Article 21 of the United Nations Convention on the Rights of the Child: Adoption
from: Implementation Handbook for the Convention on the Rights of the Child, fully revised edition
States Parties which recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
- Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
- Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
- Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
- Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it;
- Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
Article 21 addresses the rights of children who are adopted – in those countries which permit adoption – establishing the paramountcy of children’s best interests in all adoption arrangements and detailing minimum requirements for adoption procedures. It states that intercountry adoption is only to be considered if the child
cannot be suitably placed in his or her own country. The need of all young children for a family, and for a sense of security and permanency in their relationships, is recognized in most parts of the world and is celebrated in the Convention’s Preamble which asserts that the family is “...the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children” and 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.” Adoption as the permanent solution to meet this need is, however, more controversial.
The Convention on the Rights of the Child remains neutral about the desirability of adoption even within the child’s country of origin, though article 20 mentions it as one of the possible options for the care of children without families. It is clear that children’s psychological need for permanency and individual attachments can be met without the formality of adoption, but where it is used it should be properly regulated by the State to safeguard children’s rights.
States Parties which “recognize and/or permit the system of adoption”
There are those who believe that adoption is the best solution for children without families. For example, the delegate from the United States in the Working Group drafting the Convention proposed: “In cases where a child cannot be cared for by his parents or other members of his biological family, the competent authorities of States Parties shall take appropriate measures to facilitate permanent adoption of the child.” (E/1982/12/Add.1,C, pp. 56-59; Detrick, p. 299) At the other end of the spectrum of opinion are those States which operate in accordance with Islamic law and so do not recognize adoption at all. Others report negative aspects of adoption. For example, there are also reports of “fake adoptions” to disguise the bonded labour of children (Report of the Working Group on Contemporary Forms of Slavery, Eighteenth session, Economic and Social Council, E/CN.4/Sub.2/1993/30, p. 33. See also article 32, page 475). The Committee has expressed concern about abuse of adoption:
“The Committee further notes with concern the inadequacy of existing laws in protecting children who are ‘adopted’ – a situation which has led to abuses such as exploitation through domestic labour, particularly of girls. (Ghana IRCO, Add.73, paras. 18 and 38)
“The Committee is concerned at … the potential misuse of intercountry adoption for purposes of trafficking, inter alia, for economic and sexual exploitation. (Russian Federation 2RCO, Add.110, para. 43)
“The Committee joins the State Party in expressing concern at the practice of ‘fictitious’ care … for children deprived of their parents, as a replacement for genuine adoption, which deprives these children of care and education.” (Democratic Republic of the Congo IRCO, Add.153, para. 44. See Democratic Republic of the Congo IR, para. 85)
Islamic law does not recognize the concept of an adoption which disguises the true parentage and blood relationships of a child. Children without families are able to live in permanent forms of foster care under kafalah which means in most Islamic States that they may not take the family name or have rights of inheritance. Some countries, such as Lebanon, prohibit adoption for Muslims but permit it for non-Muslims (Lebanon IR, paras. 46 and 47). Notwithstanding the article’s careful wording a number of States with Islamic populations entered a specific reservation to article 21, including Bangladesh, Brunei Darussalam, Egypt, Indonesia, Jordan, Kuwait, Maldives, the Republic of Korea and the Syrian Arab Republic (CRC/C/2/Rev.8). The Committee observed to Jordan:
“The Committee observes that the State Party’s reservation to article 20 and 21 of the Convention is superfluous. It points out that article 20(3) of the Convention expressly recognizes kafalah of Islamic law as alternative care, and article 21 expressly refers to those States that ‘recognize and/or permit’ the system of adoption, which in any case does not apply to Jordan. “The Committee recommends to the State Party to withdraw its reservation…” (Jordan 2RCO, Add.125, paras. 10 and 11)
Other countries have traditional forms of adoption which the State should ensure are consistent with the Convention. The Committee has encouraged Canada to withdraw its reservation to the provisions of article 21 “…to the extent that they may be inconsistent with customary forms of care among aboriginal peoples in Canada” (CRC/C/2/Rev.8, p. 16; Canada IRCO, Add.37, para. 10). It also encouraged the Marshall Islands to investigate its customary adoptions:
“The Committee is concerned … at the absence of information and data about the practice of ‘customary adoptions’ by family members… “Further, it encourages the State Party to undertake a study, including data disaggregated by gender, age and rural/urban area provenance, to analyze the phenomenon of ‘customary adoptions’ by family members with a view to understanding the scope and nature of this practice and adopting adequate policies and measures.” (Marshall Islands IRCO, Add.139, paras. 40 and 41)
The best interests of the child shall be the paramount consideration
In adoption the best interests of the child must be “the paramount” consideration rather than simply “a primary” consideration as in article 3. The provision establishes that no other interests, whether economic, political, state security or those of the adopters, should take precedence over, or be considered equal to, the child’s. As Peru put it in its Second Report:
“a family is found for the child, not a child for the family” (Peru 2R, para. 179).
The paramountcy principle should be clearly stated in law. Any regulation that fetters the principle could lead to a breach of the Convention – for example inflexible rules about the adopters, such as the setting of age limits, or about the child, for example only permitting adoption in cases where the child has been legally declared abandoned. (For further discussion of “best interests” see article 3, page 41 and article 18, page 246).
“The child” is of course the child being proposed for adoption, but best interests consideration should not necessarily be limited to that child; other children may be affected by adoption procedures. Philippine law, for example, requires that “the child of the adoptive parents who is 10 years or older shall give his or her consent to the adoption” (Philippines IR, para. 52). An adoption considered to be contrary to the best interests of the other children within the family would be difficult to square with the principles of the Convention.
Countries considered to have too many adoptions have been the subject of Committee concern, but the Committee has also questioned the lack of domestic adoptions:
“It is the opinion of the Committee that further measures should be taken by the State Party to promote the possibilities for children, particularly those who have been abandoned, to grow up in a home-like environment through, inter alia, fostering and adoption.” (China IRCO, Add.56, para. 38)
Adoption procedures can also give rise to forms of discrimination, for example in Grenada:
“The Committee is also concerned about the apparent gender bias in favour of girls in the adoption process... The Committee recommends that the State Party undertake a study to assess the situation and determine the impact of intercountry adoptions and to determine why girls are favoured over boys in the adoption process.” (Grenada IRCO, Add.121, para. 19)
The Committee sees central monitoring of all forms of adoption by the State as essential if the best interests of children are to be secured:
“The Committee is concerned about the absence of national standards and statistics on … adoption… the Committee is concerned about vague adoption procedures and the absence of mechanisms to review, monitor and follow up adoptions. “… the Committee encourages the State Party to establish a comprehensive national policy and guidelines governing … adoption, and to establish a central monitoring mechanism in this regard.” (Armenia IRCO, Add.119, paras. 30 and 31)
“The Committee recommends that the State Party establish a comprehensive national policy and guidelines governing foster care and adoption, including screening, and a central monitoring mechanism in this regard.” (Kyrgyzstan IRCO, Add.127, para. 38. See also Tajikistan IRCO, Add.136, para. 33)
Adoption authorized “only by competent authorities ... in accordance with applicable law”
In all countries where adoption is allowed, the Committee has expected to see legislation regulating both its domestic and international forms. For example,
“The Committee also suggests that the State Party review the present legislation on adoption, in the light of the principles and provisions of the Convention, notably those of its articles 20 and 21, so as to evaluate the effectiveness of national legislation in facilitating domestic legislation.” (China IRCO, Add.56, para. 38)
“… the Committee is concerned at the absence of uniform adoption law in India and effective measures to monitor and follow up placement within the State Party and abroad. “The Committee recommends the State Party to review the legislative framework of domestic and intercountry adoption.” (India IRCO, Add.115, paras. 42 and 43)
“The Committee remains concerned at gaps in the State Party’s domestic legislation on adoption and that existing adoption procedures are usually not respected and are reported to be subject to arbitrary decisions. Concern is also expressed at the prevalence of illegal informal adoption. The Committee is further concerned at the limited capacity properly to follow up cases of intercountry adoption, which constitute the majority of adoption cases. “The Committee recommends that the State Party take further measures to revise its legislation and practices in the area of domestic and intercountry adoption…” (Colombia 2RCO, Add.137, paras. 43 and 44. See also Sri Lanka IRCO, Add.40, paras. 17 and 35; Bulgaria IRCO, Add.66, para. 15; Myanmar IRCO, Add.69, para. 17)
“Competent authorities” covers the judicial and professional authorities charged with vetting the viability of the placement in terms of the best interests of the child, and with ensuring that proper consents have been obtained and all relevant information considered. Thus, both trained social workers and adjudicators should be involved in the process. The Committee recommended that, in relation to adoptions in Panama
“adequate training be provided to concerned professionals” (Panama IRCO, Add.68, para. 31).
Determination “on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary”
While the best interests of children are the paramount consideration in an adoption process, there is a presumption within the Convention that children’s best interests are served by being with their parents wherever possible (articles 7 and 9) and that their parents have “primary responsibility” for their upbringing, a responsibility they must exercise within the framework of the child’s best interests, his or her rights under the Convention and his or her evolving capacity (articles 5 and 18). An adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge this responsibility – any legislation that permits adoptions under less stringent conditions would probably amount to a breach of both children’s and parents’ rights under the Convention. The requirement for proper consent for adoption has arisen because of cases in which children have been wrongfully removed from their parents. The Committee expressed concern, for example, at the Hungarian practice of making an adoption placement before the child has been born:
“In light of the principles and provisions of the Convention, especially its articles 3, 7 and 21, the amendment to Act XV of 1990, which grants the parent the option of placing a child up for adoption before birth, is a matter of concern for the Committee. “The Committee recommends that the State Party consider reviewing its legislation and practice relating to the possibility of placing a child up for adoption before birth.” (Hungary IRCO, Add.87, paras. 17 and 33)
These safeguards do however mean that the “paramountcy” of children’s best interests in adoption is in one sense circumscribed by the legal necessities of satisfying legal grounds and gaining necessary consents. If the procedures are not followed then an adoption must not proceed, regardless of the child’s best interests.
The Convention’s provisions mean that each potential adoption will require proper investigation with full reports by independent professionals to the authorities considering the adoption application. The question of what consents must be obtained is hedged here. “If required” leaves it up to domestic legislation – although any gross violation of either the child’s or a natural parent’s rights to family life would amount to a breach of this (see articles 7 and 9) and other human rights instruments. States should reconsider, for example, laws that do not permit fathers of children born outside marriage to have any potential rights in adoption procedures. Where consents are required, the Convention provides that these must be given “on the basis of such counselling as may be necessary”.
The child’s views
The child’s views are not explicitly mentioned in the requirements relating to consent, but proper consideration of them is undoubtedly implied, as well as required under article 12 (see page 173). Children’s ascertainable views must be central to any consideration of their “best interests”.
In addition to taking the child’s views into account, adoption legislation may also require that the child’s formal consent be obtained. Some countries report that ages are set above which the child’s consent is legally required for adoption (for example Nova Scotia, where consent to an adoption is needed from any child aged 12 or more (Canada IR, para. 1129), from any child aged 10 or more in Croatia (Croatia IR, para. 103) and aged 9 or more in Mongolia (Mongolia IR, paras. 135-139)). Another possibility is giving children the power to veto their own adoption. Adoption is never essential (the Islamic experience shows that permanency can be achieved without it) and is usually irrevocable. Consent to adoption therefore carries more risk, is a weightier decision, than vetoing it. Passively refraining from exercising a right of veto, rather than actively stating consent, is also less likely to place a burden of guilt on children in relation to their natural parents and complies with the principle of article 12 that children should be free to express their views, but should not feel forced to do so. It is hard to imagine in what circumstances a child of any age should be adopted against his or her expressed wishes. Even if a very young infant objected, it would seem wise to accept his or her wishes and return to the subject at a later date.
The Hague Convention on Protection and Cooperation of Children in respect of Intercountry Adoption provides that such adoptions can only take place if the authorities of the State of origin “have ensured, having regard to the age and degree of maturity of the child, that 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” and that “consideration has been given to the child’s wishes and opinions...” (article 4(d)). It also states that where consent is required, it must be given freely, without inducements (article 4(d)).
The Committee has emphasized the importance of the child’s right under article 12 to have his or her wishes considered in relation to adoption:
“The Committee recommends that the State Party ensure that its adoption procedures are in conformity with the provisions of the Convention, especially its articles 3, 12 and 21...” (Honduras IRCO, Add.24, para. 26)
“In the framework of the adoption process, due consideration should be given to the provisions of article 12 of the Convention.” (Mexico IRCO, Add.13, para. 18)
“...the Committee recommends that consideration be given to extending and broadening the involvement of children in decisions affecting them in the family and in social life, including in proceedings relating to family reunification and adoption.” (Germany IRCO, Add.43, para. 29)
“Intercountry adoption may be considered as an alternative means of child’s care under certain conditions”The wording deliberately falls short of saying that countries must consider international adoption as one of the options of care for children without families, and, as discussed below (see opposite), must only be undertaken as a last resort.
The rising number of intercountry adoptions has been the cause of much concern. Children are a highly desirable commodity in countries where low birth rates and relaxed attitudes towards illegitimacy have restricted the supply of babies for adoption. Colombia, for example, reported to the Committee that many more Colombian children are adopted by foreign couples than by Colombian couples, even though the latter are given priority over foreign applicants (Colombia IR, paras. 133-35 and p. 31). This has led an apparently increasing number of adoptions to be arranged on a commercial basis or by illicit means. Without very stringent regulation and supervision children can be trafficked for adoption or can be adopted without regard for their best interests; some children are even adopted for nefarious purposes, such as child prostitution or forms of slavery. This has been recognized in the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (see page 647). This requires States to take measures to criminalize as extraditable offence any sort of trafficking in children, including: “Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable internal legal instruments on adoption.” (articles 2, 3 and 5)
The Committee has frequently expressed concern about the phenomenon:
“The Committee expresses its grave concern over the information brought to its attention of alleged trafficking in intercountry adoptions in violation of the provisions and principles of the Convention. It is further concerned about the absence of a normative framework in the field of intercountry adoptions, namely in the light of articles 3, 12 and 21 of the Convention.” (Paraguay IRCO, Add.27, para. 11)
“The Committee notes with concern the information provided by the State Party that an illegal adoption network has been uncovered and that the mechanisms to prevent and combat such violations of children’s rights are insufficient and ineffective.” (Guatemala IRCO, Add.58, para. 21. See also Nicaragua IRCO, Add.36, para. 18; Ukraine IRCO, Add.42, para. 11)
Even when intercountry adoptions are regulated, the Committee has remained concerned – for example it expressed anxiety to Belarus, Costa Rica, Mexico and others about the number of international adoptions. The Committee encouraged the Danish Government, in the light of information it had received from Denmark about the poor outcome of international adoption
“to take steps to monitor more closely the situation of foreign children placed in adoptive families”. (Denmark IRCO, Add.33, para. 27. See also Sweden IRCO, Add.2, para. 13)
Argentina entered a reservation to paragraphs (b), (c), (d) and (e) of article 21, but not because it was unconcerned about international adoption. On the contrary it stated that these provisions do not apply within its jurisdiction: “because, in its view, for the purpose of their implementation, a rigorous mechanism for the legal protection of the child in respect of international adoption must already be in place, in order to prevent the trafficking and sale of children” (CRC/C/2/ Rev. 8, p. 13, Argentina IR, para. 62). The Committee was not satisfied with this argument and recommended that Argentina review the reservation with a view to withdrawing it (Argentina IRCO, Add.35, paras. 8 and 14).
Intercountry adoption only “if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin”
“intercountry adoption should be considered in the light of article 21, namely as a measure of last resort” (Mexico IRCO, Add.13, para. 18).
States are thus under an obligation to take active measures to ensure that all possible efforts have been made to provide suitable care for the child in his or her country of origin. This “last resort” provision is consonant with article 20(3) requiring due regard to be paid to “the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”; with article 7, upholding the child’s rights to know and be cared for by parents, and with article 8, the child’s right to preserve identity. It is confirmed in the 1993 Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, which establishes the “subsidiarity principle” that an intercountry adoption should only take place “after possibilities for placement of the child within the State of origin have been given due consideration”.
Duty to “ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption”
Thus every international adoption must be authorized as being in the best interests of the child by competent authorities of the child’s State, on the basis of proper investigation and information and with proper consents (with counselling, if necessary) having been obtained. While the Hague Convention lays down these ground rules and provides the details for intercountry adoption, it is, of course, up to each State to ensure that its adoption legislation, professional training and administrative mechanisms are in place. The Committee has urged any country not doing so to take immediate action, for example:
“The Committee recommends that the State Party introduce the measures necessary to monitor and supervise effectively the system of adoption of children in the light of article 21 of the Convention. It is also recommended that adequate training be provided to concerned professionals. In addition, it is recommended that the Government consider ratifying the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption.” (Guatemala IRCO, Add.58, para. 34. See also Mongolia IRCO, Add. 48, para. 25; Armenia IRCO, Add.119, para. 31)
Intercountry adoption should not result in “improper financial gain”Country reports and Committee observations highlight the widespread concern about the trafficking of children for adoption. While payments by adoptive couples may be made in good faith and without harm to the child, a system that puts a price on a child’s head is likely to encourage criminality, corruption and exploitation. Article 35 requires States Parties to take measures to prevent the sale of children for any purpose. Article 32 of the Hague Convention states:
- No one shall derive improper financial or other gain from an activity related to an intercountry adoption.
- Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.
- The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.” The Optional Protocol on the sale of children, child prostitution and child pornography (see page 647) obliges States Parties to criminalize any improper financial gain from the adoption of a child as an extraditable offence (articles 2, 3 and 5).
States should conclude “bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs”The most important treaty for States to join as parties is now the 1993 Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (See Appendix 4, page 731). This was drafted to meet the need for detailed, legally binding international standards, for an agreed system of supervision and for channels of communications and effective relationships between the authorities in the countries of the adopted child and the adopters. It builds upon article 21 and the rest of the Convention on the Rights of the Child and reflects the provisions of the 1986 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. The Hague Convention’s first objective is “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 recognized in international law” (article 1a).
The Committee has systematically taken note of the signing of this Convention, taking pains to commend those countries that have become parties (see box) and strongly encouraging those that have not yet done so. It should be noted that most of the States that have become parties have significant numbers of intercountry adoptions.
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