CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN
RESPECT OF INTERCOUNTRY ADOPTION
(Concluded 29 May 1993)
The States
signatory to the present Convention,
Recognising 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,
Recognising 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 interests;
c)
have ensured that
(1) 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,
(2) such
persons, institutions and authorities have given their consent freely, in the
required legal form, and expressed or evidenced in writing,
(3) the
consents have not been induced by payment or compensation of any kind and have
not been withdrawn, and
(4) 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
(1) 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,
(2)
consideration has been given to the child's wishes and opinions,
(3) 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
(4)
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 territorial 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.
chapter vii -
final clauses
Article 43
(1) The
Convention shall be open for signature by the States which were Members of the
Hague Conference on Private International Law at the time of its Seventeenth
Session and by the other States which participated in that Session.
(2) It
shall be ratified, accepted or approved and the instruments of ratification,
acceptance or approval shall be deposited with the Ministry of Foreign Affairs
of the Kingdom of the Netherlands, depositary of the Convention.
Article 44
(1) Any
other State may accede to the Convention after it has entered into force in
accordance with Article 46, paragraph 1.
(2) The
instrument of accession shall be deposited with the depositary.
(3) Such
accession shall have effect only as regards the relations between the acceding
State and those Contracting States which have not raised an objection to its
accession in the six months after the receipt of the notification referred to
in sub-paragraph b) of
Article 48. Such an objection may also be raised by States at the time when
they ratify, accept or approve the Convention after an accession. Any such
objection shall be notified to the depositary.
Article 45
(1) If a
State has two or more territorial units in which different systems of law are
applicable in relation to matters dealt with in the Convention, it may at the
time of signature, ratification, acceptance, approval or accession declare that
this Convention shall extend to all its territorial units or only to one or
more of them and may modify this declaration by submitting another declaration
at any time.
(2) Any
such declaration shall be notified to the depositary and shall state expressly
the territorial units to which the Convention applies.
(3) If a
State makes no declaration under this Article, the Convention is to extend to
all territorial units of that State.
Article 46
(1) The
Convention shall enter into force on the first day of the month following the
expiration of three months after the deposit of the third instrument of
ratification, acceptance or approval referred to in Article 43.
(2)
Thereafter the Convention shall enter into force -
a)
for each State ratifying, accepting or approving it subsequently, or acceding
to it, on the first day of the month following the expiration of three months
after the deposit of its instrument of ratification, acceptance, approval or
accession;
b)
for a territorial unit to which the Convention has been extended in conformity
with Article 45, on the first day of the month following the expiration of
three months after the notification referred to in that Article.
Article 47
(1) A
State Party to the Convention may denounce it by a notification in writing
addressed to the depositary.
(2) The
denunciation takes effect on the first day of the month following the
expiration of twelve months after the notification is received by the
depositary. Where a longer period for the denunciation to take effect is
specified in the notification, the denunciation takes effect upon the
expiration of such longer period after the notification is received by the
depositary.
Article 48
The depositary
shall notify the States Members of the Hague Conference on Private
International Law, the other States which participated in the Seventeenth
Session and the States which have acceded in accordance with Article 44, of the
following -
a)
the signatures, ratifications, acceptances and approvals referred to in Article
43;
b)
the accessions and objections raised to accessions referred to in Article 44;
c)
the date on which the Convention enters into force in accordance with Article
46;
d)
the declarations and designations referred to in Articles 22, 23, 25 and 45;
e)
the agreements referred to in Article 39;
f)
the denunciations referred to in Article 47.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 29th day of May 1993, in the English and French languages, both
texts being equally authentic, in a single copy which shall be deposited in the
archives of the Government of the Kingdom of the Netherlands, and of which a
certified copy shall be sent, through diplomatic channels, to each of the
States Members of the Hague Conference on Private International Law at the date
of its Seventeenth Session and to each of the other States which participated
in that Session.
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