Jersey Law 49/2002
ADOPTION (AMENDMENT No. 5) (JERSEY) LAW
2002
____________
A LAW to amend further the Adoption
(Jersey) Law 1961; sanctioned by Order of Her Majesty in Council of the
20th day of NOVEMBER 2002
____________
(Registered on the 13th day of December 2002)
____________
STATES OF JERSEY
____________
The 26th day of February 2002
____________
THE STATES, subject
to the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law -
ARTICLE 1
In this Law “principal Law” means
the Adoption (Jersey) Law 1961, as amended.
ARTICLE 2
In
Article 1 of the principal Law -
(a) in paragraph (1) -
(i) there shall be inserted, in the correct
alphabetical order, the following definitions -
“ ‘the Adoption Service’ has
the meaning assigned to it by paragraph (3) of Article 1A of this Law;
‘approved adoption society’ means -
(a) the adoption service;
(b) an adoption society
approved under the Adoption Act 1976 (c.36) of the United Kingdom; and
(c) the Committee of the States
of Guernsey with responsibility for matters relating to the adoption of
infants;
‘the Convention’ means the
Convention on Protection of Children and Co-operation in respect of
Intercountry Adoption, concluded at The
Hague on 29th May 1993;
‘Convention adoption’ means an
adoption effected under the law of a Convention country outside the British Islands and certified in pursuance of
Article 23(1) of the Convention;
‘Convention adoption order’ means an
adoption order made in accordance with Article 3C of this Law;
‘Convention country’ means any
country or territory in which the Convention is in force;
‘guardian’ has the same meaning as
in the Children (Jersey) Law 2002;
‘overseas adoption’ means an
adoption appearing to the Court to be effected under the law of any country
outside the British
Islands;
‘parent’ means, in relation to an
infant, any parent who has parental responsibility for him under the Children (Jersey) Law 2002; and
‘parental responsibility’ has the
same meaning as in the Children (Jersey) Law
20025;”; and
(ii) for the definition of “adoption order”
there shall be substituted the following definition -
“ ‘adoption order’ means -
(a) an order under paragraph
(1) of Article 2 of this Law; or
(b) a
Convention adoption order;”; and
(iii) the definition of “mental nursing home”
shall be deleted.
(b) paragraph (2) shall be deleted; and
(c) after paragraph (3) there shall be inserted the following
paragraphs -
“(3A) In this Law, in determining with whom or
where an infant has his home, any absence of the infant at a hospital or
boarding school and any other temporary absence shall be disregarded.
(3B) In this Law, in relation to the proposed
adoption of an infant resident outside the British Islands, references to
arrangements for the adoption of an infant include references to arrangements
for an assessment for the purpose of indicating whether a person is suitable to
adopt an infant or not.
(3C) In this Law, in relation to -
(a) an
adoption proposed to be effected by a Convention adoption order; or
(b) an
adoption of an infant habitually resident outside the British Islands
which is proposed to be effected otherwise than by a Convention adoption order,
references to an infant placed with
any persons by an adoption agency include references to an infant who, in
pursuance of arrangements made by such an agency, has been placed with those
persons under the law of a country or territory outside the British Islands.”.
ARTICLE 3
In
Article 1A of the principal Law -
(a) in paragraph (1) for the words “approved adoption societies”
there shall be substituted the words “another approved adoption society”; and
(b) for paragraph (4) there shall be substituted the following
paragraph -
“(4) In Articles 1A to 1H of this Law references
to adoption are to the adoption of infants, wherever they may be habitually
resident, effected under the law of any country or territory, whether within or
outside the British Islands.”.
ARTICLE 4
For
Article 1D of the principal Law there shall be substituted the
following Article -
“Article 1D.
Duty to use approved adoption societies.
The
Committee shall, if it cannot place an infant for adoption in the Island or in
the Bailiwick of Guernsey, use an adoption society approved under the Adoption
Act 1976 (c.36) of the United Kingdom.”.
ARTICLE 5
In
Article 2 of the principal Law -
(a) For paragraphs (1) and (2) there shall be substituted the
following paragraphs -
“(1) Subject to the provisions of this Law, the
Court may, upon an application made in the prescribed manner -
(a) by a person domiciled in the British Islands; or
(b) jointly by two spouses at least one of whom
is domiciled in the British
Islands,
make an order authorizing
the applicant or, in the case of an application by two spouses, the applicants,
to adopt the infant.
(2) Where the application is for a Convention
adoption order and complies with Article 3C of this Law the requirements of
paragraph (1) of this Article in respect of domicile shall not apply.”;
(b) In paragraph (4) for the words “in the British Islands”
there shall be substituted the words “whether in the Island
or elsewhere”; and
(c) paragraph (5) shall be deleted.
ARTICLE 6
After
Article 3 of the principal Law there shall be inserted the
following Articles -
“Article 3A.
Implementation of convention.
(1) Subject to the provisions of this Law, the
Committee may by Order make provision for giving effect to the Convention, and
such provision may include amendments to this Law.
(2) The text of the Convention (so far as
material) is set out in the Third Schedule to this Law.
(3) An Order under this Article may provide
that any person who contravenes or fails to comply with any provision of the
Order shall be guilty of an offence and liable to imprisonment for a term not
exceeding three months, or a fine not exceeding level 4 on the standard scale, or both.
(4) Any power to make subordinate legislation
under or for the purposes of this Law includes power to do so with a view to
giving effect to the provisions of the Convention.
Article 3B.
Central authority and accredited bodies.
(1) The Committee shall discharge the Central
Authority’s functions under the Convention but any of its functions under
Articles 8, 9 or 15 to 21 of the Convention may be discharged by an accredited
body on the Committee’s behalf.
(2) An approved adoption society is an
accredited body for the purposes of the Convention if the approval extends to
the provision of facilities in respect of Convention adoptions and adoptions
effected by Convention adoption orders.
Article 3C.
Convention adoption orders.
An
adoption order shall be made as a Convention adoption order if -
(a) the
application is for a Convention adoption order; and
(b) such
requirements as may be prescribed by Order made by the Committee are complied
with.”.
ARTICLE 7
In
Article 4 of the principal Law -
(a) for paragraph (5) there shall be substituted the following
paragraph -
“(5) On the making of an order under this Article
parental responsibility for the infant is given to the Committee and paragraph
(2) of Article 12 of this Law applies as if the order were an adoption order
and the Committee was the adopter.”; and
(b) after paragraph (6) there shall be added the following
paragraphs -
“(7) Before making an order under this Article in
the case of an infant whose father does not have parental responsibility for
him, the Court shall satisfy itself in relation to any person claiming to be
the father that -
(a) he
has no intention of applying within the next six months for an order under
Article 5 of the Children (Jersey) Law 200- or a residence order under Article
10 of that Law; or
(b) if
he did make any such application, it would be likely to be refused.
(8) An order under this Article may be made in
respect of an infant who has already been the subject of an adoption order made
by a court of competent jurisdiction whether in the Island
or elsewhere.”.
ARTICLE 8
After
Article 4 of the principal Law there shall be inserted the
following Articles -
“Article 4A.
Progress reports to former parents.
(1) Within 14 days following the date 12 months
after the making of an order under Article 4 of this Law, the Committee, unless
it has previously by notice to the former parent informed him that the infant
has been adopted, shall inform that parent by notice -
(a) whether
the infant has been adopted; and
(b) if
he has not been adopted whether he has his home with a person with whom he has
been placed for adoption.
(2) Where a notice has been given as described
in sub-paragraph (b) of paragraph (1) of this Article the Committee shall
inform the former parent by notice -
(a) if
and when the infant is adopted; and
(b) if
the infant ceases to have his home with a person with whom he has been placed
for adoption.
(3) If at any time the former parent by notice
makes a declaration to the Committee that he prefers not to be involved in
future questions concerning the adoption of the infant -
(a) the
Committee shall secure that the declaration is recorded by the Court; and
(b) the
Committee shall be released from any further requirements under paragraph (2)
of this Article.
(4) In this Article and Article 4B of this Law
‘former parent’ means any person required to be given an opportunity of making
a declaration under paragraph (6) of Article 4 but who did not do so.
Article 4B.
Revocation
of Article 4 order.
(1) Where
at any time more than 12 months after the making of an order under Article 4 of
this Law (an ‘Article 4 order’), if the infant -
(a) has
not been adopted; and
(b) does
not have his home with a person with whom he has been placed for adoption,
his former parent may apply to the Court
for an order revoking the Article 4 order on the ground that he wishes to
resume parental responsibility.
(2) While an application under this Article is
pending the Committee shall not place the infant for adoption without the leave
of the Court.
(3) The revocation of an Article 4 order
operates -
(a) to
extinguish the parental responsibility given to the Committee;
(b) to
give parental responsibility to the infant’s mother and, where his father and
mother were married at the time of his birth, his father; and
(c) to revive -
(i) any parental responsibility agreement;
(ii) any order pursuant to Article 5 of the Children (Jersey) Law 2002 that the father shall have parental
responsibility for the infant; and
(iii) any appointment of a guardian in respect of the infant (whether
made by a court or otherwise),
extinguished by the making of
the Article 4 order.
(4) Subject to sub-paragraph (c) of paragraph
(3) of this Article, the revocation does not -
(a) operate
to revive -
(i) any order under the Children (Jersey)
Law 2002; or
(ii) any duty referred to in Article 12(2)(a)(iii) of this Law,
extinguished by the making of
the Article 4 order; or
(b) affect
any person’s parental responsibility so far as it relates to the period between
the making of the Article 4 order and the date of revocation of that
order.
(5) Subject to paragraph (6) of this Article,
where the Court dismisses an application under this Article on the grounds that
to allow it would contravene the principle embodied in Article 1B of this Law -
(a) the
applicant shall not be entitled to make a further application in respect of the
infant; and
(b) the
Committee shall be released from the duty of complying further with paragraph
(2) of Article 4A of this Law as respects that parent.
(6) Sub-paragraph (a) of paragraph (5) of this
Article shall not apply where the Court gives leave to the former parent to
make a further application to revoke the Article 4 order, but such leave shall
not be given unless it appears to the Court that because of a change in
circumstances or for any other reason it is proper to allow the application to
be made.”.
ARTICLE 9
In
Article 5 of the principal Law -
(a) for paragraph (1) there shall be substituted the following
paragraph -
“(1) An adoption order shall not be made unless -
(a) the infant is free for adoption by virtue
of an order made under Article 4 of this Law or by order of a court of
competent jurisdiction in any other part of the British Islands; or
(b) in the case of each parent or guardian of
the infant the Court is satisfied that -
(i) he freely, and with full understanding of
what is involved, agrees unconditionally to the making of an adoption order,
whether or not he knows the identity of the applicants; or
(ii) his agreement to the making of the adoption
order should be dispensed with on a ground specified in paragraph (2) of this
Article.”;
(b) in paragraph (2) for the words
“sub-paragraph (b)” there shall be substituted the words “clause (ii) of
sub-paragraph (b)”;
(c) in paragraph (3) for the words
“sub-paragraph (a)” there shall be substituted the words “clause (i) of
sub-paragraph (b)”; and
(d) after paragraph (5) there shall be added
the following paragraph -
“(6) Before making an adoption order in the case
of an infant whose father does not have parental responsibility for him, the
Court shall satisfy itself in relation to any person claiming to be the father
that -
(a) he has no intention of applying within the next six months for
an order under Article 5 of the Children (Jersey) Law 2002 or a residence order under Article
10 of that Law; or
(b) if he did make any such application, it would be likely to be
refused.”.
ARTICLE 10
In
Article 7 of the principal Law -
(a) in the heading for the words “Care
and possession of infants” there shall be substituted the words “Infant to live with adopters”;
(b) for paragraph (1) there shall be substituted the following
paragraph -
“(1) An adoption order shall not be made unless
the infant, at all times during the preceding three months (not counting any
time before he attained the age of six weeks), had his home with the applicant
(or, in the case of an application by two spouses, one of the applicants).”;
(c) in paragraph (2) the words “in respect of an infant who at the
hearing of the application is below the upper limit of compulsory school age”
shall be deleted;
(d) in paragraph (3) for the words “the care and possession of”
there shall be substituted “his home with”; and
(e) after paragraph (3) there shall be added the following paragraph
-
“(4) In relation to -
(a) an adoption proposed to be effected by a Convention adoption
order; or
(b) an adoption of an infant habitually resident outside the British Islands which is proposed to be effected
otherwise than by a Convention adoption order,
paragraph (1) shall have effect as if
the reference to the preceding three months were a reference to the preceding
six months.”.
ARTICLE 11
In
Article 8(1)(a) of the principal Law for the words “to deprive him or
her of his or her parental rights” there shall be substituted the words “to
extinguish his parental responsibility for the infant”.
ARTICLE 12
In
Article 9(1) and (4) of the principal Law for the words “the custody of”
there shall be substituted the words “parental responsibility for”.
ARTICLE 13
After
Article 10(6) of the principal Law there shall be added the following
paragraph -
“(7) Adoption Rules may make provision -
(a) as
to the form of a direction under paragraph (5) of Article 12 of this Law or an
application for such a direction;
(b) as
to the information required to be given by an applicant for such a direction;
(c) as
to the persons who are to be parties to proceedings on an application under
that paragraph; and
(d) requiring
notice of an application under that paragraph to be served on the Attorney
General and on persons who may be affected by the direction.”.
ARTICLE 14
Article
11 of the principal Law20 shall be repealed.
ARTICLE 15
In
Article 12 of the principal Law -
(a) for the heading there shall be substituted the following heading
-
“Consequences of adoption.”;
(b) for paragraphs (1) and (2) there shall be
substituted the following paragraphs -
“(1) An adopted infant shall be treated in law -
(a) where his adopters are a married couple, as if he had been born
as a child of the marriage (whether or not he was born after that marriage);
and
(b) in any other case as if he had been born to the adopter in
wedlock (but not as a child of any actual marriage of the adopter).
(1A) An adopted infant shall be treated in law as if
he were not a child of any person other than any adopter.
(1B) In the case of an infant adopted solely by a
natural parent, paragraph (1A) of this Article has no effect as respects
entitlement to property depending on relationship to that parent, or as
respects anything else depending on that relationship.
(2) Where an adoption order is made -
(a) the following are extinguished -
(i) the parental responsibility which any
person has for the infant immediately before the making of the order;
(ii) any order under the Children (Jersey) Law 2002 unless the court directs otherwise;
and
(iii) any duty arising by virtue of an agreement
or the order of a court to make payments, so far as the payments are in respect
of the infant’s maintenance or upbringing for any period after the making of
the order, unless made under an agreement which constitutes a trust or
expressly provides that the duty is not to be extinguished by the making of an
adoption order; and
(b) the adopter shall have parental responsibility for the adopted
infant.”; and
(c) after paragraph (4) there shall be added the following paragraphs
-
“(5) Where, in the case of an infant adopted under
a Convention adoption, the Court is satisfied, on an application under this
paragraph -
(a) that
under the law of the country in which the adoption was effected the adoption is
not a full adoption;
(b) that
the consents referred to in Article 4(c) and (d) of the Convention have not
been given for a full adoption, or that the Island
is not the receiving State (within the meaning of Article 2 of the Convention);
and
(c) that
it would be more favourable to the infant for a direction to be given under
this paragraph,
the court may direct that the
adoption shall have effect other than as a full adoption.
(6) In paragraph (5) of this Article ‘full
adoption’ means an adoption by virtue of which the infant falls to be treated
in law as if he were not the infant of any person other than the adopters or
adopter.”.
ARTICLE 16
In
Article 13 of the principal Law after paragraph (2) there shall be
added the following paragraph -
“(3) In this Article ‘adoption order’ means an
adoption order made by a court of competent jurisdiction whether in the Island or elsewhere.”.
ARTICLE 17
In
Article 15 of the principal Law after paragraph (8) there shall be
added the following paragraph -
“(9) In this Article ‘adoption order’ means an
adoption order made by a court of competent jurisdiction whether in the Island or elsewhere.”.
ARTICLE 18
In
Article 16(1) of the principal Law for the words from “shall be made”
to the end of the paragraph there shall be substituted the words “such entries
as may be -
(a) directed to be made in it by adoption orders; or
(b) required to be made under Article 17 of this Law,
and
no other entries shall be made.”.
ARTICLE 19
After
Article 17(6) of the principal Law there shall be added the following
paragraph -
“(7) If the Superintendent-Registrar is satisfied,
on an application under this paragraph, that he has sufficient particulars
relating to an infant adopted under a Convention or overseas adoption to enable
an entry to be made in the Adopted Children Register for the infant -
(a) he shall make the entry accordingly; and
(b) if
he is also satisfied that an entry in the Registers of Births relates to the
infant, he shall secure that the entry in those Registers is marked ‘Adopted’
or ‘Re-adopted’, as the case may be, followed by the name in brackets of the
country in which the adoption was effected.”.
ARTICLE 20
After
Article 18(3) of the principal Law there shall be added the following
paragraph -
“(4) If the Superintendent-Registrar is satisfied
-
(a) that
a Convention adoption, a Convention adoption order or an overseas adoption has
ceased to have effect, whether on annulment or otherwise; or
(b) that
any entry or mark was erroneously made in pursuance of paragraph (7) of Article
17 of this Law in any register mentioned in that paragraph,
he may cause such alterations to be
made in that register as he considers are required in consequence of the cesser
or to correct the error; and where an entry in the register is amended in
pursuance of this sub-paragraph, any copy or extract of the entry shall be
deemed to be accurate if and only if it shows the entry as amended but without
indicating that it has been amended.”.
ARTICLE 21
In
Article 18A(4) and (6) of the principal Law for the words “such fee as may be
prescribed” there shall be substituted the words “such fee as the Committee may
by Order prescribe”.
ARTICLE 22
In
Article 20A(1) and (2) of the principal Law -
(a) for the words “in the prescribed manner” there shall be
substituted the words “in such manner as the Committee may by Order prescribe”;
and
(b) for the words “such fee as may be prescribed” there shall be
substituted the words “such fee as the Committee may by Order prescribe”.
ARTICLE 23
In
Article 23 of the principal Law -
(a) in paragraph (1) for the words “is in the care and possession
of” there shall be substituted the words “has his home with”; and
(b) for paragraphs (2) to (4) there shall be substituted the
following paragraphs -
“(2) A child is not a protected child by reason of
any such notice as is mentioned in paragraph (1) of this Article while -
(a) he
is in the care of any person -
(i) in any voluntary home or children’s home;
(ii) in any school where he is receiving
full-time education;
(iii) in a hospital; or
(b) he
is -
(i) suffering from a mental disorder within
the meaning of the Mental Health (Jersey) Law
1969; and
(ii) resident in a residential care home; or
(c) he is liable to be detained or subject to guardianship under the
Mental Health (Jersey) Law 1969;
(3) In sub-paragraph (2) of this Article
‘hospital’, ‘residential care home’, ‘school’ and ‘voluntary home’ have the
same meaning as in the Children (Jersey) Law 2002.
(4) A protected child ceases to be a protected
child -
(a) on
the grant or refusal of the application for an adoption order;
(b) on
the notification to the Committee that the application for an adoption order
has been withdrawn;
(c) in
a case where no application is made for an adoption order, on the expiry of a
period of two years from the giving of the notice;
(d) on
the making of a residence order, a care order or a supervision order (other
than an interim care order or an interim supervision order) under the Children
(Jersey) Law 200233 in respect of the child;
(e) on
the appointment of a guardian for him under that Law;
(f) on
his attaining the age of majority; or
(g) on
his marriage,
whichever first occurs.”.
ARTICLE 24
In
Article 26 of the principal Law -
(a) in paragraph (1) for the words “who has a protected child in his
care and possession” there shall be substituted the words “with whom a
protected child has his home”;
(b) in paragraph (2) for the words “in whose care and possession he
was” there shall be substituted the words “with whom he had his home”; and
(c) in paragraph (3) for the words “who has or proposes to have a
protected child in his care and possession” there shall be substituted the
words “with whom a protected child has, or is proposed to have, his home”.
ARTICLE 25
Article
27 of the principal Law shall be repealed.
ARTICLE 26
In
Article 28(1) of the principal Law -
(a) at the end of sub-paragraph (a) there shall be inserted the word
“or”;
(b) for the semicolon at the end of sub-paragraph (b) there shall be
substituted a full stop; and
(c) sub-paragraph (c) shall be deleted.
ARTICLE 27
In Article 30 of the principal
Law -
(a) in paragraph (1)(c) for the words “transfer by that person of
the care and possession of an infant” there shall be substituted the words
“handing over of an infant by that person”; and
(b) in paragraph (2) the words from “; and the Court” to “made for
him” shall be deleted.
ARTICLE 28
After
Article 30 of the principal Law there shall be inserted the
following Articles -
“Article
30A.
Restriction
on bringing infants into the island
for adoption.
(1) A
person habitually resident in the British Islands who at any time brings into
the Island for the purpose of adoption an infant who is habitually resident
outside those Islands shall be guilty of an offence unless such requirements as
may be prescribed by Order made by the Committee are satisfied either -
(a) before
that time; or
(b) within
such period beginning with that time as may be so prescribed.
(2) Paragraph (1) of this Article does not
apply where the infant is brought into the Island
for the purpose of adoption by a parent, guardian or relative.
(3) A person guilty of an offence under this
Article shall be liable to imprisonment for a term not exceeding three months
or to a fine not exceeding level 4 on the standard scale, or to both.
Article 30B.
Annulment etc of overseas adoptions.
(1) The Court may, upon application under this
Article, by order annul a Convention adoption or a Convention adoption order on
the ground that the adoption or order is contrary to public policy.
(2) The Court may, upon application under this
paragraph -
(a) order
that an overseas adoption or a determination shall cease to be valid in the
Island on the ground that the adoption or determination is contrary to public
policy or that the authority which purported to authorize the adoption or make
the determination was not competent to entertain the case;
(b) decide
the extent, if any, to which a determination has been affected by a subsequent
determination.
(3) Any court in the Island may, in any
proceedings in that court, decide that an overseas adoption or a determination
shall, for the purposes of those proceedings, be treated as invalid in the
Island on either of the grounds mentioned in paragraph (2) of this Article.
(4) Except as provided by this Article the
validity of a Convention adoption, a Convention adoption order or an overseas
adoption shall not be impugned in the Island in proceedings in any court.
(5) In this Article ‘determination’ means a
determination mentioned in Article 30C of this Law.
Article 30C.
Effect of
determination and orders made in other parts of the British Islands and
overseas.
(1) Where
-
(a) an
authority of a Convention country having power under the law of that country -
(i) to authorize, or review the authorization of, a Convention
adoption; or
(ii) to give or review a decision revoking or annulling such an
adoption or a Convention adoption order; or
(b) an
authority of any other part of the British
Islands or any colony
having power under the law of that territory -
(i) to authorize, or review the authorization of, a Convention
adoption or an adoption effected in that territory; or
(ii) to give or review a decision revoking or annulling such an
adoption or a Convention adoption order,
makes a determination in the
exercise of that power, then, subject to Article 30B of this Law and any subsequent
determination having effect under this Article, the determination shall have
effect in the Island for the purpose of effecting, confirming or terminating
the adoption in question or confirming its termination as the case may be.”.
ARTICLE 29
In
Article 31(1) of the principal Law for the words “transferring the
care and possession of an infant to” there shall be substituted the words
“placing an infant with”.
ARTICLE 30
In
Article 32(1) of the principal Law for the words “the custody of” there
shall be substituted the words “parental responsibility for”.
ARTICLE 31
After
Article 32A(1) of the principal Law there shall be inserted the
following paragraph -
“(1A)
Orders under this Law may -
(a) make
different provision for different purposes or areas; and
(b) make
such incidental, supplementary, consequential or transitional provision as
appears to the Committee to be expedient.”.
ARTICLE 32
After
the Second Schedule to the principal Law there shall be added the Schedule
set out in the Schedule to this Law.
ARTICLE 33
(1) This Law may be cited as the Adoption
(Amendment No. 5) (Jersey) Law 2002.
(2) This Law shall come into force on such day
as the States may by Act appoint and different days may be appointed for
different purposes.
C.M.
NEWCOMBE
Greffier of the States.
SCHEDULE
“THIRD
SCHEDULE
(Article 3A(2).)
Convention
on protection of children and co-operation in respect of intercountry adoption.
The
States signatory to the present Convention,
Recognizing
that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding,
Recalling
that each State should take, as a matter of priority, appropriate measures to
enable the child to remain in the care of his or her family of origin,
Recognizing
that intercountry adoption may offer the advantage of a permanent family to a
child for whom a suitable family cannot be found in his or her State of origin,
Convinced
of the necessity to take measures to ensure that intercountry adoptions are
made in the best interests of the child and with respect for his or her
fundamental rights, and to prevent the abduction, the sale of, or traffic in
children,
Desiring
to establish common provisions to this effect, taking into account the
principles set forth in international instruments, in particular the United
Nations Convention on the Rights of the Child, of 20 November 1989, and
the United Nations Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, with Special Reference to Foster Placement
and Adoption Nationally and Internationally (General Assembly Resolution 41/85,
of 3 December 1986),
Have
agreed upon the following provisions -
CHAPTER I
SCOPE OF THE CONVENTION
Article 1
The
objects of the present Convention are -
(a) to establish safeguards to ensure that intercountry adoptions
take place in the best interests of the child and with respect for his or her
fundamental rights as recognised in international law;
(b) to establish a system of co-operation amongst Contracting States
to ensure that those safeguards are respected and thereby prevent the
abduction, the sale of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions
made in accordance with the Convention.
Article 2
1. The Convention shall apply where a child
habitually resident in one Contracting State (‘the State of origin’) has been,
is being, or is to be moved to another Contracting State (‘the receiving
State’) either after his or her adoption in the State of origin by spouses or a
person habitually resident in the receiving State, or for the purposes of such
an adoption in the receiving State or in the State of origin.
2. The Convention covers only adoptions
which create a permanent parent-child relationship.
Article 3
The
Convention ceases to apply if the agreements mentioned in Article 17,
sub-paragraph (c), have not been given before the child attains the age of
eighteen years.
CHAPTER II
REQUIREMENTS FOR INTERCOUNTRY
ADOPTIONS
Article 4
An
adoption within the scope of the Convention shall take place only if the
competent authorities of the State of origin -
(a) have established that the child is adoptable;
(b) have determined, after possibilities for placement of the child
within the State of origin have been given due consideration, that an
intercountry adoption is in the child’s best interest;
(c) have ensured that -
(i) the persons, institutions and authorities
whose consent is necessary for adoption, have been counselled as may be
necessary and duly informed of the effects of their consent, in particular
whether or not an adoption will result in the termination of the legal
relationship between the child and his or her family of origin,
(ii) such persons, institutions and authorities
have given their consent freely, in the required legal form, and expressed or
evidenced in writing,
(iii) the consents have not been induced by
payment or compensation of any kind and have not been withdrawn, and
(iv) the consent of the mother, where required,
has been given only after the birth of the child; and
(d) have ensured, having regard to the age and degree of maturity of
the child, that -
(i) he or she has been counselled and duly
informed of the effects of the adoption and of his or her consent to the
adoption, where such consent is required,
(ii) consideration has been given to the child’s
wishes and opinions.
(iii) the child’s consent to the adoption, where
such consent is required, has been given freely, in the required legal form,
and expressed or evidenced in writing, and
(iv) such consent has not been induced by payment
or compensation of any kind.
Article 5
An
adoption within the scope of the Convention shall take place only if the
competent authorities of the receiving State -
(a) have determined that the prospective adoptive parents are
eligible and suited to adopt;
(b) have ensured that the prospective adoptive parents have been
counselled as may be necessary; and
(c) have determined that the child is or will be authorised to enter
and reside permanently in that State.
CHAPTER III
CENTRAL AUTHORITIES AND ACCREDITED
BODIES
Article 6
1. A Contracting State shall designate a
Central Authority to discharge the duties which are imposed by the Convention
upon such authorities.
2. Federal States,
States with more than one system of law or States having autonomous territorial
units shall be free to appoint more than one Central Authority and to specify
the territorial or personal extent of their functions. Where a State has
appointed more than one Central Authority, it shall designate the Central
Authority to which any communication may be addressed for transmission to the
appropriate Central Authority within that State.
Article 7
1. Central Authorities shall co-operate with
each other and promote co-operation amongst the competent authorities in their
States to protect children and to achieve the other objects of the Convention.
2. They shall take directly all appropriate
measures to -
(a) provide information as to the laws of their States concerning
adoption and other general information, such as statistics and standard forms;
(b) keep one another informed about the operation of the Convention
and, as far as possible, eliminate any obstacles to its application.
Article 8
Central
Authorities shall take, directly or through public authorities, all appropriate
measures to prevent improper financial or other gain in connection with an
adoption and to deter all practices contrary to the objects of the Convention.
Article 9
Central
Authorities shall take, directly or through public authorities or other bodies
duly accredited in their State, all appropriate measures, in particular to -
(a) collect, preserve and exchange information about the situation
of the child and the prospective adoptive parents, so far as is necessary to
complete the adoption;
(b) facilitate, follow and expedite proceedings with a view to
obtaining the adoption;
(c) promote the development of adoption counselling and
post-adoption services in their States;
(d) provide each other with general evaluation reports about
experience with intercountry adoption;
(e) reply, in so far as is permitted by the law of their State, to
justified requests from other Central Authorities or public authorities for
information about a particular adoption situation.
Article 10
Accreditation
shall only be granted to and maintained by bodies demonstrating their
competence to carry out properly the tasks with which they may be entrusted.
Article 11
An
accredited body shall -
(a) pursue only non-profit objectives according to such conditions
and within such limits as may be established by the competent authorities of
the State of accreditation;
(b) be directed and staffed by persons qualified by their ethical
standards and by training or experience to work in the field of intercountry
adoption; and
(c) be subject to supervision by competent authorities of that State
as to its composition, operation and financial situation.
Article 12
A
body accredited in one Contracting
State may act in another Contracting State only if the competent authorities
of both States have authorised it to do so.
Article 13
The
designation of the Central Authorities and, where appropriate, the extent of
their functions, as well as the names and addresses of the accredited bodies
shall be communicated by each Contracting State to the Permanent Bureau of the
Hague Conference on Private International Law.
CHAPTER IV
PROCEDURAL REQUIREMENTS IN
INTERCOUNTRY ADOPTION
Article 14
Persons
habitually resident in a Contracting
State, who wish to adopt
a child habitually resident in another Contracting State,
shall apply to the Central Authority in the State of their habitual residence.
Article 15
1. If the Central Authority of the receiving
State is satisfied that the applicants are eligible and suited to adopt, it
shall prepare a report including information about their identity, eligibility
and suitability to adopt, background, family and medical history, social
environment, reasons for adoption, ability to undertake an intercountry
adoption, as well as the characteristics of the children for whom they would be
qualified to care.
2. It shall transmit the report to the
Central Authority of the State of origin.
Article 16
1. If the Central Authority of the State of
origin is satisfied that the child is adoptable, it shall -
(a) prepare a report including information about his or her
identity, adoptability, background, social environment, family history, medical
history including that of the child’s family, and any special needs of the
child;
(b) give due consideration to the child’s upbringing and to his or
her ethnic, religious and cultural background;
(c) ensure that consents have been obtained in accordance with
Article 4; and
(d) determine, on the basis in particular of the reports relating to
the child and the prospective adoptive parents, whether the envisaged placement
is in the best interests of the child.
2. It shall transmit to the Central
Authority of the receiving State its report on the child, proof that the
necessary consents have been obtained and the reasons for its determination on
the placement, taking care not to reveal the identity of the mother and the
father if, in the State of origin, these identities may not be disclosed.
Article 17
Any
decision in the State of origin that a child should be entrusted to prospective
adoptive parents may only be made if -
(a) the Central Authority of that State has ensured that the
prospective adoptive parents agree;
(b) the Central Authority of the receiving State has approved such
decision, where such approval is required by the law of that State or by the
Central Authority of the State of origin;
(c) the Central Authorities of both States have agreed that the
adoption may proceed; and
(d) it has been determined, in accordance with Article 5, that the
prospective adoptive parents are eligible and suited to adopt and that the
child is or will be authorised to enter and reside permanently in the receiving
State.
Article 18
The
Central Authorities of both States shall take all necessary steps to obtain
permission for the child to leave the State of origin and to enter and reside
permanently in the receiving State.
Article 19
1. The transfer of the child to the
receiving State may only be carried out if the requirements of Article 17 have
been satisfied.
2. The Central Authorities of both States
shall ensure that this transfer takes place in secure and appropriate
circumstances and, if possible, in the company of the adoptive or prospective
adoptive parents.
3. If the transfer of the child does not
take place, the reports referred to in Articles 15 and 16 are to be sent back
to the authorities who forwarded them.
Article 20
The
Central Authorities shall keep each other informed about the adoption process
and the measures taken to complete it, as well as about the progress of the
placement if a probationary period is required.
Article 21
1. Where the adoption is to take place after
the transfer of the child to the receiving State and it appears to the Central
Authority of that State that the continued placement of the child with the
prospective adoptive parents is not in the child’s best interests, such Central
Authority shall take the measures necessary to protect the child, in particular
-
(a) to cause the child to be withdrawn from the prospective adoptive
parents and to arrange temporary care;
(b) in consultation with the Central Authority of the State of
origin, to arrange without delay a new placement of the child with a view to
adoption or, if this is not appropriate, to arrange alternative long-term care;
an adoption shall not take place until the Central Authority of the State of
origin has been duly informed concerning the new prospective adoptive parents;
(c) as a last resort, to arrange the return of the child, if his or
her interests so require.
2. Having regard in particular to the age
and degree of maturity of the child, he or she shall be consulted and, where
appropriate, his or her consent obtained in relation to measures to be taken
under this Article.
Article 22
1. The functions of a Central Authority
under this Chapter may be performed by public authorities or by bodies
accredited under Chapter III, to the extent permitted by the law of its State.
2. Any Contracting State may declare to the
depositary of the Convention that the functions of the Central Authority under
Articles 15 to 21 may be performed in that State, to the extent permitted by
the law and subject to the supervision of the competent authorities of that State,
also by bodies or persons who -
(a) meet the requirements of integrity, professional competence,
experience and accountability of that State; and
(b) are qualified by their ethical standards and by training or
experience to work in the field of intercountry adoption.
3. A Contracting State which makes the
declaration provided for in paragraph 2 shall keep the Permanent Bureau of the Hague Conference on
Private International Law informed of the names and addresses of these bodies
and persons.
4. Any Contracting State may declare to the
depositary of the Convention that adoptions of children habitually resident in
its territory may only take place if the functions of the Central Authorities
are performed in accordance with paragraph 1.
5. Notwithstanding any declaration made
under paragraph 2, the reports provided for in Articles 15 and 16 shall, in
every case, be prepared under the responsibility of the Central Authority or
other authorities or bodies in accordance with paragraph 1.
CHAPTER V
RECOGNITION AND EFFECTS OF THE ADOPTION
Article 23
1. An adoption certified by the competent
authority of the State of the adoption as having been made in accordance with
the Convention shall be recognised by operation of law in the other Contracting
States. The certificate shall specify when and by whom the agreements under
Article 17, sub-paragraph c, were given.
2. Each Contracting State shall, at the time
of signature, ratification, acceptance, approval or accession, notify the
depositary of the Convention of the identity and the functions of the authority
or the authorities which, in that State, are competent to make the
certification. It shall also notify the depositary of any modification in the
designation of these authorities.
Article 24
The
recognition of an adoption may be refused in a contracting State only if the
adoption is manifestly contrary to its public policy, taking into account the
best interests of the child.
Article 25
Any
Contracting State may declare to the depositary of the
convention that it will not be bound under this Convention to recognise
adoptions made in accordance with an agreement concluded by application of
Article 39, paragraph 2.
Article 26
1. The recognition of an adoption includes
recognition of
(a) the legal parent-child relationship between the child and his or
her adoptive parents;
(b) parental responsibility of the adoptive parents for the child;
(c) the termination of a pre-existing legal relationship between the
child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.
2. In the case of an adoption having the
effect of terminating a pre-existing legal parent-child relationship, the child
shall enjoy in the receiving State, and in any other Contracting State
where the adoption is recognised, rights equivalent to those resulting from
adoptions having this effect in each such State.
3. The preceding paragraphs shall not
prejudice the application of any provision more favourable for the child, in
force in the Contracting
State which recognises
the adoption.
Article 27
1. Where an adoption granted in the State of
origin does not have the effect of terminating a pre-existing legal
parent-child relationship, it may, in the receiving State which recognises the
adoption under the Convention, be converted into an adoption having such an
effect -
(a) if the law of the receiving State so permits; and
(b) if the consents referred to in Article 4, sub-paragraphs c and
d, have been or are given for the purpose of such an adoption.
2. Article 23 applies to the decision
converting the adoption.
CHAPTER VI
GENERAL PROVISIONS
Article 28
The
Convention does not affect any law of a State of origin which requires that the
adoption of a child habitually resident within that State take place in that
State or which prohibits the child’s placement in, or transfer to, the
receiving State prior to adoption.
Article 29
There shall be no contact between
the prospective adoptive parents and the child’s parents or any other person
who has care of the child until the requirements of Article 4, sub-paragraphs a
to c, and Article 5, sub-paragraph a, have been met, unless the adoption takes
place within a family or unless the contact is in compliance with the
conditions established by the competent authority of the State of origin.
Article 30
1. The competent authorities of a Contracting State shall ensure that information held
by them concerning the child’s origin, in particular information concerning the
identity of his or her parents, as well as the medical history, is preserved.
2. They shall ensure that the child or his
or her representative has access to such information, under appropriate
guidance, in so far as is permitted by the law of that State.
Article 31
Without
prejudice to Article 30, personal data gathered or transmitted under the
Convention, especially data referred to in Articles 15 and 16, shall be
used only for the purposes for which they were gathered or transmitted.
Article 32
1. No one shall derive improper financial or
other gain from an activity related to an intercountry adoption.
2. Only costs and expenses, including reasonable
professional fees of persons involved in the adoption, may be charged or paid.
3. The directors, administrators and
employees of bodies involved in an adoption shall not receive remuneration
which is unreasonably high in relation to services rendered.
Article 33
A
competent authority which finds that any provision of the Convention has not
been respected or that there is a serious risk that it may not be respected,
shall immediately inform the Central Authority of its State. This Central Authority
shall be responsible for ensuring that appropriate measures are taken.
Article 34
If
the competent authority of the State of destination of a document so requests,
a translation certified as being in conformity with the original must be
furnished. Unless otherwise provided, the costs of such translation are to be
borne by the prospective adoptive parents.
Article 35
The
competent authorities of the contracting States shall act expeditiously in the
process of adoption.
Article 36
In
relation to a State which has two or more systems of law with regard to
adoption applicable in different territorial units -
(a) any reference to habitual residence in that State shall be
construed as referring to habitual residence in a territorial unit of that State;
(b) any reference to the law of that State shall be construed as
referring to the law in force in the relevant territorial unit;
(c) any reference to the competent authorities or to the public
authorities of that State shall be construed as referring to those authorised
to act in the relevant territorial unit;
(d) any reference to the accredited bodies of that State shall be
construed as referring to bodies accredited in the relevant unit.
Article 37
In
relation to a State which with regard to adoption has two or more systems of
law applicable to different categories of persons, any reference to the law of
that State shall be construed as referring to the legal system specified by the
law of that State.
Article 38
A
State within which different territorial units have their own rules of law in
respect of adoption shall not be bound to apply the Convention where a State
with a unified system of law would not be bound to do so.
Article 39
1. The convention does not affect any
international instrument to which Contracting States are Parties and which
contains provisions on matters governed by the Convention, unless a contrary
declaration is made by the States parties to such instrument.
2. Any Contracting State may enter into
agreements with one or more other Contracting States, with a view to improving
the application of the Convention in their mutual relations. These agreements
may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The
States which have concluded such an agreement shall transmit a copy to the
depositary of the Convention.
Article 40
No
reservation to the Convention shall be permitted.
Article 41
The
Convention shall apply in every case where an application pursuant to Article
14 has been received after the Convention has entered into force in the
receiving State and the State of origin.
Article 42
The
Secretary General of the Hague Conference on Private International Law shall at
regular intervals convene a Special Commission in order to review the practical
operation of the Convention.”.