
The Best Interests of the Child in Intercountry Adoption

The way the best and decisive in terms of, the human rights
held by children alone? What initiatives,
interests principle is to be decisions and actions about children
approached and used today would require a best interests basis rather
than simple reliance on respecting and
– essentially to ensure the furthering the human rights of the children
best possible protection concerned? And which criteria should we
use to fulfil that requirement? This study
of rights – stands in stark aims to respond, in a dispassionate manner,
contrast to its origins. to these questions.

First, this study outlines how and why the


Therefore, instead of being the sole basis
principle of best interests now applies only
for defining what action to take, best
to children in an era of broader human
interests now have – or should have – a
rights, and examines the extent to which
far more limited role within human rights
developments in intercountry adoption,
constraints. This means that determining
in particular, have been guided by that
best interests needs to be a thorough
principle as ‘the paramount consideration’.
and well-prescribed process directed, in
particular, towards identifying which
Second, the study sets out to demonstrate
of two or more rights-based solutions is
the need for consensus on, and rigorous
most likely to enable children to realize
appraisal of, best interests within a human
their rights, bearing in mind that the other
rights framework, and particularly in the
people affected by those solutions also have
sphere of intercountry adoption, where
their own human rights.
decisions made on behalf of children are
meant to be final. It proposes concrete
1.4. The purpose of this study responses to build consensus on policy
development, on safeguards at all stages of
This study focuses on the role of best the adoption process, and on determining
interests in the specific context of whether or not intercountry adoption
intercountry adoption. It does not seek to should be pursued for any given child. It
assess whether intercountry adoption itself also sets out some minimum conditions
is a measure that fulfils the best interests of to ensure that a decision based on best
the child. interests can indeed take place and have
real effect.
It is grounded in the belief that, while the
best interests principle can be shown to
have a clear role to play in intercountry Determining best interests
adoption, it no longer sets the benchmark needs to be a thorough and
itself. It is now one of several ways to attain
the optimal achievement of benchmarks well-prescribed process.
established elsewhere, notably in the rights
set out in the CRC and the safeguards and This study contributes to ongoing debates
procedures foreseen by the 1993 Hague by clarifying important issues and
Convention. On the one hand, part of the proposing ways forward that would
initial role of ‘best interests’ in guiding better enable intercountry adoption to
responses and outcomes may have been fulfil its prime and historic role: as an
subsumed into a human rights framework; exceptional protective measure offered to
on the other, its more limited role within a child for whom adoption is legally
that framework needs to be fully understood possible, warranted and desirable; and
and respected. when no suitable alternatives exist, or can
be created, in that child’s own country.
There is a clear dilemma here. If best
interests are not part of the overall
approach to human rights, how, when and
why might they be seen as applicable to,

10

The Role and Purpose of
the Best Interests Concept in
a Human Rights Context

Key points
ÌÌ The principle of best interests applies
only to children, both in international
human rights instruments and in private
international law.

ÌÌ It is, at one and the same time, a deliberately


vague concept in the CRC, and a guiding
principle of that Convention.

ÌÌ A two-fold challenge emerges: how to


determine the best interests of the individual
child in intercountry adoption, and how to
assess the impact of national laws, policies
and procedures on intercountry adoption
from the standpoint of children’s collective
rights.

11
11
The Best Interests of the Child in Intercountry Adoption

While there is nothing new about the notion proceedings concern matrimonial
of best interests – sometimes formulated disputes or the guardianship of children.
as, for example, “it’s for your own good”
and “we have your interests at heart” – • CEDAW (1979) 5(b): To ensure
references to it in international law are not ... the recognition of the common
only recent, but also rare and confined to responsibility of men and women in
issues concerning children. the upbringing and development of
their children, it being understood
There is no mention, therefore, of best that the interest of the children is the
interests in humanitarian law (the four primordial consideration in all cases.
Geneva Conventions of 1949 and their
Additional Protocols of 1977) or in • CEDAW 16. 1: States Parties ...
international refugee law. Where it appears shall ensure, on a basis of equality of
in international human rights law, it applies 19 The nine core
men and women: ... (f) The same rights
international human
only to children or ‘juveniles’ (see section and responsibilities with regard to rights instruments
2.1 below). Reliance on the concept is also guardianship, wardship, trusteeship are, in date order:
extremely limited in private international and adoption of children, or similar International
law (see section 2.2 below). Convention on the
institutions where these concepts exist
Elimination of All
in national legislation; in all cases Forms of Racial
Against that background, this chapter the interests of the children shall Discrimination
looks at how best interests came to be be paramount. (ICERD) 21 Dec
a cornerstone of the CRC in general, 1965; International
Covenant on Civil
and the determining factor in adoption Of the three post-CRC core treaties, only the and Political Rights
decisions in particular, and examines the 2006 Convention on the Rights of Persons (ICCPR ) 16 Dec
implications of this for broaching the best with Disabilities (CRPD) mentions “best 1966; International
interests principle from a human rights interests”, again solely in relation to children:
Covenant on
standpoint. Economic, Social
and Cultural Rights
• CRPD 7.2: In all actions concerning (ICESCR) 16 Dec
children with disabilities, the best 1966; Convention
2.1. Best interests in human rights on the Elimination
interests of the child shall be a primary
instruments of All Forms of
consideration. Discrimination
The CRC is one of the nine current treaties against Women
In this case, the wording is a faithful echo of (CEDAW) 18 Dec
known as core international human rights 1979; Convention
instruments.19 It is interesting to note, the CRC, where best interests are clearly an
against Torture
however, that best interests is not a concept important, but not definitive, consideration and Other Cruel,
that is widely used in human rights hard in decision-making. Inhuman or
Degrading Treatment
law: in those rare cases where it figures in
or Punishment
core instruments other than the CRC, it also Persons with disabilities are, like children,
(CAT) 10 Dec 1984;
relates solely and specifically to children. a group that has been particularly Convention on the
subjected to a charitable approach, rather Rights of the Child
than one grounded in human rights. So it (CRC) 20 Nov
Of the five core treaties that pre-date the
1989; International
CRC, only two refer to the “interest(s)” is interesting to note the clear criticisms
Convention on
– though not the “best interests” – of made in a 2012 UN study on disability the Protection of
children: the International Covenant on about reliance on best interests criteria, the Rights of All
Civil and Political Rights (ICCPR) and which are seen as running counter to the Migrant Workers
and Members of
the Convention on the Elimination of All fulfilment of rights obligations: “In many
Their Families
Forms of Discrimination against Women societies, persons with disabilities are still (ICRMW) 18 Dec
(CEDAW). Interestingly, in each instance, regarded as recipients of charity or objects 1990; Convention on
this criterion is accorded a determining of others’ decisions instead of holders of the Rights of Persons
with Disabilities
status (our emphasis): rights” (para 14). As a result, “international
(CRPD) 13 Dec 2006;
human rights standards ... prohibit forced and International
• ICCPR (1966) Art. 14.1: [A]ny and coerced treatment of people suffering Convention for
judgement rendered in a criminal case from intellectual disabilities, regardless the Protection
of All Persons
or in a suit at law shall be made public of arguments of their ‘best interests’”
from Enforced
except where the interest of juvenile (para 29). Despite this, “a striking number Disappearance
persons otherwise requires or the of States have laws that authorize forced (CPED) 20 Dec 2006.

12
The Role and Purpose of the Best Interests Concept in a Human Rights Context

or involuntary treatment of persons with it all the more vital to ensure the proper
psychosocial disabilities when in their ‘best use of a precise best interests concept in the
interests’. In more than half of the countries context of the human rights of children.
that submitted data, psychiatric treatment
is imposed on persons with disabilities A further indication of the perceived
within legal safeguards if demonstrably marginal role of best interests in the overall
‘justified’, ‘reasonable’, ‘necessary’ and human rights framework lies in General
‘proportionate’” (para 30).20 Comment No. 17 on the Rights of the Child,
adopted by the Committee on Civil and
Indeed, the Committee on the Rights of the Political Rights in April 198923 – in other
Child itself fully recognizes that: words, just after the text of the CRC
had been finalized but before its formal
... the concept of the child’s best interests acceptance by the UN General Assembly.
has been abused by Governments and While this commentary is linked ostensibly
other State authorities to justify racist to the one short article in the ICCPR
policies, for example; by parents to devoted specifically to children (Art. 24,
defend their own interests in custody covering the rights to protective measures,
disputes; by professionals who could birth registration, and to a name and
not be bothered, and who dismiss the nationality), the Committee took the
assessment of the child’s best interests opportunity to expand considerably on
‘protection’ questions in particular. General 20 UN General
as irrelevant or unimportant.21 Assembly, Human
Comment No. 17 refers, therefore, to a wide Rights Council
When reviewing states parties’ reports range of issues, from children deprived of (2012). ‘Thematic
in particular, the Committee has had to parental care to juvenile justice, labour and study on the issue
abduction, sale and trafficking. Apart from of violence against
confront arguments based on an ill-founded women and girls
perception of best interests: an allusion to ICCPR Article 14.1, however, and disability,
not once does the document refer to the best Report of the Office
When the Committee on the Rights interests of the child as having a bearing on of the United
decision-making on any of these matters. Nations High
of the Child has raised eliminating Commissioner for
corporal punishment with certain Human Rights’.
States during the examination of their New York: United
2.2. Best interests in private Nations General
reports, governmental representatives
international law Assembly (our
have sometimes suggested that some emphasis).
level of ‘reasonable’ or ‘moderate’ Private international law does not
21 Committee on
corporal punishment can be justified as set human rights standards directly. the Rights of the
in the ‘best interests’ of the child. ... But However, it builds on those standards Child (2013),
interpretation of a child’s best interests by establishing requirements for their para. 34.
must be consistent with the whole respect through the procedures it puts
22 Committee on
Convention, including the obligation in place in certain fields that it covers. In the Rights of the
to protect children from all forms of doing so, private international law not Child (2006).
violence and the requirement to give only reflects human rights law, but also General Comment
due weight to the child’s views; it cannot No. 8 on the
complements the standards it sets by giving
right of the child
be used to justify practices, including a practical dimension to implementation. to protection
corporal punishment and other forms of This is clearly a key factor when applying from corporal
cruel or degrading punishment, which the best interests of the child principle in punishment and
other cruel or
conflict with the child’s human dignity intercountry adoption.
degrading forms
and right to physical integrity.22 of punishment
As is the case for human rights law, the (CRC/C/GC/8),
What these documents demonstrate is term ‘best interests’ is rarely used in private para. 26.
that best interests continue to be used in international law and, once again, only in 23 Office of the
a paternalistic manner that should have relation to children. High Commissioner
become obsolete with the advent of the for Human Rights
human rights narrative, or that may even For example, the 1993 (Hague) Convention (1989). General
Comment No. 17
be incompatible with those rights from on Intercountry Adoption (see Chapter 3) is on the rights of the
many standpoints. Obviously, this makes premised on: child (Art. 24).

13
The Best Interests of the Child in Intercountry Adoption

...the necessity to take measures to ‘best interests’ to allow derogation from the
ensure that intercountry adoptions treaty’s basic principle that abducted children
are made in the best interests of the should be returned as quickly as possible to
child and with respect for his or her their country of habitual residence. Here, the
fundamental rights.24 competent authority is under no obligation
to return a child if:
And the treaty’s very first objective is
indeed “to establish safeguards to ensure …there is a grave risk that his or
that intercountry adoptions take place her return would expose the child
in the best interests of the child and with to physical or psychological harm
24 Hague
respect for his or her fundamental rights as or otherwise place the child in an Conference on
recognised in international law”.25 intolerable situation.29 Private International
Law (1993).
Convention on
Another child-focused Hague Convention – In contrast, the 2000 (Hague) Convention
the Protection of
the Convention on Jurisdiction, Applicable on the International Protection of Adults, Children and Co-
Law, Recognition, Enforcement and although it applies to those who, “by operation in Respect
Co-operation in Respect of Parental reason of an impairment or insufficiency of Intercountry
Adoption, preamble.
Responsibility and Measures for the of their personal faculties, are not in a
Protection of Children26 – was, like the position to protect their interests” (Art. 1.1), 25 ibid., Art. 1(a).
Convention on Intercountry Adoption, contains no reference to decisions being
drafted after the entry into force of the CRC. made on the basis of the ‘best interests’ of 26 Hague
Conference on
Not surprisingly, it also reflects the CRC those concerned.30 Certainly, the preamble
Private International
by stating in its preamble that “the best affirms that “the interests of the adult and Law (1996).
interests of the child are to be a primary respect for his or her dignity and autonomy Convention on
consideration”. ‘Best interests’ also figure in are to be a primary consideration, but, Jurisdiction,
Applicable Law,
a number of its operative provisions, either in operative terms, the ‘interests’ in this
Recognition,
as a determining factor (Arts. 8.4, 10.1.b) context are seen specifically and concretely Enforcement and
or as a factor to be taken into account in as “the protection of the person or the Co-operation in
decision-making (Arts. 22, 23.2.d and 33). property of the adult” (Art. 8.1). Respect of Parental
Responsibility
and Measures for
Of special note in the context of this study, It is of note that the implications of ensuring the Protection of
however, are the references to best interests ‘best interests’ are left relatively vague Children.
in Articles 8.1 and 9.1 of this Convention. compared with other private international
27 Article 4 of
These provisions deal with the question law instruments as far as intercountry
the 1993 Hague
of which state – the country of a child’s adoption is concerned – although it is Convention
habitual residence or, for example, the arguable that the substantive provisions of requires that
country where the child is physically present the 1993 Hague Convention indicate, albeit “the competent
authorities of the
– is “better placed in the particular case to implicitly, how ‘best interests’ should be
State of origin
assess the best interests of the child” (our interpreted (see section 4.4). have determined ...
emphasis). This matters because it may be that an intercountry
the only example in an international treaty, adoption is in the
other than the 1993 Hague Convention,27
2.3. The best interests of the child child’s best
interests”.
where an explicit link is made between ‘best in the Convention on the Rights
interests’ and the need for an assessment of the Child 28 Hague
(or determination) process to be established Conference on Private
International Law
and carried out by the state. It is particularly challenging to respond
(1980). Convention on
appropriately to the best interests of the the Civil Aspects of
The preamble of the 1980 (Hague) Convention child requirements in the human rights International Child
on the Civil Aspects of International Child context of the CRC. There is no global Abduction.
Abduction,28 developed well before the precedent or jurisprudence based on the
29 ibid., Art. 13 (b).
CRC, underlines the fact that “the interests provisions or application of human rights
of children are of paramount importance law as a function of the best interests of a 30 Hague Conference
in matters relating to their custody”. That child, or for that matter, an adult. Hence on Private
International Law
said, the operative articles make no further the need to look more closely at why and
(2000). Convention
mention of the concept. This Convention how the concept was incorporated into on the International
uses a more concrete formulation than the CRC. Protection of Adults.

14
The Role and Purpose of the Best Interests Concept in a Human Rights Context

2.3.1. Why best interests figure in the CRC Three aspects of this proposed new text are
The first draft for a convention on the noteworthy:
rights of the child was submitted to the
 Those responsible for protecting

UN Commission on Human Rights (CHR) and ensuring the best interests of
by Poland in 1978 and was based almost children – the authorities on the
entirely on the non-binding Declaration one hand and the parents on the
on the Rights of the Child adopted by other – were now covered in a single
the UN General Assembly in 1959, which provision instead of separately as in
included two principles dealing with the the 1959 Declaration.
best interests of the child:
 The “enactment of laws” for

• Principle 2: The child shall enjoy the special protection and overall
special protection, and shall be given development of children no longer
opportunities and facilities, by law figured in the text, and was replaced
and by other means, to enable him by a list of protagonists which,
to develop physically, mentally, somewhat paradoxically, made no
morally, spiritually and socially in a mention of legislators at all.
healthy and normal manner and in
• Best interest(s) remained the
conditions of freedom and dignity. In
“paramount consideration” in all
the enactment of laws for this purpose,
instances.
the best interests of the child shall be
the paramount consideration. This text was adopted provisionally in
1980 by the Working Group charged with
• Principle 7: The best interests of the drawing up the final version of the CRC.
child shall be the guiding principle Interestingly, while all three aspects listed
of those responsible for his education above were modified, the Working Group
and guidance; that responsibility lies never debated either the principle or
in the first place with his parents. (our the potential ramifications of the sudden
emphasis) expansion of best interests or how it would
fit within the human rights logic.
While the CHR rejected the proposed text
as a whole and asked Poland for a revised This almost unquestioning acceptance of
version, it was clear from the start that the such a sweeping application of best interests
concept of best interests would figure, in in relation to children’s rights has never
some way, in any final text. been critically analysed since. Yet it has
had, and still does have, a key and clear
However, where state responsibilities (as influence on how the implementation of the
opposed to those of parents) were set out, human rights of children is perceived today.
the scope of the best interests of the child as
formulated in the 1959 Declaration had been 2.3.2. Provisions on the best interests
limited to legislation alone. The revised of the child in the CRC
draft of the CRC submitted by Poland in
1979 – which contains the foundation of 2.3.2.1. Drafting the fundamental provision
CRC Article 3.1 as we know it – suddenly on the best interests of the child (Article 3.1)
reinforced and widened the scope of the
Almost all decisions on how Article 3.1 of the
best interests concept and its potential
CRC – the generic provision on best interests
impact to an unprecedented degree:
– would be formulated were made in 1981.

In all actions concerning children, Some members of the Working Group


whether undertaken by their parents, questioned the wisdom of positioning the
guardians, social or state institutions, formal obligations on parents and guardians
and in particular by courts of law and on the same plane as those of courts of
administrative authorities, the best law and administrative authorities. They
interest [sic] of the child shall be the prevailed, and parents’ duty to have the best
paramount consideration. (draft Art. interests of the child as “their basic concern”
3.1; our emphasis) is now a separate issue in CRC Article 18.1.

15
The Best Interests of the Child in Intercountry Adoption

As a result of another suggestion by the 2.3.2.2. Other CRC provisions referring to the
United States, the Working Group agreed best interests of the child
to a major change: the general status of the
best interests of the child was no longer to be There is only one place in the CRC where
viewed as “the paramount consideration” the principle of best interests becomes,
but as “a primary consideration” in decision- automatically and explicitly, the decisive
making by “public or private social welfare factor for assessing the desirability of any given
institutions, courts of law or administrative course of action foreseen under the treaty:
authorities”.31 its status as “the paramount consideration”
in decisions about a child’s adoption in
This move – and indeed the draft text of Article 21.
Article 3.1 as a whole – was not picked up
again until the last stages of the drafting This singular recourse to best interests as
process, in the context of a technical review
the ultimate determinant of a decision to
in late 1988 to ensure that the entire draft
proceed with a measure that, in principle,
Convention was consistent in itself and with
should not undermine the fulfilment of
existing human rights treaties. The review
any other right(s), is telling. We review the
invited further discussion on whether the
reasons for its inclusion in these terms in
best interests of the child should be ‘the’ or
section 2.4 and examine its implications in
only ‘a’ primary consideration.
more depth in Chapter 4.
Some Working Group members wanted
to revert to the original higher status given Elsewhere in the CRC, as well as being
to the concept of best interests in the future cited as the “basic concern” of primary
CRC, to bring it into line with CEDAW caregivers (Article 18.1), the status of best
Article 5(b), which refers to best interests as interest as “a primary consideration” in
“the primordial consideration”. However, it decision-making on “all actions concerning
was pointed out that where ‘the’ rather than children” is up-graded for a small number
‘a’ had been used, the issues at stake are far of specific situations. In all but one of these,
more specific (e.g. adoption) than the wide- the best interests of the child become the
ranging issues to be covered by CRC Article determining criterion to justify any case-
3.1. It was also noted that the interests of by-case derogation from an otherwise
other parties (including justice and society as established right:
a whole) might be of equal importance, at the
very least, in certain circumstances. Given the • removing children from parental
many reservations expressed, it was finally care (Arts. 9.1, 20.1)
decided that the best interests of the child
should remain as “a primary consideration”. • denying contact between the child
and his or her parents (Art. 9.3)

The concept of the best • envisaging deprivation of liberty


interests of the child applies with adults (Art. 37.c) and

not only to individual • prohibiting parents from being


children but also to children present during judicial proceedings
(Art. 40.2.b.iii).
as a group.
2.3.3. Issues raised by the inclusion
There was also agreement on a proposal
of the best interests of the child in 31 Detrick, S. ed.
contained in the technical review to bring
back reference to ‘legislative bodies’ in the
the CRC (1992). The United
Nations Convention
list of actors covered by this provision. As we have seen, in human rights law – on the Rights of
This also has major ramifications for inter- as well as in humanitarian law, refugee the Child: A guide
pretation, demonstrating beyond doubt that law and private international law – the to the ‘travaux
concept of best interests, when used at all, préparatoires’.
the concept of the best interests of the child
Leiden: Martinus
applies not only to individual children but applies solely to children. It is all the more Nijhoff Publishers,
also to children as a group (see section 2.4.3). important, therefore, to look closely at the p. 133.

16
The Role and Purpose of the Best Interests Concept in a Human Rights Context

way it is broached and the implications of Alston has also emphasized the deliberate
its specific inclusion in the CRC in such ‘flexibility’ of the CRC drafters to allow
a context. for the principle’s broad application
by professionals. He underlines how
2.3.3.1. A deliberately undefined concept... the cultural setting can influence the
interpretation of child rights and the role
During the drafting of the CRC, there was of the best interests principle in mediating
implicit consensus that the notion of best between rights and cultural frameworks,
interests should be left undefined, so that with human rights taking priority where 32 ibid., p. 137.
its interpretation could take account of there is insoluble conflict between the two.35
33 Zermatten, J.
context and circumstances. The CRC Committee also points out that (2010). The Best
the “flexibility of the concept of the child’s Interests of the Child:
Only Venezuela voiced serious concerns best interests allows it to be responsive Literal analysis,
to the situation of individual children, as function and
about this lack of clarity during final implementation.
discussions on the text, fearing that the well as to “evolve knowledge about child
Sion: Institut
concept of best interests would be interpreted development”.36 International des
subjectively. It was particularly concerned Droits de l’enfant,

at the lack of any wording to clarify that At the same time, the range of considerations p. 16.
to be taken into account, the criteria to be
best interests included all aspects of a 34 Van Bueren, G.
applied in respecting the best interests
child’s development, spanning – as in (2007). ‘Pushing and
criterion itself and the precise responsibilities pulling in different
the 1959 Declaration – the broad range of
for assessing and determining the best directions: The best
“physical, mental, moral, spiritual and interests of the child
interests of the child are still somewhat of a
social” considerations.32 and the margin
legal and conceptual wilderness in practice.
of appreciation
In the early 1990s, Mr Justice Brennan of of states’, in Child
There was scant support for this stance,
the Supreme Court of Australia commented Rights in Europe:
however, as it was presented during the final
that: Convergence and
stages of drafting. Venezuela did not insist divergence in judicial
on a further review and joined consensus protection, p. 32.
The best interest approach depends
on the text as proposed. However, the on the values systems of the decision- 35 Alston, P. (1994).
fears expressed about the scope of best maker. Absent any rule or guideline, ‘The Best Interests of
interests – and the criteria to be applied in a that approach simply creates an the Child: Towards
potentially subjective decision about those unexaminable discretion in the
a reconciliation of
interests – remain valid. culture and human
repository of the power.37 rights’, in P. Alston,
The Best Interests of
There is general agreement on the need Twenty years later, his concerns remain the Child: Reconciling
for flexibility in determining best interests. largely unanswered. In such circumstances, culture and human
Clearly, no single pre-determined outcome rights, Florence:
efforts to ensure and verify compliance of UNICEF Innocenti
is in the best interests of each and every resulting decisions with the substance of Research Centre,
child, no ‘path’ is automatically preferable, the best interests principle itself are clearly pp. 1-25.
and socio-cultural realities and percep- and severely compromised.
tions differ. Zermatten, therefore, defends 36 Committee on
the Rights of the
the best interests of the child principle 2.3.3.2. …but a General Principle of the CRC Child (2013), para.
as broad, flexible and adaptable to 34.
cultural and socio-economic variance Despite this juridical, substantive and
across different legal systems,33 37 Secretary of the
procedural void, the Committee on the
Department of Health
and Van Bueren comments that this Rights of the Child decided from the start and Community
elasticity is essential in the case-by-case that best interests should be one of the Services v. J.W.B.
approach required by the best interests four over-arching implementation issues, and S.M.B. (Marion’s
standard.34 alongside non-discrimination, the right Case) [1992] HCA 15;
(1992) 175 CLR 218,
to life, survival and development, and the para. 14.
right to be heard, all of which needed to be
There is general agreement addressed by states parties in their initial 38 Committee
on the need for flexibility reports to the Committee.38 on the Rights of
the Child (1991).
in determining best As a result of that decision, which was
General Guidelines,
CRC/C/5,
interests. extended to cover states parties’ periodic 30 October 1991.

17
The Best Interests of the Child in Intercountry Adoption

reports, the best interests of the child and the are contrary to the rights enshrined
three other over-arching implementation in the Convention or that would have
issues were designated by the Committee an effect contrary to the rights under
as the four General Principles of the CRC the Convention cannot be considered
for interpreting and implementing all the as valid in assessing what is best for
rights of the child. The Committee now a child or children.42
describes the provision on best interests
as “express[ing] one of the fundamental In some quarters, nonetheless, the General
values of the Convention”.39 No other treaty Principle designation of the best interests
body to date has attempted to distinguish of the child still generates a perception
between the provisions of an international that it can and should be seen as a ‘super-
instrument in this way. right’ representing some kind of higher
standard that can be invoked at will
Whatever the justification and merits of to trump children’s other rights.43 As a
elevating certain rights to this special careful examination of the Committee’s
status, the move is not without its dangers statements shows, this is not the intention.
from a human rights perspective. These If the best interests of the child are to play
dangers are singularly acute when a rights-compliant role in decisions on
considering best interests, as this is not intercountry adoption and certain other
a familiar human rights concept. And in spheres in particular, it is vital to combat
the case of intercountry adoption, where that perception.
the best interests of the child are to be the
sole determining factor, the risks are even
greater. 2.4. Compliance of best interests 39 Committee on the
Rights of the Child
with human rights provisions (2013), para 1.
The 1993 Vienna Declaration states – and
the Committee itself has logically reaffirmed 40 World
Whatever the challenges it poses, the
– that all human rights “are universal, Conference on
inclusion of best interests in the Convention Human Rights,
indivisible and interdependent and
has had the undeniable merit of positioning Vienna, 14–25
interrelated. The international community
discussion of that notion in a human rights June 1993, Vienna
must treat human rights globally ... on Declaration and
framework at last.
the same footing, and with the same Programme of
emphasis.”40 In essence, the concept of the Action, UN Doc. A/
The acceptance of CRC Article 3.1 within CONF.157/23, 12
best interests of the child in this context July 1993, para. 5.
that framework implies that its general
means that all children have the right to have
interpretation and application cannot
their best interests determined as a way of 41 Committee on the
conflict with, and are even compatible with, Rights of the Child
ensuring that all their other human rights
other rights established in the CRC itself (2013), para. 4.
are respected. Indeed, the CRC Committee
and those in all other binding international
stresses that the role of best interests as a 42 ibid., para. 51.
human rights instruments. Therefore, in its
guarantor of child rights is reflected in its
own approach: General Comment No. 8, the Committee 43 One very clear
on the Rights of the Child states that “the example of this
interpretation of a child’s best interests must is the expedited
[The Committee] recalls that there adoption of
is no hierarchy of rights in the be consistent with the whole Convention”.44 children from
Convention; all the rights provided for Haiti (see section
The best interests of the child can be 3.7 below) where,
therein are in the ‘child’s best interests’
despite the lack of
and no right could be compromised invoked, but only in explicit and well-
any assessment,
by a negative interpretation of the defined instances and on a case-by-case ‘best interests’
child’s best interests.41 basis, to justify derogation from a very were invoked to
limited number of rights, establishing a justify derogation
from procedures
[T]he ultimate purpose of the child’s kind of ‘right not to benefit from a right’ designed to protect
best interests should be to ensure the (see 2.3.2.2 above). In such cases, this does the rights of the
full and effective enjoyment of the not make it a ‘super-right’, but simply children concerned.
rights recognized in the Convention a way of preserving the positive
44 Committee on the
and the holistic development of the intention behind the right in question: Rights of the Child
child. Consequently, elements that it should not be applied if the outcome (2006a), para. 26.

18
The Role and Purpose of the Best Interests Concept in a Human Rights Context

for the child can be demonstrated as very and those views shall be taken into
likely to be harmful. The key, and far consideration by the competent
more common, purpose of the best authorities.45
interests of the child principle, however,
is to guide decisions where a choice must One of the key elements
be made across a range of options that
comply with the rights of the child.
in a best interests
determination (BID) must
It is here, where the best interests of the
be the child’s own opinion.
child is the primary or even paramount
consideration for implementing one or
The subject of this paragraph was finally
more rights, rather than for derogating from
a specific one, that its compatibility with dealt with in CRC Article 12, together
the overall rights framework is particularly with the right of the child “who is capable
at risk in practice. Here, the function of the of forming his own views ... to express
‘best interests right’ in relation to others is his opinion in matters concerning his
far more vague. own person”, which was contained in
the revised Polish proposal of 1979. The
This risk is evident where the best interests United States’ proposal, however, made an
of the child inform decisions that must implicit linkage between the best interests
balance or prioritize different rights. Such of the child and the right of the child to be
situations are frequent, and particularly heard in dealings with courts of law and
so in relation to child protection administrative authorities. This matters
and alternative care. The inevitable when interpreting the two concepts. Even
consequence is that the enjoyment of one if there is no explicit connection between
or more rights will be restricted to some them in the final text of the CRC, Zermatten
degree, or may even be denied completely describes Articles 3 and 12 as a “duo”,
in extreme cases. We are then looking at to sit side by side.46 The CRC Committee
the equivalent of a child’s ’right to have goes further, noting the “inextricable
the relative importance of all my other links” between the two articles and their
rights decided for me’. This is a vivid complementary roles:
demonstration of both the dilemma and
the crucial nature of decision-making on …the first aims to realize the child’s 45 Detrick (1992),
the basis of best interests in the context of best interests and the second provides p. 133.
human rights. the methodology for hearing the views
46 Zermatten
of the child or children and their
(2010), p. 21.
2.4.1. Linkages between the best inclusion in any matters affecting the
interests of the child and a child’s right child, including the assessment of his 47 Committee on
to be heard or her best interests. Article 3, paragraph the Rights of the
Child (2013),
The question of the compatibility and 1, cannot be correctly applied if the para. 43.
interdependence of decisions based on best requirements of article 12 are not met. 47
48 Archard, D.
interests with other rights is illustrated by
(2004). Children:
their connection with CRC Article 12 on In light of this, one of the key elements
Rights and
the right to be heard. in a best interests determination (BID) childhood,
must be the child’s own opinion. Archard London/New York:
maintains that what children say about Routledge, p. 68.
The United States’ proposal that became the
basic text for CRC Article 3.1 (see section their interests is valuable evidence on what 49 Eekelaar, J.
2.3.2.1 above) originally had a second is, in fact, in their best interests.48 Eekelaar (1994). ‘The
paragraph devoted to the right to be heard: talks about the importance of “dynamic interests of the
self-determinism” in enabling children to child and the
child’s wishes: The
In all judicial and administrative influence decisions; in determining their role of dynamic
proceedings affecting a child that best interests, the subjectivity they bring as self-determinism’,
has reached the age of reason, an to how they experience a situation enriches International
Journal of Law,
opportunity for the views of the any analysis of the objective elements.49
Policy and the
child to be heard... shall be provided, As demonstrated by specialists such as Family, 8(1): 47–48.

19
The Best Interests of the Child in Intercountry Adoption

Lansdown, even very young children decisions can easily, yet inaccurately, be
have non-verbal ways to make their views justified as being in the interest of the
known, if sufficient efforts are made to child” depending on the subjective views of
facilitate this by skilled professionals under the decision-maker.55 The CRC Committee
appropriate conditions.50 emphasizes the child’s evolving capacities
over time:
Thomas and O’Kane have elaborated on
the difficulty of having no clear guidance In the best-interests assessment, one
or legislation on the weight to attribute to has to consider that the capacities of
50 Lansdown, G.
children’s views, or on how their views the child will evolve. Decision-makers
(2005). ‘Can you
and feelings should be balanced in best should therefore consider measures hear me?: The right
interests decisions. Drawing on research by that can be revised or adjusted of young children to
Schofield et al., they argue that determining accordingly, instead of making participate in decisions
affecting them’. The
the child’s competence is critical, but definitive and irreversible decisions.
Hague: Bernard van
it should be assessed on the basis of a To do this, they should not only assess Leer Foundation.
specific decision. The emotional contexts the physical, emotional, educational
in which children make decisions, which and other needs at the specific 51 Thomas, N. and
C. O’Kane (1998).
are influenced by their wishes and feelings, moment of the decision, but should
‘When children’s
should also be taken into account when also consider the possible scenarios of wishes and feelings
seeking their views.51 the child’s development, and analyse clash with their
them in the short and long term. In “best interests”’,
International Journal
That said, as Archard and Skivenes argue, this context, decisions should assess
of Children’s Rights,
children cannot be expected to display continuity and stability of the child’s 6(2): 137–54.
competencies that even adults are unlikely present and future situation.56
to possess in a highly emotional situation 52 Archard, D. and
M. Skivenes (2009).
(such as the choice of a family or parent). These questions are particularly pertinent to
‘Balancing a child’s
They emphasize, too, the complexity of alternative care and adoption, but at least best interests and
balancing the views of children with their two aspects of them pose clear problems, a child’s views’,
best interests, as this raises some tensions. especially in relation to intercountry adoption. International Journal
of Children’s Rights,
Ensuring what is best for children – and
17(1): 1–21.
therefore their welfare – is essentially First, the children most often placed for
‘paternalistic’, yet asking children for intercountry adoption are likely to be very 53 Brems, E. (2002).
their views might not tally with what is young, and any expectation that they will ‘Children’s rights
and universality’, in
considered to be in their best interests. fully understand what is happening to
J.C.M. Willems, ed.
Archard and Skivenes define three key steps them or be able to share an informed opinion Developmental and
to determine the best interests: judgement, about it is, at best, unrealistic, even with the Autonomy Rights of
hearing the child’s opinion and balancing involvement of highly skilled practitioners. Children: Empowering
children, caregivers
the child’s views and best interests.52 The age at which a child must be consulted
and communities.
about, or give their consent to, intercountry Antwerp: Intersentia,
A related issue is the standpoint from which adoption – to the extent that it is set – varies pp. 21–45.
the assessment is made. Should young from country to country, but is rarely under
54 Rawls, J. (1972).
children’s best interests be determined 10.57 There is no research, however, about the
A Theory of Justice.
according to their current needs? Or is it extent to which children of any particular Oxford: Clarendon
necessary to consider what they might age are able to really grasp the various Press, p. 209.
choose if they were older and capable implications of adoption, and particularly
55 Zermatten (2010),
of making an informed choice? Some of being adopted abroad. As a result, the
p. 27.
commentators, such as Brems, maintain principle that the child’s opinion should
that we should consider children’s current inform the process around a determination 56 Committee on the
interests as children.53 Others believe that of best interests may be very hard to apply Rights of the Child
(2013), para. 84.
“we must choose for others as we have in intercountry adoption.
reason to believe they would choose for 57 United Nations
themselves if they were at the age of reason Second, it is obvious that the general Population Division
and deciding rationally”.54 Zermatten has advice given by the CRC Committee (see (2009). Adoption,
Trends and Policies,
noted the need for “a more objective form above) to avoid “definitive and irreversible
Department of
of knowledge about this concept” if we decisions” on best interests cannot apply in Economic and Social
are to avoid the “risk that very different relation to any adoption, be it domestic or Affairs, pp. 43–44.

20
The Role and Purpose of the Best Interests Concept in a Human Rights Context

intercountry. That said, the very fact that (see section 2.3.2.1 above). After extensive
the Committee advises this, on a general debate on how the CRC should broach
level, is highly significant. It indicates the the adoption question as a whole,59 the
inherent difficulty in reaching a permanent Working Group decided to supplement
decision for a child on the basis of a one-off the idea of ‘facilitating’ – but facilitating
BID exercise – a decision that will remain the process, rather than adoption itself – by
‘correct’ over the long term. Again, this an explicit reference to best interests (and,
underscores both the crucial importance interestingly, in relation to intercountry
and the potential weaknesses of any BID adoption alone). Therefore, the provisional
process that will be the foundation of an draft text of what is now Article 21 of the
irrevocable decision about the intercountry CRC, approved in 1982, contained two
adoption of a child. And again, it highlights paragraphs, opening as follows:
the need to prioritize the protection of the
human rights of the children concerned. 1. The States Parties ... shall undertake
measures, where appropriate, to facilitate
2.4.2 Why the CRC enhances the the process of adoption of the child. 58 UN Doc. E/
CN.4/1349, p. 4,
status of the best interests of the child cited in Detrick
in relation to adoption 2. The States Parties ... shall take all (1992), p. 305.
appropriate measures to secure the
The emphasis given to the best interests of
best interests of the child who is the 59 Detrick (1992),
the child in determining whether or not an pp. 306–311.
subject of intercountry adoption.60
adoption should go ahead only emerged
during the drafting of the Convention. 60 UN Commission
This draft text was not reviewed again until on Human Rights
This was the result of growing recognition,
the final session of the Working Group in (1982). Economic
particularly during the 1980s, of serious and Social Council,
1989. During the 1980s, however, there
problems that needed to be tackled within UN Doc. E/1982/12/
were significant developments in response Add.1.
the adoption sphere, particularly in relation
to growing concerns about how and why
to intercountry adoption.
more and more intercountry adoptions 61 Council of
were being carried out. Europe (1980).
The 1959 Declaration on the Rights of the ‘The role of
Child made no reference to adoption, or governmental and
At the very start of that decade, the Council non-governmental
indeed to any specific measure for children of Europe (CoE) had issued a document organisations
without parental care. Similarly, Poland’s where it was stated that “over the past decade in supervising
initial draft text for a convention on the pressure by numerous European couples
the placement in
rights of the child (1978), grounded as it Europe of children
wishing to adopt has reduced the attention from the Third
was in the 1959 Declaration, contained no that is paid to the child’s interests”.61 World’, Social
mention at all of adoption. Affairs, Doc.
COE.G.6/80, p. 35.
At the United Nations, a report requested
This was remedied in Article 11.3 of the by the Sub-Commission of the CHR, 62 Whittaker, B.
1979 revised draft, which required states submitted in 1982, noted that “growing (1982). Updating
to “undertake measures so as to facilitate concern is being expressed at the ... practice of the Report on
adoption of children”. This was adopted Slavery Submitted
of the sale of children for adoption”,62
to the Commission
as a basic working text by the 1980 and the Sub-Commission resolved that “a in 1966, UN Doc. E/
Working Group.58 At that time, it should report on the causes and implications of the CN.4 Sub.2/1982/20.
be recalled, the draft text still referred sale of children, including commercially-
to the best interests of the child as “the 63 UN Commission
motivated (and especially transnational)
on Human Rights
paramount consideration” in relation to all adoptions, should be prepared”.63 That (1982). Resolution
decisions concerning children (see section same year the Economic and Social 1982/15, para. 14.
2.3.1 above). Council appointed a Special Rapporteur
64 Report of Jean
on traffic in persons; his 1983 report
Fernand-Laurent,
By the time the draft provision on adoption noted that “international traffic in young Special Rapporteur
came up for in-depth examination at children for adoption ... should be given on the suppression
the 1982 session of the Working Group, separate treatment in a specific study”.64 of the traffic in
however, this general reference to the persons and the
exploitation of
best interests of the child had been Calls throughout the decade for the the prostitution of
down-graded to “a primary consideration” appointment of a Special Rapporteur on others, E/1983/7.

21
The Best Interests of the Child in Intercountry Adoption

the Sale of Children resulted in such of the 1986 Declaration, between 1988 and 65 UN Commission
an appointment, finally approved by 1989 the term “protection of children” was on Human Rights
(1990). Human Rights
the CHR, in 1990. The mandate of the inserted after “international co-operation” Council Resolution
Special Rapporteur included efforts in the draft title of the future Hague 1990/68.
to address “the problem of the adop- Convention. The Diplomatic Conference
66 United Nations
tion of children for commercial purposes”,65 that approved the final text in 1993 was to (1986). ‘Declaration
a confusing term that was intended to go even further, with the symbolic on Social and Legal
emphasize financial gain, in particular. placement of “protection of children” before Principles relating to
the Protection and
the reference to cooperation, “in order to
Welfare of Children,
In 1986, the United Nations General stress its importance as the main subject- with Special
Assembly approved a text that had been in matter of the Convention”.71 Reference to Foster
the pipeline for eight years: the Declaration Placement and
Adoption Nationally
on Social and Legal Principles relating to the and Internationally’,
Protection and Welfare of Children, with Adoption can only be UN Doc. A/Res. 41/85,
3 December 1986.
special reference to Foster Placement and
Adoption Nationally and Internationally.66
undertaken as a uniquely
67 UN Economic and
It was certainly a sign of the times that the child-centred practice and Social Council (1979).
‘Draft Declaration
terms ‘protection’ and ‘welfare of children’
were mentioned in this context: they were
only if it is in accordance on social and legal
principles relating
inserted towards the end, not having with all of the other rights to adoption and
foster placement of
figured in the original working title of
the 1970s.67 Of special note here is the
of the child concerned. children nationally
and internationally’,
status that the 1986 Declaration affords to Report by the
the best interests of the child in relation In short, the prevailing mindset reversed Secretary-General,
United Nations,
to both adoption and foster care: it is re- completely in the late 1970s and the 1980s E/CN.5/574,
instated as “the paramount consideration”.68 from a climate where adoption should be 22 January 1979.
‘facilitated’ to one where the overriding
68 United Nations
Finally, in 1988, states members of the concern was the protection of children’s (1986). ‘Declaration
Hague Conference on Private International interests and rights in adoption. Not on Social and Legal
Law agreed that a new convention on surprisingly, the definitive text in the Principles Relating
to the Protection and
“international co-operation in respect of CRC, applying to both domestic and Welfare of Children’,
intercountry adoption” was necessary intercountry adoptions, reflects this shift Art. 5.
because “international adoption was and takes an uncompromising line from
69 Hague Conference
posing at present very serious problems the start (Art. 21):
on Private International
of a kind or degree different from those Law (1994a).
existing when the Hague Convention of 15 States Parties which recognise and/ ‘Explanatory report
November 1965 on Jurisdiction, Applicable or permit the system of adoption on the Convention
on protection of
Law and Recognition of Decrees Relating to shall ensure that the best interests children and co-
Adoptions was drawn up”.69 of the child shall be the paramount operation in respect
consideration. of intercountry
adoption’. Caracas,
In a preparatory document for the drafting paras. 1–2.
process, the Permanent Bureau of the This requirement to “ensure” is one of
Hague Conference observed that the future the strongest in human rights law, being 70 Hague Conference
on Private International
treaty should meet the part of the state’s obligation to take active Law (1989).
measures to fulfil a right, rather than ‘Memorandum
...need for a system of supervision merely respect it (refrain from interfering concerning the
preparation of a new
in order to ensure that [legally with the enjoyment of the right) or protect Convention on
binding] standards are observed (what it (prevent violations of the right by any international
can be done to prevent intercountry party, including the state itself and its co-operation and
protection of children
adoptions from occurring which agents). And the best interests of the in respect of
are not in the interest of the child; child become the determining criterion intercountry adoption’,
how can children be protected for adoption decisions, a clear reflection Permanent Bureau,
The Hague, pp. 1–2
from being adopted through fraud, of consensus: adoption can only be (our emphasis).
duress or for monetary reward...); 70 undertaken as a uniquely child-centred
practice and only if it is in accordance 71 Hague Conference
on Private
Significantly, and reflecting what had with all of the other rights of the child International Law
happened in deciding on the lengthy title concerned. (1994), para. 31.

22
The Role and Purpose of the Best Interests Concept in a Human Rights Context

2.4.3 Application of the best interests process of child impact assessment


principle to children as a group (predicting the impact of any
Because we talk about the best interests proposed law, policy or budgetary
of the child, discussion on the application allocation which affects children
of the principle has often focused on and the enjoyment of their rights)
decision-making in relation to the future and child impact evaluation
of one individual child. However, apart (evaluating the actual impact of
from parents and others responsible for implementation).72
the child’s education and guidance, the
original reference to the best interests of In the context of its consideration of the
the child in the 1959 Declaration (and situation of young children, the Committee
Poland’s initial proposed text for a has established a principle that would
convention) concerned only its paramount apply to those of all ages from a collective
importance in the “enactment of laws”, standpoint:
clearly grounded in the best interests
of children collectively, rather than Best interests of young children as a
individually. The final text of CRC group or constituency. All law and
Article 3.1 reflects this by mentioning policy development, administrative
“legislative bodies”, but all other relevant and judicial decision-making and
actors are also bound to give “a primary service provision that affect children
consideration” to the best interests of must take account of the best interests
the child, developing overall approaches principle. This includes actions
and policies, as well as determining best directly affecting children (e.g., related
interests case by case. to health services, care systems, or
schools), as well as actions that
While the notion of the best interests of indirectly impact on young children
the child has, therefore, clear ramifications (e.g., related to the environment,
for policy and law affecting children as a housing or transport).73 72 Committee
group, there has been debate about how on the Rights of
the term “all actions concerning children” Taking a complementary angle that the Child (2003).
General Comment
should be interpreted. Does it designate builds on the requirement for an impact
No. 5, General
actors and initiatives that target children assessment, the Committee has used its Measures of
specifically, or does it cover any initiative review of the situation of indigenous Implementation
children to make another point that has for the Convention
or decision that may affect children in
on the Rights of
some way? While an impact assessment wider application, setting out the link
the Child (CRC/
of any policy or measure that may affect between collective rights and best interests GC/2003/5),
the rights of children is desirable, this explicitly: para. 45.
does not mean that the best interests of the
73 Committee
child should be the primary consideration The principle of the best interests of on the Rights
in cases where children are affected only the child requires States to undertake of the Child
marginally. active measures throughout their (2005). General
legislative, administrative and judicial Comment No. 7
on implementing
Zermatten highlights the fact that the systems that would systematically child rights in
Committee on the Rights of the Child has apply the principle by considering early childhood
long taken a broad and firm view on these the implication of their decisions (CRC/C/GC/7/
Rev.1), para. 13(b).
questions: and actions on children’s rights
and interests. In order to effectively 74 Committee on
Ensuring that the best interests of guarantee the rights of indigenous the Rights of the
children such measures would Child (2009a).
the child are a primary consideration
General Comment
in all actions concerning children include training and awareness- No. 11, Indigenous
(art. 3 (1)), and that all the provisions raising among relevant professional children and
of the Convention are respected in categories of the importance of their rights under
considering collective cultural rights the Convention
legislation and policy development
(CRC/C/GC/11),
and delivery at all levels of in conjunction with the determination para. 33
Government demands a continuous of the best interests of the child.74 (our emphasis).

23
The Best Interests of the Child in Intercountry Adoption

It is clear that all legislation, policy and same time, disregard for the best interests
measures relating to intercountry adoption of the child has been cited as a major
– and indeed to the wider context in reason for the development of protective
which it may take place, such as family international standards governing the
support and strengthening alternative practice of intercountry adoption.
care provision – must be reviewed from
the standpoint of compliance with the best
interests of children. The implications of The best interests of the
this are examined in depth in Chapter 4. child remains a deliberately
undefined concept. Yet
2.5. A two-fold challenge
it is a General Principle of
This chapter has demonstrated that the CRC.
the concept of best interests is almost
unknown in international human rights There is a clear two-fold challenge: first,
law other than in the CRC, and in the how to determine the best interests of the
very rare cases where it is mentioned in individual child who is, or may be, placed
other treaties it refers solely to children. for intercountry adoption; second, how to
The same applies to private international assess the impact of national laws, policies
law, where reference to best interests is and procedures related to intercountry
limited, for the most part, to decisions adoption from the standpoint of children’s
on intercountry adoption. In addition, collective rights.
the notion of best interests is nowhere
to be seen in either humanitarian law
(the Geneva Conventions) or refugee
law. As a result, there is no international
jurisprudence or precedent on the
interpretation of the concept in general or
its implications in practice when it comes
to human rights.

The reasons for the inclusion of the best


interests of the child in the CRC date back
to an era before the formal recognition of
the human rights of children. But there has
never been any global agreement on best
interests criteria, on clear and exclusive
responsibilities, or on what best interests
might imply in a human rights context.
Indeed, the concept of best interests
continues to be invoked in attempts to
side-line or negate agreed human rights,
including those of children.

The best interests of the child remains


a deliberately undefined concept. Yet it
is a General Principle of the CRC – an
integral part of children’s human rights.
This presents a major challenge for
implementation, particularly when the best
interests principle is to be ‘the paramount
consideration’ in decisions about inter-
country adoption, and where those
decisions may have to balance or prioritize
a range of inalienable human rights. At the

24
UNICEF Office of Research

3ǀ The Changing Role and Purpose


of Intercountry Adoption

Key points
ÌÌ Intercountry adoption is a relatively
new phenomenon, emerging only in
the aftermath of the Second World
War as a ‘humanitarian’ response and
expanding dramatically in the 1970s,
with few international safeguards in
place until the advent of the 1993 Hague
Convention.

ÌÌ It is intended as a protection measure


when in-country care for a child who
cannot remain with his or her family
is not available, but its escalation has
been so rapid and often uncontrolled
that countries of origin have been hard
pressed to ensure that the best interests
of the children concerned are being
upheld.

ÌÌ As increasing numbers of countries


of origin have become parties to the
1993 Hague Convention and have
implemented its provisions designed
to protect children’s best interests and
human rights, adoptions from these
countries have invariably declined.
This has led receiving countries to seek
children for adoption from countries
that are not bound by the standards set
in that treaty.

25
The Best Interests of the Child in Intercountry Adoption

Every society has its own traditional as in other parts of the world, such as the
mechanisms to look after children who Republic of Korea.
cannot be cared for by their parents –
measures that often involve extended 3.1.1. The development of intercountry
family or friends.75 With the exception of adoption from the perspective of the
most Islamic societies, local mechanisms best interests of the child
the world over include some form of
‘de facto adoption’, an informal process that 3.1.1.1. The first decades of intercountry adoption:
is sanctioned by society. Full and formal a humanitarian response to war
adoption as a protective measure for a child,
however, is a relatively recent development Intercountry adoption emerged in the
in human history, dating back to the mid- aftermath of the Second World War as
nineteenth century at the earliest, while a humanitarian response – in the first
intercountry adoption emerged only in the instance, largely by families in the United
aftermath of the Second World War. States – to war orphans in a number of
European countries and Japan. Its evolution
over the past 60 years has been neither
Full and formal adoption linear nor predictable, and its development,
as a protective measure over time and from country to country,
reflects a complex and changing interaction
for a child is a relatively of factors. But, from the standpoint of the
recent development in best interests of the child, some key events
and trends are worth highlighting.
human history.
The initial trans-Atlantic movement of
children for adoption was supplemented and
3.1. Key phases in the development then overtaken by cross-border adoptions
within Europe itself. In the mid-1950s, the
of intercountry adoption
focus in the USA moved to children affected 75 Van Loon, J.H.A.
Formal, legalized and full adoption – the by the Korean War, and particularly to (1993). ‘International
co-operation and
kind that characterizes its intercountry stigmatized ‘Amerasian’ children fathered
protection of
form – involves cutting ties with a child’s by US troops. This development spawned children with regard
original family and “complete or almost the first specialist private agencies that to intercountry
complete integration in the new family”.76 aimed to place children with foreign adoption’, in
Collected Courses of
It is a relatively recent construct, with families79 – agencies that were to become the Hague Academy
its genesis in the United States, where a major fixtures in intercountry adoption. of International Law,
number of states enacted laws on adoption vol. 244. Leiden:
from the mid-nineteenth century.77 It took These agencies – and individuals who Martinus Nijhoff
Publishers, p. 207.
decades to spread to Canada, Australasia organized their own independent adoptions
and Europe, where in 1926 the United – arranged adoptions in what was essentially 76 Weinstein, E.A.
Kingdom became the first European a normative and procedural void. Not (1968). ‘Adoption’,
in International
country to legislate on this full form of surprisingly, legislation at that time did not
Encyclopedia of the
adoption. Similar initiatives by other envisage this sudden extension of adoptions Social Sciences. New
European nations followed over the next across borders: in the United States, for York: Macmillan.
50 years: France introduced its ‘légitimation example, regulation of international
77 Van Loon (1993),
adoptive’ in 1939, for example, while Ireland, adoption was only achieved in 1961 through
p. 213.
the Netherlands and Sweden enacted laws the Immigration and Nationality Act.
on full adoption in the 1950s, Poland in Ad hoc procedures were put in place in the 78 Council of Europe
1964, and the former West Germany only in 1950s to ensure some measure of legality in (2011). ‘Adoption and
children: A human
1977.78 There was, however, a certain stigma the receiving country, but oversight of the rights perspective’.
attached to adoption in Europe in the process itself was patchy at best. In addition, Strasbourg:
mid-twentieth century: it tended to be the humanitarian nature of intercountry Commissioner for
shrouded in secrecy, and indeed this Human Rights.
adoption was never questioned. As a result,
remains the case today in many Central it was seen by definition as a desirable 79 Van Loon (1993),
and Eastern European countries, as well outcome for the children concerned. Indeed, p. 229.

26
The Changing Role and Purpose of Intercountry Adoption

the paucity of data and more general country adoptions and the help of social
information from that period reflects the lack workers having special training or having
of attention given to this new phenomenon. particular experience concerning the
problems of adoption”.

The humanitarian nature The 1967 European Convention went into


of intercountry adoption more detail:

was never questioned. • Article 9.3: “These enquiries shall


As a result, it was seen by be entrusted to a person or body
recognised for that purpose by law
definition as a desirable or by a judicial or administrative
outcome for the children body. They shall, as far as practicable,
be made by social workers who are
concerned. qualified in this field as a result of either
their training or their experience.”
3.1.1.2. The 1960s: first attempts to impose
international standards • Article 18: “The public authorities
shall ensure the promotion and
International efforts to address the issues proper functioning of public or private
raised by intercountry adoption in the agencies to which those who wish to
1960s focused on harmonizing laws, adopt a child or to cause a child to be
determining jurisdiction and ensuring adopted may go for help and advice.”
that all parties recognized the adoption
decisions that were made – in other words, • Article 19: “The social and legal
the stuff of private international law. At the aspects of adoption shall be included
international level, these efforts shaped the in the curriculum for the training of
first Hague Convention on intercountry social workers.”
adoption in 1965.80 This treaty stipulated
that the authorities “shall not grant an The 1967 European Convention alone
adoption unless it will be in the interest of recognized the potential influence of
the child” (Art. 6). A similar requirement financial considerations in adoption
was made in a European Convention arrangements, with Article 15 stipulating
approved two years later for Member States that:
of the Council of Europe (though also open,
in theory, to other countries).81 Provision shall be made to prohibit
any improper financial advantage
In addition to these single references to the arising from a child being given up
best interests of the child and a listing of basic for adoption.
procedures to be followed in the adoption
process, the first Hague Convention of However, neither of these treaties would
1965 and the European Convention of 1967 be able to deal with the ways in which
80 Hague
reflected two significant developments in intercountry adoption expanded in the Conference
adoption practice that have, for different 1970s or the new problems this raised. on Private
reasons, become vital factors in the best Both were too restricted in scope and both International Law
(1965). Convention
interests debate: the involvement of private suffered relatively poor ratification rates.
on Jurisdiction,
bodies and the professionalization of the Their limited impact made them obsolete Applicable Law
process. within a few years, and as a result they and Recognition
ceased to be operative. of Decrees Relating
to Adoption.
When setting out the need to determine
the situation of the child, his or her family 3.1.1.3. The 1970s: growing ‘demand’ for a 81 Council of
and prospective adopters, Article 6 of the dwindling ‘supply’ of children Europe (1967).
now-defunct 1965 Hague Convention European
Convention on
stated that “this enquiry shall be carried By the start of the 1970s, the adoption
the Adoption of
out in co-operation with public or private picture had started to change radically, Children, (ETS-
organisations qualified in the field of inter- with a sharp decline in the numbers of 058), Art 8.1.

27
The Best Interests of the Child in Intercountry Adoption

children in the industrialized countries in Prospective adopting U.S. parents were


need of adoption. Van Loon summarizes concerned that Vietnamese orphans
the prevailing situation as follows: already selected for adoption, who
might be physically endangered by
As long as only the existence of children active hostilities, would not be able to
deprived of their families had a structural leave Vietnam expeditiously if normal,
character, the problem of intercountry lengthy Vietnamese exit procedures
adoption could be phrased ... as: how to and U.S. immigration procedures
find a family for this child? The question were followed. ... The movement of
became ambiguous when, as a result the children was accelerated due to the
of declining fertility, birth control and growing crisis in Vietnam. But, with
changing attitudes, the impetus and negligible exceptions, the children met
motivation for intercountry adoption the criteria for intercountry adoption
arising from the industrialised countries and virtually all of them were in some
also acquired a structural character. stage of processing when the decision
At this point a structural ‘supply’ of was taken to speed up the movement.83
children ‘available’ for adoption abroad
Others were less convinced. As a report
in economically developing countries
from the Public Broadcasting Service put it:
met with a structural ‘demand’ for such
children in economically advanced
The hasty evacuation in the final days
countries. The language of economics
of the war led to a public debate over
made its appearance and intercountry
whether these actions had been in
adoption became a more complex and
the best interest of the children and
controversial social phenomenon.82
whether the children would have been
better served by remaining in Vietnam.
In other words, the original ‘humanitarian’
... The greatest point of controversy ...
motives were being overtaken by a more had to do with the circumstances that
general desire simply to adopt children led to the relinquishment of the “Baby
from abroad. This would create pressures Lift” children and whether these
to secure children by means that might not children were technically orphans
respect their best interests in full. who qualified for adoption. Lost or
inaccurate records were the norm
Although the number of children adopted and, in several cases, birth parents or
from Latin America (especially Colombia) other relatives who later arrived in the
began to grow in the 1970s, the focus was U.S. demanded custody of children
still largely on Asian countries of origin. who had previously been adopted by
These included Viet Nam, from where over American families.84
1,400 adoptions took place to the United
States alone between 1970 and 1974. And This debate crystallized the complexity
82 Van Loon (1993),
it was Operation Baby Lift from Viet Nam and controversial nature of intercountry p. 230.
in 1975 that sparked the first real debate adoption at that time. And it was to return,
on the ethics of how intercountry adoption from a different angle but with particular 83 See report on
was being organized – and, therefore, on force, 15 years later, when the plight of the 1975 ‘Operation
Babylift’, at: http://
the extent to which children’s best interests Romania’s institutionalized children was
darkwing.uoregon.
were being respected. suddenly revealed to the world. By then, edu/~adoption/
the decision had already been made – in archive/AIDOBR.htm
According to the US Agency for International 1987 – to draft a new Hague Convention,
84 Public
Development (USAID) at the time, a total given the growing preoccupation with
Broadcasting Service
of 2,547 Vietnamese children were airlifted intercountry adoption. But negotiations on (2000). ‘Adoption
out of what was then South Vietnam under the text were yet to start. History: Overview
the Baby Lift programme, with 80 per cent of International
3.1.1.4. The 1990s: countries close their doors Adoption’.
destined for adoption in the United States. http://www.pbs.org
USAID defended the evacuation in the as the search for ‘adoptable’ children escalates /pov/archive/
following terms: firstpersonplural/
There were many concerns when agencies historical/intad
and individuals flocked to Romania in options.html

28
The Changing Role and Purpose of Intercountry Adoption

early 1990 to adopt children, but two are of the number of states parties to reach a level
particular importance. First, the structures, at which the treaty would have a real impact
procedures and laws in place at the time and its provisions would become widely
in Romania were totally inadequate to accepted as constituting the benchmark for
ensure respect for the best interests and good practice in intercountry adoption.
rights of children adopted by foreigners – a
weakness that was exacerbated many times
over by the sudden, massive and insistent
Restrictions put in place by
surge in applications that occurred. Second, Hague Convention countries
it soon became clear that the children of origin have led to
in institutions who might be seen as
‘adoptable’ accounted for only a very small
attempts to identify potential
proportion of the total: the overwhelming ‘substitute’ countries,
majority were not ‘orphans’ or abandoned, in particular, outside the
and were not babies – most were aged 7 or
older and/or had special needs, including Hague framework.
severe disability or trauma. Because of this,
financially vulnerable families began to be 3.1.1.5. Stronger controls halt the growth of
approached directly with ‘offers’ to adopt intercountry adoption, but the focus shifts
their babies or healthy young children.
Within the space of just one year, such The first decade of the twenty-first century
arrangements were reported to account for was characterized by four phenomena of
at least half of all intercountry adoptions special note:
from Romania.85
• First, the constant growth in inter-
From then on, throughout the 1990s a country adoption worldwide that
rapidly increasing number of countries in characterized the 1990s and the first
the Central and Eastern European region years of the twenty-first century –
became countries of origin for intercountry peaking at well over 40,000 in 2004
adoption. This was, in part, a response to – was reversed. By 2012, that number
the year-long moratorium on intercountry had been more than halved. This rapid
adoption imposed by Romania in mid-1991, fall – whether or not it continues –
which led prospective adopters and their has raised questions about the real
agencies to search for alternatives. While importance given to the best interests
no other country had to confront a wave of, in particular, some of the children
of applications on the scale of that seen in adopted abroad when numbers were
Romania, almost all countries in the region steadily rising, given the subsequent
were similarly unprepared, legally and drastic decline in the number of children
85 Defence
practically, to deal with the demand. As a deemed to require intercountry for Children
result, and ironically, most of the countries adoption. International
concerned have since at some point (1991). ‘Romania: Is
the adoption jungle
imposed a moratorium on intercountry • Second, as more countries have
a thing of the
adoption in order to establish reforms and committed to the 1993 Hague past?’, International
regain control of the situation.86 The best Convention, they have introduced Children’s Rights
interests implications of these moratoria stricter procedures on the adoption Monitor, Vol 8,
pp. 29-30.
have become yet another subject of debate of children abroad. In quantitative
(see section 3.4.1 below). terms, the most significant develop- 86 UNICEF (2009a).
ments relating to countries of origin UNICEF Guidance
In the midst of these developments, the have been the two-thirds fall in Note on Intercountry
Adoption in the
landmark Hague Convention on Protection adoptions from China, due in part to CEE/CIS Region.
of Children and Co-operation in Respect its ratification of the Convention in Geneva: UNICEF
of Intercountry Adoption (or 1993 Hague 2006, and Guatemala’s confirmation Regional Office for
Central and Eastern
Convention) entered into force on 1 May of its ratification in 2008, with a
Europe and the
1995, but only in the initial three ratifying moratorium on new applications. Commonwealth of
states. It would take several years more for Among receiving countries, the Independent States.

29
The Best Interests of the Child in Intercountry Adoption

ratification in late 2007 by the with special needs in those very same
United States, which has been the countries for whom adoptive families
destination country for about half cannot be found.
of all intercountry adoptions in the
past, was particularly significant in The combined and interrelated ramifications
its effects. of these developments have created,
within the space of no more than a decade, an
• Third, restrictions put in place by ‘adoption landscape’ for which no one was
Hague Convention countries of origin prepared. As a result, there have been wild
have led to attempts to identify potential variations in the reactions to it and attempts
‘substitute’ countries, in particular, to cope with it, both in substance and intent.
outside the Hague framework. In many
cases, this has implied sub-Saharan If the best interests of the
African nations whose children had
previously constituted only a small child are to remain the central
proportion of all intercountry adoptions. tenet of adoption, it is all the
Thus adoption of African children to more important to ensure
the United States rose from just 1 per
cent of the total in 1999 to 30 per cent in that they are determined in
2012; to Italy from 4 per cent to 16 per a clear and accepted manner,
cent; and to France from 17 per cent
to 45 per cent over the same period.87
at the very least.
Disturbingly, not one of the ‘top five’
African countries whose children In this kind of climate, if the best interests
of the child are to remain the central tenet
were adopted to France, Italy, Sweden
of adoption, it is all the more important to
and the United States in 2011 was a
ensure that they are determined in a clear
Hague country.88 As was the case for
and accepted manner, at the very least.
Central and Eastern Europe in the
1990s, in such circumstances capacity
to ensure that the best interests of the
child (and other rights) are respected 3.2. The viewpoint and main
is likely to be limited. thrusts of international standards

• Fourth, a growing number of


The international standards in force today
countries of origin are emphasizing
no longer view adoption as a ‘humanitarian’
their priority, or even sole reliance,
act as such, but as one in a range of possible
on intercountry adoption to find
child protection measures that may be
families for children with special
taken when it is deemed that, for whatever
needs. This is in good part the result
reason, the parents will never again be in a
of efforts to demonstrate respect for position to look after their child.
the subsidiarity principle (or at least
the philosophy behind it). In line It is important to distinguish between
with this, many people have been adoption and other protective measures
working to put in place suitable care that involve what is known as ‘alternative
arrangements in their own countries care’. That distinction is sometimes made 87 Based on statistics
for an increasing number of children. inadequately. The CRC itself contributes published by the
Again, however, the best interests to the confusion by listing adoption under Central Authorities
ramifications of this approach ‘alternative care’ in its Article 20 (see below). of the countries
require examination, both because concerned.
of fears that prospective adopters Of course, both adoption and alternative 88 African Child
in receiving countries will agree to care are components of the wider child Policy Forum
care for children with characteristics protection system, but when a child is (2012a), p. 10. The
or requirements that, in practice, ‘top five’ countries
adopted he or she is in (new) parental care
were Ethiopia, DRC,
prove to be beyond their capacity, and, as a result, many of the safeguards that Uganda, Nigeria
and because there are many children apply to alternative care settings – including and Ghana.

30
The Changing Role and Purpose of Intercountry Adoption

foster and residential care – do not apply to Similarly, in the preamble to the 1993
adoption, such as the formulation of a care Hague Convention, states recognize that
plan and periodic reviews of the placement. “intercountry adoption may offer the
Generally speaking, therefore, adoption is advantage of a permanent family”. Use
one possible outcome of alternative care of the terms “may be” in the CRC (rather
rather than a component of that care. This is than, for example, “shall be”), and “may
why the UN Guidelines for the Alternative offer” in the Hague Convention (rather
Care of Children clearly state that adoption than “offers”), demonstrates deliberate
placements, once finalized, fall outside restraint on the part of the drafters. It
their scope.89 signals both that intercountry adoption is
to be seen only as a potential response to
Similarly, it is important to highlight the certain children without parental care, and
way in which references to adoption are that compliance with these treaties does not
formulated in the CRC: no state is obliged to depend on carrying out such adoptions,
foresee the adoption of children. So, under either as a receiving country or as a country
CRC Article 20.2 and 20.3: “States Parties of origin.
shall in accordance with their national laws
ensure alternative care [that] could include, As a result, assessing compliance at both
inter alia, foster placement, kafala of Islamic policy and individual level revolves
law, adoption.” around whether or not the best interests of
the child are shown to be “the paramount
This double insistence on what is possible consideration” (CRC Art. 21) and whether
(“could include, inter alia”) rather than what “intercountry adoptions take place in
is required, coupled with the condition the best interests of the child and with
that the measure should be in compliance respect for his or her fundamental rights
with “national laws”, is supplemented by as recognised in international law” (1993
the restriction on the application of Article Hague Convention Art. 1(a)).
21, which applies only to “States Parties
that recognise and/or permit the system The following sections review the
of adoption”. implications of the predominant role of
the best interests of the child in relation
In general, these formulations are seen to intercountry adoption from four key
as a response to the situation of states standpoints:
governed by Islamic law, which do not, as
a rule, “recognise and/or permit” adoption • the subsidiarity of intercountry
(several such states nonetheless felt it adoption to suitable in-country care
necessary to go further, declaring on their (section 3.3)
signature or ratification of the CRC that • prohibition or severe limitation of
they did not consider themselves bound intercountry adoption (section 3.4)
by Article 21). In fact, the formulations • intercountry adoption procedures
also imply that any state may choose with non-Hague countries (section 3.5)
not to implement adoption, at any time • the best interests of the child in
and for any reason that is consistent with emergency situations (section 3.7).
safeguarding children’s best interests and
other rights.
3.3. The subsidiarity of 89 See UN General
This is particularly important in relation
to the intercountry form of adoption.
intercountry adoption to suitable Assembly (2010).
Guidelines for
International standards reinforce the non- in-country care the Alternative
prescriptive nature of the measure. Care of Children:
resolution, adopted
According to CRC Article 21(b), the states International standards require that by the General
parties concerned “[r]ecognise that inter- intercountry adoption can only be Assembly,
country adoption may be considered as an considered when the parents or family 24 February 2010,
alternative means of child’s care”. A/RES/64/142, in
are unable to care for the child and where particular para.
there are no appropriate in-country care 30(b).

31
The Best Interests of the Child in Intercountry Adoption

options available. In the words of the CRC This raises two key issues: the potential
(Article 21(b)), this translates as ”...if the role of informal arrangements to care for
child cannot be placed in a foster or children, and what determines whether an
adoptive family or cannot in any suitable in-country care option is ‘suitable’.
manner be cared for in the child’s country
of origin”. Similarly, according to the 1993 3.3.1. The role of informal and traditional
Hague Convention (Art. 4(b)), the competent care mechanisms
authorities of the state of origin may only Some maintain that informal care
decide that intercountry adoption corresponds arrangements cannot, by their very
to a child’s best interests “...after possibilities nature, guarantee permanency for a child,
for placement of the child within the State of and that the best interests of the child
origin have been given due consideration”. cannot therefore be served by positioning
intercountry adoption as subsidiary to such
This subsidiarity rule has provoked debate arrangements. In the context of this study,
about its implications for the best interests this approach has to be examined in the light
of the child. Some middle ground in that of international standards, particularly on
debate is expressed in the Hague’s Guide the roles of informal caregivers within and
to Good Practice: beyond the family in looking after children
who are without parental care.
The principle of subsidiarity should
be interpreted in the light of the
There is little more than implicit
principle of the best interests of the
acknowledgement in the CRC of the vital
child. For example:
role played by informal forms of alternative
care and traditional coping mechanisms
• It is true that maintaining a child in
for children who cannot live with their
his or her family of origin is important,
parents. The 1988 Technical Review of the
but it is not more important than
first full draft of that treaty noted:
protecting a child from harm or abuse.
The draft Convention as a whole
• Permanent care by an extended
may not adequately recognize the
family member may be preferable,
role of the extended family and
but not if the carers are wrongly
community when parental care is not
motivated, unsuitable, or unable
available. Because cultures, traditions
to meet the needs (including the
and customs in many countries
medical needs) of the particular child.
and areas provide for such a role,
the Working Group [drafting the
• National adoption or other permanent Convention] may wish to broaden
family care is generally preferable, but 90 Hague
Article [5] accordingly.91 Conference on
if there is a lack of suitable national International
adoptive families or carers, it is, as a As a result, the focus of CRC Article 5 Private Law (2008).
general rule, not preferable to keep was broadened to require respect for the
The Implementation
children waiting in institutions when and Operation of
“responsibilities, rights and duties of the 1993 Hague
the possibility exists of a suitable parents or, where applicable, the members Intercountry
permanent family placement abroad. of the extended family or community as Adoption
[Institutionalization as an option for Convention: Guide
provided for by local custom”. However, to Good Practice,
permanent care, while appropriate the article itself is limited in scope: the Guide No. 1. Bristol:
in special circumstances, is not as a responsibilities, rights and duties in Family Law,
general rule in the best interests of question relate only to giving “appropriate Chapter 2.1.1.,
the child.] para. 51.
direction and guidance” to children in
exercising their rights. It makes no reference 91 UN Secretariat
• Finding a home for a child in the to situations where children are without (1989). ‘Additional
country of origin is a positive step, but parental care. Comments and
a temporary home in the country of Clarifications’, UN
Doc. E/CN.4/1989/
origin in most cases is not preferable WG.1/CRP.1/Add.1,
to a permanent home elsewhere.90 para. 13.

32
The Changing Role and Purpose of Intercountry Adoption

Some commentators claim that the spirit Concerns about the lack of recognition
of this provision, together with its position given to informal care arrangements
near the beginning of the treaty, means were addressed more explicitly during
that it should be seen as a baseline, or the drafting of the Guidelines for the
‘umbrella’, for considering the role of Alternative Care of Children. As a result, it
the extended family and community contains specific provisions that “apply to
throughout the CRC. Others argue that there informal care settings, having due regard
was no indication of such an aim during for both the important role played by the
the drafting of the CRC, and that there extended family and community and the
92 See, for example,
would be inconsistencies in trying to apply obligations of States [under the CRC] for discussion on this
this wider vision of that role systematically all children not in the care of their parents point in Cantwell and
to the Convention as a whole.92 or legal and customary caregivers”.94 The Holzscheiter (2008).
Guidelines include the need to “respect ’Article 20: Children
deprived of their
Whether or not the inclusion of “extended and promote” care arrangements based on family environment’,
family or community” in CRC Article “cultural and religious practices” (para. 75) in Alen, A., J. Vande
5 resolved the issue raised in the 1988 and to take adequate measures to support Lanotte, E. Verhellen,
Technical Review, there is general the optimal provision of informal care F. Ang, E. Berghmans
and M. Verheyde,
agreement that the interpretation of the (para. 76). eds. A Commentary
term ‘family’ must be wide and culturally on the United Nations
sensitive. This is particularly important Behind those concerns was the Convention on the
when reviewing the implications of CRC preoccupation that positive but informal Rights of the Child.
Leiden: Martinus
Article 20.3 for decisions on the need for arrangements by extended families and Nijhoff Publishers,
formal alternative care measures and communities would be disrupted if carers pp. 33–35.
adoption. Here, the question at hand is not found it difficult, in material terms, to
the restricted concept of ‘parental care’, provide for children and/or on the grounds 93 Committee on the
Rights of the Child
but, as spelt out in CRC Article 20.1, the that only a formal arrangement can ensure (2006). Day of General
situation of a child “deprived of his or her that the best interests of the child will be Discussion,
family environment or in whose own best upheld in the long term. This ‘guarantee UN Doc.CRC/C/153,
interests cannot be allowed to remain in that of permanency’ argument is often used para. 6; UN Human
Rights Committee
environment”. Both the CRC Committee by those who advocate greater recourse to (1990). General
and the Human Rights Committee have intercountry adoption. On that basis, some Comment No. 19,
underlined the fact that there can be no contend that intercountry adoption should para. 28.
one globally applicable definition: ‘family’ be subsidiary only to formal domestic
94 UN General
may include, for example, those of a adoption, and not to informal arrangements Assembly, Human
nuclear or extended nature, unmarried or even formal foster-care.95 However, Rights Council (2010),
or re-constructed families, and those with as noted by Hodgkin and Newell, “[i]t is para. 27.
a single parent.93 Alternative formal care clear that children’s psychological need for
95 See, for exam-
provision is, therefore, to be envisaged only permanency and individual attachments ple, Bartholet, E.
when that broad “family environment” is can be met without the formality of (2007). ‘International
not available or is deemed unsuitable in the adoption”.96 adoption: Thoughts
light of the child’s best interests. on the human rights
issues’, Buffalo Human
One state, Canada, recognized the need Rights Law Review, 13:
This wide-ranging view is reflected in to pre-empt that approach formally when 151–203, pp. 154–55.
other CRC provisions relevant to child ratifying the CRC, at least in the adoption
care. The child’s right to benefit from of its own children. A reservation to CRC 96. Hodgkin, R. and
P. Newell (2007).
social security, for example, depends in Article 21 states: Implementation Hand-
part on the resources and circumstances of book for the Convention
the “persons having responsibility for the With a view to ensuring full respect on the Rights of the
maintenance of the child” (CRC Art. 26), and for the purposes and intent of article Child. New York:
United Nations Chil-
the primary responsibility for ensuring that 20 (3) and article 30 of the Convention, dren’s Fund, p. 294.
the child has an adequate standard of living the Government of Canada reserves
falls to “parent(s) or others responsible for the right not to apply the provisions 97 http://treaties.
the child” (CRC Art. 27). But neither case of article 21 to the extent that they un.org/Pages/View
Details.spx?src=
mentions ‘legal’ responsibility, so the terms may be inconsistent with customary TREATY&mtdsg_
used could include informal carers, as well forms of care among aboriginal no=IV-11&chapter
as those who are not related to the child. peoples in Canada.97 =4&lang=en

33
The Best Interests of the Child in Intercountry Adoption

This is not always the approach that based solution – a call made explicit by the
receiving countries take to intercountry CRC Committee in its recommendations
adoption. Despite the existence of, in to states parties – and they recognize the
particular, such informal “customary role to be played by residential care when
forms of care” in many actual or potential it is “specifically appropriate, necessary
countries of origin, there seems to be a and constructive for the individual child
willingness in some quarters to overlook concerned and in his/her best interests”.100
these and enable adoption abroad, rather In other words, it is clear that ‘suitable care’
than supporting such informal mechanisms can be provided in a residential setting if the
in the best interests of the child. family-based alternatives on offer could not
meet a child’s needs, particularly those of
Bearing in mind the overall thrust of the a psychosocial nature: some children need
relevant international standards, it is specialized treatment, for example, and
reasonable to question the validity of such others have had such a negative experience
a dismissive approach towards informal of family life that – for some time at least –
care arrangements. Reliance on such they cannot cope with family-based living.
arrangements “to the extent that they can
be shown to be consistent with the rights Much of the debate around suitability has
and best interests of the children” is been about residential care placements.
indisputably the path to be followed.98 This issue has been clouded by the reference
in CRC Article 20 to “suitable institutions”,
3.3.2. Determining what is a ‘suitable’ rather than suitable residential facilities, as
care placement the only explicitly mentioned alternative
to family-based alternative care. This
In the absence of appropriate informal
CRC terminology is, for the most part, a
solutions, children may need formal
reflection of the influence of the Soviet
alternative care. In that case, the suitability
Union and allied states during the drafting
of each placement option for the child in
process in the 1980s, and there are still
question has to be determined and, according
many examples of the amalgam between
to international standards, the option chosen institutional and residential care.
must correspond to the child’s best interests.
If it is not regarded as ‘suitable’, adoption The Guidelines for the Alternative Care of
abroad may be envisaged. Children do help to clarify the distinction
between the two, however. The single
There is widespread agreement that, to be reference to “institutions” equates them
deemed suitable, a formal care setting must with “large residential care facilities” (para.
meet two criteria: first, it must conform 23) which are to be subjected to a strategy
to general human rights obligations on of “progressive elimination”. The thinking
the welfare, development and protection here is that, while suitable care can be 98 UN General
of those children for whom it takes provided in certain residential facilities, it Assembly, Human
responsibility; second, the form of care is unlikely to be assured in ‘institutions’. Rights Council (2010),
it offers must correspond to the specific para. 75.
characteristics, needs and circumstances of Determining the suitability of a care 99 See Cantwell, N.
each individual child.99 arrangement also hinges on respect for et al. (2012). Moving
the child’s right to a periodic review of Forward: Implementing
The Guidelines for the Alternative Care his/her placement for treatment or care, to the ‘Guidelines for the
Alternative Care of
of Children stress that all forms of care, determine whether or not it is still needed Children’. Glasgow:
whether family-based or residential, and is still the most appropriate form of Centre for Excellence
should be viewed as potentially suitable. care. Formal alternative care should be for Looked After
This approach underlies the requirement designed to ensure what the Guidelines Children in Scotland,
pp. 22–23 and 66–74.
to have a range of options in place, the term “permanency”,101 wherever possible
components of which can be evaluated through reintegration with the family or, 100 UN General
according to their capacity to respond when necessary, in a substitute family- Assembly, Human
effectively to the situation of the individual based setting. The child’s need for stability, Rights Council (2010),
para. 21.
child. Here, the Guidelines echo the CRC’s security and support, set out implicitly in
implicit call to look first for a viable family- the “permanency” objective, can be foreseen 101 ibid. paras. 60-63.

34
The Changing Role and Purpose of Intercountry Adoption

in various ways for individual situations. scrutiny when they impose severe restrictions
Beyond a ‘simple’ choice between return on the adoption of their children abroad.
to parental care or adoption, there are
other responses that can meet those This obscures the fact that many receiving
requirements, such as kinship care, long- countries take exactly the same line – a
term foster care or – especially if the child line that is tantamount to prohibiting
particularly wants it – a residential facility intercountry adoption. While exceptions
such as a small group home. can usually be made in the case of relative
(intra-familial) adoptions, Canada,
Taking these and other factors – including Denmark, Italy, Malta, the Netherlands,
the “desirability of continuity in a child’s Spain and Sweden are among those
upbringing” (CRC Art. 20.3) – into account, countries that require foreign adopters to
the suitability of any in-country care be ‘permanent’ or ‘legal’ residents, and
arrangement depends on a professional Switzerland requires them to be ‘habitually
assessment in each case, based on established resident’ in the country. Greece has similar
and wide-ranging criteria. Without that, restrictions, save in the case of children
it is difficult to see how respect for the with health problems who are living in
subsidiarity principle can be achieved before institutions. To adopt an Australian child, at
an intercountry adoption goes ahead in the least one of the adopters must be Australian
best interests of the child. or a permanent resident; Iceland requires
them to be residents or to have “special
connections” with the country, while Japan
demands that they be resident throughout
3.4. Prohibition or severe the adoption process, which can take up to
limitation of intercountry 18 months.103
adoption
These stringent restrictions rarely provoke
comment. It is apparently assumed that
As we have seen (section 2.2), there is no in devising their policies those countries
obligation on a state party to the CRC are justified in deciding that, as a general
to carry out any adoptions, domestic or principle, the best interests of their
intercountry. It is the state concerned that, children will not be served by non-relative
in the first instance at least, determines adoption abroad. The CRC Committee,
whether or not in-country care for the child for example, has never commented on
can be provided in a suitable manner, and the validity of restrictive approaches by
whether or not adoption abroad could receiving countries from a rights or best 102 See, for example,
indeed meet the child’s best interests as a interests angle, even when there are many Hague Conference
general rule or in individual cases. legally adoptable children who are living on Private
International Law
in permanent alternative care settings (2008), Chapters
Similarly, contracting states to the 1993 and who will struggle to find a domestic 8.2.1., 8.2.2. and
Hague Convention are not obliged to carry adoptive family.104 8.2.3.
out intercountry adoptions, but if and when
103 All information
they choose to do so any such adoption This assumption, however, is rarely applied from the US
(between contracting states, at least) must when those considered to be ‘countries Department of State
be carried out in line with the Convention.102 of origin’ impose similar restrictions in website: http://
adoption.state.gov/
the long term or declare a moratorium on
Indeed, many states parties to the CRC (often intercountry adoption. When evaluating 104 According
also Hague contracting states) prohibit or the importance given to best interests to the Adoption
severely restrict the intercountry adoption of as ‘the paramount consideration’ to be Council of Canada,
their children, while recognizing and permitting for example, there
applied to intercountry adoption, it is
are approximately
domestic adoptions including those by highly instructive to examine how the CRC 30,000 children in
foreigners who are habitually resident in Committee has reacted to the limitations the country who
the child’s country of origin. established by countries of origin. are “legally free
or eligible” for
adoption. See http://
Typically, it is the countries known as The case of Romania is illuminating. In www.adoption.ca/
‘countries of origin’ that are subjected to 2000, Romania determined that it could myths-and-realities

35
The Best Interests of the Child in Intercountry Adoption

not safeguard the rights of its children who and it explains why the country is not a
were adopted abroad, and that adoption party to the Hague Convention. The only
could not, therefore, be seen as being in comment by the Committee, however,
the best interests of the children concerned. concerned Argentina’s reservation on this
Consequently, Romania suspended all issue when ratifying the CRC:
intercountry adoptions and banned the
practice by law in 2005, with the exception The Argentine Republic enters
of adoption by close relatives, particularly a reservation to subparagraphs
grandparents.105 (b), (c), (d) and (e) of article 21 of
the Convention on the Rights of
Having reviewed the state party’s the Child and declares that those
subsequent report in 2009, the CRC sub-paragraphs shall not apply
Committee noted in its Concluding in areas within its jurisdiction
105 Romania later
Observations that it considered that the because, in its view, before they enacted a new law on
prevailing restrictions on intercountry can be applied a strict mechanism adoption that came
adoption fell short of the requirements of must exist for the legal protection of into effect on 7 April
CRC Article 21: children in matters of intercountry 2012, extending the
categories of potential
adoption, in order to prevent adopters to include
53. The Committee notes that inter- trafficking in and the sale of children.107 relatives of the fourth
country adoptions have been limited to degree of kinship, the
cases where a family relationship exists Commenting on this reservation and the spouse of the child’s
natural parent and,
between the child and prospective reference to it in Argentina’s state party significantly,
parents... report, the Committee, Romanian citizens
who are habitually
55. The Committee recommends that ...while appreciating that the State resident abroad.

the State party, taking into account the party wishes to adopt “a rigorous 106 Committee on the
new adoption laws and guarantees arrangement ... for the legal Rights of the Child
of legal procedures for inter-country protection of children in order to (2009). Concluding
adoption in conformity with the prevent the phenomenon of the sale Observations of the
Committee on the
Hague Convention on Protection of of children and child trafficking”108 Rights of the Child:
Children and Cooperation in Respect remains concerned that the system Romania’ (CRC/C/
of Intercountry Adoption, withdraw has not yet been fully addressed.109 ROM/CO/4).
the existing moratorium [sic] as a
107 See UN Treaty
barrier to the full implementation of In the light of the long waiting lists Collection, Declarations
article 21 of the Convention.106 for adoptions, the Committee urges and Reservations:
the State party to establish a strong http://treaties.un.org/
This was the very first time that the legal protection system against sale Pages/ViewDetails.
aspx?src=TREATY&
CRC Committee had ever equated the and trafficking of children in line with mtdsg_no=IV-11&
prohibition or limitation of intercountry the Optional Protocol on the sale of chapter=4&lang=en
adoption with the violation of – or lack of children, child prostitution and child
full compliance with – the CRC. It is also, so pornography in order to, inter alia, 108 Committee on the
Rights of the Child
far, the only time the Committee has taken establish a secure system of adoption (2009c). ‘Concluding
such a stance. that respects the best interests of the Observations of the
child and with a view to eventually Committee on the
One year later, in 2010, the Committee withdrawing its reservation.110 Rights of the Child:
Argentina’ (CRC/C/
issued Concluding Observations on three ARG/3-4), para. 38.
countries with highly restrictive laws on In other words, the Committee agreed that
intercountry adoption – Argentina, Paraguay the blanket ban on intercountry adoption 109 Committee on the
and Tajikistan – that are worth reviewing. was justified since the system in place could Rights of the Child
(2010a). ‘Concluding
not guarantee that the best interests of the Observations of the
In Argentina, applicants to adopt a child children concerned would be upheld. Committee on the
must be Argentine nationals or have been Rights of the Child:
permanent residents of the country for at In Paraguay, the current Paraguayan law Argentina’ (CRC/C/
ARG/CO/3-4), para 9.
least five years immediately before their states that prospective adoptive parents
application. This means that there are no of Paraguayan children must reside in 110 ibid., para. 10
intercountry adoptions from Argentina, Paraguay, and intercountry adoption is, (our emphasis).

36
The Changing Role and Purpose of Intercountry Adoption

therefore, prohibited. In this case, the (a) Accede to the Hague Convention
Committee actually expressed support for of 1993 related to the protection of
the restrictive approach: children and cooperation on intercountry
adoptions.
The Committee welcomes Act No.
1169, adopted by the State party (b) Introduce a new legislation on
in 1997, and the various initiatives adoption in compliance with article 21
that it has undertaken regarding of the Convention and the procedures
adoption processes, with the effect established under the Hague Convention
of restricting international adoption (1993).
in response to widespread trafficking
and sale of children.111 (c) Establish screening and monitoring
mechanisms to determine the suitability
Here, as in the case of Argentina, the of prospective adoptive parents and
Committee appears to agree that the ensure the best interests of the child
blanket ban is warranted. This stance also to be adopted.114 111 Committee
on the Rights of
corresponds with that taken earlier, in the Child (2010b).
2004, by the UN Human Rights Council’s There is no indication what “compliance”
‘Concluding
might require, unless, by implication, it Observations of the
Special Rapporteur on the sale of children,
means opening up intercountry adoption, Committee on the
child prostitution and child pornography,
even though the obligations under Article Rights of the Child:
who noted in relation to Paraguay: Paraguay’ (CRC/C/
21 apply only to countries that “recognise
“Between 1990 and 1995, approximately PRY/CO/3), para. 44.
and/or permit” that measure.
3,000 babies left the country as a result of
112 United Nations
inter-country adoptions that were riddled
It will be interesting to see how the Economic and
with irregularities.” Social Council
Committee reacts to similar prohibitions
(2004). ‘Report
and restrictions in the future. At the time submitted by the
He endorsed the enactment of legislation
of writing, the countries concerned will Special Rapporteur
suspending intercountry adoptions, thereby include Mali, a state party to the 1993 Hague on the sale of
“putting an end to trafficking in babies for Convention. A circular dated 5 December children, child
intercountry adoptions”.112 prostitution and
2012 issued by its Ministry of Justice invites child pornography’
magistrates to apply Article 540 of the (E/CN.4/2005/78/
In Tajikistan, a 2006 amendment to the new Personal and Family Code, whereby Add.1). New York:
Family Code prohibits the adoption of Tajik intercountry adoption is permissible only United Nations,
children by non-Tajik citizens, although paras. 44–45. Also
if the adopters are Malian citizens.115 If the see para. 46.
couples where only one spouse is a Tajik current tendency of greater restrictions
citizen may still be allowed to adopt. being imposed by countries of origin 113 Committee
Here, the CRC Committee’s response continues, the importance of measuring on the Rights of
is somewhat unclear. First it expresses the Child (2010c).
such initiatives against the best interests of
‘Concluding
support for this stance: the child will be thrown into even sharper Observations of the
relief. Committee on the
The Committee welcomes the Rights of the Child:
Tajikistan’ (CRC/C/
initiatives undertaken by the State 3.4.1. Moratoria TJK/CO/2), para. 46
party regarding adoption, such as A suspension or moratorium on intercountry (our emphasis).
restrictions to intercountry adoptions adoption is designed as a temporary
in response to the lack of sufficient 114 ibid., para. 47
measure to respond to an actual or potential (our emphasis).
monitoring of such adoptions. The risk of a general and severe violation of the
Committee also welcomes the State rights of children who enter the process. 115 http://www.
party’s commitment indicated during Moratoria may be declared by countries of diplomatie.gouv.
the dialogue to amend its legislation fr/fr/adopter-
origin or by receiving countries, in varying
a-l-etranger/
on adoption to ensure that it includes contexts and with different scope and comment-adopter-
the principle of the best interests of effects. The aim is to use the suspension a-l-etranger/
the child.113 period to secure conditions under which les-fiches-pays-de-
l-adoption/fiches-
adoptions can resume, with the necessary
pays-adoption/
The Committee goes on, however, to safeguards in place to protect children’s article/adopter-au-
recommend that Tajikistan: rights in line with their best interests. mali

37
The Best Interests of the Child in Intercountry Adoption

Moratoria are not unusual. Most of the 22 Sweden and the United States) and applied
countries in Central and Eastern Europe only to them: all three indicated their wish to
and the Commonwealth of Independent resume once the necessary conditions were in
States (CEE/CIS) have invoked the measure place. Furthermore, the JCICS list of countries
at least once since the early 1990s,116 as have was selective: many others suspended
many other countries of origin, particularly intercountry adoptions in the 2000s but later
in Africa and Asia. At the same time, the reinstated the measure, including Moldova,
justification for and the aims of moratoria Ukraine and Sierra Leone.
are contested in certain quarters –
particularly in receiving countries – as The JCICS stance does, however, highlight
running counter to the rights and best important issues that need to be addressed
interests of those children who are, as if the best interests of the child are to be
a result, deprived of the opportunity of ensured through moratoria. For example,
adoption abroad. In a 2010 statement, they are bound to affect children for whom
for example, the US Joint Council on intercountry adoption could be a valid
International Children’s Services (JCICS) response; but if the system in place cannot
stated: safeguard their rights and best interests, the
risk involved in continuing adoptions under
The history of suspensions clearly such a system is too high. The time it takes
demonstrates that an ethical and fully – often years – to establish a system capable
functional intercountry adoption of safeguarding children can reflect the
process is not the true goal of those depth and extent of reform that is needed,
calling for suspension. Of eight demonstrating just how unacceptable the
countries where the chosen route framework for intercountry adoption has
of reform included the suspension been. This is certainly the case for countries
of intercountry adoption, not one such as Cambodia, Guatemala and Nepal:
country has effectively reconstituted even after years of effort, including technical
intercountry adoption as an option for assistance, few receiving countries felt that
children in need. Suspension without conditions were good enough to lift the
a goal of achieving a full spectrum moratoria.
of permanency services, including
intercountry adoption is not in the That said, it is also clear that a moratorium
best interest of children and only to protect the best interests of children
replaces one abuse with abuse of must only be imposed with good cause and
another form.117 in a manner that takes full account of the
situation of children already going through
The eight countries cited by JCICS as the intercountry adoption process (see
having imposed moratoria were Romania 3.4.1.3 below).
(June 2001), Cambodia (December 2001),
Georgia (August 2003), Azerbaijan (May 3.4.1.1. Why do countries of origin impose
2004), Belarus (October 2004), Guatemala moratoria?
(December 2007), Viet Nam (September
2008) and Kyrgyzstan (September 2008), Moratoria declared by countries of origin
all of which “continue[d] to this day” are usually general in nature (affecting
(i.e. February 2010. All of these countries adoptions to all receiving countries) and
were, or have since become, parties to the may be motivated by a number of factors:
1993 Hague Convention. 116 UNICEF
• Evidence that the adoption system (2009a), p. 8.
The nature and outcomes of these moratoria and procedures in place have failed to
117 Joint Council on
were very different. Romania’s initial prevent serious and widespread violations International
decision to suspend intercountry adoptions of children’s rights. This may be on Children’s
was transformed into a virtually outright the basis of the country of origin’s Services (2010). ‘A
prohibition in 2005, while the 2008 suspension spontaneous concerns or at the Statement on the
True Character of
of adoptions from Viet Nam was at the suggestion of – and sometimes under Reform Efforts’
initiative of three receiving countries (Ireland, pressure from – international bodies (our emphasis).

38
The Changing Role and Purpose of Intercountry Adoption

and/or receiving countries concerned because of a significant backlog and


about systemic problems. This is why, the relatively few children in need of
for example, Sierra Leone’s Ministry of intercountry adoption. In some cases,
Social Welfare, Gender and Children’s this may apply only to applications
Affairs imposed a suspension on to adopt children in particular age-
intercountry adoptions on 21 May groups. For example, on 1 May 2009, the
2009 – a suspension that was lifted Central Authority of the Philippines,
on 13 April 2012 after more effective the Inter-Country Adoption Board
measures were put in place. (ICAB), announced a moratorium on
accepting new applications from those
• Concerns that systems may lack wishing to adopt a child under the age
the resources to cope with the level of of 25 months with or without medical
intercountry adoption while protecting or developmental concerns. It stated
the rights of the children involved. There that this was “due to the large number
have been many examples of this since of unmatched approved adoption
the ‘free-for-all’ that hit Romania in applications for prospective adoptive
1991, and Ghana is one of the countries parents wanting to adopt children”
that reacted to high demand in this in this age group and the relatively
way more recently (in 2013). small number of such young children
in need of inter-country adoption.119
• The need for thorough legislative The ICAB indicated that it would lift
reform and establishment of procedures the moratorium once it had processed
and structures with a view to becoming a at least 50 per cent of its current cases
state party to the 1993 Hague Convention – and it did so, subject to a quota
or to implementing that treaty. Carrying system, in September 2012. In many
out such fundamental changes such instances, exceptions are made
while continuing to process new for one or more categories of hard-to-
applications compromises the efficacy place children (those with a disability
and speed of the reform process. or serious illness, sibling groups and/
118 Hague
Rwanda, for example, applied a or older children).
Convention
moratorium in August 2010, so that on Private
it could put in place the necessary Suspensions by countries of origin International
infrastructure to protect the best sometimes target specific receiving Law (2012a).
‘Francophone
interests of its children and combat countries. This has been the case for
workshop on The
their potential abduction, sale and Ukraine, for example, which in September Hague Convention
trafficking, enabling it to accede to the 2005 halted – but later reinstated – of 29 May 1993
Hague Convention in 2012.118 adoption procedures for Canada, France, on protection
of children and
Germany, Italy, Spain and the United
co-operation
• Fears that proven malpractice else- States on the grounds that many adoptive in respect of
where may compromise adoptions from parents there had failed to comply with intercountry
the country. One example was the post-adoption reporting requirements.120 adoption:
Conclusions and
moratorium imposed by Congo-
recommendations’.
Brazzaville in 2007 and 2008 to avoid 3.4.1.2. Why do receiving countries impose Dakar.
problems like the Arche de Noé episode moratoria?
in neighbouring Chad, when an illegal 119 See: http://
www.psbi.
attempt was made to remove 103 In stark contrast, moratoria declared by
org/document.
children for adoption in France. receiving countries always target individual doc?id=399 and
countries of origin whose intercountry http://www.icab.
• Fears of malpractice in the wake of adoption practices are deemed to fall below gov.ph/
disaster or emergency situations. Examples acceptable standards for safeguarding the
120 Organization
include the moratorium imposed by child’s rights and best interests. Justifying for Security and
Sri Lanka following the December 2004 its suspension of adoptions from Ethiopia Cooperation in
tsunami (see also section 3.7 below). in June 2012, Australia noted that “the Europe (2006).
‘Assessment of the
changing and complex Ethiopian adoption
adoption system
• Temporary refusal to accept new environment meant that the Australian in Ukraine’. OSCE:
applications from prospective adopters Government could no longer be confident Kyiv, p. 96.

39
The Best Interests of the Child in Intercountry Adoption

that the program would continue to operate views on whether or not those best interests
in a way that protected the best interests are being safeguarded adequately at any
of Ethiopian children.”121 The government given point in time?
pointed to “ongoing challenges in
identifying orphanages in which Australia 3.4.1.3. Preserving the best interests of children
could have trust and confidence” and the through a moratorium
“growing numbers of non-government
adoption agencies operating in Ethiopia Moratoria declared by receiving countries
[leading] to increased competition for invariably take the form of official statements
referral of children to intercountry adoption that no more applications will be accepted in
programs”, which “is not always conducive relation to the country of origin in question,
to ethical adoption practices”.122 while allowing for the completion of cases
already under way (‘transition’ cases that
Such decisions are generally made have already reached a specified stage in
unilaterally, rather than as a concerted the process). These moratoria are often
move, although they may snowball more combined with an offer to provide technical
or less quickly. The United States, for assistance, so that the country of origin
example, was the first country (in 2001) to can meet the standards required (and,
prohibit adoptions from Cambodia, and where appropriate, accede to the Hague
it was followed over the next four or five Convention), allowing intercountry
years by most receiving countries – the adoptions to resume.
notable exception being Italy, which has
maintained its programme. In contrast, Experience shows that countries of origin
the European receiving countries were are more likely than receiving countries to
the first to ban adoptions from Guatemala declare an immediate or almost immediate
during that same period, while the United suspension. The aim is, at least in part, to
States was practically the only country pre-empt a flood of applications before a
processing adoptions from Guatemala in moratorium comes into force.
the years up to the 2008 moratorium. In the
case of Viet Nam, three countries (Ireland, As noted above, one justification for
Sweden and the United States) decided that suspending adoptions lies in the need to
conditions did not enable them to renew create the most conducive context for the
their agreements with the authorities in successful preparation and establishment
2008–2009, but other countries to which of fundamental reforms. In most cases,
Vietnamese children were being adopted the spur for reform is the evidence of
(notably Denmark, France and Italy) serious and widespread systemic problems
decided that such a move was unnecessary. that constitute or result in procedures or
activities that are not in keeping with
A rare example of coordinated action to international standards – and therefore
date is adoption from Nepal. In 2010, all of violate the best interests and rights of the
the 13 main receiving countries suspended child.
the adoption of any children declared as
‘abandoned’. This had been the officially The key word here is ‘systemic’. In other
recorded status of the vast majority of words, the problems and actions to be
intercountry adoptees from Nepal, but it addressed by a moratorium are not those
was clear that it did not reflect the reality attributable to individuals or agencies
in many cases. acting in isolation that infringe the law
or abuse what is otherwise a valid system. 121 Australian
The best interests implications of such Clearly, such cases are to be dealt with Government,
Attorney-General’s
disparate policies are considerable. by law enforcement and judicial bodies. Department (2012).
The biggest and most obvious question Systemic problems involve practices that do ‘Closure of the
revolves around the fact that, if the not comply with international standards Ethiopia–Australia
best interests of the child are to be the but are nonetheless required or tolerated, or Intercountry
Adoption Program’,
paramount consideration in adoptions, that are simply not addressed adequately, 28 June.
why do the competent authorities of if at all, by the legislation, system and/
receiving countries have such divergent or procedures in place. Consequently, 122 ibid.

40
The Changing Role and Purpose of Intercountry Adoption

they are ‘accepted’ and their incidence is interests of the children who are affected –
generalized. Examples include: actually and potentially.

• lack of effective procedures to verify


the alleged ‘abandonment’ of a child ‘Transition’ cases have been
left in an administrative
• lack of guarantees to ensure that
consent for adoption is fully informed, and legal limbo that creates
freely given and involves no recompense uncertainty and anxiety in
• a legal requirement for every the children concerned.
adoption agency to provide
‘humanitarian’ financial contributions, There have, to date, been many instances
often based on the number of adoptions where lack of clarity and expediency in
carried out, to secure authorization following through the initial decision has
to operate (a clear incentive for the
jeopardized those best interests severely.
country of origin to maximize the
In particular, there has often been a failure
number of children made available)
to foresee from the start the criteria to
determine which pending adoption cases
• regulations that require or allow
should proceed and how this should be
adoption agencies to identify specific
residential facilities (‘orphanages’) with done. As a result, these so-called ‘transition’
which they will ‘cooperate’ directly cases have been left in an administrative
(which can create an unwarranted and legal limbo that creates uncertainty
channel for intercountry adoption) and anxiety in the children concerned and
cannot, therefore, be in their best interests
• little or no oversight of residential – even more so when that limbo lasts
facilities set up and/or financed by for several years. This has happened, for
agencies with an interest in intercountry example, in Guatemala where, at the time
adoption of the vital moratorium in January 2008,
there were over 3,000 transition cases, of
• tolerance of ‘independent’ or ‘non- which 714 had still not been resolved three
agency’ adoptions (by some non-Hague years later, and 73 were still pending in
signatory countries of origin, as well mid-2013.123
as certain receiving countries in their
relations with non-Hague signatory At the same time, it has to be recognized
states) that where many hundreds of children
can be said to be in the intercountry
• lack of professional procedures to adoption process at one stage or other
match children with prospective parents – as in Guatemala – it is difficult to deal
appropriately with their individual cases.
• no provision to authorize or monitor
While the quickest possible resolution
individual ‘facilitators’ working with
is desirable in principle, it is important
agencies or prospective adopters in the
not to overlook the probability that many
country of origin.
(or even most) of the children involved
Such systemic failures, which seriously will have been the subject of illegal or
jeopardize the protection of children’s unethical practices that led to their being
rights and best interests, have underpinned declared adoptable abroad. Inevitably,
most major suspensions in recent years, each case requires very thorough and time-
including those put in place in Cambodia, consuming review.
Guatemala, Liberia, Nepal and Viet Nam.
To reduce the negative impact of this apparent
If, on balance, the suspension of adoptions best interests conflict between ensuring 123 See http://
is deemed necessary to prevent rights stability for the child and the case review www.unicef.org/
infobycountry/
violations, it must be planned and carried time-lag, some issues must be addressed guatemala_68509.
out in a manner that respects the best before adoptions are suspended: html

41
The Best Interests of the Child in Intercountry Adoption

• A clear announcement should be – at least half at the present time. Receiving


made of both the reason(s) for and the countries do not, in general, provide up-
goal(s) of the initiative. front information on the proportions
involved, but a 2011 Council of Europe
• The specific issues to be tackled document noted that:
and the responsibilities and processes
required for carrying out the reforms ... five of the seven countries of origin
need to be identified and made public. from which more than 100 children
were adopted in Spain in 2008 had not
• Where appropriate, details of ratified the [1993 Hague Convention].
the expected technical assistance A similar degree of reliance on non-
inputs should be published and their Hague countries of origin is seen
delivery programmed. elsewhere: 78 per cent of adoptions
to the Flanders region of Belgium
• A timescale should be established for (in 2008) were processed outside the
undertaking each key reform, which Hague framework, as were 72 per
should be made public, and a target cent to France. The corresponding
date given for completion of the whole figure for Italy was lower, however, at
exercise. 54%, and adoption from non-Hague
countries is now less than half of total
• If the moratorium is declared by a ICAs to Switzerland.124
country of origin, there should be a
designated government contact point The 2012 figure for Italy – a receiving
to provide updated information to the country that excels in providing detailed
Central Authorities of the receiving statistics – was, at 51 per cent, similar to
countries concerned. the figure for 2008.125 Data for the 2012
financial year from the United States show
• The country of origin and relevant that adoptions from seven of the ‘top 10’
receiving countries should agree on countries of origin took place outside the
the exact criteria to determine which Hague framework.126 Clearly, the protection
adoption cases under way at the time of the best interests of the child in adoptions
of the suspension are to go forward, in from non-Hague countries will be a very
each child’s best interests, for review important issue for a long time to come.
and potential completion (transition
cases), for example, from the moment Why is the balance between Hague and
non-Hague adoptions changing so slowly, 124 Council of
that bonding between the child and Europe (2011).
despite increased ratification of the treaty?
identified prospective adopters has
There is one key reason: once a country
been initiated. 125 See http://www.
of origin becomes a party to the Hague commissioneadozio
convention, it usually applies the subsi- ni.it/media/138484/
• Detailed provisions should be in place dp2_2012.pdf
diarity rule and other safeguards more
to examine and decide on such transition
strictly than before. This is often combined,
cases, again on the basis of consultation 126 China, a Hague
logically, with a policy to enhance domestic country, was first,
between the country of origin and the
responses to children needing alternative followed by Ethiopia,
receiving countries concerned. Nigeria, Russia and
care or adoption. As a result, there is almost
Ukraine which are
always a fall – sometimes very substantial
not. http://adoption.
3.5. The best interests of the child – in the numbers of children deemed to state.gov/content/
require adoption abroad, especially among pdf/fy2012_annual_
in adoptions from non-Hague
the youngest. One striking example is report.pdf
countries Madagascar: in 2004, the year in which it
127 Australian
ratified the Hague Convention, intercountry Intercountry
Although an ever-growing number of adoptions peaked at over 300, but by 2012 Adoption Network,
states of origin have become parties to the the figure had fallen to less than 50.127 (n.d.). International
1993 Hague Convention, adoptions from Adoption Statistics,
available at: http://
non-Hague signatory countries appear to Faced with this phenomenon, authorities,
www.aican.org/
account for a gradually declining yet still agencies and individuals in receiving statistics.php?region
substantial proportion of the annual total countries have sought new or enhanced =0&type=birth

42
The Changing Role and Purpose of Intercountry Adoption

partnerships with non-Hague countries children could be endangered by an 128 By 2013, just
of origin where more children may be one-third of African
adoption from a non-Hague country.
countries practising
‘available’ because subsidiarity and other intercountry adoption
protective considerations are applied less Above all, many – though gradually had become contract-
ing states to the 1993
strictly. Sub-Saharan African countries, in fewer – receiving countries continue to Hague Convention.
particular, have increasingly become the allow their citizens to undertake ‘private’
target for such initiatives in recent years, (direct contact with birth parents) or, more 129 Australian
Intercountry Adoption
given their relatively low ratification frequently, ‘independent’ adoptions in non- Network, (n.d.).
rate to date.128 While adoptions from Hague countries (where the prospective International Adoption
Statistics, available at:
China plummeted from over 14,000 adopters act without the support and
http://www.aican.org/
at their peak in 2005 to hardly more supervision of the central authority or an statistics.php?.
than 4,000 in 2012, those from Ethiopia accredited agency). In France, for example,
130 Statistics for 2012
climbed from just over 1,500 in 2005 to such ‘adoptions individuelles’ accounted from just three
a high of more than 4,200 by 2009.129 for no less than 32 per cent of the total in receiving countries:
On a smaller but still illustrative 2012.132 Given that the risks of malpractice France 84, Italy 138,
United States 240.
scale, intercountry adoption from the had been shown so clearly to be far higher See http://www.aican.
Democratic Republic of Congo was in such instances,133 the drafters set out to org/statisticsphp?
region=0&type=birth
virtually unknown until 2005, but then ensure that adoptions by these means fall
rapidly expanded, reaching at least 460 outside the framework of the 1993 Hague 131 Figures available
by 2012.130 In Nigeria and Uganda there Convention. Even so, the 2010 Special for 2012 to date:
Nigeria at least 208
have also been increases from single Commission felt it necessary to recall the (United States 197,
figures in the first years of the century unacceptability of such adoptions as part Italy 11); Uganda at
to over 200 each in 2012.131 None of of Hague-compliant practice, and in very least 238 (all United
States).
these is a Hague country, and all have clear terms:
been approached by actors from receiving 132 http://www.
diplomatie.gouv.fr/
countries to ‘compensate’ for the fall in Adoptions which are arranged fr/IMG/pdf/Rapport_
adoption numbers from contracting states directly between birth parents statistique_2012_
of origin. and adoptive parents (i.e., private cle8c651d.pdf
p. 16.
adoptions) are not compatible with
From the standpoint of the best interests of the Convention. 133 Defence for
Children International/
the child, the implications are considerable
International Social
and alarming. Independent adoptions, in which the Service/Terre des
adoptive parent is approved to adopt Hommes (1991).
‘Preliminary findings
First, they involve a deliberate shift away in the receiving State and, in the State of a joint investigation
from countries where those best interests of origin, locates a child without the into independent
should be better protected under the 1993 intervention of a Central Authority or intercountry
adoptions’, Geneva:
Hague Convention to countries where the accredited body in the State of origin, DCI.
kind of guarantees afforded by the treaty are also not compatible with the
134 Hague Conference
may well be absent and where experience Convention.134 on International
and adequate resources are lacking. Private Law (2010).
Second, the year-on-year increase in the Linked with this is the ability of adoption ‘Conclusions and
recommendations and
volume of adoptions from a non-Hague agencies or other third parties that are report of the Special
country may be so rapid that it defies not accredited by the receiving country Commission on the
any real attempt to ensure case-by-case to operate in a non-Hague country. Some practical operation
of the 1993 Hague
verification of the child’s circumstances receiving countries, including Italy and Intercountry Adoption
by the competent authorities. Third, Sweden, prohibit any non-accredited Convention’,
paras. 22–23.
as already noted, it often leads to a agency from processing any adoption from
moratorium that, although justified on any country. In contrast, US agencies that 135 Rotabi, K. (2010).
protection grounds, demonstrates by are not accredited under the US system can ‘From Guatemala to
Ethiopia: Shifts in
its very existence that the best interests still deal with intercountry adoptions from intercountry adoption
of children had indeed been widely and non-Hague countries, such as Ethiopia, as leave Ethiopia
vulnerable for child
substantially jeopardized before the long as they are ‘approved’ to work there
sales and other
moratorium was in place. by the government of that country.135 unethical practices’,
A vast array of fundamental Hague unpublished report
received from author
standards and procedures designed to Other dangerous gaps and derogations from via email 12 February
protect the rights and best interests of the 1993 Hague Convention that are likely 2010.

43
The Best Interests of the Child in Intercountry Adoption

in adoptions from non-Hague countries of the Convention must be scrupulously


are set out in the discussion on bilateral respected in such agreements.
agreements below. They are also listed as
explicit or implicit problems to be tackled But states parties to the 1993 Hague
as part of measures required to promote Convention are also free to sign bilateral
the appropriate ‘environment’ in which the agreements with countries that have not
best interests of the child can be a positive ratified the Convention, and there are
feature of decision-making on intercountry many examples of this. Some see this as
adoption questions (see Chapter 5). a valid way to ‘officialize’ – and thereby
legitimize – intercountry adoptions outside
All this said, it is difficult to determine the Hague framework. At the same time,
the extent to which adoptions from non- concerns have been voiced by many about
136 US Department
Hague countries may cause more problems these bilateral agreements with non-
of State (2012). ‘FY
than those carried out according to the Hague States. 2012 Annual Report
Convention. For example, United States on Intercountry
official data seem to use different criteria for One concern is that concluding such Adoption’, Office of
Children’s Issues.
Hague as opposed to non-Hague countries an agreement might undermine any
when broaching the question: motivation for the non-Hague state to 137 Hague
ratify the treaty.140 The report of the Convention on
Private International
In [Fiscal Year] 2012, adoption service Special Commission in 2001 noted: “Some
Law (1993), Art. 39(2).
providers (ASPs) reported no concern was expressed about agreements
disrupted placements in Convention which seemed to supplant rather than to 138 Convention on
adoptions, i.e., cases in which there supplement the Convention.”141 the Rights of the
Child, Art. 21, as
was an interruption of a placement for
referenced in Mezmur,
adoption during the post-placement Another concern is that this kind of B.D. (2008). ‘From
(but pre-adoption) period. …In agreement would be tailored to fit, in Angelina (to
addition, information received from particular, the non-Hague system in the Madonna) to Zoe’s
Ark: What are the
the Department of Health and country of origin and would not therefore “A-Z” Lessons
Human Services… indicated 71 ensure the appropriate safeguards foreseen for Intercountry
cases of disruptions and dissolutions by the Convention. This is compounded Adoptions in Africa?’,
International Journal
involving 76 children who were by a fear that such agreements will not be
of Law, Policy and the
adopted from other countries and comprehensive or detailed enough to cover Family, 23(2): 145–73.
entered state custody as a result.136 all requirements for adoption procedures
and mechanisms that meet the required 139 United Nations,
Department of
Other receiving countries provide no standards.
Economic and Social
upfront information at all on this question, Affairs, Population
which is of major significance from a best All three of these concerns proved well Division (2009).
interests perspective. founded in the case of agreements between
140 ibid., p. 60.
Viet Nam and individual receiving
countries in 2004 and 2005. As a result, 141 Hague
3.6. Bilateral agreements Sweden decided not to renew its 2004 Convention on Private
accord with Viet Nam, noting that, at the International Law
(2001). ‘Report and
time of signature, Conclusions of the
To facilitate cooperation, and “with a Special Commission
view to improving the application of the ...pledges were made that the country on the Practical
[1993 Hague] Convention in their mutual Operation of the
would accede to the 1993 Hague
Hague Convention
relations”,137 contracting states may enter Convention. … Since then, Viet Nam of 29 May 1993 on
into agreements with one another, as fore- has postponed accession several times Protection of
seen by Article 39(2). Under a so-called and has still [as at October 2008] not Children and Co-
‘bilateral agreement’, the country of origin operation in Respect
specified a definite date on which the of Intercountry
and the receiving country try to create better country intends to accede.142 Adoption’, para. 105.
safeguards for children’s rights in specific
procedures,138 as their most common A review of the content of agreements 142 Swedish Ministry
purpose is to streamline the adoption of Health and Social
with Viet Nam found that some – with Affairs, Press Release,
process.139 At the same time every provision France, Switzerland and the USA – were 23 October 2008.

44
The Changing Role and Purpose of Intercountry Adoption

grounded explicitly in a “humanitarian Clearly, however, there are strong


objective for adoption”, when they “should arguments for requiring that states parties
have reflected the fact that adoption is one uphold minimum Hague standards in all
of a series of child protection measures, their intercountry adoption relationships,
not a humanitarian or charitable act”.143 beyond the fact that this is recommended
Moreover, that humanitarian approach by the Special Commission. As noted in
underpinned another major concern a recent report,147 if the best interests of
raised by the agreements: the (non-Hague) every child are to be at the centre of the
requirement that “accredited adoption intercountry adoption process, receiving
bodies support humanitarian projects linked countries that have ratified the 1993 Hague
to adoption” with, in addition, no concrete Convention have an ethical responsibility
references to amounts, procedures for to grant children from non-Hague countries
transfer or oversight and accountability.144 the same legal guarantees and protection
offered to children from Hague States. In
The agreements also clearly failed to particular, Hague States are obliged to
address crucial questions at the heart of the restrict or even prohibit private or
1993 Hague Convention: independent adoptions. Worotynec puts
it more strongly – citing Canada, but her
The issue of fees, as per article 32 [of question applies to all receiving countries
the Convention] is … not adequately – when she asks:
addressed in any of the bilateral 143 International
agreements to which we had access. Should Canada not expect, at Social Service (2009).
Moreover, the bilateral agreements minimum, such an explicit endorsement Adoption from Viet
do not cover the issue of accreditation of relevant standards from the Nam: Findings and
sending countries as it sets for itself? recommendations of an
of agencies.145 assessment. Geneva:
Should Canada enter into agreements ISS, p. 39.
Some of the agreements (for example, with countries that do not share this
in Switzerland and the United States) commitment, in particular when lives 144 ibid.
– children’s lives – are at stake? 148
omitted any mention of obtaining the 145 ibid.
child’s consent; all failed to cover the issue
Such concerns, which have been borne out 146 ibid., pp. 39-40.
of matching and (with the exception of
over recent years, demonstrate just how
Denmark) the prohibition on any contact 147 Lammerant, I.
fragile respect for the best interests of the
between prospective adopters and the and M. Hofstetter
child in intercountry adoption may be in (2008). ‘Adoption
child before that stage (Hague Art. 29).
practice. at what cost?
The agreements were also “vague or
For an ethical
inadequate” about the implementation of responsibility of
the subsidiarity principle.146 receiving countries
3.7. Policy and practice in in intercountry
adoption’. Lausanne:
There is, regrettably, good reason emergency situations Terres des Hommes
to believe that many future bilateral International
agreements between Hague receiving Such concerns are highlighted all the more Federation.
countries and non-Hague countries of in emergency situations – such as a natural
148 Worotynec, Z.S.
origin will be characterized by similar disaster or armed conflict – when the (2006). ‘Child,
deficiencies, and will continue to put the balance of power shifts even further interrupted:
rights and best interests of the child at risk. towards the receiving countries and the International
adoption in
Receiving countries, unconstrained by opportunities to manipulate the best the context of
formal obligations other than the general interests requirement appear almost Canadian policy
conditions set out in CRC Article 21, seem limitless. The CRC and the 1993 Hague on immigration,
prepared to accept far lower standards Convention do not contain any derogation multiculturalism,
citizenship and
in their ‘felt-need’ to access children in clauses permitting modifications to their child rights’, CERIS
non-Hague States now that so many applicability in emergencies or their Working Paper, No.
of their Hague-compliant partners are aftermath. In other words, states parties 46. Toronto: Joint
showing greater resolve to find preventive to either of these treaties are bound to Centre of Excellence
for Research on
and reactive solutions within their own abide by all their provisions, whatever the Immigration and
borders. circumstances. Settlement, p. 12.

45
The Best Interests of the Child in Intercountry Adoption

That said, an emergency makes it extremely cared for and tend to recover more
difficult to ensure that international standards quickly in a family environment
on child protection are respected – at precisely within their own communities. …
the moment when they are most needed. The The number of children who are
state is often overwhelmed by the sheer scale orphaned in a natural disaster is
of an emergency and its consequences, and usually overestimated, and the ability
may lose authority over the affected area. of the community to care for its
The emergency response from outside the children is often underestimated.149
country may not be well coordinated,
with an influx of many organizations and It is now a well-accepted principle that
individuals that lack any experience or adoption (domestic or intercountry) is not an
child protection training. At the same time, appropriate response for unaccompanied
the response can be so massive and well- children or those who have become
resourced that it constitutes an alternative separated from their parents during or
authority accountable to no one. Social values after an emergency until efforts to trace and
and cohesion may break down, particularly in reunite them with their family have been
situations of armed conflict, and in any kind exhausted.150 It is conventional wisdom
of emergency traditional coping mechanisms that such efforts should be allowed to run,
can be stretched beyond their limits, given the if circumstances so require, for two years
sudden increase in the number of children at least before permanent alternatives are
who need them. considered. Meanwhile, the focus must be
on preventing the separation of parents
and children and bolstering alternative care
An emergency makes it arrangements within the community.151
extremely difficult to ensure
that international standards At a policy level, therefore, suspension of
intercountry adoption in an emergency
on child protection are creates relatively little controversy. On each
respected – at precisely the occasion, the need for such a suspension
is relayed, often forcefully, in statements
moment when they are by UNICEF, the Permanent Bureau of the
most needed. Hague Conference, Save the Children and
149 UN General
International Social Service, for example. Assembly, Human
Increasingly, governments and central Rights Council (2011).
The dangers associated with such situations authorities have also made it clear that no ‘Report of the Special
Rapporteur on the
have been summed up by UN Special applications to adopt children in the post- sale of children, child
Rapporteur Najat Maalla M’jid: emergency phase will be accepted. prostitution and
child pornography’
In every humanitarian crisis, States, (UN Doc A/
However, experience in Haiti following
HRC/19/63), paras.
international aid agencies and civil the January 2010 earthquake demonstrates 62–63.
society organizations seek to protect the limits of this apparent consensus in
children by ‘rescuing’ them from practice. There was general agreement 150 See, for example,
UN General
affected areas. Child survivors are that, in principle, the best interests of Assembly, Human
frequently mistakenly labelled as children whose adoption had already been Rights Council (2010),
orphans and removed from their cleared by the court would be best served para. 166; Hague
Conference on
families and communities to be by allowing the adoption to proceed. In
Private International
transferred to orphanages or adopted fact, most children who were evacuated Law (1994b). ‘Hague
into new families. This ‘misguided for adoption over the following days and recommendation on
kindness’ may significantly increase refugee children’.
weeks – at the instigation of the receiving
The Hague: HCCH
the short- and long-term harm caused countries and with ‘permission’ from the Permanent Bureau.
to children and families who are Haitian Authorities – had not completed the
suffering from the impact of a natural adoption process before the earthquake. 151 UN General
Assembly, Human
disaster. Experience has shown that For some, their adoptability status had Rights Council (2010),
girls and boys are usually safer, better not even been confirmed, let alone their paras. 155–159.

46
The Changing Role and Purpose of Intercountry Adoption

match with prospective adopters.152 Najat of possibilities for in-country care. In


Maalla M’jid expressed her concern that: other words, after the trauma of the
earthquake, these children were
… many receiving countries bowed to subjected to the second trauma of
internal pressure and ’expedited’ the unnecessary and rapidly-implemented
displacement of children (between ‘forced migration’ without family or
the ages of 3 months and 18 years) for known caregivers and to a totally
adoption in their own countries, based unfamiliar place.154
on ad hoc criteria. It has also been
noted that the rapid removal of In fact, whatever the adoption status (or
Haitian children without a court lack of it) of the children concerned, rapid
order was unwarranted … 153 evacuation was wholly unnecessary. The
Guidelines for the Alternative Care of
For most children concerned, therefore, Children require that special attention be
no assessment or determination of their paid, in emergency situations, to preventing
best interests had taken place at all. It the cross-border displacement of children
seems to have been simply assumed, as from their country of habitual residence
in pre-CRC days, that the children would “except temporarily for compelling health,
be ‘better off’ outside their country, and medical or safety reasons”, and in that
the quicker the better. Adoption abroad case as close as possible to their home,
152 For an
was the justification for the evacuations of accompanied by a parent or caregiver exhaustive account
children, but these could not be justified known to the child, and with a clear of intercountry
as an urgent measure. In addition, the return plan. 155 Equally, urgent and wholesale adoption initiatives
in the six months
evacuations themselves were often carried removal of the kind that took place from
following the Haiti
out with scant regard for established Haiti would not have been countenanced earthquake, see
international practice – and were certainly on the basis of a valid best interests International Social
not designed to be a temporary measure assessment, even for those children who Service (2010).
Haiti: ‘Expediting’
that would last only until the situation had completed the adoption process: intercountry
stabilized, as good practice would dictate adoptions in the
(see below). This led to the Haiti post- Expedited transfer may be in the best aftermath of a
earthquake adoption programme being interests of a child with a pre-existing natural disaster …
preventing future
qualified as “forced migration” in the 2012 adoption judgement, but it should harm. Geneva: ISS.
edition of the annual World Disasters Report be decided on a case-by-case basis
(WDR): and should never take place before 153 Human Rights
Council (2011).
the child can first recover from initial
The UNHCR [United Nations High trauma in a familiar environment, 154 International
Commissioner for Refugees] has verifications can be carried out and Federation of Red
‘Three Rules’ for evacuation: “first, appropriate preparations made in Cross and Red
Crescent Societies
to protect and assist in the place a calm manner. There should be (2012). ‘“Expedited
where the child and his or her family sufficient time to enable the adoptive adoptions”: Forced
are physically located; second, if parents to join the child in his/her migration by
evacuation cannot be avoided, a country of origin and to accompany another name’,
in World Disasters
child must be moved with a primary the child to the receiving country.156 Report 2012.
care-giver; and third, never evacuate Geneva: IFRC,
unless a plan has been made that Far from proceeding with a best interests pp. 68–70.
will protect children’s rights and assessment for each child, the competent
155 UN General
well-being” ... Objectively, there was authorities of receiving countries pressured Assembly (2010),
no justification for removing these Haiti to accept a so-called ‘procedure’ paras. 154(e) and
children from the country [Haiti] to authorize intercountry adoptions that 160.
on an urgent basis. ’Expediting totally circumvented essential protective
156 International
adoptions’ translated in practice into processes stipulated as indispensable Federation of Red
circumventing vital protection under the 1993 Hague Convention.157 Cross and Red
procedures regarding adoption, Crescent Societies
(2012).
evacuation, verification of consent Although receiving countries had no formal
and family situation, and examination obligation to respect that treaty in their 157 ibid.

47
The Best Interests of the Child in Intercountry Adoption

relations with Haiti, which was not a state


party, it has long been agreed, in the context 3.8. If best interests are a
of the Special Commission that examines the requirement, so is their objective
Convention’s implementation periodically, determination
that “States Parties, as far as practicable,
apply the standards and safeguards of
This chapter has demonstrated the
the Convention to the arrangements for
intercountry adoption which they make in incoherence and the pitfalls of all kinds
respect of non-Contracting States”.158 that are seen in practice in the significance
and implementation of the requirement
It was only because Haiti was not a to make the best interests of the child the
Hague country, and the receiving countries paramount consideration in decisions
concerned decided to ignore this about intercountry adoption.
recommendation, that most intercountry
adoptions dating from that period could be Experience to date shows that the best
‘recognized’ in those receiving countries. interests principle is, to all intents and
This would have been patently impossible purposes, such a vague concept that it is
had the country of origin also been a state easily ignored or misconstrued.
party to the 1993 Hague Convention:
the procedures laid down by that treaty
to protect the best interests of the child
Experience to date shows
were ignored, comprehensively and that the best interests
deliberately, and any resulting ‘adoption’
could not have been recognized.
principle is, to all intents
and purposes, such a vague
From a broader standpoint, the
disproportionate level of attention, effort
concept that it is easily
and means devoted to these rapid ignored or misconstrued.
evacuations had an undoubted impact
on the best interests of all children, not
If it is to promote and protect the human
just those evacuated, by diverting
rights of children who may be or are
significant resources of all kinds from
involved in the intercountry adoption
wider protection and relief operations.
process, the determination of best interests
Yet, as the World Disasters Report 2012
must be based on accepted criteria and
notes, “absolute priority must be given to
assessed by qualified persons or bodies,
providing assistance in situ and promoting
continuity of care.”159 with responsibility for a final decision in
the hands of a clearly-designated authority.
There are many lessons to be drawn from the 158 Hague
post-earthquake response to Haiti in 2010, The following chapter proposes both the Conference
but one stands out in relation to inter- frame and substance for those vital on Private
assessment and decision-making processes International Law
country adoption: the absolute necessity (2000b). ‘Report
to adhere to a process to determine best for general policy, adoption procedures and conclusions
interests that respects the overall rights of and the future of any given child. of the Special
the child before any final decisions are The results of such evaluations should Commission
be demanded systematically before any on the practical
made about that child’s adoption abroad.
operation of the
That process must be every bit as rigorous child is adopted abroad ‘in their best Hague Convention
as a process used under normal conditions interests’. of 29 May 1993
or, for example, the process to inform on protection of
decision-making on the most appropriate children and co-
operation in respect
measures to take for a separated or of intercountry
unaccompanied child. While this implies adoption’, para. 56.
ensuring best possible protection and
services pending the assessment and 159 International
Federation of Red
determination, it clearly precludes any
Cross and Red
derogation whatsoever from the obligation Crescent Societies
to carry it out. (2012), pp. 68-70.

48
UNICEF Office of Research

4ǀ Determining Children’s Best


Interests in Intercountry Adoption

Key points
ÌÌ Many factors must be taken into
account to ensure that national policies
on intercountry adoption correspond to
children’s best interests, and the extent
to which they do needs to be open to
examination, so that this principle lies at
the heart of the approach to the practice.

ÌÌ Many considerations also need to be


reviewed when determining whether
or not the best interests of an individual
child would be met by intercountry
adoption – Table 1 provides a checklist
of these.

ÌÌ Once it is established that the


intercountry adoption of a child should
be envisaged, his or her best interests
must be preserved at each and every
stage of the adoption process, which
comprises many phases, from the initial
decision that a child is ‘adoptable’, right
through to follow-up support measures
with children and their adoptive families.

49
The Best Interests of the Child in Intercountry Adoption

The considerations set out in the preceding socio-cultural, political and sometimes
chapters have highlighted the pitfalls to financial factors. In practice, these factors
be avoided when defining the role of a have not always reflected the paramount
best interests approach, within a rights- consideration of the best interests of the
compliant framework, for children in child.
the intercountry adoption process. They
have also illustrated the lack of consensus 4.1.1. Socio-cultural factors
about both the concept and the resulting Because the best interests of the child are
variations in the impact, in practice, of best to be assessed within the societal context
interests as ‘the paramount consideration’. in question – seen as a desirable element of
Without agreement on clear criteria against the ‘flexibility’ of the concept161 – the impact
which the respect for best interests in of purely socio-cultural factors on policy
intercountry adoption can be evaluated, tends to be the least contested argument
it is difficult to apply the principle in the for limiting intercountry adoption. As well
coherent, consistent and widely accepted as the clear-cut prohibition of the practice
manner that the term ‘paramount’ requires. in many countries that apply Islamic law,
This chapter aims to provide a concrete where adoption cannot be countenanced
response to that concern by proposing a on religious and cultural grounds,
basis for such evaluations. several other states are hesitant or highly
restrictive because the legalized, complete
First, it reviews the factors that should and definitive rupture of family ties is not
be taken into account to ensure that a familiar or acceptable practice in society
national policies on intercountry adoption at large. No ‘best interests’ argument for 160 Thus, for
correspond to children’s best interests. example, significant
allowing intercountry adoptions seems to
numbers of
apply in such circumstances. children have been
Second, it identifies the elements that adopted abroad
should form part of a thorough and 4.1.2. Political factors every year from the
United States (99
comprehensive assessment of the best Political factors, in contrast, are often the recorded at Federal
interests of each individual child for whom subject of controversy from a best interests level in FY 2012),
intercountry adoption might be envisaged standpoint. The most commonly contested leading many to
(Table 1). wonder, moreover,
are decisions to ban or restrict intercountry if the United States
adoptions that are, or are perceived to be, is itself applying
Finally, it considers the conditions rooted more in ‘national pride’ or even the ‘subsidiarity
required, once it has been determined political posturing than in considerations principle’ in a
that intercountry adoption is indeed in a systematic manner.
of child welfare. There are several facets to In contrast, many
child’s best interests, to achieve the optimal this approach. other ‘receiving
ongoing protection of that child’s best countries’ to
interests at each stage of the intercountry An argument often advanced is that children all intents and
adoption process itself. purposes ban
are a national resource whose numbers the intercountry
should not be depleted through adoption adoption of their
abroad. In studying adoption practice in children.

4.1. Factors that influence policies India, for example, Lind and Johansson
161 Zermatten
document adoption professionals’ belief
on intercountry adoption (2010); see also
that adoptable Indian children should Committee on the
be ‘reserved’ for Indian couples, on Rights of the Child
(2013).
States’ policies on the intercountry adoption the grounds that children are “an asset
of their children vary. This is true regardless belonging to their nation of origin”.162 162 Lind, J. and
of whether the country in question is S. Johansson
generally seen as a receiving country or a Often, this goes hand in hand with a (2009).
‘Preservation
country of origin.160 Policies range from country’s understandable reluctance to be of the child’s
total prohibition to full acceptance (and perceived or labelled as being unable to cope background in in-
even virtual laisser-faire), and may change with problems related to the care of their and intercountry
either temporarily or permanently over vulnerable children, and the knowledge adoption’,
International Journal
time. The foundations of the approach taken that in-country solutions could be enhanced of Children’s Rights,
always lie in a combination of numerous and made available with a little additional 17(2): 235–60.

50
Determining Children’s Best Interests in Intercountry Adoption

investment. For example, the participants abroad as part of its assistance needs. This,
at a May 2012 pan-African conference on too, needs to be taken into account when
intercountry adoption noted that “African considering the best interests component of
societies have for centuries been able to policy development on the question.
care for their children, including those left
without parental care, based on collective 4.1.3. Financial factors
values and wisdom”,163 and that despite There is no doubt that economic consider-
present realities such as HIV/AIDS and ations have, on occasion, underpinned state
conflict, “with a modest degree of economic policy towards intercountry adoption, at
and social support, African families and least during a certain period.
communities could provide for children
without parental care”.164 The most notorious example of this was
probably Guatemala. At their peak in
They called, therefore, for “a reversal of the 2007, adoptions from Guatemala to the
current trend of resorting to intercountry United States numbered 4,726.167 In the
adoption as an easy and convenient option blunt words of one commentator, “a
for alternative care in Africa, and for giving national industry has developed around
absolute priority to enabling all children adoption, with specialty lawyers offering
in Africa to remain with their families and their services, and hotels catering to the
their communities”.165 thousands of American couples who visit
for the sole purpose of finding a child”.168
Very often this kind of stance is mixed with
concerns over how the adoption process It was estimated, entirely realistically, that
is carried out and the end results for the Guatemala’s intercountry adoption at that
adoptees. That same conference declaration, time had become a $100 million per year
163 African Child
for example, observed that there are: industry – in the same author’s equally Policy Forum
uncompromising terms, “making orphans (2012). ‘Final
...reports, in some instances, of the country’s second-most lucrative export Communiqué
intercountry adoption resulting in after bananas”. The leverage and lobbying of the Fifth
International Policy
abuse of children in the receiving force of those involved kept that status quo Conference on the
countries; ... that sometimes children in place – including by preventing domestic African Child’,
are being procured for adoption abroad recognition of Guatemala’s adherence to Addis Ababa, 29-30
through manipulation, falsification the 1993 Hague Convention in 2002 – until May 2012, p. 1.
and other illicit means of securing it became obvious that US ratification of 164 ibid.
financial gains; [and] that in some the treaty in 2008 would put an end to the
instances there are both internal and current system. 165 ibid.
external pressures put on families and
166 ibid.
governments to make their children
available for intercountry adoption.166 Other countries have also 167 http://adoption.
gained financially by making state.gov/about_us/
statistics.php
In sum, the basic issues that often underpin
political arguments are linked to states’ their children available for
168 Martinez, H.
concerns that they are unable to exercise adoption abroad. and R. Goldman
proper control over the intercountry (2008). ‘US
adoption process and there are inadequate adoptions fueled
by Guatemalan
resources for the development of in- Other countries have also gained financially
kidnappings’, ABC
country services that would enable more by making their children available for News, 13 May.
stringent respect for the ‘subsidiarity rule’; adoption abroad. Under the short-lived
states often lack confidence in the outcomes ‘points’ system set in place in Romania 169 Wolfe Murray,
R. (2005). ‘Child
under such conditions. in 1997, for example, domestic social
Welfare Reforms
protection foundations were set up to Threatened by
Finally, it can be noted that, whether which adoption agencies were invited to International
a country decides to allow, restrict or contribute: “[these] agencies could earn Adoption Lobby’,
http://www.
prohibit intercountry adoption, there is no points (by investing in social services) and
childrights.ro/
record of any country ever having formally with enough points they would be given a media_article_
requested the adoption of its children child for international adoptions”.169 cotidianul.htm

51
The Best Interests of the Child in Intercountry Adoption

Similarly, countries such as Nepal and Viet children to be subject to a systematic Child
Nam have required prospective adopters Rights Impact Assessment (CRIA), noting
and agencies to make ‘humanitarian that:
aid contributions’ as a condition for,
respectively, operating and adopting. ...the adoption of all measures of
One former head of a European central implementation should ... follow
authority stated that, more generally, “it a procedure that ensures that the
is an open secret that foreign Authorities child’s best interests are a primary
solicit humanitarian aid contributions from consideration. The child-rights impact
agencies that work on adoptions”.170 assessment (CRIA) can predict the
impact of any proposed policy,
The official line is, invariably, that financial legislation, regulation, budget or
support to the child protection system is other administrative decision which
necessary and that contributions do not affect children and the enjoyment of
influence either adoption policy itself or their rights and should complement
the number of children declared adoptable ongoing monitoring and evaluation of
abroad. Such explanations, however, have the impact of measures on children’s
not deterred the Hague Special Commission rights. CRIA[s] need to be built into
from making its concerns very clear – an Government processes at all levels and
implicit recognition of the widespread as early as possible in the development
and significant nature of the problem. of policy and other general measures
As far back as 2000, while encouraging in order to ensure good governance
receiving countries “to support efforts in for children’s rights.173
States of origin to improve national child
protection services, including programmes The proposed CRIA is, therefore, conceived
for the prevention of abandonment”, the as the policy-level equivalent of what we call 170 Melita Cavallo,
Special Commission stipulated that “this ‘best interests determination’ for individual ex-President
support should not be offered or sought in of the Italian
children (see section 4.3 below). Central Authority
a manner which compromises the integrity
(CAI) during
of the intercountry adoption process, or As far as the specific focus of the present her presentation
creates a dependency on income deriving study is concerned, this means that entitled
from intercountry adoption”.171 It made ‘Humanitarian
any policy decision (and its legislative aid and children
a more far-reaching recommendation in ramifications) about the conditions placed outside their
2010, when it “emphasised the need to under which intercountry adoption may family of origin
establish, in all cases, a clear separation of take place, if at all, must be backed by a and not proposed
intercountry adoption from contributions, for adoption’, at
thorough evaluation of the consequences the colloquium
donations and development aid”.172 this will have for the best interests of “Intercountry
the country’s children – both those who Adoption Today”,
In sum, there are legitimate fears – and might be adopted abroad and those
Agence Française
documented indications – that policies de l’Adoption,
who will not. This is clearly all the more Paris, 7-8
on intercountry adoption have often been true given the ‘paramount’ status of November 2007
influenced unduly by financial factors that their best interests in relation to policies (our translation).
have no connection whatsoever with the about adoption abroad. 171 Hague
best interests of the children concerned.
Conference
Logically, the outcome of such an on Private
assessment is likely to differ widely from International Law
(2000b), para. 47.
4.2. Putting the best interests one country to another, and as a result may
justify policies that are just as disparate as 172 Hague
of children at the heart of Conference
those in existence today. Some countries
intercountry adoption policy may decide that the services and structures
on Private
International Law
in place are adequate to cater for their (2010), para. 14.
In the context of its observations on the children, negating the need to envisage
question of the best interests of the child, intercountry adoption (except, perhaps, in 173 Committee on
the Rights of the
the CRC Committee has highlighted the exceptional cases, such as intra-familial). Child (2013),
need for all policies and measures regarding Others may decide that current conditions para. 99.

52
Determining Children’s Best Interests in Intercountry Adoption

do not enable them to ensure ‘suitable 4.2.1. Culture and ethnicity 174 Snow, R. and
care’ for all children, and therefore foresee K. Covell (2006).
It is also important to consider the issue ‘Adoption and
inter-country adoption in certain cases. of removing children from their culture the Best Interests
of origin. In this context, the principle of of the Child: The
In the light of a CRIA, however, these policies subsidiarity suggests that it is generally dilemma of cultural
– be they prohibitive, restrictive or ‘open’ – interpretations’, The
in children’s best interests to remain in International Journal
would be subject to scrutiny on objective their own community, but in individual of Children’s Rights,
grounds. First, the validity of the findings of cases it may be concluded that the overall vol. 14, no. 2, pp.
the CRIA can be examined, and they can then rights of the child concerned would be
109-117.
be compared with the policy from a best
better protected elsewhere. It is essential, 175 The term
interests and rights-based standpoint.
therefore, to weigh up the complex ‘transracial adoption’
Importantly, this standpoint would have to is widely used,
elements at play in developing a general
take account of a range of issues, including, justifiably or not, to
policy on this question. A balance should describe an adoption
for example:
also be struck between supporting efforts between a child and
to improve living conditions and children’s parents with different
• the extent to which maximum skin colours, and is
life chances in their home communities and
levels of available resources are being thus more specific
promoting forms of alternative care that than ‘trans-ethnic’ or
devoted to family support and in-
may be more appropriate to the specific ‘trans-cultural’.
country alternative care (CRC Art. 4)
cultural context.174
• whether or not international 176 It is beyond
the scope of this
cooperation is needed here and, if so, The debate around what is known as report to analyse the
if it has been requested (CRC Art. 4) ‘transracial adoption’175 is also relevant impact on identity
to a discussion of the best interests of the of transnational and
• the extent to which national and,
transracial adoption.
where applicable, externally supported child and removal from their country of Much of the literature
measures on the prevention of origin.176 For decades, researchers and is based on the US
family separation and the provision practitioners have voiced opinions for or context but the results
against such adoption, first dismissing the have global relevance.
of alternative care conform with the
For a summary of
Guidelines for the Alternative Care idea that it affects the formation of one’s seminal work on this
of Children. identity, only to argue in longitudinal issue, see Evan B.
studies that it does indeed complicate Donaldson Adoption
Institute (2009). It is
The answers to such questions enable a identity development. 177
beyond the scope of
robust review of the justification for any this report to analyse
country’s basic approach to intercountry No true consensus has been reached, the impact on identity
but it is now clear that racial and ethnic of transnational and
adoption as a response to children deprived transracial adoption.
of parental care. Other factors also need to background is an important factor to bear Much of the literature
be considered, however, when considering in mind in adoption. Much of this is based on the US
whether a given policy is warranted. discussion has taken place in the context context, but the
of domestic adoption and has influenced results have global
relevance. For a
First and foremost, and particularly for the approach to both domestic and summary of seminal
countries of origin, is whether they can intercountry adoption taken by countries work on this issue, see
have confidence in the contention that the such as the United States and the United Evan B. Donaldson
Adoption Institute
overall rights of some of their children Kingdom.178 The so-called transracial
(2009). Other sources:
will be better realized through adoption aspect becomes even more complex in Simon, R.J., and
abroad. This includes their level of trust in intercountry adoption, of course, as here A. Alstein (2000);
all aspects of the adoption process itself, it is intertwined with removal from the Huh, N.S. and W.J.
Reid (2000); Lee,
as well as in post-adoptive arrange- culture of origin. From an overall policy
R.M. (2003); Baden
ments and attitudes towards foreign perspective, and similarly in relation A.L. and R.J. Steward
adoptees in the receiving country. Such to the more general question of a (2000).
concerns manifest themselves most often child’s removal from the country of
177 Evan B.
temporarily (in the form of moratoria, for origin, there seems to be no justification Donaldson Adoption
example) but also explain the longer-term on best interests grounds for a blanket Institute (2009).
prohibition on intercountry adoption put prohibition, rather than leaving it to
case-by-case assessment to come to a 178 Evan B.
in place to date by a limited number of
Donaldson Adoption
countries (see section 3.4 above), such as decision. Institute (2008) ;
Argentina. Hayes, P. (1995).

53
The Best Interests of the Child in Intercountry Adoption

4.2.2. Access to information child’s ongoing relationship with the


for adoptees birth parents, including meeting them
The fact that full adoption – the invariable in person. Under some jurisdictions, an
outcome of an intercountry measure – ‘open’ adoption can end with the child
involves the complete severing of a child’s returning to the care of the birth parents.
ties with their birth family is also an Such an arrangement, which is not without
issue worthy of debate from the policy- its own risks for all involved, might
development angle of the best interests of pose special problems in intercountry
the child. To begin with, such an extreme adoption. Nonetheless in New Zealand,
consequence of relinquishing a child’s for example, the principle of openness in
care to others is not only unknown but adoption is broached in both domestic and
intercountry adoption, with each party in 179 Berry, M. (1993).
unthinkable in many societies. It provokes ‘Risks and benefits
both resistance to the measure and, in the adoption ‘triad’ – the child, the family
of open adoption’,
many cases, confusion over the effects of of origin and the adoptive parent – being Adoption, 3(1):
giving consent to adoption. In addition, it encouraged to understand that ‘open’ 125–38; International
adoption can help an adoptee to preserve Social Service (2006a).
can have implications for the child’s later ‘Post adoption: The
ability to access information about birth their identity and maintain contact with
search for origins
family members,179 including their health the family, and therefore promote their (part 1)’ (Editorial),
history, which may be vital to prevent or best interests.184 Open adoption has also Monthly Review, 4.

identify an adoptee’s medical conditions. been used in the context of intercountry


180 EurAdopt, Nordic
adoption in the Marshall Islands – a Adoption Council
It is surely necessary to balance the best result of cultural norms that have shaped (2005). ‘Origin and
interests of the child with the rights of domestic adoption policy and the fostering Personal History of
of these traditions in intercountry adoption Adoptees: Principles
the family of origin,180 and information for search, knowledge
provided may, in some circumstances, be through the positive advocacy of adoption and reunion’, Working
of a ‘non-identifying’ (i.e. anonymous) agencies.185 document for the
Special Commission
nature. But access to at least a minimum on the practical
of information about one’s origins is In sum, applying the principle that the best
operation of the 1993
essential to identity formation, and is, interests of the child are the paramount Hague Intercountry
indeed, linked to the child’s right to an consideration, policy that allows adoption Adoption Convention.

identity. arrangements based on some degree of


181 ibid.
openness (if all concerned are in agreement)
might enable the most appropriate terms
Access to at least a minimum of adoption to be determined on a case-
182 Berry, M. (1993).

of information about one’s by-case basis. 183 Grotevant, H.D.


(2000). ‘Openness in
origins is essential to identity Adoption: Research
with the adoption
formation. kinship network’,
4.3. Determining the best interests Adoption Quarterly,
of individual children vol. 4, no. 1, pp. 45-65.
Overall, the tendency has been towards
greater openness in domestic adoption,181 184 International
Social Service (2006).
with evidence showing that this has a As this study has sought to show, applying
International Social
number of benefits (prevention of identity the principle of best interests within Service (2006b). ‘What
confusion, easing of maternal grief,182 and a human rights framework requires are the alternatives
encouragement of empathy in adoptive consensus on the issues to be considered to full adoption?’
(Editorial), Monthly
parents).183 Informally, this approach and systematic recourse to an agreed
Review, 7–8.
is being taken up increasingly by the determination process. Decision-making
adoptive parents of foreign children. on whether or not the best interests of any 185 Roby, J.,
given child will be served by adoption J. Wyatt and G. Pettys
(2005). ‘Openness
Such openness in adoption – ensuring the abroad cannot be made in a hurry, but in international
greatest possible access to information must be timely, on the basis of subjective adoptions: A study
and in some cases maintaining a degree and selective criteria. It requires a thorough of US parents who
review of the child’s overall situation and adopted children
of contact with the birth parents – should
from the Marshall
not be confused with ‘open adoptions’, needs, and of the likely impact of the measure Islands’, Adoption
which are grounded in the adopted on virtually all the rights of the child. Quarterly, 8(3): 47–71.

54
Determining Children’s Best Interests in Intercountry Adoption

This section develops a basic checklist of children’s best interests in the context
issues that should be covered by such a of alternative care provision in general
formalized best interests determination – drawing much from the UNHCR
(BID) process. Guidelines

One inspiration for this exercise is the • the CRC Committee’s General
UNHCR Guidelines on Determining the Comment No. 14,189 made publicly
Best Interests of the Child issued in 2008, available in May 2013, which
the very first attempt at international level indicates the different spheres that
to codify the issues for practical use. In all the Committee says should be
situations covered by these Guidelines, the taken into account when coming to
parents of the child concerned are absent a decision on the best interests of a
or otherwise unable to exercise their basic child, whatever the question at hand.
parental responsibilities. While they were
developed to guide decision-making on Some key contributions from these texts are
unaccompanied and separated children set out in the following sub-section.
outside their country of origin, they can
be applied to situations where competent 4.3.1. The development of a best
authorities are called on to decide the interest determination process for
future of a child and are faced with several intercountry adoption
possible options. These UNHCR Guidelines
In many countries, the best interests of
describe BID as follows:
the child principle is used most often
by courts ruling in custody disputes,
...the formal process with strict
but the way it is used in this narrow
procedural safeguards designed to
context can be applied more broadly. For
determine the child’s best interests
example, when considering what is in
for particularly important decisions
the best interests of a child in a custody
affecting the child. It should facilitate
case under English law, the judge must
adequate child participation without
take into account a range of factors on a
discrimination, involve decision-makers
so-called ‘welfare checklist’:190
with relevant areas of expertise, and
balance all relevant factors in order to
• the ascertainable wishes and feelings
assess the best option.186
of the child concerned (in light of his 186 UN High
or her age and understanding) Commissioner for
Clearly, envisaging the adoption of a child Refugees (2008).
abroad is a prime example of a “particularly • the child’s physical, emotional and UNHCR Guidelines
important decision”. educational needs on Determining
the Best Interests of
• the likely effect of any change in his the Child. Geneva:
There are currently three additional resources UNHCR.
or her circumstances
that can be used to conceptualize a BID
process related to the intercountry adoption • the child’s age, sex, background and 187 Hague
any other relevant characteristics Conference
of a child. These are, in chronological order:
on Private
• any harm that the child has suffered International Law
• the 2008 Guide to Good Practice or is at risk of suffering (2008).
No. 1 for implementing the 1993 • how capable each of the child’s 188 Cantwell et al.
Hague Convention,187 which deals parents, and any other person (2012), p.25.
with questions relating to safeguards considered relevant to the question
for the child’s best interests when by the court, is of meeting the child’s 189 Committee on
intercountry adoption is being the Rights of the
needs. Child (2013).
considered
The checklist approach is useful in 190 United
• the handbook for implementing Kingdom, Children
applying the principle according to a child’s
Guidelines for the Alternative Care of Act 1989, s,1(3).
particular needs at a particular time. http://www.
Children,188 published in early 2013,
legislation.gov.uk/
which contains a checklist of issues ukpga/1989/41/
to be covered when determining contents

55
The Best Interests of the Child in Intercountry Adoption

To determine how the best interests location that is to be considered as


principle is to be applied practically in a potential place of residence for the
relation to intercountry adoption, it is useful child
to draw an analogy with the UNHCR’s • the view of experts, where appro-
BID process. UNHCR uses this process to: priateor necessary.


• identify durable solutions for Relevant elements for BID from the Hague
unaccompanied and separated refugee Guide to Good Practice are examined in
children more detail in section 4.4 below, within the
• decide on temporary care arrange- framework of wide-ranging safeguards for
ments for unaccompanied and children throughout the entire adoption
separated children in exceptional process. These include in particular:
situations
• establishing the child’s legal and
• decide on the possible separation
psychosocial adoptability
of a child from his or her parents
against his or her will in cases • ensuring the child’s consent to
where the child is exposed to or adoption
likely to be exposed to severe abuse • preparing a comprehensive report
or neglect.191 on the child.

The UNHCR Guidelines point out that From the best interests angle – and leaving
the BID process should not delay family aside to some extent legal considerations
reunification, unless there are reasonable as such – it is clear that the essentials of
grounds to believe that reunification is the BID process are the psychosocial
likely to expose the child to abuse.192 adoptability of the child and an overall
assessment of his or her situation (the
The Guidelines aim to give practitioners comprehensive report).
in the field a framework to help apply the
best interests principle in any of the three For its part, the Handbook on the Guidelines
scenarios above. Being a formal process, for the Alternative Care of Children notes
BID must be carried out only by authorized that, for children for whom alternative
persons, who are normally specialists in care is, or may be, a reality, BID should be
child protection, community services or grounded in an assessment undertaken by
child welfare. BID results are presented to a qualified professionals, and should cover
multidisciplinary panel that considers each the following issues as a minimum:
child’s situation assessment on a case-by-
case basis.193 1. the child’s own freely expressed
opinions and wishes (on the basis
According to the UNHCR Guidelines, the of the fullest possible information),
process of gathering information for BID taking into account the child’s
must include: maturity and ability to evaluate the
possible consequences of each option
• verification of existing and docu- presented
mented information about the child 2. the situation, attitudes, capacities,
• several interviews with the child opinions and wishes of the child’s
and, if appropriate, observations of family members (parents, siblings,
the child adult relatives, close ‘others’), and the
nature of their emotional relationship
• interviews with persons within the with the child
child’s network, including caregivers, 191 UN High
family (siblings and extended), friends, 3. the level of stability and security Commissioner for
provided by the child’s day-to-day Refugees (2008),
neighbours, guardian, teachers etc.
living environment (whether with
192 ibid.
• background information on the parents, in kinship or other informal
conditions in each geographical care, or in a formal care setting): 193 ibid.

56
Determining Children’s Best Interests in Intercountry Adoption

a) currently (immediate risk assessment) c) preservation of the family environment


b) previously in that same environ- and maintaining the child’s relations
ment (overall risk assessment) d) care, protection and safety of the
c) potentially in that same environ- child, where the objective of ‘protection
ment (e.g. with any necessary support and care’ is not stated in limited or
and/or supervision) negative terms (such as ‘to protect
d) potentially in any of the other care the child from harm’), but rather in
settings that could be considered. relation to the comprehensive ideal
4. where relevant, the likely effects of of ensuring the child’s overall ‘well-
separation and the potential for family being’ and development. Applying
reintegration a best interests approach to the
decisions means assessing the safety
5. the child’s special developmental and integrity of the child at the time
needs: of adopting the measure, while also
a) related to a physical or mental disability assessing the potential consequences
b) related to other particular character- for the child’s safety of the decision to
istics or circumstances be made
6. other issues as appropriate, such as: e) a situation of vulnerability such as:
disability, belonging to a minority,
a) the child’s ethnic, religious, cultural
being a refugee or asylum seeker,
and/or linguistic background, so that
victim of abuse, living in a street
efforts can be made, as far as possible,
situation, etc.
to ensure continuity in upbringing
and, in principle, maintenance of links f) the child’s right to health
with the child’s community g) the child’s right to education.195
b) preparation for transition to indep-
endent living Combined, these sources provide a good
insight into the scope and thrusts of the
7. a review of the suitability of each
formal assessment process that would be
possible care option for meeting the
needed for case-by-case determination of
child’s needs, in light of all the above
the best interests of the child in intercountry
considerations.194
adoption. Taking inspiration from them,
a basic outline for a BID process related
The CRC Committee lists the following
to children for whom intercountry adoption
elements to be taken into account, in
is envisaged is proposed in Table 1.
general, when assessing and determining
the child’s best interests, with the important
proviso that not all of them may be relevant
or of equal importance in every situation in
which such an assessment is required:
a) the child’s views
b) the child’s identity, to include
characteristics such as sex, sexual
orientation, national origin, religion
and beliefs, cultural identity and the
personality of the child. As regards
the choice of a foster home, for
example, the decision-maker will
have to take into consideration the
continuity in a child’s upbringing
and the child’s ethnic, linguistic and 194 Cantwell et al.
cultural background (CRC Art. 20.3) (2012), p.25.
when assessing and determining the
195 Committee on
child’s best interests. The same will
the Rights of the
apply to cases of adoption, separation Child (2013), paras.
or divorce 52ff.

57
The Best Interests of the Child in Intercountry Adoption

Table 1: Proposed checklist for a best interests assessment and determination process
on intercountry adoption

Key issues to be covered Considerations Outcome

The child’s freely expressed Fullest possible information needs An insight into the child’s
opinions and wishes about a to be provided to the child on the feelings about cutting ties
range of possible and realistic nature and implications of each with parents, siblings and
outcomes, including adoption potential option, taking account of the wider family and community,
abroad, taking into account the the child’s maturity. Consider and into his or her attitudes
1 child’s ability to understand not only verbal but also non- that might need to be taken into
the nature and evaluate the full verbal responses (e.g. drawings) account and/or affect the success
ramifications of each option and expert observation of of any given option, including,
presented. behaviour, including body but not limited to, adoption
language. abroad.

The situation, attitudes, capacities, Ideally, meet close family as a An understanding of the real
opinions and wishes of the group and also observe their reasons behind the willingness of
child’s family members (parents, interaction with the child. the parents and wider family to
siblings, adult relatives), other If possible and appropriate, part with the child, and thereby
caregivers and any other key meet the mother and father gauge the potential to prevent
persons in the child’s life, and individually as well. Emphasize that separation.
the nature and quality of their the perceptions of siblings,
2 emotional relationship with according to whether they
the child. may or may not also be the
subject of a potential change in
their care setting. Check their
understanding of the ramifi-
cations of each future care option.

The level of stability and security This requires discussion with An informed evaluation of the
provided by the child’s day-to- family, professionals and others degree to which the child could
day living environment (whether who have been involved in or find necessary levels of security
with parents, in kinship or other are familiar with the care of the and support in his or her current
informal care, or in a formal care child, as well as on-site visits. care setting or in others available
setting): Clearly, the child’s own percep- in the community or country.
a) currently (immediate risk tions and experiences are also
assessment) critical on this question.
b) previously in that environment
3 (overall risk assessment)
c) potentially in that environment
(e.g. with any necessary
support and/or supervision)
d) potentially in any other in-
country care setting that could
realistically be considered
e) potentially with adoptive
parents abroad.

As appropriate, the potential This involves setting the findings An assessment of the nature,
to keep or reintegrate the under Issues 1 to 3 against the extent and reasonable prognosis
child with the parent(s) or within possibility of reintegration with of necessary family support, and
the wider family, including the parents or within the family. a determination of whether and
4 consideration of the current or how such support can be provided
future availability of any family through current services or mobilized
strengthening and/or support in the near future, including through
measures this would require. outside assistance.

58
Determining Children’s Best Interests in Intercountry Adoption

Table 1, continued

Key issues to be covered Considerations Outcome


Requirements and possibilities This evaluation needs to take A determination of which care
to realize the child’s right to account of the context, notably option(s) are likely to offer

5 education. of opportunities available


to the child’s peers in his or
the educational opportunities
corresponding to this right,
her community. domestically or abroad.

The child’s physical and mental This requires a professional A determination of which care
health, compared with the evaluation of the child’s health option(s) are likely to ensure the
overall health and health-care needs, bearing in mind his or realization of the child’s right to
implications of each possible her right to enjoy the highest physical and mental health and/or
care setting. attainable standard of health which options might jeopardize

6 and access to services. Again,


this should be a contextualized
that right, by their nature or by
their consequences, domestically
evaluation. It also requires or abroad.
assessment of the potential health
consequences of removal to, and
living in, a new care setting.

Any special developmental This requires a professional A set of conditions that should
needs of the child related to: evaluation of any special needs, be met by any future care
a) a physical or mental disability including behavioural problems setting or arrangement to cater
b) other particular characteristics or vulnerabilities resulting from appropriately to the particular
7 or circumstances that create the child’s previous or current needs of the child.
vulnerability. experience (e.g. separated from
parents, victim of abuse, living
or working on the streets).

The child’s potential to adjust A psychosocial evaluation is The elimination of any arrange-
to new care arrangements and needed to establish the child’s ments and settings to which the
8 settings. propensity to adapt to new child is unlikely to adjust.
circumstances.

Other issues as appropriate, This involves identifying the The selection of the arrangements,
such as: kinds of arrangements and settings and other conditions that
a) how each option would settings, and the conditions best preserve key elements of
provide continuity with the required within them to the child’s identity. For an

9 child’s ethnic, religious, cultural


and/or linguistic background
take appropriate account of
the child’s origins or of any
older child, the establishment
of the potential for a successful
b) preparation for transition to other factor specific to that transition into adulthood.
adulthood and independent child’s needs or situation
living. (e.g. demonstrable sensitivity on
the part of foreign adopters).

Best interests determination All of the findings of the A determination of whether or not
(BID) phase; a review of the assessment should be collated the best interests of the child lie in
suitability and advantages and examined by an inter- intercountry adoption compared
and disadvantages of each disciplinary team, and their with any other option overall,

10 possible care option for meeting


the child’s overall needs and
discussion should lead to a
preliminary recommendation
and in specific relation to their
rights. If so, an agreement on the
respecting his or her rights, in on which option(s) complies conditions. If not, an agreement on
light of all the considerations with the child’s best interests. the other avenues to be pursued.
listed above.

59
The Best Interests of the Child in Intercountry Adoption

For the protection of children’s best interests


in intercountry adoption to be approached 4.4. Preserving the best
in the way foreseen by the CRC Committee, interests of the child during the
a formal assessment process should reflect intercountry adoption process
the procedures set out in the UNHCR BID
model, and be carried out by qualified
The 1993 Hague Convention stipulates
professionals acting where possible as a
the procedural requirements for each
multi-disciplinary team.196
intercountry adoption, and the Guide to
Good Practice No. 1 sets out clear guidance
It is, of course, very unlikely that such an
on how to implement the best interests
assessment will identify any one solution
of the child principle throughout the
as positive on all counts. There must,
process.198 This section does not provide
therefore, be flexibility in determining, for
detailed, step-by-step guidance on each
each specific child and according to the
phase – that is the purpose of the Guide
specific context, the factors that need to be
itself – but highlights key stages when
prioritized in reaching a final decision –
analysing how the best interests principle
hence, again, the importance of professional
is to be implemented: from the initial
input. As the CRC Committee notes:
determination of a child’s adoptability and
the desirability of inter-country adoption
Not all the elements will be relevant
to the finalization of that adoption and the
to every case, and different elements
appropriate follow-up.
can be used in different ways in
different cases. The content of each
The discussion once again demonstrates
element will necessarily vary from
that implementing the best interests
child to child and from case to case,
principle in an intercountry adoption
depending on the type of decision
usually means little more than protecting
and the concrete circumstances, as
the rights of the child, including, among
will the importance of each element in
others, the rights to an identity, to be raised
the overall assessment.
by his or her parents wherever possible,
and to be protected from all forms of
The elements in the best-interests
exploitation.
assessment may be in conflict when
considering a specific case and
its circumstances. For example, Implementing the best
preservation of the family environ-
ment may conflict with the need
interests principle in an
to protect the child from the risk intercountry adoption
of violence or abuse by parents.
In such situations, the elements will
usually means little more
have to be weighed against each than protecting the rights
other in order to find the solution of the child.
that is in the best interests of the child
or children.197
4.4.1. Determination of ‘adoptability’
However, a systematic BID process does Determining adoptability is the stage 196 ibid., para. 94.
provide a formal framework within which at which a child may be diverted from
197 ibid., paras. 80-81.
those priorities and conflicts can be alternative care and other placement
reviewed, with clear arguments being put options because he or she cannot be 198 Hague Conference
forward to justify the selected option. In the reintegrated into the family of origin on Private International
Law (2008).
sphere of alternative care in general, and and a formal determination has been
intercountry adoption in particular, this made that an adoptive family would, in 199 International
would be a very significant step forward in principle, best meet his or her needs. It is Social Service (2006c).
ensuring that, when intercountry adoption a complex but fundamental process, with ‘The determination of
the adoptability of the
is the final decision, it is clearly in the best two major facets that are often referred to child’, Fact Sheet No.
interests of the child concerned. as ‘legal’ and ‘psychosocial’ adoptability.199 20. Geneva: ISS/IRC.

60
Determining Children’s Best Interests in Intercountry Adoption

4.4.1.1. Legal adoptability Inducements for parents to give consent can 200 Lammerant,
I. (2003). ‘Les
occur at this stage, as seen in Romania in the Fondements Ethiques
Legal adoptability is determined simply on 1990s and, more recently, in Guatemala.202 et Juridiques de
the basis of the child’s potential legal status Great care must be taken to ensure that l’Adoption des
Enfants Délaissés’,
as adoptable, in view of the parents’ death or parents understand what it really means Contribution to the
abandonment or their appropriate consent to to give consent, particularly the permanent colloquium ‘Devenir
adoptable, être
relinquish the child.200 Legal adoptability is severance of ties between the parents and
adoptable’, Paris,
therefore a necessary condition, but it is not child – a totally alien concept in many 14 November, p. 5;
enough on its own to underpin an adoption societies. Decision-making on adoptability International Social
Service (1999).
decision. The suitability of adoption must also must also be timely; while it is not a decision ‘The rights of the
be examined for each child, even if that child to be made in haste, a lack of expedition child in internal
is deemed ‘adoptable’ from a legal standpoint. can work against the child’s best interests. and intercountry
adoption: Ethics
In addition, disclosing information to and principles
Establishing that a child is legally eligible for adoptive parents about children who – Guidelines for
practice’. Geneva: ISS.
adoption is a task that should be entrusted have not been declared as adoptable is
to a designated competent authority, such as contrary to the terms of the 1993 Hague 201 Bunkers, K.M.,
the judicial system. Resulting declarations Convention and may lead to further abuses V. Groza and
D.P. Lauer (2009).
of adoptability do not, in themselves, of procedure.203 ‘International
distinguish between possible domestic or adoption and
intercountry adoption placements – that An effective birth registration system child protection in
Guatemala: A case
decision is based on other criteria and is fundamental in determining legal of the tail wagging
comes at a later stage. adoptability, but the process should the dog’, International
Social Work, 52: 649–
also account for children whose birth 60; Baldauf, S., et al.
documents have been lost, destroyed,
Declarations of adoptability stolen or were never issued, so that they
(2010). ‘International
adoption: A big fix

do not, in themselves, have the same opportunities, regardless


brings dramatic
decline’, Christian
of their documentation (or lack of it).
distinguish between possible Many children in post-earthquake Haiti
Science Monitor, 14
March.

domestic or intercountry in January 2010, for example, did not 202 Roby, J.L. and J.

adoption placements. hold birth certificates,204 and in 2007 an Ife (2009). ‘Human
rights, politics
estimated 51 million births worldwide and intercountry
went unregistered.205 Where children have adoption: An
The CRC (Art. 21) and the 1993 Hague no birth registration documents, steps must examination of two
sending countries’,
Convention (Art. 4) indicate that all necessary be taken to resolve the issue in a timely International Social
consents must be fully informed, freely given manner, so that they are not left in a ‘legal Work, 52(5): 661–71;
Bunkers et al. (2009).
and, importantly, must not be induced by any limbo’ that compromises their best interests
compensation or promise of compensation and could hamper efforts to plan their long- 203 Hague Conference
– requirements that are reflected in the term stability.206 on Private
International Law
legislation of most countries of origin. (2008).
Again, the consent referred to is, in principle, 4.4.1.2. Psychosocial adoptability
general: it is consent for adoption, not for 204 Baldauf , S.
et al. (2010).
either domestic or intercountry adoption Psychosocial adoptability is evaluated after
alone. legal adoptability has been established, 205 UNICEF
(2009). ‘Progress
on the basis of a child’s potential capacity
for Children: A
Obtaining consent must be handled to create ties with a new family and be report card on child
sensitively: a whole range of personal integrated into a new family environment. protection’, No. 8,
p. 5.
reasons can cause significant distress to the The concept is sometimes broken down
birth parent(s), such as fear of punishment into its social, psychological and medical 206 Groza, V. and
for leaving a child, and embarrassment if components.207 Social adoptability is based Nedelcu, C. (2006).
‘Romanian Adoption’,
the mother’s pregnancy was kept a secret on an assessment of the child’s situation, in K. Stolley and V.
or occurred out of wedlock. Securing in particular the family of origin and its Bullough (eds.),
pp.523-527.
parental consent is also a process subject ability to provide a suitable environment
to abuse and corruption.201 An adult may for the child’s full development. The term 207 International
claim to be the birth parent, for example, psychological adoptability refers to the Social Service (2006).
‘The Determination
but other evidence is needed to verify that emotional and psychological needs that of the Adoptability of
claim in the absence of genetic testing. a child might have and that may not be the Child’.

61
The Best Interests of the Child in Intercountry Adoption

addressed properly through adoption. term ‘older’ may be applied to children as


The establishment of medical adoptability young as 5 or as old as 10, while a ‘sibling
is important to identify the best care group’ may amount to just two children.
arrangement for an individual child,
particularly one with special needs. In addition, some countries specify that
the term ‘special needs’ includes children
Clearly psychosocial adoptability matters who have traumatic histories with their
when considering possible adoption biological families or those who have spent
abroad. But additional elements must a long time in an institutional setting, both
be taken into account to determine of which carry known and unknown risks
‘intercountry adoptability’. These include for the future.
ensuring that all realistic efforts have been
made to consider the suitability of domestic It is often impossible to secure appropriate
adoption or other stable in-country options, adoption or other family-based care for
and assessing the child’s potential to abandoned or relinquished children with
adjust to a different cultural and linguistic special needs in their country of origin,
environment. Consideration may also need whether industrialized or developing. If no
to be given to the socio-political situation suitable care arrangements can be identified
of the country of origin, particularly any domestically, it may be deemed in those
allegations of corruption and child traffick- children’s best interests, therefore, to be
ing in the context of armed conflicts or adopted by families in other countries that
natural disasters (see section 3.7 above).208 are better placed to cater to their particular
requirements.
Psychosocial adoptability is, therefore, a
key consideration from a best interests
At the same time, and especially given
standpoint. A child may be legally adoptable
the increasing reliance by countries of
but his or her situation, characteristics and
origin on the potential adoption of these
needs may indicate that adoption is not,
children abroad, there is concern about
in fact, an appropriate response or that his
whether many of these children can adjust
or her best interests can only be met in a
to a new environment, and particularly
domestic family setting. The BID process
about whether foreign adopters have the
aims to elucidate such elements, and the
information, preparation and support to
findings are to figure in the overall report
cope with the special needs of the children
on the child (see section 4.4.3. below).
they adopt. A recommendation from the
Council of Europe’s former Commissioner
4.4.1.3. The adoptability of children with
for Human Rights, Thomas Hammarberg,
disabilities and other ‘special needs’
pinpointed this latter problem, urging
The question of psychosocial adoptability European States to “ensure that children
is of particular significance in the adoption with special needs will be appropriately 208 ibid.
of children with disabilities and other protected and cared for by prospective
special needs, who usually account for the [adoptive] parents”.210 209 Vité, S. and
Boéchat, H.
vast majority of children who are legally (2008). ‘Article 21:
adoptable but remain unadopted. Some central authorities have taken proactive Adoption’ in
measures to increase public awareness of, Alen, J. et al. (2008).
In adoption, children with ‘special and sensitivity to, the topic of children with
210 Council
needs’ are in general those with physical, special needs, to boost the chances of their
of Europe
emotional or mental disabilities, as well as adoption, domestically or abroad. Peru’s (2011), General
other ‘hard-to-place’ children: those with central authority, for example, developed Recommendation
an awareness-raising programme in 2003 No. 3.
serious medical conditions, older children
or sibling groups.209 There is no universally to recruit domestic adoptive families for 211 Ministerio de
recognized definition of ‘special needs’, children who have health problems or Mujer y Desarrollo
however, and the terminology used varies disabilities, children above 5 years of age and Social de Peru
sibling groups.211 The campaign was later (n.d.). ‘Adopciones
from country to country. In some countries,
prioritarias: Los
even minor problems such as a hare-lip or extended to the embassies of countries with ángeles que
cleft palate are considered ‘disabilities’. The a history of intercountry adoption from Peru. aguardan, Lima.

62
Determining Children’s Best Interests in Intercountry Adoption

4.4.2. The child’s consent Where the child’s free consent is required 212 For example, the
figure for France in
According to both the CRC (Art. 12) – which by law and obtained freely, refusal to give 2012 was 68%, and
is linked to the best interests determination that consent should always be respected 71% for the USA in
2011.
– and the 1993 Hague Convention (Art. in practice. Where the law demands
4.d), children who have the maturity and only that the child’s views and wishes on 213 Webb, N.B.
adoption are taken into consideration, a (2003). Social Work
capacity to present their opinion on the Practice with Children.
determination of adoptability should judge might well determine that these are
not in the best interests of the child. Varying 214 Hague
be given the chance to do so. However, Conference on
most children adopted abroad are babies approaches are taken on this issue.218 In Private International
Brazil, children aged 12 years or older can Law (2008).
or infants aged 4 years or less,212 who
express their feelings about an adoption, 215 United Nations,
cannot be expected to comprehend the
but the law does not specify exactly what Department of
implications of their adoption, let alone to Economic and Social
‘expressing their feelings’ might mean Affairs, Population
another country.
in practice. Madagascar states that every Division (2009),
pp. 43-44.
child who has reasonable judgement
How such child participation is implem-
must be informed of the implications of 216 Article 4, Cypriot
ented varies, but it is clear that the child Adoption Law 19(1)
adoption.219 An adoption cannot be granted of 1995 States: “For
must be enabled to express opinions in
in South Africa if the child is aged 10 years the making of an
a context that is free from all types of adoption order, it
or older and has not given consent. Even if
constraints and from any fear of potential shall be required – c)
a child is under the age of 10 that child’s the consent of the
repercussions, with a guarantee that those person to be adopted,
views must be taken into account if he or
opinions will be taken into account in any if his age or spiritual
she demonstrates the maturity or capacity capability permits
final decision.213 to give consent.220 that”.

217 Czech Family


Guides to Good Practice Nos. 1 and 2 4.4.3. Preparing the report on the child Code Act No. 94/1963,
underline the importance of having Art. 67 states: “(1)
Once eligibility for adoption is confirmed, the adoption requires
qualified and ethical personnel mandated consent of the legal
a key step in preserving the child’s best
to oversee the consent procedure. representative of the
interests is the preparation of an accurate child. If the child
Professionals who work with children on is able to consider
and comprehensive report about the child
placement decisions must understand and the consequences of
and his or her background, using such the adoption, also
appreciate the child’s history, and have a
sources as case notes, legal records and his or her consent is
good knowledge of child development, necessary except for
medical, developmental, educational, cases when it would
family systems assessment, the impact of
psychological and social evaluations.221 frustrate the purpose
trauma on children and the effects of grief of adoption.”
Drawn up correctly, this report should
and loss.214
be one of the main bases for a BID (see 218 Zermatten (2010),
section 4.3 above). It should be prepared p. 21.
A recent United Nations report found by a multidisciplinary team of experienced 219 Madagascar
that the legislation of most states and qualified professionals, and should be Adoption Law No.
set the minimum age of consent for 2005-014. www.
independent of any pending application madagascar-
adoption at 10 years of age; in 26 states by adoptive parents. Its preparation diplomatie.net/article.
it was 12 years of age and in 10 states php?article_id=350
should allow sufficient time for accurate
it was 14 years of age. At the other end elaboration, but should be carried out 220 Republic of South
of the scale are Liechtenstein (5 years old) Africa, Children’s
expeditiously.222 Amendment Act
and Mongolia and Sao Tome and Principe 2007, Government
(7 years old).215 In 16 countries, the central Gazette, No. 30884,
Priority for the assessment of children who 18 March 2008, para.
authority is required to assess the child’s are not with their birth parents should go 233.1.
maturity or capacity to understand before first to children in institutions, children
221 Vité, S. and
asking for the child’s consent. Some with siblings and children with mental or Boéchat, H. (2008);
countries recognize the right of children physical disabilities whose needs cannot Romaine, M.,
Turley, T. and
to participate in adoption procedures be met in their country of origin. It is Tuckey, N. (2007).
without specifying any age; instead vital that no significant information is
222 Hague
the child must simply be able to left out, as this could hamper matching Conference on
understand the concept of adoption. between the child and prospective Private International
Law (2008).
This is the case in Cyprus216 and the adoptive parents, which would be
Czech Republic.217 detrimental to the child’s best interests.223 223 ibid.

63
The Best Interests of the Child in Intercountry Adoption

In Hague contracting states, the central safeguarding the best interests of the
authority is responsible for developing child. This aspect is taking on increasing
policies, procedures and protocols for the importance as countries of origin seek
type and frequency of assessment for each more opportunities for adoption abroad
child who is not with his or her birth family of children with special needs (see section
and who may be eligible for adoption. 4.4.1.3. above).
Investigations should begin when the child 224 ibid., p. 84.
enters the care system.224 In addition to basic assessment, some
receiving countries use the ‘preparation 225 ibid.

The report should provide invaluable of prospective adopters’ as a form of self- 226 The 2010
information not only for the adoption assessment process (see section 4.4.6. below). Special Commission
process but also for the children concerned, “emphasised the
need for country
should they wish to find out about their
past later in life.225
Children must benefit specific preparation
and for prospective
from systematic and adoptive parents
to have some
4.4.4. Assessment of prospective
developmentally knowledge of the
adoptive parents culture and his or
An assessment of prospective adoptive appropriate preparation her language of the
child in order to
parents is carried out in the receiving for adoption. communicate with
country to establish their overall fitness to the child from the
adopt, and to determine the characteristics matching stage”.
Each receiving country sets out its Hague Conference
of the children for whom they would be eligibility requirements for prospective on International
suitable parents. A thorough and impartial adoptive parents, but additional or more Private Law (2010),
assessment is, therefore, an essential p. 2.
stringent requirements may also be
component of efforts to ensure that an applied by the country of origin. China, 227 US Department
adoption is likely to meet the best interests for example, requires a married couple of State, Office of
of the child. As a result, it must cover with any history of divorce to have been Children’s Issues,
legal, medical, social and psychological Intercountry
married to each other for five years before Adoption website.
dimensions, as well as more material applying to adopt.227 In many countries, http://adoption.
questions, and should be conducted by a being married is an essential requirement State.gov/country/
multidisciplinary team of professionals. for intercountry adoption. Interestingly, china.html#who1

however, more than 100 countries allow 228 United Nations,


A key step in determining parents’ eligibility single people to adopt through both Department of
for adoption is the home study, which must domestic and intercountry adoptions.228 In Economic and Social
Affairs, Population
be completed by a licensed assessor, such as contrast, virtually all countries of origin
Division (2009),
an experienced and qualified social worker. forbid adoption by homosexual parents at pp. 38-39.
While similar tools may be used to assess present.229 To the extent that their
potential adoptive parents for domestic objections stem from fears over the 229 Information
provided by the
and intercountry adoption, issues specific potential developmental and psychological Permanent Bureau
to intercountry adoption must also be impact on the adopted child, the findings of the Hague
addressed, such as ability to travel, views of emerging research initiatives on this Conference on
relatively new issue should clarify matters Private International
about how to broach the child’s country
Law on 14 January
of origin and culture within the family, from the standpoint of the child’s best 2011.
and thoughts about language issues.226 interests.230
230 The necessary
potential
Particular attention needs to be paid to the 4.4.5. Preparation of the child
contribution
prospective adopter’s propensity to care A best interests approach dictates that of further research
for children with disabilities, behavioural children must benefit from systematic and is expressed, for
example, in
problems and/or those who have spent developmentally appropriate preparation
European
long periods in an institutional setting. for adoption. The country of origin is Parliament
Clearly, a full and honest evaluation of responsible for ensuring that professional Directorate-General
such capacities is vital to prevent serious staff are assigned this specific task. The (2009). ‘International
Adoption in the
difficulties or breakdowns in an adoptive issues for discussion vary according to the European Union’,
relationship and is, therefore, crucial for age of the child, but may include explaining pp. 110-112.

64
Determining Children’s Best Interests in Intercountry Adoption

to children what they may gain by having Europe’s receiving countries (Belgium,
a parent, helping them to understand Denmark, Ireland, Luxembourg, Malta,
their past, involving them in the decision- the Netherlands, Slovenia and Sweden)
making process in line with their evolving implement compulsory training pro-
capacities, and providing them with facts grammes for adoptive parents. The issues
about adoption and the process.231 covered in the training span the adoption
triad, as well as the attachment and the
background of adoptive children.238
Allowing children to be Sweden’s central authority has published
involved in the planning a manual detailing the contents of the
training sessions it runs for adoptive
may help them to explore parents.239 This manual is a key component
feelings of loss, anger and of the compulsory training programme that
Swedish adoptive parents must follow once
confusion and support the home study and assessment phase has
their empowerment. been completed.
231 Chestang, L.W.
The preparation phase can also give and Heymann, I
Information can be provided in several applicants a chance to reconsider their wish (1976); Hanna, M.D.
stages, and allowing children to be involved to adopt once they have all the information, (2008).
in the planning may help them to explore enabling them to withdraw from the 232 Henry, D.L.
feelings of loss, anger and confusion and process without negative consequences for (2005). ‘The 3–5–7
support their empowerment.232 Such their self-esteem. Model: Preparing
discussion can also help children with children for
permanency’,
close ties to their families, or other children Taking inspiration from elements in Children and Youth
and personnel in residential settings to the Hague Guides to Good Practice, all Services Review,
understand – and mourn – the changes that adoptive families should receive training in 27(2): 197–212.
adoption brings.233 the following core areas: 233 Hague
Conference
A useful tool to help the child is a on Private
• the legal and social process of
‘lifebook’ which provides a detailed International Law
adoption in the country of origin and (2008).
outline of the child’s life before adoption.
the receiving country
Prospective adoptive parents who plan to 234 European
adopt internationally are encouraged to • issues of abandonment, separation, Parliament
collaborate in the lifebook’s preparation. 234 grief, loss and mourning; under- Directorate-General
standing that the psychological (2009), p. 137.
4.4.6. Preparation of the prospective consequences for the child might occur
235 Roby, J. L.
adoptive parents only later, when parents think such (2007).
issues have been resolved
Being placed in a family well prepared for
236 Farber, M.L.Z.,
adoption is in the child’s best interests, • the adoptive family life cycle and Timberlake, E.,
as it will ensure a better ‘fit’, as well as unique issues in adoptive family Mudd, H. P. and
better day-to-day care and responses formation Cullen, L. (2003).
to the child’s needs.235 An accredited • unique issues of identity, which vary 237 Bledsoe, J.M.
adoption body in the receiving country according to the age and developmental and Johnston, B.D.
is responsible for helping to prepare stage of the adopted child (2004).
prospective adoptive parents, although
• culture and ethnicity 238 European
countries of origin may also develop Parliament
preparatory training programmes which • attachment in adoption, including Directorate-General
adoptive parents are obliged to attend. methods to promote attachment at an (2009), p. 136.
Training activities may be planned early stage
239 Swedish
and delivered by social workers or • outcomes and risks in intercountry National Board of
psychologists;236 when preparation entails adoptions, focusing on the health, Health and Welfare
a medical focus, physicians and nurses (2007). ‘Special
development, behavioural and educa-
Parents for Special
will also be involved as presenters.237 tional needs that may be experienced Children’, Edita
A recent study found that many of by children from institutions Vastra Aros.

65
The Best Interests of the Child in Intercountry Adoption

• dealing with unresolved infertility While the child’s ethnic identity should
issues (if applicable) be considered in every case, and matching
• resources for a single adoptive parent should take this into account, this does not
(if applicable) imply the need for placement in a family
of the same ethnic background. But it does
• the short- and long-term effects of entail a full assessment of prospective
neglect, abuse and trauma experienced parents, coupled with preparatory and
by the child before adoption, to help post-adoption services to support them
prepare adoptive parents to meet any in this task.244 Evidence also indicates that
challenges. positive ethnic identity development is
aided by travel to the child’s country of
4.4.7. The matching process origin, role models who share the child’s
Matching is the process of assessing which race or ethnicity, enrolment in a racially 240 International
Social Service
prospective adopters would best meet diverse school and, above all, contact with and International
the needs of a child for whom adoption is birth relatives.245 Resource Centre
envisaged. In keeping with the paramountcy for the Protection
principle, the best interests of the child are To accomplish a positive, child-centred of Children in
Adoption (2004).
the most important consideration and the match, the process should be conducted in
‘The Rights of the
matching process is to be child-centred: the country of origin by a multidisciplinary Child in Internal
finding the most appropriate family for the team of professionals familiar with the child; and Intercountry
child rather than the most ‘suitable’ child it should not be left to any one individual.246 Adoption. Ethics
and Principles;
for the family.240 Slovakia’s central authority, for example,
Guidelines and
has created a commission of specialists Practice’.
Preliminary matching is based on the (comprising a psychologist, social worker
assessment reports of the child concerned and legal expert) who select the most suitable 241 Lammerant and
Hofstetter (2008).
and of prospective adopters, which family for an individual child from a list
underscores the importance of ensuring that of prospective candidates.247 The matching 242 Lind and
these reports are accurate and complete. A process should be confidential and only the Johansson (2009),
match based on false or missing information final outcome should be shared. p. 250.
could cause major problems for the child,
243 Hague
the family or both.241 No uniform guideline exists on the age of Conference
prospective adoptive parents, but there on Private
Matching should be a “balancing act are two general approaches.248 The first International Law
(2008), p. 87, para.
between acceptance of the limitations in … addresses age limits for the prospective
357.
applicants’ ability to love every child and a adoptive parent(s): many countries have
requirement for them to be able to do just a minimum age and some also stipulate 244 Evan B.
that, but also between the ambition to achieve a maximum age. Prospective adoptive Donaldson
Adoption Institute
as much likeness between the adoptive parents in India, for example, should be at
(2009).
parents and their child as possible and least 30 and no more than 55 years old. The
the ambition to accommodate applicants’ second approach uses the age difference 245 ibid.
preferences.”242 Applicants’ preferences between the child and prospective adoptive
246 Hague
should be accommodated only when these parent(s). The minimum age difference in
Conference
are also in the child’s best interests. some countries is 15 years; in others it is as on Private
high as 21 years. A combination of these International Law
It is poor practice to make ‘blind’ matches, two approaches is often used; for example, (2008), p. 29,
para. 49.
in which prospective adoptive parents are in Luxembourg, adoptive parents must
unaware of the identity of the matched have reached the age of majority and be at 247 European
child until they arrive in the country of least 15 years older than the child. Parliament
origin, or are offered a child only upon Directorate-General
(2009), p. 137.
arrival, with too little time to decide Matching decisions must be based on a clear
whether or not to proceed with the policy that prohibits preferential treatment 248 United Nations,
adoption.243 Administrative decisions that of specific families referred by a particular Depaartment of
result in blind matching – in contrast to the agency or individual. Again, the best Economic and
Social Affairs,
professional decisions made by specialists – interests of the child principle is central to this
Population
are rarely based on a real assessment of the process. To avoid a certain adoptive family Division (2009),
best interests of the child. being favoured, Article 29 of the 1993 Hague pp. 36-38.

66
Determining Children’s Best Interests in Intercountry Adoption

Convention specifies that prior contact least two weeks before an adoption decree
between the prospective adoptive parents is pronounced. Psychologists or social
and the birth parents or guardians must be workers assist during the bonding period,
avoided, unless the adoption takes place helping to build the relationship between
within the family or complies with conditions the child and the adoptive family. After the
set by the competent authority.249 Similarly, first meeting, both sides are observed by
there should be no contact between adoptive a psychologist in their daily interactions –
parents and the authorities of the country of including play, negotiation and expression
origin, except in specific circumstances, such of affection. Observations span three days
as certain cases where the child involved in the case of children up to 6 months of
has special needs.250 age, rising to a maximum of five days for
children older than 1 year, with the caveat
Matching decisions are in no way to be that any challenges encountered will
seen as final. They should lead to a phase further prolong the process.251
during which the child and the prospective
adopters are given the opportunity to bond. It is clear that adherence to the best interests
The adoption should only proceed if this principle will be enhanced if the reactions
subsequent bonding process is positive. of the prospective adopters are garnered
This is another reason why the removal in a setting where they can express
of children from an emergency situation themselves freely, and without feeling
to the care of potential adopters who have pressured to proceed with the adoption if
not been through the bonding process with they have serious doubts. Depending on
them is particularly risky and unlikely to the age and capacities of the child, his or
be in the best interests of the child. her views should also be solicited in a child-
friendly context immediately after the first
4.4.8. Bonding meeting and after subsequent meetings, if
The initial meeting between prospective necessary. If any problems are observed
adopters and the child with whom they or reported, the professional staff must
have been matched is the first step in the devise plans for how to proceed. It may be
bonding process. It should take place in enough to work with the child to aid his
the country of origin, and a professional or her adjustment or with the prospective
should facilitate and supervise the meeting. adopters to ease the transition. However,
The bonding process is, in essence, the the adoption may need to be delayed or
practical test of the matching decision. abandoned depending on the views of the 249 Hague Convention
prospective adopters and the child about on Private International
If its results are positive, the adoption will Law (1993).
proceed – which occurs in most cases where the meetings.
the preliminary matching has been carried 250 Hague Conference
out in a professional way. At the same It follows that the practice of ‘escorting’, on Private International
where a staff member or volunteer ‘delivers’ Law (2008), p. 87.
time, if serious bonding problems arise,
the adoption process can be halted early the child to the receiving country, is not in 251 Instituto
enough to avoid traumatic consequences the child’s best interests,252 particularly Colombiano de
if there has been no bonding process Bienestar Familiar
for the child.
(2007). ‘Lineamientos
beforehand in the country of origin. In any
de Adopción’,
case, ‘escorting’ could well add to the child’s Bogota.
If serious bonding problems anxiety. It also denies adopting parents the
arise, the adoption process valuable insights gained by being with the 252 Groza, V. and
C. Proctor (2007).
child in his or her current surroundings
can be halted early enough and through informal conversations with
‘Escorting children in
inter-country adoption’,
to avoid traumatic caregivers. Information that is not usually in J. Pati, ed. Adoption:
Global perspectives
recorded in official records can be elicited
consequences for the child. in this way, such as dietary preferences and
and ethical issues.
New Delhi, Concept
how best to calm the child.253 Publishers, pp. 177–88.
Colombia offers a positive example of how
253 Hague Conference
to facilitate a first meeting. Adoptive parents on Private International
must stay in the country with the child for at Law (2008).

67
The Best Interests of the Child in Intercountry Adoption

4.4.9. Entrustment of the child and the Philippines and Thailand, which
finalization of adoption requires a six-month probationary period
Entrustment refers to the placement in the receiving country.257 Should bonding
of the child in the care of adoptive not be successful during that period, the
parents. Adoption under the 1993 Hague consequences for the child may be more
Convention has an important safeguard in traumatic and difficult to resolve because he
Article 17(c), which provides that the best or she is already in a foreign country. How
interests of the child should be respected such an arrangement ties in with the child’s
before this entrustment takes place. This best interests is therefore questionable.
is to be ensured by an agreement based
on the acceptance of the matching by the 4.4.10. Post-adoption issues
adoptive parents, confirmed by the country Ensuring the best interests of the child
of origin, the approval of that decision during the post-adoption phase demands
by the authority in the receiving country a focus on support services for the child
(if required), the establishment of the and adoptive family, post-placement
eligibility and suitability of prospective reports, responses in cases of irredeemable
adoptive parents to adopt, and the breakdown in the adoptive relationship,
granting of permission for the child to live and the search for origins. Post-adoption
permanently in the receiving country.254 support services must be wide-ranging
254 Hague
and sufficient to address the multiple and
Convention on
Normally, entrustment should occur intertwined needs of adoptees and their Private International
before the child is transferred to the new adoptive families258 across the child and Law (1993), Art. 17.
country of residence.255 And, as mentioned family life cycle.259 These services are to
255 Hague
in the previous section, it is good practice, be provided by receiving countries, and
Conference on
and in the best interests of the child, for may be formal (e.g., case management, Private International
adoptive parents to travel to the country of services offered by a licensed mental health Law (2008), p. 119,
origin to spend time with the child before professional or agency) or informal (e.g., para. 545.

accompanying him or her to the new home. parent support groups).260 256 International
Social Service (2007).
Most countries require adoptive parents ‘The Conformation
to travel to the child’s country only once, Good post-adoption of Matching, the
Meeting and the
during which visit the entrustment, support includes an element Probationary Period’,
probationary period and final decision will
all take place. However, some countries
of community education. Fact Sheet No. 43.

257 Hague
require prospective adopters to travel to
Conference on
the child’s country twice: first to accept the Formal services should include regular Private International
matching and to bond with the child during face-to-face contact between the adoptive Law (2008), p. 118,
a ‘probationary period’, and second for the family and professionals for several para. 543.
decision on adoption. This option confronts months after the child’s arrival, to assess
258 ChildONEurope
the child (and family) with disruption how he or she is faring and how the family Secretariat (2007).
and a period of separation, which may be is adjusting. Offering comprehensive ‘Guidelines on post-
extremely detrimental, particularly if the post-adoption support services requires adoption services’.
Florence: Istituto
gap between the trips is very long.256 professionals who can deal with degli Innocenti.
medical, developmental, educational
A few countries stipulate a longer and behavioural issues. Social-work 259 Rosenberg, E.
probationary period – as is commonplace case management may also be needed (1992). The Adoption
Lifecycle: The children
in domestic adoption – which must take to assist families with early intervention and their families
place in the receiving country. In that case, programmes to prevent problems from through the years.
the child usually meets the prospective arising or progressing. It is good practice New York: Free
adopters in the country of origin and then to evaluate all families and children Press.

travels to the receiving country to spend immediately after placement to ascertain 260 Palacios, J. (2009)
an extended period with the selected any needs and to develop a system of in G.M. Wrobel and
family before the adoption is finalized periodic check-ins or opportunities for E. Neil, pp. 71–94;
Dhami, M.K.,
(whether in the receiving country or families to seek more help.
D.R. Mandel and
country of origin). They include Panama, K. Sothmann (2007).

68
Determining Children’s Best Interests in Intercountry Adoption

More widely, good post-adoption support goes unreported, so data are scarce on
includes an element of community whether the best interests of the child are
education or the encouragement of upheld effectively in such circumstances.
community support. Parents might require
targeted, specialist support to address
identity and transracial issues and to help A key issue is whether to
adopted children preserve links with their allow adoptees access to
cultural traditions.
information on their rights.
Each country of origin determines its time
frame and requirements for post-placement Adoption-related issues may surface
reporting: these range widely, from no throughout the adopted child’s lifetime.265
more than one year following placement A key issue is whether to allow
to the time the child reaches adulthood. adoptees access to information on their
The Philippines, for example, requires origins. The overwhelming tendency
post-placement reports two, four and six among professionals is to recognize
months after the adopted child arrives the psychological need for adoptees to
in the receiving country, while Ukraine have access at least to non-identifying
demands annual reports for the first three information about their origins, to
years and then once every three years consolidate their identity. This is not 261 US Department
until the child reaches the age of 18.261 The universally accepted, however, and access of State (2008).
2005 Hague Special Commission, while to such information is not formalized Intercountry
Adoption,
recommending that receiving countries explicitly as a right by the CRC.266, 267 ‘Ukraine Country
encourage adopters to comply with post- Information’.
adoption reporting requirements, also Each Hague contracting state must
262 Hague
proposed that countries of origin “limit the preserve documents that relate to the Conference on
period in which they require post-adoption adopted child’s family and medical Private International
reporting in recognition of the mutual history (Art. 30(1)) with a view to the child Law (2005), para. 18.
confidence which provides the framework having access to this information at some
263 International
for co-operation under the Convention.”262 point if he or she so desires. This is clearly Social Service
considered to be in the best interests of (2007). ‘Intercountry
In general, it is considered good practice the child. At the same time, ensuring Adoption: Post-
adoption follow-up’,
to require regular reporting over no more such access is not an absolute obligation, Fact Sheet No. 46.
than three years.263 In addition, post- and is applicable only “in so far as [this]
adoption reporting has proved to be of is permitted by the law of that State.” 264 Hague
Conference
little value, in reality, from the standpoint (Art. 30(2)). Indeed, practices around the
on Private
of the best interests and protection of the world vary: some countries prohibit the International Law
individual child, as almost no reports search for origins outright; others have a (2008), p. 129,
submitted contain information that has coherent policy on the preservation and para. 604.

provoked concern. sharing of information at different stages, 265 Rosenberg, E.


or envision supervised country visits.268 (1992).
In cases where the adoption breaks down Services that handle adoptees’ requests
266 International
(i.e. legal rights to the adopted child are for the search for origins should be staffed Social Service
relinquished by the adoptive parents) the by trained professionals with extensive (2007a).
receiving country and country of origin knowledge of intercountry adoption
267 Brodzinsky, D.,
must collaborate to prepare a permanency issues in both the country for origin and
L.M. Singer and
plan or alternative placement that is in the receiving country.269 A.M. Braff (1986), in
the best interests of the child. Ultimate P.D. Ashmore and
responsibility for planning the child’s D.M. Brodzinsky,
eds.
future lies with the receiving country’s
competent authorities, and only in extreme 268 International
circumstances should a child return to his Social Service
(2007b).
or her country of origin.264 However, the
breakdown of intercountry adoptions often 269 Roby, J. (2002).

69
The Best Interests of the Child in Intercountry Adoption

4.5. What is the real importance The ‘environment’ in which


given to the best interests of the intercountry adoptions are
child in intercountry adoption? carried out is also of great
importance.
Whether it be from the standpoint of
overall policy or the situation of a specific
The next chapter therefore examines some
child, this chapter has outlined the wide
key elements in that ‘environment’ that
range of factors that need to be reviewed
also need to be addressed – by countries of
in each case if the best interests of the child
origin and receiving countries alike – as a
and of children are to be the ‘paramount
pre-condition for intercountry adoption to
consideration’ in decision-making. In so
be undertaken in a manner consistent with
doing, it has shown, either explicitly or
the ‘best interests principle’ and the human
implicitly, that this is frequently not the
rights of children.
case in reality, and that the full practical
implications of subscribing to the ‘best
interests principle’ have, undeniably, been
barely acknowledged in many quarters
so far.

But it is not only the insufficient attention


given to proper assessment – of laws,
policies, procedures and the circumstances
of individual children – that has failed to
place best interests systematically at the
heart of decisions around the intercountry
adoption of children. The ‘environment’ in
which intercountry adoptions are carried
out is also of great importance – the extent
to which circumstances and actions tend to
favour the thorough determination of best
interests or, on the contrary, to jeopardize
or even run counter to that requirement.

70
UNICEF Office of Research


Ensuring the Right Conditions
for a Best Interests Determination
in Intercountry Adoption

Key points
ÌÌ Robust foundations must be in place to
ensure that the best interests of the child
are truly paramount in intercountry
adoption, as required by relevant
human rights instruments, but the
‘environment’ is by no means always
favourable to their proper functioning.

ÌÌ The challenges to countries of origin


include scarce human and other
resources, the lack of domestic options,
an unquestioning attitude in cases of
‘abandonment’ and/or ‘relinquishment’,
and the continued influence of a largely
unregulated private residential care sector.

ÌÌ However, receiving countries also need


to put their own houses in order,
ensuring that they in no way pressurize
or incentivize countries of origin to
allow more children to be adopted by
their citizens. They must also achieve
consensus among themselves on the
minimum criteria to be met for the
intercountry adoption process to be
considered acceptable from the stand-
point of the best interests of the child.

71
The Best Interests of the Child in Intercountry Adoption

The previous chapters have set out the Intercountry adoption in Ireland,
specific roles that best interests can play, while being an arduous process for
validly, in a human rights context and how prospective adopters, is in some
those roles can be considered for policy ways more accessible than domestic
development on intercountry adoption, adoption. This is because a child is
safeguards throughout the adoption generally available for adoption
process, and determining whether or not in an intercountry context, such is
intercountry adoption should be pursued the extent of deprivation in many
for any given child. countries, whereas in Ireland the
numbers of children that are placed for
The operationalization of these roles at adoption are very low.270
each of those levels will be well-nigh
impossible, however, unless a number In contrast, Smolin argues that not only is
of basic conditions are met to create an there “a palpable cruelty to taking away the
‘enabling environment’ for this to happen. children of the poor”, but also:
The current environment is surprisingly
hostile to the proper consideration of Such an act exploits the vulnerability
children’s best interests in relation to of those deprived of their basic human
their wider rights. This chapter pinpoints right to an adequate standard of living,
key issues to be addressed if that and uses this deprivation of rights as
enabling environment is to be secured justification for a further deprivation of
– an environment where best interests rights: the rights of parents to retain the 270 Law Reform
assessment and determination are the true care and custody of their children.271 Commission,
Ireland (2008).
foundation for decisions about the adoption
Law Reform
of children abroad, as international Along the same lines, Fuentes et al. state: Commission,
standards prescribe. Ireland (2008).
It is essential to put an end to the Aspects of
Intercountry
There are three basic issues: policy reasoning that poverty alone is suffi- Adoption Law.
approaches; conditions in the country of cient for relinquishment, abandonment Dublin: Law
origin; and actions to be taken primarily and finally, for an adoption. In too Reform
by receiving countries. Commission
many cases, relinquishment and
(our emphasis).
abandonment wrongly turn into
adoption, with or without the proper 271 Smolin, D
consent of birth parents.272 (2007).
5.1. Policy approaches
272 Fuentes, F,
Chapter 4 examined important factors that Such calls have found a forceful echo at Boéchat, H. and
determine overall policy on intercountry international level. The CRC Committee, Northcott F. (2012).
adoption and their impact on the extent having reviewed Nepal’s State Party ‘Investigating the
to which the best interests of the child Grey Zones of
Report in 2005, for example, recommended Intercountry
are a genuine consideration. There are the country to: Adoption’,
at least two other policy questions that International Social
need to be raised to preclude the intrusion Service, Geneva,
…abolish the provisions in the
p. 20.
of any unwarranted elements into a best Conditions and Procedures made to
interests assessment: the response to provide Nepalese Children to Foreign 273 Committee
poverty and the relationship between Nationals for Adoption (2000), that on the Rights of
children and families. the Child (2005b).
states that poverty of the parents
‘Concluding
of a child can be a legal ground for Observations:
5.1.1. The ‘family poverty’ argument adoption.273 Nepal’ (CRC/C/
As shown in Chapter 1 of this study, 15/Add.261),
para. 54(c).
material poverty has long been used to In that vein, and more proactively,
justify the removal of children from parental Guatemala’s 2007 law on adoption 274 Government of
care, or to accept their relinquishment stipulates that “the situation of poverty Guatemala (2008).
or extreme poverty does not constitute Adoption Law
unquestioningly. And it is still often seen as
(Ortega’s Law),
a valid reason, on its own, for intercountry sufficient motive for placing a boy, girl or entry into force 1
adoption. For example: adolescent for adoption”.274 January 2008, Art. 6.

72
Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

For their part, the 2009 Guidelines for the as with adults, understandably, do not
Alternative Care of Children set out the have a right to a family per se under
principle in question for the first time in an international law.279
international instrument:
She goes on:
Financial and material poverty, or ...Although a child has a right to
conditions directly and uniquely respect for his or her existing family
imputable to such poverty, should life, a child does not have a right per
never be the only justification for se to a family life. The consequence
the removal of a child from parental of this is that children do not in
care, for receiving a child into international human rights law have
alternative care, or for preventing his/ a right to be adopted.280
her reintegration, but should be seen
as a signal for the need to provide Therefore, under the CRC, children’s rights
appropriate support to the family.275 in relation to the family concern only their
family: the child’s right, as far as possible, to
In other words, material poverty should know and be cared for by his or her parents
not be seen as a key element in determining (CRC Art. 7.1); the right to preserve his or
whether or not intercountry adoption is in her identity, including family relations (CRC
the best interests of a child. Consequently, Art. 8.1); and the right not to be subjected to
it is not included explicitly in the factors arbitrary or unlawful interference with his
proposed for the BID process in Chapter or her family (CRC Art. 16.1). ‘Their family’
4, though it would normally inform the naturally includes an adoptive family, but
evaluation of the level of stability and only after the adoption has taken place.
security provided by the child’s day-to-
day living environment.276 Allowing it to While the CRC also sets out conditions
remain as a major consideration in adoption (e.g. in Art. 9) under which children’s 275 UN General
decisions will inevitably and significantly Assembly (2010),
ties with their parents may be justifiably
para. 15.
falsify the BID process. suspended, partially or wholly, or even
annulled for good, nowhere does it stipulate 276 See 4.3.1
5.1.2. The ‘right to a family’ argument a child’s right to then live in a substitute above, Table 1
‘Proposed
The key international standard – the CRC – is family environment.
checklist for a
clear about the desirability of having children best interests
grow up in a family environment, for “the Clearly, the requirement is that the child’s assessment and
full and harmonious development of his or right to his or her own family should be determination
process on
her personality” and “in an atmosphere of the basis of policy when approaching a BID
intercountry
happiness, love and understanding”.277 Such process, save in exceptional circumstances. adoption’,
statements have been portrayed in some This is even more important in intercountry key issue 3.
quarters – including many concerned with adoption because, as discussed in section 5.2.3
277 United
intercountry adoption – as conferring a ‘right below, most children adopted abroad are
Nations (1989).
to a family’ on every child. While seeking, neither orphans nor have they been removed Convention on
first and foremost, family-based solutions from parental care ‘in their best interests’.281 the Rights of the
Child, Preamble.
for children who cannot live with their
parents is a fully accepted policy orientation 278 ibid. Art.
and objective,278 it is wrong to view this as 5.2. Conditions in the country 20.3 implicitly
suggests this, for
stemming from a ‘right’. of origin example.

Among a number of commentators, Van The realities of most countries of origin, as 279 Van Bueren, G.
Bueren has been particularly forthright on they stand, are not conducive to ensuring (1998), p. 93 (our
emphasis).
this issue: that a BID process can take place under
ideal – or even acceptable – conditions. This 280 ibid., p. 95,
Although children have a right under a section reviews four of the most troubling (our emphasis).
variety of treaties to respect for family systemic problems: those that relate to
281 Cf. United
life, and to protection against unlawful operational issues more than to isolated Nations (1989),
interference with the family, children, instances of illegal activity. Arts 9.1. and 20.1.

73
The Best Interests of the Child in Intercountry Adoption

5.2.1. Limited domestic options on type and quality. As noted in Chapter


To maximize the usefulness of the BID 3, many countries of origin have been
process, there needs to be in place a whole inspired to develop in-country alternative
spectrum of preventive and protective care options on becoming a state party to
responses that can be considered before the 1993 Hague Convention. In particular,
deciding that intercountry adoption may countries as diverse as China, Guatemala,
Kenya and Moldova have developed
be in the child’s best interests.
family-based responses. These include
the promotion of domestic adoption for
The Guidelines for the Alternative Care of
children who will never again be able to
Children emphasize the need for countries
benefit from parental or kinship care. An
to “implement effective measures to prevent
effective step towards such an approach
child abandonment, relinquishment and
can be simply removing financial hurdles,
separation of the child from his/her family”282
such as administrative charges and travel
and list a variety of potential family
costs, which may be prohibitive for nationals
support and strengthening programmes.283
who are otherwise willing and fit to adopt.
The provision of such services stretches the
available resources in many countries, but
this can be eased in various ways. These Many countries of origin
include the judicious implementation of
social protection schemes to reduce family
have been inspired to
poverty, assisting the community to provide develop in-country
day care, and enlisting the conciliation and alternative care options on
counselling skills of community leaders
and elders. In some contexts, it may be becoming a state party to
appropriate to mobilize international the 1993 Hague Convention.
development cooperation in such efforts,
including ’South–South’ cooperation (e.g. While the impact of such initiatives can
to kick-start community day-care initiatives only be progressive, their importance is
based on successful experiences elsewhere). particularly critical in ensuring a meaningful
Combined with an enhanced recognition BID process for intercountry adoption.
of traditional informal care options (see
section 3.3.1), affordable schemes can be 5.2.2. Private residential care provision
developed to avoid recourse to formal care 282 United Nations
Formal alternative care provision in most General Assembly
placements or adoption.
countries of origin consists mainly of (2010), para. 34.
privately run residential facilities, with
The Guidelines also point to the need for the exception of countries in Central and 283 ibid.
a “range of alternative care options … Eastern Europe and the Commonwealth 284 ibid., para. 54.
for emergency, short-term and long-term of Independent States. It is not unusual
care”284 that come into play when efforts for such facilities to be involved directly 285 ibid., para. 55.
to prevent short or long-term family in intercountry adoptions – indeed, some
separation fail. This range spans foster care 286 For example,
are established or financed by adoption according to Save
and other family-based arrangements, as agencies themselves or are supported the Children, the
well as suitable forms of residential care. through donations from prospective number of
The availability and quality of such care adopters. Frequently, such residential care residential facilities
options determines whether or not the for children in
facilities are not registered or authorized Ghana increased
subsidiarity of intercountry adoption to as being fit to care for children either from ten in 1996
domestic solutions can be adhered to in professionally or ethically, let alone subject to more than 140 in
practice. Too often, the reality in countries to inspection and supervision, as demanded 2009, and by a factor
of 11 in Liberia over
of origin is that no such range exists, with by the Guidelines.285 the same period.
residential facilities offering almost the See Save the
only form of care provision (see section This essentially unregulated and growing Children (2009).
5.2.2 below). Development assistance sector286 jeopardizes any attempts to carry Keeping Children
out of Harmful
programmes should also be mobilized to out a fully fledged BID process. Above all, Institutions.
support the establishment of such a viable it is at the heart of the active recruitment of London: Save the
range of options, in line with the Guidelines children into alternative care, whether or Children UK.

74
Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

not this is necessary for those concerned. that most children in ‘orphanages’ still
Parts of this sector also try to ensure, have one or both parents. Save the Children
by any means necessary, that as many records that at least four out of every five
children as possible can be presented as children in institutional care worldwide
‘adoptable’, in response to demand from have one or both parents alive, with that
abroad. In recent years, scandals over such proportion often being even higher in
child procurement have erupted in many individual countries or regions: 90 per cent
countries of origin, including Cambodia, in Ghana and even 98 per cent in Central
Ethiopia and Haiti. The fact is that the best and Eastern European countries of origin,
interests of the child are not on the agenda for example.287
of such residential facilities.

The problems to be overcome if BID is to It is now a well-established


become a reality in such circumstances
are clear. Private provision is destined to fact that most children in
remain the core feature of alternative care ‘orphanages’ still have one
systems in those countries of origin for
the foreseeable future. It exists primarily or both parents.
because the state in those countries is
unable or unwilling to devote resources
This reality has generated the highly
to care provision (and to the prevention of
dubious term ‘social orphans’ to describe
recourse to alternative care) and because
the status of these children, in an attempt
outside funding can be accessed with ease.
to legitimize a view of them as being in a
In most such countries, therefore, it is
similar situation to that of genuine orphans.
unlikely that state resources will be made
Given that the likelihood of a child being
available on the scale required to ensure
orphaned increases with age, most true
meaningful oversight and the conditions
that would make the BID process a realistic orphans are older and therefore more
proposition. difficult to place with adoptive families,
particularly in the case of sibling groups.
Possible responses to this, while not
resolving the situation fully, may at In most African and Asian countries of
least improve it. They include: increased origin, and some countries elsewhere, it is
international cooperation to enable rare for parents to be formally deprived of
countries of origin to assess, authorize their parental responsibilities as a result of
and inspect care providers systematically maltreatment of their child, in part because
and on the basis of comprehensive criteria; the social work and legal systems are
prohibiting the establishment or funding insufficiently developed to undertake such
of residential facilities by agencies engaged interventions. As a result, very few children
in intercountry adoption and their clients; in such countries become legally adoptable
and sensitizing foreign donors to the for this reason.
paradox of funding the kind of facilities
that would be discouraged or outlawed in It follows that most of the children adopted
their own countries – in essence promoting abroad are declared to be either ‘abandoned’
the very type of care provision that leads – with their parents recorded as unknown
to the concerns they express about the – or ‘relinquished’ by their parents who
number of children in institutional care. have, at least in principle, given their free
and informed consent to their child’s
5.2.3. Reasons given for pronouncing adoption. Clearly, it is extremely difficult
‘adoptability’ to verify whether or not a child has truly
The vast majority of children who are been ‘abandoned’ anonymously: all kinds
adopted abroad are neither orphans, in of ploys have been used to make it almost
the sense that both parents have died, nor impossible to trace parents. Relinquishment
have they been removed from parental is also subject to much abuse, with forgery,
care because of serious abuse or deliberate coercion and misleading information all
neglect. It is now a well-established fact playing a part in many signed consent forms. 287 ibid.

75
The Best Interests of the Child in Intercountry Adoption

But what is particularly significant from 5.2.4. Lack of human and other
the best interests angle is the way that resources to undertake a best interests
national legislation influences whether determination
abandonment or relinquishment is used It is clear that a BID assessment on each
to justify a child’s adoptability – in other child for whom intercountry adoption is
words, an opportunistic approach can often envisaged needs considerable and timely
determine the registered status of children investment. It is also obvious that, when
and, therefore, their future. annual intercountry adoptions from an
economically disadvantaged country are
Before Guatemala’s ratification of the 1993 no longer an ‘exceptional measure’ but
Hague Convention became effective, very a daily occurrence for possibly up to 10
few ‘abandoned’ children were adopted children or more,291 any such country
abroad from that country, because would struggle to provide qualified
abandonment had to be declared by a staff to assess each child’s situation and
court and the process was unusually long. determine his or her real need to be cared
Almost all intercountry adoption cases for permanently in a family elsewhere.
were processed directly and solely by
lawyers, and few of the latter would handle This is all the more important when
cases of abandonment “due to the lengthy adoptions from a given country have
and unwieldy process of having a child escalated within a few years, and the
declared legally abandoned.”288 Because a country in question is not bound by Hague
signed consent form was, initially, enough requirements. Adoptions abroad from the
for a child to be declared ‘relinquished for Democratic Republic of Congo, for example,
adoption’, this was invariably the chosen rose from just one each month in 2004 to
(extra-judicial) path taken by lawyers and well over one per day by 2012 (at least 460 to
prospective adopters. France, Italy and the United States combined
during that year), completely outpacing any
In stark contrast, most children adopted developments in allocated resources.
abroad from Nepal had been registered
as ‘abandoned’, essentially because it As a result, it is untenable for countries
was difficult to prove otherwise. In 2010, of origin or receiving countries to affirm
however, the US government and others that intercountry adoptions under such 288 Bunkers, K.M.
determined that “the documentation conditions have been approved and (2005). ‘Fostering
children prior to
presented for children reported abandoned undertaken with the best interests of the adoption: The case
in Nepal is unreliable”,289 and all receiving child as ‘the paramount consideration’. of Guatemala’,
countries have since refused to process the Early Childhood
intercountry adoption of children reported There seem to be three main ways to Matters, 105: 42–44.
as ‘abandoned’ from that country – leading confront this kind of situation, though none 289 US Citizenship
inevitably to a sharp reduction in the is by any means entirely satisfactory. and Immigration
number of adoptees, as that ‘abandonment’ Services and
had, invariably, been fabricated.290 First and most obviously, the country of Department of
State, news release,
origin may limit the number of intercountry 6 August 2010.
Only one conclusion is possible if a adoptions to a level that the system can
BID process is to be achieved: receiving cope with. Madagascar, for example, uses 290 For example,
countries must examine very carefully this approach preventively, but the remedy for France, from
19 in 2010 to 0 in
not only the procedures and realities that has been more usually applied only once 2012; for the US,
underpin the justifications provided for the system is overwhelmed. This may from 30 in 2010,
‘adoptability’ in each country of origin, result in a ‘stop–go’ approach which then 63 (mainly
but also the tenor and implications of generates problems of its own. pending from
before) in 2011,
the legislation in force, which may down to 3 in 2012.
determine how children are channelled Second, attempts can be made to increase
most easily into intercountry adoption. resources to undertake BID and other tasks 291 For example,
This is especially vital in relation to non- related to intercountry adoption, with 4,397 children from
Ethiopia were
Hague countries of origin. receiving countries offering training and
adopted abroad in
other assistance, for example. However, 2010, an average of
this prioritizes intercountry adoption 12 per day.

76
Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

assessments over other welfare initiatives react as best they can and despite all the
and can create an undesirable imbalance in odds noted in the preceding sections of
the use of scarce human resources, such as this study. In the following sub-section
social workers and members of the medical we recall the major concerns that must be
professions. tackled by receiving countries in particular
to create a BID-friendly environment.
Third, receiving countries could be
more proactive in the BID process to
compensate for the lack of local resources, Intercountry adoption
but this would be a highly debatable happens at the initiative of
move for many reasons, including: the
jurisdictional and legal status of such
receiving countries, not as
interventions; the need for in-depth a result of requests from
knowledge of culture and mores; and the
perceived or actual conflict of interests
countries of origin.
involved. Indeed, few receiving countries
carry out case-by-case investigations, even 5.3.1. Financial incentives to maximize
where there are serious concerns, because intercountry adoptions
of the restricted mandates and resources
Over and above illegal payments made
of their representations in the countries
to secure children for adoption and/or to
concerned, and the logistical problems
expedite the adoption process, policies
often involved. and laws in some countries create systems
that involve financial obligations. These,
The dilemma is clear. On the one hand, perversely, constitute officially sanctioned
putting a fully-fledged BID process in incentives to carry out the maximum
place could divert resources in the country number of intercountry adoptions.
of origin from more fundamental welfare
issues. On the other hand, without such While these systems vary in nature, they
a process, there is no guarantee that the revolve around the idea that agencies
subsidiarity principle will be respected and/or prospective adopters are required to
and that the best interests of the child will make a ‘contribution’ or are encouraged to
be upheld. make a ‘donation’ to an authority (central,
regional or local) or to a specific residential
child care facility for adoptions to be
processed. It is immaterial whether the
5.3. Actions taken by receiving
contribution or ‘gift’ is made before, during
countries or after the adoption process: the knowledge
that it is coming at some point incites
While it is natural that countries of origin,
those involved to procure and ‘process’
according to international standards,
children to that end. Meanwhile, the firm
must be the sole decision-makers as to
expectation on the part of the contributor
when intercountry adoption is in the
or donor that an ‘adoptable’ child will
best interests of their children, this does
be allocated creates a similar climate of
not absolve receiving countries of all pressure to make a child available.
responsibility. In general, and in theory
at least, receiving countries accept this. The problem can be particularly severe
What they are more reluctant to accept is when agencies work closely with
the fact that countries of origin have been specific residential facilities and where,
put in that position because this is what as is often the case, the transfers are
potential or actual receiving countries have made in cash with no accountability. 292 See, for
obliged them to do. Intercountry adoption Contributions or donations per child example, US
happens at the initiative of receiving adopted may be the subject of bargaining Embassy Hanoi
countries, not as a result of requests from (2008). ‘Warning
and each facility concerned benefits
Concerning
countries of origin. Receiving countries by providing the highest number of Adoptions in
act, and countries of origin can then only children possible. 292 Vietnam’.

77
The Best Interests of the Child in Intercountry Adoption

Such is the level of overall concern about Independent adoptions


the unequal influences of money and the
best interests of the child in adoptions were excluded deliberately
that the Permanent Bureau of the Hague from the Hague Convention
Conference is developing a Note on
the Financial Aspects of Intercountry
because they had been
Adoption, based on the conclusions of shown to involve a
an Expert Group set up specifically to
examine the question.293 This covers all
particularly high risk of
the questions outlined above and a wide malpractice.
range of associated issues.
The Hague Special Commission has called
One important requirement that for a total “prohibition on private and
transpires is the fundamental need to independent adoptions”294 and the Council
ensure that expenditure related to an of Europe’s former Commissioner for
adoption must be limited to the costs of Human Rights has recommended
services directly involved and nothing specifically that states “ensure that
more. Any financial support to an authority intercountry adoption is carried out only
or facility for general child protection, through accredited and authorised agencies
for example, should be kept completely and explicitly ban non-regulated and private
separate from intercountry adoption, and adoptions from any country of origin”.295
should never be demanded of, or accepted
from, bodies or individuals involved in There is no question that these recommen-
an adoption. dations must be acted upon by all receiving
countries if they are serious about the best
Competent authorities in receiving interests of the child being the paramount
countries must systematically refuse consideration in intercountry adoption.
any proposed arrangement with a
country of origin that does not respect Independent adopters may use the services
this separation, and must also ensure of individuals who are not registered,
that all actors comply with this rule in authorized or monitored in the chosen
practice. Unless and until this incentive country of origin. They have no way of
to maximize the number of children for verifying the legality of the various steps
adoption abroad is removed, there is no undertaken, and they are likely to play
realistic possibility of ensuring that a an inappropriate role in determining 293 The original
which child they seek to adopt, ‘selecting’ discussion paper
BID process can take place under proper on this question
conditions or, therefore, that children a child rather than being ‘matched’ with a
was presented to
are adopted to the receiving country ‘in child. The activities of individuals in the the Expert Group
their best interests’. country of origin are far more difficult to in 2012. See Hague
monitor than those of a single accredited Conference on
agency representing many prospective Private International
5.3.2. Independent adoptions Law (2012b).
adopters. If such adopters return home ‘Discussion paper
Intercountry adoptions carried out with a child, it is likely that the adoption on the financial
privately or independently – without will be recognized or that the child will be aspects of
going through an accredited agency granted permission to remain, whatever intercountry
or being under the direct and effective adoption’. The
has happened in the country of origin, since Hague: HCCH
supervision of a central authority – are the ‘best interests of the child’ at that late Permanent Bureau.
not covered by or compliant with the stage usually dictate that the child will not The ‘Note’ is
1993 Hague Convention. Any possibility be returned to that country. In addition, scheduled for
of such independent adoptions was publication in 2014.
independent adopters may have no access
excluded deliberately from the Hague to specialized post-adoption assistance. 294 Hague
Convention because they had been Conference on
shown to involve a particularly high risk In sum, the existence of independent International Private
of malpractice from a variety of standpoints. Law (2010), 1.g.
adoptions has no justification from a
children’s rights standpoint. By their very 295 Council of
nature, they severely compromise any Europe (2011).

78
Ensuring the Right Conditions for a Best Interests Determination in Intercountry Adoption

attempt to ensure the systematic deter- intercountry adoption a condition of


mination of children’s best interests. assistance programmes; and transmitting,
or permitting the transmission of,
5.3.3. Accreditation of agencies and applications from prospective adopters
competition that outnumber the requirements for
Agency involvement in intercountry intercountry adoption from the country of
adoptions is not any guarantee that origin concerned, creating an intimidating
procedures and standards will be respected. backlog of files to be handled.
Good Practice Guide No. 2 issued by the
Hague Conference296 is a response to the Under the 1993 Hague Convention, it is not
clear need for stricter accreditation and the role of central authorities to encourage
authorization of agencies, according to other countries to undertake intercountry
wide-ranging criteria and with special adoptions in any way. When such
attention to the ethics, professional quality encouragement is expressed and is directed
and scope of the services they provide. towards countries that are not parties to
that Convention – and where a proper
BID process is unlikely – it is all the more
Agency involvement in reprehensible on best interests grounds.

intercountry adoptions 5.3.5. Relations with non-Hague


countries
is not any guarantee that
Every country that allows adoptions but has
procedures and standards not yet acceded to the 1993 Hague Convention
will be respected. is urged to do so by the UN Committee on
the Rights of the Child in its Concluding
Observations on state party reports.
It is also important to ensure that the
number of accredited agencies is not greater Clearly, ratifying the Hague Convention
than is required to process adoptions to will not, of itself, eliminate overnight the
the receiving country concerned and that problems outlined in this study. However,
the number authorized to operate in a it is valid to question the reasons why some
given country of origin corresponds to a countries of origin have not felt it necessary
realistic assessment of needs. Although or desirable to accede to the treaty; it is
authorization is the prerogative of the unlikely that these include the protection of
country of origin concerned, receiving the best interests of the children concerned.
countries can make sure that countries of
origin understand the consequences of
authorizing too many agencies, and can Ratifying the Hague
also take their own action to limit that Convention will not, of
number. For example, in countries where
more than 50 agencies have permission to itself, eliminate overnight
process adoptions, such as Ethiopia, Haiti the problems outlined
and Viet Nam, a highly competitive climate
is inevitably created, which can spawn in this study.
child procurement and, therefore, negate
any efforts to assess the best interests of Ideally, receiving countries should
the children in question. not consider putting in place adoption
programmes from countries that are not
5.3.4. Pressure from receiving countries Hague compliant, and where the basis
Receiving countries can and do exert for a BID process is, at best, shaky. At
pressure on countries of origin in various the very least, they should apply Hague
ways to launch or develop intercountry principles rigorously in all cases and
adoption programmes. These include: should examine very closely the motives of
296 Hague
diplomatic missions to encourage a country that remains outside the Hague
Conference on
‘cooperation’ on the issue; making the framework, together with the impact this Private International
establishment or enhancement of may have on a BID. Law (2012c).

79
The Best Interests of the Child in Intercountry Adoption

Adherence to Hague principles, including and strongly in the 1993 Hague Convention
BID, should be specified in any bilateral and the best interests requirement.
agreement drawn up with a non-contracting
state. At the same time, no such agreement First, they must never take advantage of
should supplant the Hague Convention the temporary absence or fragility of the
itself, nor should it reduce motivation to competent national authorities to seek,
proceed with accession to the treaty or implement, condone or allow measures
provide an excuse not to do so. that circumvent international standards
to evacuate or otherwise remove children
5.3.6. Responses in post-disaster from their country of origin with a view to
situations their adoption.
The urgent cross-border displacement of
children is warranted only when their lives Second, they must ensure that prospective
are clearly at risk, and when internationally adopters are fully prepared and able to
agreed principles governing this measure care for children who have experienced
are respected. This includes children whose the trauma of a disaster, including those
final adoption order had already been adopters who have already bonded with a
legally granted before the emergency. The child before the event.
best interests of all children are served, in
the first instance, by ensuring appropriate
responsive support in a human and physical 5.4. Creating consensus over best
environment that is familiar to them. interests in intercountry adoption
Children whose intercountry adoption has
been formally and legally approved for One of the advantages of ensuring the
specified adopters should be united with proper and systematic determination of
them under conditions that resemble as far as the best interests of the child within the
possible those that would have applied under human rights framework at both policy
normal circumstances. These include travel and case-by-case levels is that this would
by the adopters to the country of origin to bring about a less disparate view among
accompany the child to the receiving country receiving countries, in particular, of what is
– although the issuance of travel documents acceptable practice.
may be expedited if conditions so permit.
The disturbing lack of a common approach
Affected children who are at an advanced towards problematic situations in countries
stage in the intercountry adoption process, of origin often results in some receiving
and particularly those who have bonded countries halting intercountry adoptions
with specific prospective adopters, should unilaterally, while others continue, flying in
be enabled to complete the adoption the face of official pronouncements that the
process in as expeditious a manner best interests of the child are the paramount
as possible, but still fully respecting consideration. This conflict in approaches is
international standards and safeguards. the result of competing factors that are seen
differently by each country, with the rights-
The situation of affected children who based best interests of the child sometimes
are at the ‘matching’ stage or earlier side-lined in favour of political or other
should be reassessed once the immediate considerations. This sends a disturbing
consequences of the disaster have been message to countries of origin: that it is not
eased and the procedures that were already necessarily the best interests of their children
foreseen can be assured. This may involve that motivate their adoption abroad.
a (further) best interests assessment to take
account of the new, post-disaster, reality. Putting an agreed and fully-fledged BID
Under no circumstances should these process at the very heart of intercountry
children be evacuated for adoption. adoption could not eliminate diverse
approaches entirely, but it would surely
In post-disaster situations, receiving reduce the breadth of the divergences and
countries bear two major and special respon- the frequency of discord, and thus their
sibilities, both of which are grounded clearly negative ramifications for children.

80
6ǀ By Way of Conclusion:
Paradoxes and Dilemmas

Discussion of intercountry adoption issues • The concept of the ‘best interests


today is too often a conflict, and often of the child’ comes from an era
fruitless. This is in good part because the before children were granted human
differing views expressed are widely, rights, and was seen as a criterion
simplistically and wrongly ascribed to for protective action in the absence
‘pro’ and ‘anti’ stances on the practice of such rights. Today, however, it is
itself.297 In fact, most conflicts of opinion seen as a key principle underlying all
do not stem from diametrically-opposed those rights.
standpoints on whether intercountry
adoption is an acceptable or desirable • ‘Best interests’ as a concept is
measure in itself. unknown in international human
rights law, save in relation to children,
but little has been done until recently
The differing views to identify how, in practical terms,
expressed are widely, it should underpin or contribute to
the fulfilment of the human rights
simplistically and of children.
wrongly ascribed to
• While the process of determining,
‘pro’ and ‘anti’ stances and the outcomes of applying, best
on the practice itself. interests are left deliberately vague
in international texts – in recognition
of diverse socio-cultural realities and
Digging a little deeper, the underlying individual situations – intercountry
and sometimes profound discord revolves adoption involves actors from very
around what is implied by the term different socio-cultural contexts
‘best interests of the child’, and therefore who have to agree, in principle, on
under what conditions best interests one outcome based on those best
point to intercountry adoption as a interests.
positive solution. This is relevant not
only to decisions about individual • Despite all of the above, the best
children, but also to the place given to, interests of the child – vague as they
or restrictions placed on, intercountry are – are to be the decisive factor in
adoption in a country’s overall child determining whether or not a child
protection policy, and the appropriateness should be adopted abroad.
of the way in which the adoption process
is carried out. • The proper determination and
protection of those best interests
As is clear from this study, however, demands timely intervention and 297 See, for example,
an examination of how to respond to considerable qualified human Bartholet, E. (2007),
those diverging views, by developing investment. However, for many op. cit., pp. 151-203
(referring passim
objective ways to determine ‘best interests’, countries of origin, building the
to “opponents of
reveals a whole series of paradoxes and human resources for this task would international
dilemmas: involve diverting professionals adoption”).

81
The Best Interests of the Child in Intercountry Adoption

whose efforts could and should be While this study cannot resolve such
directed to strengthening families paradoxes and dilemmas, it has set out to
and, where necessary, securing pinpoint and confront them, and to propose
suitable alternative care and adoption a number of responses to maximize
possibilities within their country. compliance with the best interests principle
in a human rights context in the case of
• Receiving countries that, by intercountry adoption.
ratifying the 1993 Hague Convention
and – bar one – the CRC, have Unless we tackle these issues, it will be
committed to ensure that the best just as difficult for those who deplore
interests of the child are the para- violations of the best interests of the
mount consideration for intercountry child to find global support for their
adoption still tend to seek out claims as it is for those who declare that
(non-Hague) countries of origin that those best interests are being upheld.
are not bound by the procedures
designed to enable that best interests We may not be certain or in agreement
obligation to be fulfilled. today about what applying the best
interests principle really means for
• Countries of origin maintain decisions on intercountry adoption. But
systems, and receiving countries we are duty bound to move as swiftly
agree to conditions, comprising as possible along the road to clarity and
elements that inevitably relegate the consensus.
best interests of the child to second
place, only adding to the problems
of determining those best interests
even within a supportive framework.

• Perhaps the most striking paradox


of all is the fact that most of the
‘best interests’ dilemmas now faced
by countries of origin stem simply
from their acceptance of overtures
made by receiving countries, and
not from any deliberate or active
effort on their part to secure the
adoption of their children abroad.

82
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