Submitted by crinadmin on
SUMMARY The realities of adoption across member states of the Council of Europe have changed considerably over time, with wide variation by country. In some countries, adoption is a well-established practice, while in others it is still relatively unfamiliar. Some allow their children to be adopted abroad, others do not. Some “receive” adopted children from abroad, others are wholly or predominantly “countries of origin”, with certain among the latter now transitioning to becoming “net receiving countries”. National (in-country) adoption has tended to decline – sometimes dramatically – in Western Europe, whereas successful efforts seem to have been made to promote it in several Baltic and Central and Eastern European states, especially those from which intercountry adoptions had grown in the past 20 years. Intercountry adoption (ICA) numbers have been falling globally since 2004, a trend observed in most European countries, whether they are “receiving” foreign adoptees or “countries of origin”. The decline mainly reflects improved conditions for appropriate care of children – especially the youngest– in their own countries, including through national adoption. In contrast, the number of people applying to adopt internationally continues to rise. Within the Council of Europe, there is a long-standing concern that this growing imbalance tends to exacerbate the illegal and unethical practices that have increasingly plagued ICA. At the same time, more and more countries of origin in and outside Europe are now looking to ICA more especially as a potential care solution for older children and those with disabilities and other special needs. In all countries, however, whether “receiving” or “of origin”, these children are “hard to place”, meaning that the number of people willing and able to adopt them is well below the level required. This imbalance in the opposite direction also creates special concerns. International agreements have been developed and adjusted over the last fifty years to address the changing adoption landscape and the serious problems that have been encountered. The Convention on the Rights of the Child is now the basic standard-setting text on adoption at the global level. The 1993 Hague Convention focuses on the Protection of Children and Cooperation in Respect of Intercountry Adoption. National adoption in Europe is covered by the new European Convention on the Adoption of Children (Revised) of 2008. Jurisprudence from the European Court on Human Rights has also served to set standards. Most of the protections and procedures established by these treaties are not contested, but a number of issues are still proving to be controversial. These include securing acceptance, for example: that there is no “right to a family” – and thus to adopt or to be adopted – under international law; that determining the “best interests” of children is a complex undertaking which must respect all other rights; and that ICA requires that it be subordinate to suitable domestic care solutions. Many procedural challenges need to be tackled to ensure that adoptions are compliant with human rights and other obligations. Most of the problems identified are the result of lacunae in the system, rather than isolated criminal or unethical behaviour, and are particularly prevalent in “independent” adoptions and in countries that have not ratified and implemented the 1993 Hague Convention. In addition, the way that ICA was handled after the January 2010 earthquake in Haiti illustrates how fragile the compliance with internationally accepted standards can be in practice. The Commissioner’s Recommendations on adoption, based on the findings and conclusions of this Issue Paper, are set out at the beginning of the document. THE COMMISSIONER’S RECOMMENDATIONS ON ADOPTION Adoption of children, whether in the same country (“national adoption”) or across borders (“intercountry adoption”), raises several human rights issues. Hence it is essential that the whole process of adoption should be guided by the principle of identifying, and acting in, the best interests of the child. Measures are needed in several areas to better protect children and their rights during national and international adoption procedures. It is also important that the best interests of the child should be determined in a manner that ensures respect for all rights. The Commissioner for Human Rights recommends that member States of the Council of Europe should: General recommendations: 1. ensure that children’s rights are fully taken into consideration during the whole adoption process, with particular attention being paid to the principle of the best interests of the child, including the right for the child to express his or her own views; 2. adapt national legislation and practices to the 1993 Hague Convention and the European Convention on the Adoption of Children (Revised), and ratify these conventions immediately where this has not yet been done; 3. ensure that children with special needs will be appropriately protected and cared for by prospective parents; 4. ensure that adequate programmes are in place to prepare prospective adoptive parents for both national and intercountry adoption, and that suitable and accessible support is available to them and to their child in the post-adoption phase, to minimise any risk of breakdown in the adoptive relationship; 5. review the national child protection systems to ensure that their control mechanisms also prevent, and/or detect and address abuse and neglect of adopted children during and after the adoption process; 6. prepare for the possibility of children asking to know their origins; Specific recommendations in relation to intercountry adoption: 7. ensure that intercountry adoption is carried out only through accredited and authorised agencies and explicitly ban non-regulated and private adoptions from any country of origin; 8. establish a mechanism of regular and independent control of accredited and authorised agencies to prevent and/or address any cases of abuse or neglect and prevent improper financial gain from adoption procedures; 9. prevent any risk of children becoming stateless in the intercountry adoption process, inter alia by ensuring that they will receive the nationality of their adoptive parents; 10. ensure that applications to adopt are transmitted to countries of origin only in the numbers and at the time that the latter request, and that the characteristics of the applicants correspond to those requested; 11. adopt a particularly vigilant approach during and following emergency situations to prevent potential abuses and violations of international obligations; 12. provide prospective adoptive parents with accurate information as to the degree and nature of the need for intercountry adoption, as determined by the countries of origin concerned, and combat the dissemination of false information in this respect.