INTERNATIONAL SAFEGUARDS FOR CHILDREN

Transcription

1 INTERNATIONAL SAFEGUARDS FOR CHILDREN by Hans van Loon Secretary General of the Hague Conference on Private International Law Eugene (Oregon), 20 OCTOBER 2006 INTRODUCTION At this conference we are looking forward but we are also celebrating the fiftieth anniversary of a historic initiative taken by an inspired couple, Harry and Bertha Holt; an initiative that has yielded fruits far beyond what anybody, including the Holts themselves, may have expected at the time. It was their response to the heartbreaking fate of thousands of children remaining in orphanages in Korea, as Harry Holt found out in the early 1950's. It was inspired by a strong vision, the vision that every child should have a loving, permanent home; a vision soon shared by David Kim and by many others, both with what became Holt International and with other organisations, in this country and abroad. The strength of the initiative can be measured by the energy it took for these pioneers to overcome not only the many practical difficulties they faced in the beginning starting as they did with next to nothing in war-devastated Korea but also the strong feelings existing in post-war America against the Japanese and other Asians in the Far East. In fact, at the time, America's immigration policy was very restrictive; at one point it even seemed that by the end of 1956 the door would be shut completely for adoptions from Korea. One of the lasting benefits of the Holts initiative was the extension of immigration law and its revision giving international adoption a permanent place in United States law. We know now that over 100,000 Korean children have been adopted in the United States over the years, but it is good to remember that this has only been possible because of a hard fought change of mentality in respect of ethnic origin. One's admiration for the Holts, for David Kim and for the other pioneers, only grows when one imagines the uphill struggle, within the political and cultural climate of the time, which faced them in these early days. The initiative of the Hague Conference on Private International Law, for which the decision was taken in 1988 to draw up a worldwide Convention on intercountry adoption, differed in several respects from that of the Holts. First, it was the Conference s Member States, not private individuals, who took the initiative. Second, its aim was not to relieve the distress of homeless children in one country, Korea, but to do so more generally for any child in need of a family wherever on this planet. And third, this was not a practical humanitarian effort, but a multilateral negotiating process aimed at creating a durable legal framework for protection of children and international co-operation in respect of intercountry adoption. Despite these differences, a vision similar to that of the Holt pioneers inspired the hundreds of people who put their energy into the negotiations at The Hague, which started in 1990 and took four years to complete. I remember seeing this similarity of vision reflected in the sparkling eyes of David Kim during the first meeting, which, under the formidable chairmanship of Mr T.B. Smith QC, started the ball rolling in June Mr Kim recognised that there was a common resolution among the participants to create, through this Convention, an instrument providing the right basic procedures and standards for intercountry adoption despite the political and ideological difficulties and reservations that had been building up over the years. As a matter of fact and again this is something we tend to forget there were many signs in the course of the 1980's that an increasing number of countries of origin, including the Republic of Korea, C:\Documents and Settings\Hai's Files\Holt Web\public_html\conference\speeches\Hans DOC

2 2 felt less and less comfortable with the very idea of intercountry adoption. As a result, they either reduced or even banned intercountry adoption temporarily or for an indefinite period, as in the case of, for example, Viet Nam, Sri Lanka and Nicaragua. There was a great deal of confusion in many countries, both in countries of origin and in receiving countries, and there were conflicting tendencies. Many countries were trying to regulate intercountry adoption unilaterally, resulting in growing delays and costs, increasing risk of failure as a result of lack of coordination in the preparation of intercountry adoptions, and lack of follow-up afterwards, and efforts to circumvent restrictions by clandestine adoptions, including abusive ones. Intercountry adoption, and adoption generally, was at risk of falling into disrepute. The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption came as a timely response to this critical situation. It demonstrated that it was possible to achieve consensus among sixty-six countries, not just on lofty principles, but on a very practical framework of minimum safeguards and procedures for dealing with intercountry adoption. This has been an enormously heartening encouragement to all people of goodwill who know from experience that intercountry adoption may, under well-defined and appropriate conditions, provide a homeless child with a family environment, an atmosphere of happiness, love and understanding (to cite the Convention s Preamble) -things that are essential to any child's development. These people of goodwill are, of course, to be found both in receiving countries and in countries of origin. The Convention provides a sustainable framework that enables them to co-operate in the primary interests of homeless children. It provides a coherent set of norms and procedures, based on careful analysis and discussion of intercountry adoption as a global phenomenon with all its legal and other implications, and on a weighing of the many private and public interests involved, both in the countries of origin and in the receiving countries. THE NEED FOR AND BENEFITS OF INTERNATIONAL CO-OPERATION The Convention is based on recognition of the fact that there is no future for private initiatives in intercountry adoption, unless not only private parties and organisations but also the States involved accept a responsibility to co-operate. The two key words in the Convention's title are protection and co-operation. Sound intercountry adoption of children requires a minimum of protection of those children, for which the State has ultimate responsibility; this protection, in turn, requires co-operation between the States involved, foremost the State of origin and the receiving State, and, in so far as recognition of the adoption is concerned, also that of the other Contracting States. It is not only the receiving State, as the United States most often is, which has the right to control which children cross its borders in order to live there with an American family; it is equally the right of the State of origin as the United States also is in some instances to know and control where its children go for purposes of adoption. The Convention gives equal recognition to both perspectives, and puts responsibilities there where they belong. The country of origin is obviously in the best position to determine that the child is adoptable and that the necessary consents have been given; it is equally obvious that the authorities of the receiving State are better placed to determine that the prospective adoptive parents are eligible and qualified to adopt. This is exactly what the Convention provides. The essential steps are to be taken there where they can best be taken. Based on an exchange of reports on these findings from both sides, the matching can proceed, and only with the agreement of both the receiving country and the country of origin, the authorities in the country of origin may entrust the child to the prospective adoptive parents. Mutual confidence between the countries involved is essential to make the system work. That is why it is so important

3 3 that the Convention is the result of negotiations of a large group of countries of origin and receiving countries alike. And that is why it has been so encouraging that throughout the past ten years, ever since the Convention came into force on 1 May 1995, countries of origin and receiving countries have joined the Convention in roughly equal numbers. The fact that States have joint responsibilities under the Convention does not mean that the Convention aims at bureaucratising intercountry adoption. On the contrary, the Convention will be a help to overcome bureaucratic hurdles, which are often defence mechanisms nurtured by suspicion and lack of confidence in the other States' system. The best illustration of this effect of the Convention is probably that the mutual agreement required for the entrustment of the child to the prospective parents in the country of origin, leads over to a whole series of legal sequences with beneficial results, time and cost-saving, for all involved: authorisation for the child to leave the country of origin and to enter the receiving country; authorisation for the child to reside permanently in the receiving country; recognition of the adoption in all contracting countries; and, as an increasing practice, although the Convention is silent about the effect on nationality, attribution of citizenship by the receiving country. These are huge benefits to the child but also to the adoptive parents: no longer will there be a risk that a child that has been entrusted to the adoptive parents in the country of origin is refused the right to leave the country of origin, or to enter the receiving country, or to permanent reside in that country. Likewise, the child and the adoptive parents will be saved the hardship of having to go anew through adoption proceedings in the receiving country, perhaps following a probationary or even a second probationary - period, despite a preceding adoption in the country of origin, and only because that earlier adoption was not recognised in the receiving country. Instead of having to meet, first, the legal requirements of the country of origin, and, in addition, those of the receiving country, without any guaranteed coordination between the two, the child and the adoptive parents need to go through only one single procedure in which the two systems work together. THE ROLE OF ADOPTION ORGANISATIONS While international co-operation between States is at the basis of the Convention, and key to the benefits just outlined, the Convention also recognises the critically important role of private agencies in the intercountry adoption process. Indeed, the Convention involves them fully in the new governance structure it sets up, by accepting the principle that States are free to confer upon private agencies, under the supervision of competent authorities, most of the functions of the Central Authority. Those functions may include that of giving the agreement on behalf of the receiving country to the entrustment of the child to the adoptive parents by the country of origin (under Article 17c of the Convention), with all the critically important legal effects that are attached to that entrustment decision we have just seen. In fact, in the light of what we have said about the need for and benefits of international co-operation, this then means that agencies accredited agencies are being greatly empowered and given a great responsibility by the Convention because the future of intercountry adoption is placed, to a large extent, in their hands. If one realises the new role of adoption agencies, as co-actors under international law, in intercountry adoption under the Convention, one also understands why a number of the 69 States Parties to the treaty, including the United States, have found it necessary to enact detailed legislation in order to supplement the requirements which the Convention itself imposes on accredited agencies or bodies. In fact, the standards introduced by the treaty in its Articles and 32 are, inevitably, very broad. They are clearly minimum standards, and careful thought is necessary when a country implements the Convention on how best to give meaning and effect to them within the legal system of that State. The Regulations recently adopted in this country are the fruit of such a reflection process, which will no

4 4 doubt continue as experience with the Convention in the United States grows. Accredited agencies will have a major role in this process. As new actors under international law, accredited bodies in the United States will want to be able to share their experience with their counterparts in other Contracting States. They will, in fact, be part of a global network, or system of networks, a new horizontal, cross-border layer of governance, consisting of accredited bodies, Central Authorities and other authorities, including courts. They will need a global forum. This forum is, in fact, emerging. The Hague Conference s secretariat, the Permanent Bureau, has developed a number of initiatives to this effect, which culminate in regular global review meetings at the Peace Palace at The Hague, as the Convention provides (Article 42). At this point, these meetings are being held every 4 to 5 years, and their rhythm may well have to increase in the years to come. In between these global meetings, regional meetings are being held, and the Permanent Bureau stimulates, where it can, exchanges of views between all the actors under the Convention on a continuing basis. We are aware that more can, and should, be done, and would welcome suggestions, also from accredited bodies through their Central Authorities. SAFEGUARDS FOR CHILDREN It is very much hoped that the accredited bodies in the United States, and elsewhere, will take pride in their new role as recognised, indeed empowered, actors under international law, and assume their new responsibilities, always putting the interests and indeed the rights of children first. This may require, in some cases, a change of mentality. To many agencies, the idea that they would be recognised and empowered by, and have responsibilities under, an international treaty may come as something never imagined. It may mean that they have to rethink their mission and to some extent even their loyalties. As key actors under the Convention, it will lie in their hands to fulfil or, on the contrary, to frustrate the hopes the Convention inspires. If they are determined to raise the hopes of children, they will commit themselves to the basic principles established by the international community. They will embrace the notion that it is for the authorities in the State of origin to determine, as the Convention puts it, after possibilities for placement of the child within that State have been given due consideration that an intercountry adoption is in the child s best interests. This implies that efforts should be made to assist families in remaining intact or in being reunited, or to ensure that a child has the opportunity to be adopted or cared for nationally. It implies also that intercountry adoption procedures should be set within an integrated child protection and care system, which maintains these priorities. At the same time, however, efforts to achieve this goal should not unintentionally harm children by delaying unduly a permanent solution. In other words, policies should work to promote family preservation and national solutions, rather than to hinder intercountry adoption. For most children, in most circumstances, intercountry adoption is to be preferred over placement in an institution or temporary placement. This is not the only important decision for which the authorities of the country of origin have primary responsibility. This also applies to the question of the child s adoptability as such, and the issues of free, informed consent to be given by the birth parents and the older child him or herself. It applies, moreover, to the reports on the identity, adoptability, social, medical, ethnic, cultural and family background of the child, the consents, and on the child s best interests, even though these reports as opposed to the decisions just mentioned may be conferred upon public or private agencies in the country of origin. It applies finally, as we have already seen, to the decision on entrusting the child to the prospective adoptive parents, which may also be conferred upon public authorities or accredited bodies. In short: the Convention puts a very heavy responsibility on the authorities of the countries of

5 5 origin, or those acting on their behalf, for the good reason that the important findings and decisions concerning the child should be taken before the child is entrusted to the prospective adoptive parents, before the adoption occurs, and in the country of origin, rather than after the entrustment or after the adoption or in the receiving country. We have seen the huge benefits which this new approach will bring, in terms of removing obstacles following the entrustment of the child, but the condition for all of this to work is, that the partners in the process, including the accredited bodies in the receiving countries, co-operate whilst fully aware of their powers and of their responsibilities. Many of the one or two hundred United States adoption organisations that stand to be accredited under the Convention are well aware that countries of origin vary considerably in the degree to which they are capable of implementing the heavy responsibility that the Convention puts on their shoulders; after all, the fact is that most countries of origin belong to the least developed countries. It is no secret that what usually comes with low levels of development is lack of infrastructure and of expertise, risk of corruption and of abuse. They also know that this may mean that the safeguards for children that the Convention provides are at risk, unless these deficiencies are identified and remedied through the international co-operation system, which the Convention also provides. To give an example: where it is known that local adoption agencies, or even local authorities in a country of origin are corrupt or engaging in unlawful practices such as manipulating consents of the birth parents, then any selfrespecting accredited body from a receiving country would not simply close its eyes, but will act, even if the local government is not capable of dealing with the situation. At the very least, it would inform its Central Authority (as is implicit in Article 33 of the Convention). Ultimately, the government of the receiving country may have to intervene. But let us also look at things from the positive side, from that of creating new opportunities for children. The Convention empowers accredited bodies in a unique way to do what is good for children: accredited bodies will be, in most instances, the counterparts, recognised by or on behalf of their governments under the Convention, of those involved in the adoption processes in the countries of origin. They may be in an extraordinary position to obtain and share information about the local situation, particularly if they are authorized to operate in the country of origin, and to influence that situation in a positive way. They will be able to assist, to mobilise interest and support for children, as no government is able to do. They may emerge, under the Convention, as agents of momentous change both in the countries of origin and in the receiving countries. CONCLUSION I was asked to speak about safeguards for children. I am aware that I have been speaking at least as much about those who under the Hague Convention that will enter into force for the United States next year will be entrusted with the task of safeguarding children s interests and their rights. Safeguards are one thing; making them work is another. It was the great American lawyer and scholar of comparative law, Roscoe Pound, who almost a century ago wrote his world famous article about Law in Books and Law in Action. The Convention has been on the books in the United States for well over a decade now, the time for action has come. Adoption organisations in this country have a great, a unique opportunity to make a dream come true: a family for each child, with full respect of the internationally-agreed safeguards that come with that dream.

6 6 A NOTE ON THE ADOPTION IMPLEMENTATION PROGRAM The Permanent Bureau has also begun to look at possibilities by which it may provide implementation assistance to States. In order for the Convention to operate successfully worldwide, it is essential that the initial steps necessary for its effective implementation within each Contracting State be carefully planned, not only after but also before joining the Convention. The technical implementation programme will provide assistance directly to the governments of States which are planning ratification of, or accession to, the Convention, or which have already joined but are experiencing difficulties with implementation of the Convention. Many of these are States in Asia and Africa. Implementation assistance may be particularly vital in countries that have few resources available for this purpose. We are continuing to look for funding in order to launch this programme.