Adoption periodicals and websites often refer to the “Hague Convention”, to “Hague requirements” and to countries being “Hague” or “non-Hague”. What does that mean? I gave a brief overview and shared some potential concerns. But what exactly does the Hague Convention say?
“Hague” refers to the international courts at the Hague in Holland. The adoption agreement referred to is formally titled “Convention on Protection of Children and Co-operation in Respect to Intercountry Adoption”.
The introduction states 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”. It states that each State (meaning each sovereign nation) should prioritize “appropriate measures to enable the child to remain with his family of origin” but “recognizes that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable country cannot be found in his or her State of origin.”
The Introduction goes on to say that the States which are signatories to the Convention are convinced of the need for measures which “ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights.” It states that the Convention looked for inspiration to the 1989 United Nations Convention on the Rights of the Child (click here for my review of a lovely children’s picture book based on this Convention ) and on a 1986 Declaration which dealt with child protection, foster care and adoption.
Article One of the Convention states that its objectives are to ensure that intercountry adoptions are conducted in the best interests of the child and with safeguards preventing the abduction, sale or trafficking of children; to establish a system of cooperation among countries to ensure safeguards and prevent abuses; and to provide for an adoption in one of the signatory countries to have full legal recognition in the others.
According to the Convention, each state shall establish a Central Authority for intercountry adoptions.
The Central Authorities shall:
— Cooperate with each other, including providing requested translations, paid for by the adoptive parents
— Promote cooperation of authorities within their State to achieve the objectives of the Convention
— Provide information as to the laws of their State concerning adoption, and other general information such as statistics and standard forms.
— Keep each other informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.
— Take all appropriate measures, directly or through public authorities, to deter practices which go against the principles of the Convention, and to prevent any improper gain from an adoption
— Collect and preserve and exchange information about a child’s situation and the prospective parents’ situation, so far as is necessary to complete the adoption
— Facilitate, follow and expedite proceedings for adoption
— Promote development of adoption counseling and post-adoption services in their States
— Provide each other with general evaluation of their experience in intercountry adoption.
— “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.”
— The designated Central Authorities, the extent of their functions, their names and addresses shall be communicated by each State to the Permanent Bureau of the Hague Conference on Private International Law.
In the United States, the Central Authority for intercountry adoption is the State Department, which can, according to the Convention, delegate certain functions to others—i.e. accredited adoption agencies.
These delegated agencies must be staffed by those with appropriate training and experience and must:
— “pursue only nonprofit objectives according to such conditions and within such limits as may be established by the competent authorties of the State of accreditation;
— “be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption
— “be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.”
Prospective adopters apply to an accredited body in their State (The receiving State), which reports on their identity, eligibility and suitability to adopt, 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 competent to care; and transmits the report to the Central Authority of the child’s State of origin. The receiving State’s Central Authority or its delegates are to: determine that prospective adoptive parents are “eligible and suited to adopt” and are counseled as may be necessary, and determine that the child will be authorized to permanently reside in the receiving State.
The “counseled as may be necessary” requirement has resulted in most U.S. agencies requiring adoptive parents to document ten hours of training, such as seminars put on by agencies or adoption therapists, webinars, or online courses.
The child’s country of origin is to be responsible to “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; that the persons, institutions and authorities whose consent is necessary for adoption, have been counseled 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”.
The sending country is further to ensure that birthparents, institutions and authorities relating to the adoption have given their consent freely, in required legal form, and in writing; that the consent of the birthmother, where required, is given after the birth, not before; and that the consents have not been induced by payment of any kind. Also, a child of sufficient maturity should be consulted as to his or her own wishes, which should be considered, and the child’s consent obtained if required in that State.
The Authority in the State of origin shall: prepare a report on child’s “identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child”; consider the child’s upbringing and ethnic, religious, cultural background; ensure proper consents are made; determine, on basis of the reports relating to the child and prospective parents, if the envisaged placement is in the best interests of the child. Then the Central Authority of the State of origin the report on child, proof of consents, reasons for determination on the placement, to the authorities in the receiving country, “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.”
Transfer of the child should be done “in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.”
Each country is to keep the other informed about the progress of an adoption.
The State authorities shall ensure that information regarding the child’s origins are preserved, especially the identity of the parents and the medical history, and communicated to the child or his representative, “with appropriate guidance, in so far as is permitted by the law of that State”.
Personal data gathered or transmitted under the Convention, shall be used only for the purposes for which they were gathered or transmitted.
“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 continued placement not in child’s best interests, such Central Authority shall take measures necessary to protect the child, in particular, to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care; 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 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; as a last resort, to arrange the return of the child, if his or her interests so require.”
Adoptions contracted in one State shall be recognized in other Hague countries.
No one shall derive improper financial or other gain from an activity related to intercountry adoption. Only costs and expenses, including reasonable, not excessive, professional fees of persons involved in the adoption, may be charged or paid.
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.