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DOCUMENT 2. DIFFICULTIES AND PROBLEMS REGARDING THE APPLICATION AND FUNCTIONING OF THE CONVENTION. SUBJECT 2 FROM THE QUESTIONNAIRE FROM THE PERMANENT OFFICE We are convinced that the convention is an indispensable instrument for the better protection of children. However, can we currently say that the objectives of The Hague Convention (THC) have been reached and respected. Until which point the convention has reached the ethic, social, and legal efficiency which is provided in it? If it is still relatively weak, which are the motives? Which are the unresolved problems or which have appeared during the firsts years in which the convention has been applied? We think it is important to list the problems even if at first sight it looks pessimist. We are convinced that the solutions can be found gradually, but what could be done if problems are defined in a clear and honest way. With this point of view, the herein document has been elaborated as an inventory of the problems observed in one country or another. We choose not to mention these countries since we are not trying to blame anyone, but only get our attention on a situation which we consider problematic regarding the children. The social environment, the mediation pressure, politics towards “easier” international adoptions without worrying if it is more respectful towards the child. In this difficult context, we observe that the interpretation and the quality of the application of THC depend on the capacity to resistance to the environmental pressure and the political and ethical elections of each State (either if it from its origin or if it is acquired) and what each protagonist does regarding the child. The most generalized risk is that THC remains in a legal or formal application forgetting or risking the application of the same. The fact that some states seem to have ratified THC without assuming the full effort of the meaning of such document without seriously modifying their policies and procedures and adapting structures that weaken the convention. I. PARTICIPANTS AND APPLICATION FRAME OF THE HAGUE CONVENTION 1. Who does what? In some countries, many governmental entities officially take part of a preponderant role in the application of THC without a precise clarification of their specific roles in the application of every obligation of the convention. This could be confusing regarding the responsibilities of these entities, in the interior as well as the exterior of the country, and this could also create a minor efficiency. According to our experience, the difficulty in the comprehension of THC and its national and international implication by its responsible ones motives this situations. Some examples: 1-1) Some states, at the moment that the convention comes into effect, do not communicate (for months) the trustee who is the central authority, the competent authorities and, if it proceeded, the accredited organisms which makes the international cooperation for the application of THC impossible; the same situation exists regarding the updating. (THC art. 13,23-2). 1-2) Many bodies have been appointed to play the role of the central authority: sometimes the definition of the responsibilities of each one is not exact to avoid overlapping or immobility making certain decisions. 1-3) The central authority is formed by the tutoring organ and by the executive organ: the role of each one sometimes is not well defined or the information which is transmitted to the exterior regarding these roles is deficient. 1-4) The multiple central authorities in certain Federal States (THC art. 6-2) were created more as a political or managing logistic than for the protection of children, making more difficult the criteria and practice harmony, as well as the visibility of the country and the responsibilities before foreign interlocutors. 1-5) Some competent authorities play a more important role in the adoption than in the designed central authority which causes great difficulties in the functioning. Even if the convention expects that the central authority can delegate great part of their functions (THC art. 8, 9, 22 and 224 from the explicative inform of THC from Mr. Parra-Aranguren), the important unbalance is visible between the competent authority and the central authority making more difficult the coordination of tasks and does not allow the optimum functioning of the convention.
2) SELECTION CRITERIA OF THE CENTRAL AUTHORITY (CA) In some countries, a weakness is noticed regarding the reflection to the election criteria of the Central Authority, or the prevalence of political and managing criteria over the children protection. For example:
2-1) A competition has been seen between the Ministries or governmental organisms to be appointed CA, sometimes followed by the lack of collaboration with the appointed central authority. This generally results harmful to child protection. (THC art. 7-1). 2-2) The appointed organism as CA is very distant from the practice regarding adoptions and children protection and thus cannot take the necessary measures.
3) RESOURCES OF A CENTRAL AUTHORITY
3-1) The amount of personnel and the budget of the CA is often too limited for the authority to carry out its role: there is lack of personnel, lack of equipment and resources to function (telephone expenses, translations, photocopies, etc.) in the States of origin. 3-2) The personnel qualification for a CA regarding children protection and adoptions is often not enough. 3-3) The salaries of the personnel are too low to attract competent professional for a period as well to compensate them for their great contribution. 3-4) The mobility of the personnel or their positions for political or managing reasons are always not productive for the protection of children because it causes the loss of experience. It is regretful that when there is a change of Government there is also a change of personnel for purely political motives in every party, while instead a work evaluation should prevail to make a selection in favor of the children.
4) CENTRAL AUTHORITY AND ACCREDITED BODIES
Experience shows that it is necessary to deepen the reflection regarding article 9 in relation to child protection. When referring to this article, some states backed up regarding the previous practices which had been established to give better protection to children: the obligation for adopters of going to accredited bodies in the receiving States and authorized by the State of origin were annulled and instead give the free option for adopters of going with an accredited body or directly to the central authority of their State of residence to adopt in a determined State of origin. This brings up two problems which are convenient to study: 4-1) Is it convenient to the interest of the child to have simultaneously a double mechanisms of cooperation between the State of origin and the receiving State? Does this force the State of welcoming to assume a similar role than the one of accredited organisms, but without having the same resources? (having representatives on site, without having direct contact with accredited bodies in the State of origin). Does this place the central authority in a competitive position with the accredited bodies of its own country creating confusion? The great danger of this mechanism is that it carries great abuse risks for the protection of the child and establishes for the adopters of one same receiving State and adoption with two faces in the country of origin which may carry dangerous risks that could cause non reasonable costs, non proper earnings and in consequence child protection abuse. The adopters who present their request through a central authority in the State of welcoming come in direct contact with the official or accredited protagonists in the State of origin, when this are numerous and varied, with all dangers of corruption and excessive financial costs to find a child according to criteria that are not related to the interests of this child; sometimes, they seem forced to use the services of an Attorney, translator, etc. which costs, ethics, and professionalism cannot be controlled. At the same time, adoptions managed by accredited bodies who focus on the interest of the child and deny the excessive financial expenses are penalized: the children who are in their trust are less numerous and are children with special needs. 4-2) Is the central authority of a receiving State the most indicated to follow, case by case, the procedure of adoption with the superior interest of the child, particularly when it is with adoptions in State of origin where there is a strong demand and have a large amount of requests? Is it limited to a managing and legal control of the petitions because there is no assurance of the psycho-social accompaniment during the adoption process even if it is important to the child and the adopters? Observing the practice, we esteem that it should not be possible to establish a double mechanism in a State of welcoming for its cooperation with a State of origin, or a State of origin with a receiving State. The interpretation of article 9 should be limited to the choice of only one mechanism.
5) ACCREDITED BODIES
Principal problems: The ISS is in favor of the intervention of accredited bodies, particularly in the receiving states assuring a personalized, concrete link, case by case between the State of origin and the receiving State. Between the child and the adopting family, between local and governmental levels. However, according to our observations: 5-1) The qualification of accredited bodies still is currently very insufficient to assure a true child protection. The practice of some accredited bodies are even in disagreement with the dispositions of THC and DNC (amateurism, insufficient knowledge of children’s rights regarding international adoptions, excessive earnings, etc.) This regards receiving States as well as States of origin (THC art. 10 and 11).
5-2) The amount of national accredited bodies (article 10), as well as the foreign accredited and authorized bodies (article 12) is not compatible with the true protection of children. 5-2-1) Looking at the ratification, or right after the ratification of THC, some states have encouraged a great amount of bodies, which have been accredited, without them having any experience or the necessary knowledge, or proven ethic towards children’s rights. This brings up great problems for child protection. 5-2-2) The frequent absence of accrediting criteria or authorization relative to an evaluation of needs in the States of origin causes: * In a receiving state, a great amount of bodies which are often accredited to work in the same country of origin. This contributes to the pressure from the receiving states to the states of origin, while at the same time there is no accredited body to cooperate with the states of origin where there are needs. * In a state of origin, there are authorized a great amount of foreign accredited bodies, which creates an excessive work load for the central authority, as well as pressure and rivalry which are not in the interest of a child. * In the receiving state as well as in the state of origin, the accreditation or authorization does not take the criteria related to the child’s profile who needs an international adoption, which causes an inadequate adaptation from the available families to the needs of the child, and thus the frustration which may lead in abuse.
5-2-3) In some receiving States happens the contrary because the amount of accredited bodies is not enough to manage all international adoptions. 5-3) The diversity in the criteria for accreditation and of accreditation in the States in which many authorities are officially competent to grant it creates an unbalance, mistakes in coordination levels and carries a great risk when some of the competent authorities have low capacity regarding international adoptions. Complementary problems: 5-4) Intervention, in a receiving State of bodies or persons with a domicile in another receiving State (example: a US body tries to place children in different countries in Europe; a body in Western Europe in another country of the region). This new phenomenon needs reflection: Is it in the interest of the child? Which are the qualifications of the bodies to accompany the families and children in an environment they do not know or do not know well? How does a competent authority in the State of residence of the adopters going to control the practices and money from outside his State? Which are the criteria for accreditation and the control to have always? Which are the criteria of authorization (art. 12)? How to organize the international cooperation between States in such case? (THC art. 10, 11, 12, 22-2, 32 and subjects brought up in the list of recapitulation from the permanent office). 5-5) When a receiving State is converted into a State of origin (for example: US bodies that try to place African-American children in Europe). This situation brings up the problems regarding accreditation and the authorization of the implied bodies. Also brings up the question of the property of these adoption regarding the interest of the children. Also is one of the expressions in dichotomy between the strong demand of international adoption in a determined receiving State and the incapacity to place their own children in national adoption (problems who are no only limited to the United States).
II. THE CHILD AND THE BIOLOGICAL FAMILY
6) The determination whether a child is adoptable or not is still a weak point. (THC art. 2, 3, 4 and 16c.) 6-1) Adoptability of a child: in numerous state of origin, a voluntary policy is missing as well as a clear process to determine the adoptability of a child (legal and psycho-social adoptability) and as consequence there is no respect for children. 6-1-1) It is stated as suitable for international adoption the children who should stay with their biological families or their local or national community. 6-1-2) Will be maintained in institutions, with no adopting family project to those children who are commonly abandoned. The personnel has not been capacitated to perform a social survey; because this personnel is not aware of the reality and consequences of adoption, particularly international adoption, due to the lack of indispensable resources to perform family surveys (transport, materials); considering that the protagonists in charge of determining the adoptability of the child have other interests, not only to look for a family solution for the best interest o the child; because laws have not been adapted; because there are unclear controls or sanctions, etc. It is too frequently observed that there are no social surveys regarding the child and its biological family or the survey is deficient, there is little effort to look for other solutions with biological families; there are no support policies in risk of abandonment or it is little in relation to the competition of the international adoption and their financial advantages for the protagonists and eventually for the families, absence or little well informed consent from the parents or tutors.
6-2) Subsidiaries in International Adoption. There are two problems: 6-2-1) Even if it is currently registered in most legislations, often it is reduced to the practice of a procedure and the wait for the file of the child, a curtain of smoke instead of a real search for a national family solution. 6-2-2) The will to look for solutions for national families which is often in a quarrel with the interests of the child: the too long delays in the search of a national solution, in law or practice represent a danger for the emotional, psychic, and physical development of the child.
6-3) Placement in a temporary international family. Some programs of temporary reception of children from other countries has been established on one side, without taking enough precautions to protect the children (absence of reflection regarding the medium and long term consequences for the child, insufficient knowledge of the children’s situation, not enough information about the receiving families, absence of control by the competent authorities, blurry financial situation), on the other side oriented to adoption program without this being provided by the organizers.
7) Lack of sufficient detailed information about the child and its biological family. This lack has a negative impact because it does not allow to assure a parenting in the best interest of everyone implicated or to have useful information about the child in the future. This is a direct consequence of the weakness or absence of a social survey, as well the absence of mechanisms to obtain information about the mothers in hospitals and maternities (THC art. 16a and b).
8) Gaps in the convention and in the practice of many States. As a complement of the previous actions in article 4-d, the child should be prepared for its adoption and for the incorporation in another environment. In THC there is no mention about this important stage (note 160 IEP). In the interest of the child and of his adoptive family is indispensable to assure a continuing attention to the child.
III. FUTURE ADOPTIVE PARENTS (FAP)
THC art. 5 and 15 9) Aptitude certificate In the case of some receiving states, the aptitude certificate to adopt is granted very easily: the responsible personnel is not sufficiently formed and informed regarding international adoptions and children’s right, or the authorities in case of denial do not have the necessary competency to judge in the child’s best interest or make a decision based on political interests more than professional ones. In general, a great amount of certificates are granted without having the real necessities that exist in the State of origin: profile of the child in need of adoption, amount of adoptable children that correspond to the criteria of the adopters. This added to the fact that a certain number of adopters consider the obtaining of such certificate as a right to adopt, generates frustration and it is one of the sources for pressure over the States of origin, with all the abuses that could come along.
10) Information and preparation of FAP The information and preparation of FAP for international adoptions is often insufficient or inexistent, particularly regarding children’s rights and the evolution stages of the adoptive filitaion-parenthood (THC preface for 2 and 4, art. 5-b, 9-c).
11) Multi-national situations The department of cases of the ISS is aware of a greater quantity of FAP in a complex situation: different nationalities, domicile in another State, adoption of a child from another country. In most of these cases, particularly when the FAP reside in a country of Origin they are in contact with an accredited body in a third country and have already identified a child (in the country of residence or another country). The problems are them linked with difference in legislations in all concerning countries, the diversity of the situations regarding the ratification of THC, the difficulty to perform a home-study to obtain an aptitude certificate, the verification of the adoptability of a child, the verification of a subsidiary for an international adoption, violation of article 29, etc.
IV. PARENTING OR MATCHING
12) Lack of information in the convention and in the practice in many States Give as a fact that the convention does not mention parenting which is an essential stage for adoption considering that its purpose is to trust a child with a family. At practice, it is often carried out with no true agreement with foreign accredited bodies that know the candidate families for adoption and who might help to better identify a family who might correspond the characteristics and necessities of the child. Sometimes, even in countries which have ratified the THC that take priority in financial criteria and offer and demand than to the best interest of the child.
V. REASONABLE COSTS – UNDUE MATERIAL EARNINGS – ABUSE – TRAFFIC
13) International adoption and money It seems that financial aspects pervert more everyday international adoptions. It seems to develop an acceptance with the introduction of the payments at every level of international adoption as a commercial product. This is bad just as it is, and it is even more when it is done under THC due to that many protagonists doubt the credibility of a convention that allows this type of practice.
Questions which necessary need urgent reflection: 13-1) Finances managed by accredited organisms: In their residence States, in the States where they collaborate, What finances? Sources? Why? What is a reasonable cost? Which are the criteria for this decision? How is it controlled? 13-2) Financing of Children protection programs or support to orphanages by bodies which have been basically accredited to manage adoptions. This financing is often ambiguous because they are associated to international adoption. 13-2-1) Is it for the accredited body an indirect way to receive children for adoption? It is necessary that there is ethic severity to avoid this temptation. 13-2-2) If the orphanage receives funds, this will allow to give the children better attention, but is it not for the orphanage the guarantee for everlasting support? To keep receiving funds they must keep receiving children. Besides, there would be temptation to trust more children or specific types of children to the most generous agencies or persons. On the other side, life conditions in these institutions become much better than in local families and this may prefer to trust their children with these institutions instead of keeping them with them; there is the risk promoting the abandonment. 13-2-3) If the bodies with relationships with the local or national Government receive financing, is this not a source of financing for the State of origin which will try to finish? If a good national policy is developed for childhood and families, the international adoption resource will become less from time to time and thus will terminate the financing source it represents. 13-3) Fixed and only financial contribution requested by Governments from States of origin for an international adoption which exclude any expense in the country of origin, except for traveling expenses. To our judgment, when a contribution is of a limited and reasonable quantity, this system has triple advantages: represents financing to the States of origin for resources regarding child protection for those who lack of family protection (personal, equipment, functioning expenses, child attention, search for national solutions, etc.); eliminates for the adopters the uncertainty regarding financial aspects of the adoption in the State of origin; limits the risk of abuse regarding finances. However, some problems are brought up as which entity must receive such contribution to prevent the aforementioned situation in 13-2-2 and 13-2-3, as well as to prevent the risks of corruption and abuse around them? In which stage and under what conditions should the contribution be made?
13-4) Request of important financing, for each international adoption, by the government in the State of origin to support projects of child protection. The recent case in Romania brought the problem to light: Could it be interpreted as a State commercialization for children in need of adoption? Could the child in need of adoption be used as a hostage? Even if, the objective of this policy is laudable, its application, in our opinion, is in a quarrel with the respect of the child’s rights, as well as the FAP and the protagonists that respect children’s rights. It is important to mention adoptions in Romania caused, for the first time a protest movement of the central authorities of a certain number of accredit by the receiving State (Euradopt), as well as several Romanian professionals. 13-4-1) The international adoption is a social and legal response of protection for children, no a source of money. 13-4-2) Many problems, like the aforementioned in 13-2-2 and 13-2-3. It must be added the lack of transparency in the use of these funds, the endangerment of programs for national solutions for families that cannot compete with international adoption on the financial level, parenting based in financial criteria which does not look toward the child’s interest.
13-4-3) Can one be conformed in criticizing the State of origin in which happens or should those receiving states speak, after ratifying THC, that they are part of the problem when leaving their accredited citizens or bodies associate and praise such practices?
13-5) Maintenance of international adoptions between receiving States which have ratified THC and the States of origin in which children rights are violated in the adoption. Is it acceptable that a receiving State that has ratified THC and the DNC and thus has compromised to apply in spirit and writing, aloud adopters and bodies in which it is responsible to adopt and organize adoptions in internationally recognized States for several violations that happen there, that traffic with international adoptions, where persons that propose policies in favor of children’s respect are intimidated and probably physically attacked? We must mention Guatemala. Can it only be accused the State of origin in which this happens or there should also be mentioned the responsibility of the receiving States, who are part of these practices through some of their citizens, or praise them for their absence or weakness in their reaction?
VI. ACKOWLEDGEMENT OF ADOPTION DECISIONS
14) Automatic conversion of the simple adoption There is reference to the problems exposed in matter 6, what safety can b obtained from the informed consent with the idea of converting automatically a simple adoption into a plenary one? (THC art. 27-b and concerned persons art. 4-c-1).
VII. INTERNATIONAL COOPERATION
15) problems Although the improvement represented by THC there are still problems: 15-1) The possibility of accusing is still limited by the frame of THC. Besides the manifestations and preoccupations or disagreements towards a State, the only possible action in case there is no solution of one situation keeps being the decision of every other State (for example: the suspension of adoption with the State that is considered to have a very unsatisfactory situation). A certain amount of protagonists have stated the need to have an international entity to recur to in case of serious problems (inspired on the international committee for children’s rights for the CRC) and were surprised to know that there is no permanent office that assumes this role. 15-2) The cooperation regarding information flow is still not enough on an international level. It is still limited to small groups of central authorities or accredited bodies, it is not spread enough. 15-3) SSI/CIR [sic] has been created by the SSI [sic], inter alia to make easier the flow of information between different protagonists and countries. We have not realized that even if it is easy to reach the SSI/CIR to obtain information or consulting, very few times we think of transmitting such information and documentation. However, the SSI/CIR which is establish on the net principal has enormous potential and should be encouraged to be used to take more advantage of it.
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