33.
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 –
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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.
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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,
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(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 –
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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.
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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;
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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
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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.
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(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;
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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
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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 –
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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.
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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.
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(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
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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.
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(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 –
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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.
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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
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(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.
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(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 –
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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.