CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
(Concluded 29
May 1993)
(Entered into
force 1 May 1995)
The States
signatory to the present Convention, Recognizing
that the child, for the full and harmonious
development of his or her personality, should grow up in a family
environment, in an atmosphere of happiness, love and understanding,
Recalling that
each State should take, as a matter of priority, appropriate measures to
enable the child to remain in the care of his or her family of origin,
Recognizing that
intercountry adoption may offer the advantage of a permanent family to a
child for whom a suitable family cannot be found in his or her State of
origin,
Convinced of the
necessity to take measures to ensure that intercountry adoptions are made in
the best interests of the child and with respect for his or her fundamental
rights, and to prevent the abduction, the sale of, or traffic in children,
Desiring to
establish common provisions to this effect, taking into account the
principles set forth in international instruments, in particular the United
Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on
Social and Legal Principles relating to the Protection and Welfare of
Children, with Special Reference to Foster Placement and Adoption Nationally
and Internationally (General Assembly Resolution 41/85, of 3 December 1986),
Have agreed upon
the following provisions ?
CHAPTER I - SCOPE OF THE
CONVENTION
Article 1
The objects of the
present Convention are ?
a)
to establish safeguards to ensure that intercountry adoptions take place in
the best interests of the child and with respect for his or her fundamental
rights as recognized 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 authorized 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 authorized 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 authorized 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 recognized 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 recognize 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 recognized, 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 recognizes
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 recognizes 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 authorized 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 authorized 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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