Avoiding undue delay

320. Unlike some other Hague Conventions,220 _{the 1993 Convention does not impose any}

deadlines for the treatment of files. However, delays are common, and may arise for unavoidable reasons, such as practical difficulties in the country of origin. See for example, Chapter 7.2.1: Establishing that a Child is Adoptable (Art. 4 a)). Avoidable delays may arise through the failure of Central Authorities / accredited bodies to respond to questions or communications. The 2005 Special Commission agreed that there should not be unnecessary delays, but a certain delay was necessary in order to ensure diligence in the adoption preparations and in making a decision in the best interests of the child.

321. The Special Commission made recommendations as follows:

“The Special Commission reminds States Parties to the Convention of their obligations under Article 35 to act expeditiously in the process of adoption, and notes in particular the need to avoid unnecessary delay in finding a permanent family for the child.221

The Special Commission recommends the use of flexible and efficient systems of communication taking into account, where available, advances in technology.” 222

7.2 The child

322. Chapter 7.2 describes the intercountry adoption procedures in the State of origin in respect of the child.

7.2.1 Establishing that a child is adoptable (Art. 4 a))

323. Before an adoption may take place, it must be established by the competent authorities of the State of origin that the child is adoptable. Article 16 stipulates that the matching of child and family is to be done only if the Central Authority is satisfied that the child is adoptable.223 _{This directly ties the intercountry adoption procedure to the sequence of}

procedures outlined in previous chapters regarding the entry of the child into the child protection system and the consideration or provision of family preservation and national adoption services.

324. The adoptability of a child is determined according to the law and procedures of the State of origin.224 _{It is important that the legal criteria as well as medical, psychological and}

social aspects of adoptability, which may be relevant,225 _{are addressed in implementing}

legislation and procedures. For example, to establish the child’s adoptability, it should be made clear which particular procedures, such as a determination of abandonment or evidence of permanency planning, need to be satisfied before a child may be declared adoptable.226

325. As a matter of good practice, the State of origin should declare in its implementing measures which authority is competent under Article 4 a) to establish that a child is

220 _{1980 Convention on the Civil Aspects of International Child Abduction, Art. 11; 2007 Convention on the International} Recovery of Child Support and Other Forms of Family Maintenance, Art. 12.

221 _{Recommendation No 14.} 222 _{Recommendation No 16.} 223 _{Art. 16(1).}

224 _{This question is considered in detail in Chapter 8.6.2.}

225 _{See, Explanatory Report, supra, note 1, para. 119. In Burkina Faso, national adoption is a priority, but in reality there are}

few local adoptive parents due to socio-cultural obstacles. Children are only considered adoptable if they are abandoned, orphaned or the parents sign a written consent to their adoption. Seeresponse to the 2000 Questionnaire.

226 _{Andorra (Law of 21 March 1996, Arts 8-10); Ecuador (2003 Children and Adolescents’ Code, Art. 158); Lithuania (Civil}

adoptable, as well as the criteria for making that decision. The child’s psycho-social adoptability is determined by the conclusion that it is impossible for the birth family to care for the child, and by the assessment that the child will benefit from a family environment. This is supplemented by his / her legal adoptability, which forms the basis for severance of the filiation links with birth parents, in the ways specified by the law of the State.227

326. In the case of abandonment, an investigation of the child’s background and circumstances should be made to the extent possible, with every attempt made to locate the family and relatives of the child, and effect a reunification.228 _{A similar process should be}

followed for orphaned children. Any delay in investigating the child’s background and reaching a decision on permanency planning for the child should be kept to a minimum. There is always a need to find a balance between protection of the child (by preserving family ties), making a decision in the child’s best interests (e.g., not leaving a child indefinitely in an institution) and shortening the administrative and procedural process to allow the child to join a permanent family as soon as possible (see also Chapter 7.1.2: Avoiding undue delay).

327. If a child is voluntarily given up for adoption, it is important to establish that this decision was reached without undue pressure or financial inducement.229 _{In each situation,}

the information on the child’s background and circumstances will be needed for a report on the child, in accordance with Article 16 (1) a).

328. However not every child deprived of parental care is adoptable. In considering whether there are any factors or conditions which mean that a child is not adoptable, such as those relating to health or age, it is important to bear in mind the fundamental principles of non-discrimination on the basis of factors such as status at birth, ethnicity or disability.230

329. The determination that the child is adoptable should be made before parents are matched with the child. While this may seem obvious and is often included in a State’s adoption law, the system may actually function in the reverse. Some States may have systems that allow prospective adoptive parents to learn about children who are “available” for adoption prior to a child being declared adoptable and sometimes even prior to consents being signed. While such actions may be done with good intentions, or because of funding or operational constraints, the practice may give rise to abuse and is contrary to Convention procedure. Learning about children who have been determined to be adoptable is a different matter and clearly permissible under the Convention.

330. A central registry or office should maintain a list of adoptable children.231 _{The length}

of time that the child is on the list or register should be monitored carefully. Priority in finding a permanent family should be given to children who have been on the list for long periods of time.

331. A question may arise concerning the role of the court in a receiving country which has

227 _{ISS/IRC Ethical Guide: The rights of the Child in internal and intercountry adoption – Ethics and Principles – Guidelines for} Practice, available at < www.iss-ssi.org>.

228 _{Seethe responses to question No 4(c) of the 2005 Questionnaire: Peru (the task to investigate the child’s background and}

circumstances is carried out by the “Investigación Tutelar”, which is a process finalised to verify the legal situation of abandoned children, Law on the Adoption Administrative Procedure of Minors declared judicially abandoned, Art. 3); Romania (Law 272/2004 and Law 273/2004). See also India (2006 Guidelines for Adoption from India, Chapter V, section 5.5, Step 2); and Philippines (Domestic Adoption Act of 1998 (RA 8552), Art. II, section 5).

229 _{This is established in many legislations. See, for example, Bolivia (1999 Children and Adolescents’ Code, Art. 60);}

Guatemala (2007 Law on Child Adoptions, Art. 35 d); India (2006 Guidelines for Adoption from India, Chapter V, section 5.7).

230 _{See UNCRC, supra note 8, Art. 2(1).}

231 _{See, for example, Azerbaijan (Registration Procedures of Children Deprived of Parental Care and Adopted Children,}

Registration Procedure of Individuals Willing to Adopt Children and Registration Procedure of Foreigners and Stateless Persons Willing to Adopt Children Who Are Citizens of the Republic of Azerbaijan, Order of the Cabinet of Ministers No 172 of 20 September 2000);Bulgaria (Family Code, Art. 136 a) para. 2.7 and Ordinance No 3 on the Conditions and Procedure for giving Consent for the Adoption of a Person of Bulgarian Nationality by a Foreigner, 16 September 2003, Section III); Lithuania (Civil Code, Art. 3.219 “Adoption Register” and Resolution No 1422 of 10 September 2002, Procedure for Registry of Adoption in the Republic of Lithuania). Seealso the response of Sri Lanka to question No 4(c) of the 2005 Questionnaire.

to make the final adoption order. In the situation in question, the court applies its national law to determine that the child is adoptable before making the order. In theory the court could find that the child is not adoptable according to the national law (including its rules of private international law) and the adoption order cannot be made, even though the child was declared adoptable by the State of origin. It is to be hoped that before any adoptions take place, a receiving State will have made known any limitations in its own law so that any defect in the procedures or obstacle to the adoption would have been identified in the receiving country before the adoption reached this late stage. The Convention makes clear in Article 4 that it is the State of origin which determines the adoptability of a child who is residing in that State. This decision is made in accordance with the national law of the State of origin. But the receiving State may have different criteria for adoptability of a child, and a child who does not meet the legal criteria of adoptability in the receiving State should not be proposed or considered for adoption by that State. A solution may also be found in Article 17 c) of the Convention, according to which the adoption may not proceed if the requirements of the Convention and the laws of each country have not been met.

332. The existence, in the receiving State and the State of origin, of different criteria to determine the adoptability of a child is not inconsistent with the Convention. It is comparable to the situation concerning prospective adoptive parents, where it is accepted that different criteria may be applied by a receiving State and a State of origin in relation to the eligibility and suitability of the same prospective adoptive parents. The authorities in the receiving State should ensure that its prospective adoptive parents meet the requirements of a State of origin before sending their file to that country. The State of origin should ensure that the applicant parents meet the requirements of a State of origin before allowing an adoption to proceed. The same approach applies to questions of adoptability. A receiving State may refuse to allow an intercountry adoption concerning a child who does not meet the adoptability criteria of the receiving State.

333. The importance of the declaration of adoptability, and the difficulties which may arise, when Convention requirements are improperly or inconsistently applied, underscore the importance of training in Hague Convention processes for judges and others involved in the legal or administrative system. It has already been noted that local judges in countries of origin are often unaware of the Hague Convention and may process an intercountry adoption as a national adoption. Equally, judges in receiving countries need to receive training in intercountry adoptions and Hague Convention procedures to avoid abuses of the Convention, intentional or otherwise.