HAGUE ADOPTION CONVENTION

Intercountry adoption, child laundering, and child trafficking are all covered by the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (or Hague Adoption Convention), an international convention aimed at preventing corruption and abuses that can accompany international adoption. 

To guarantee that adoptions under the Convention are widely acknowledged and given effect in other party nations, the Convention establishes a formal international and intergovernmental recognition of intercountry adoption.

BACKGROUND

The main objectives of the Convention are set out in Article 1. In private international law, the Hague Conference on Private International Law is the main body. The agreement was signed on May 29, 1993, and came into effect on May 1ST, 1995. Ninety-nine countries have approved it as of March 2019. It has been signed by South Korea, Nepal, and Russia but has not yet been ratified. Foreign adoptions of their own children are not permitted in several countries that have not signed the Convention.

International adoption has been addressed in past multilateral agreements. Still, the Hague Adoption Convention is the most comprehensive and demands coordination and direct cooperation between governments to ensure that proper protections are observed.

According to the Hague Adoption Convention, there are various conditions surrounding adoption. It is necessary to establish a ‘Central Authority’ to act as the primary point of contact for adoption processes. This means that every adoption is set up to satisfy several checks for a child who is eligible for adoption, including [A.] verifying that the adoption is legal under both countries’ laws; [B.] to make a reasonable prior effort to facilitate a domestic adoption; and [C.] to agree to only use certified adoption agencies.

When a suitable family cannot be located in the child’s birth country, intercountry adoption may provide the youngster with a permanent home. Among other things, it permits international adoption when the child’s country of origin determines that it is eligible for adoption and when the search for an adoptive placement for the child in its country of origin is given due consideration.

The other party nations recognize adoptions completed in line with the Convention.

WHAT IS A CENTRAL AUTHORITY

Under Article III, the central adoption authorities chosen by the contracting governments are given responsibility for authorizing the whole procedure. For private adoptions (when adoptive parents set the terms of adoption directly with the biological parents or with children’s institutions placed in their country of origin, without recurring to accredited adoption service providers), the Convention provides an effective framework for safeguarding against potential risks.

HCCH’s Guide to Good Practice for the Implementation and Operation of the 1993 Intercountry Adoption Convention guides how to implement, apply, and interpret the Convention. Intercountry adoptions are protected under the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. Adoptions between countries are governed by the Hague Convention, which was signed into law on May 29th, 1993. As a result of its signing of the Convention in 1994, the United States became a signatory on April 1st, 2008. 

MAJOR PROVISIONS OF THE ADOPTION CONVENTION

All adoptions by U.S. citizens who live in the United States of children who reside outside the United States that are members of the Convention are covered by the Convention( these are termed Convention countries). There are significant similarities between adopting from Convention countries and adopting from non-Convention countries. There are, nevertheless, some significant variances. In particular, those seeking to adopt may receive greater protections if they adopt from a Convention country.  

Each Convention-signatory country must set up a Central Authority to operate as the official point of contact and a clearinghouse for information. The Department of State serves as the primary U.S. representative at the Convention.

It is possible to adopt children from other countries if a suitable family cannot be found in the child’s birth country. International adoption is permitted when the child’s home country judges that it is suitable for adoption and the search for an adoptive placement in the child’s home country is given appropriate attention. The other signatory countries recognize Convention-compliant adoptions.

Convention adoptions require adoption service providers to be certified or licensed by the federal government to provide essential adoption services. As a result of the Department of State’s approved Accrediting Entity, prospective adoptive parents may rest certain that their adoption service provider has been thoroughly vetted. The Intercountry Adoption Accreditation and Maintenance Entity (IAAME) evaluates adoption agencies and people based on the same requirements to guarantee professionalism and ethical procedures.

REQUIREMENTS FROM INTERCOUNTRY ADOPTION AGENCIES

Intercountry adoption agencies must be accredited or authorized, overseen by an accredited agency, or exempted as initiated in July 2014.

Adoption service providers authorized and recognized by the Convention shall detail and disclose in writing the adoption fees and expected costs in advance. The adoption service provider is only allowed to charge unanticipated fees if they fall under a very narrow set of conditions. Complaints about adoption service providers may also be lodged with the Department of State via an official complaint system.

When a child is adopted from a Convention nation, the United States Embassy or Consulate that issued the immigrant visa will issue the child’s adoption certificate or custody certificate. When the adoption (or award of custody) has satisfied the criteria of the Convention and the U.S. Intercountry Adoption Act, a consular official from the United States issues the certificate. 

U.S. Citizenship and Immigration Services (USCIS) decides if a ‘Convention adoptee’ child is eligible for immigration to the United States before the final adoption or award of custody may take place in the child’s home country. Before the adoption is completed (or custody is given) in the nation of origin, a U.S. consular official examines if the kid looks to fit the requirements for visa eligibility. This will let potential adoptive parents know whether the kid looks eligible for entry into the United States before they ever meet the child in person. 

PREREQUISITES FOR CONDUCTING AN ADOPTION

Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, must be filed by prospective adoptive parents in Convention adoption cases. U.S. Citizenship & Immigration Services must receive both forms (USCIS). For USCIS to evaluate whether a potential adoptive family is qualified and eligible to adopt a child from a Convention nation, Form I-800A must be submitted and approved before Form I-800. On Form I-800A, prospective adoptive parents must indicate the nation they want to adopt. 

Before adoption or custody is granted, prospective adoptive parents must submit Form I-800 to confirm the child’s eligibility to enter the United States via the Convention adoption procedure once they have received Form I-800A permission from USCIS and have been matched with a specific child. A child adopted from a Convention nation must fit the criteria of a ‘Convention adoptee’ to be eligible for adoption in the United States. Convention adoption situations need the use of two visas, IH-3 and IH-4.

This requires the Department of State to verify that every adoption to the United States completed under the Convention complies with the Convention, the IAA, and the U.S. implementing regulations. 

The Department of State conducts an assessment of the nation’s laws, processes, policies, and infrastructure to determine if the country can implement protections and governance structures in accordance with Convention criteria when it ratifies the Convention. It is the goal of the evaluation to certify for each nation.

A Central Authority, other competent authorities, or accredited organizations are authorized to carry out Convention duties by enacting laws or regulations that designate and authorize them. A central authority must be established to connect with other central authorities, monitor or undertake the accreditation of agencies, and authorize competent entities by the Convention (such as foreign adoption service providers). Furthermore, additional Convention duties would be carried out by appropriately qualified authorities and certified entities of any kind.

The Central Authority also ensures that the convention’s fundamental principles are upheld. Under the Convention, foreign governments may cooperate to guarantee that adoptions are carried out by their own laws and regulations. It is necessary to ensure that the Authority protections are done following a thorough examination of all available choices for the child in their home country. The competent authorities may then conclude that intercountry adoption is in the child’s best interest. 

This judgment is made by the Central Authority or other authority when suggesting a match with potential adoptive parents (adoptability) and included in the Article 16 report on the child. Securing written approval from the child’s parents or legal guardian after birth and without receiving any money or benefit to elicit the consent, the child will be adopted by a new family. If the country of origin’s laws permits, the Central Body or other authority must conclude that the Convention acquired all essential consents in its Article 16 report on a child.

WHEN IS AN INTERCOUNTRY ADOPTION PROHIBITED

The Convention’s tasks and responsibilities should be clearly defined and coordinated. Step-by-step processes must be implemented in the local context and accordance with the Convention’s safeguards in the proper sequence.

It is the responsibility of the Central Authority to forbid anybody participating in an intercountry adoption from obtaining any inappropriate financial or other benefits or from receiving excessively high payment for services given in connection to intercountry adoption. 

Additionally, adoption-related communication between prospective adoptive parents and any other person who cares for the children until adoption-related matches between prospective adoptive parents and children have been made in countries that have previously been deemed acceptable and eligible to adopt is prohibited. This is sometimes called the prohibition on prior contact. Adoptions involving blood relatives or those that fulfill other criteria stipulated by the nation of origin are excluded from this rule.

Adoption service providers (ASPs) in the United States are authorized or guaranteed to deliver services. US adoption service companies play an important role when it comes to intercountry adoptions. Adoption service providers in the United States may be required to perform certain roles in the adoption process in other nations.

As a result, it ensures that authorities can fulfill their commitments under the Convention and efficiently monitor the whole process. There must be enough staffing, money, training, and other resources, as well as political and legal backing to respect the Convention principles and framework in light of local cultural practices, as well as consistent decision-making procedures.

Sources

1. to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for their fundamental rights as recognized in international law,

to establish a system of co-operation amongst the Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children,

to secure the recognition in the Contracting States of adoptions made by the Convention

2. The preamble to the Convention states:

Intercountry adoptions shall be made in the best interests of the child and with respect for their fundamental rights and to prevent the abduction, the sale of, or traffic in children and each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of their family of origin.

322 CFR § 96.2 – Definitions.

Central Authority means the entity designated as such under Article 6(1) of the Convention by any Convention country, or, in the case of the United States, the United States Department of State. In countries that are not Convention countries, Central Authority means the relevant ‘competent authority’ as defined in this section.

4. Intercountry Adoption Accreditation and Maintenance Entity (IAAME) is a 501 (c)(3) organization created for the sole purpose of the accreditation, approval, monitoring, and oversight of adoption service providers providing intercountry adoption services

5. Accredited agency means an agency that has been accredited by an accrediting entity, by the standards in subpart F of this part, to provide adoption services in the United States in intercountry adoption cases.

Accrediting entity means an entity that has been designated by the Secretary to accredit agencies and/or to approve persons for purposes of providing adoption services in the United States in intercountry adoption cases.

6. USCIS uses this form to adjudicate the eligibility and suitability of the applicant(s) who want to adopt a child who habitually resides in a Hague Adoption Convention country.

7. The U.S. Intercountry Adoption Act of 2000 (IAA) provides in Section 301(a)(1) that ‘The Secretary of State shall, with respect to each Convention adoption, issue a certificate if the Secretary of State (A) receives appropriate notification from the central authority of such child’s country of origin; and (B) has verified that the requirements of the Convention and this Act have been met with respect to the adoption.’

 

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