Abstract
Intercountry adoption (ICA), sometimes perceived as a rapidly growing modern social phenomenon, is in fact long established. It was and continues to be associated with the disruption to normal family life caused by war, civil unrest and natural disaster. The subjects are often orphans or refugees fleeing danger for sanctuary in any country offering safety and protection. This was the experience of children in the Balkans following the violent breakup of Yugoslavia and is presently the case in Somalia, Libya, Syria, Ethiopia and other parts of Africa and the Middle East. Increasingly, however, disruption to care arrangements in the family of origin are now more likely to have their roots in chronic poverty, the affliction of AIDS or other forms of socio-economic deprivation. In either case this may not necessarily result in the complete and permanent severance of a child’s links with their culture and kinship networks, as some may well be absorbed into the homes of displaced relatives or friends of their birth parents, but it often does. Whether they are orphan victims of war, disease or natural disasters—or are simply from deprived backgrounds, abandoned in institutional care, with or without parental consent—the children become available for intercountry adoption (ICA) due to a lack of adequate domestic child care and adoption options.
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Notes
- 1.
See, Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, p. 4, at http://paa2007.princeton.edu/download.aspx?submissionId=70610.
- 2.
Quor’an, verse 33 and the Sura, verses 4 and 5.
- 3.
See, also, the Brussels II Regulation, 2005.
- 4.
Special Rapporteur report, A/HRC/34/55, op cit at para 49.
- 5.
See, s 66 of the Adoption and Children Act 2002.
- 6.
- 7.
See, sections 66 and 87, respectively, of the Adoption and Children Act 2002.
- 8.
See, Bridge, C. and Swindells, H., Adoption—The Modern Law, Family Law, Bristol, 2003 at p. 314.
- 9.
See, Bartholet, E., 1993. International Adoption: Current status and future prospects. Adoption 3(1-Spring): 90. Also, see, generally Doek, J.H.A. van Loon and P. Vlaardingbroek (eds.). 1996. Children on the move. Netherlands: Martinus Nijhoff Publishers.
- 10.
The Hague Conference on Private International Law at: https://assets.hcch.net/upload/adoguide_e.pdf.
- 11.
See, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography (27 February–24 March 2017), A/HRC/34/55, at paras 28, 53 and 64.
- 12.
Ibid. at para 93.
- 13.
Special Rapporteur report, A/HRC/34/55, op cit at para 69.
- 14.
See, R (Thomson and Others v. Minister of State for Children) [2005] EWHC 1378 (Admin).
- 15.
See, for example, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman Ltd., 1989.
- 16.
See, for example, Robbins, J., The Lost Children: A Study of Charity Children in Ireland 1700–1900, Institute of Public Administration, Dublin, 1980.
- 17.
See, for example, Humphreys, M., Empty Cradles, Random House, 2009.
- 18.
See, for example, Parker, R., Uprooted: The Shipment of Poor Children to Canada, 1867–1919, The Policy Press, Bristol, 2008.
- 19.
See, for example, Milotte, Banished Babies: The Secret History of Ireland’s Baby Export Business, New Island Books, 1997.
- 20.
See, Bartholet, E., ‘International Adoption: Current Status and Future Prospects’ ADOPTION, Vol. 3, No. 1—Spring 1993, p. 90. Also, see, generally Doek, van Loon and Vlaardingerbroek (eds) Children on the Move, Martinus Nijhoff Publishers 1996.
- 21.
See, Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, op cit at p. 4.
- 22.
In Ireland, recourse to such options would not be possible within existing law.
- 23.
In other countries, such as France and Ireland, the complete judicial termination of parental rights in respect of children in care is a rarity and, coupled with the shift towards single parents keeping their babies, leads to an established reliance on intercountry adoption. The extent of this reliance has been noted by Menozzi, C. and Mirkin, B.: “In Finland and Italy, for example, respectively 80% and 90% of persons who applied for an intercountry adoption had no biological children of their own. In Australia, nearly 60 per cent of children who were adopted during the period 2003–2004 were adopted by parents with no biological children (Australia, Australian Institute of Health and Welfare, 2004).” Op cit at p. 4.
- 24.
See, The Adoption Board, Annual Report 2006, Dublin, at p. 43, Table 14. Note the contrast with Sweden where in 2005, for example, of the 1083 foreign children between the ages of 0–10 years adopted in Sweden, 773 were from Asia.
- 25.
Mignot, J-F, February 2015, op cit at p. 1.
- 26.
See, Hubinette, T., ‘Adopted Koreans and the Development of Identity in the ‘Third Space’’, in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, pp. 16–24 where the author refers to the resulting Korean adoption diaspora.
- 27.
See, Hubinette, T., ‘Adopted Koreans and the Development of Identity in the ‘Third Space’’, in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, p. 19.
- 28.
Ibid., at pp. 18–19.
- 29.
See, for example, Singh v. Entry Clearance Officer, New Delhi [2004] 3 FCR 72 for an illustration of this policy in action in respect of a child whose adoption in India by British relatives was not recognized in the U.K. which refused to issue an entry permit. The Court of Appeal ruled that in this instance the form of adoption constituted ‘family life’ for the purposes of Article 8 of the European Convention and must be recognized as such under U.K. law.
- 30.
Although it has to be said that Hayes was unable to substantiate any such inverse correlation when comparing rates of ICA with domestic adoptions more broadly (i.e. not specific to child care). See, further, Hayes, P., ‘Intercountry Adoption: A Comparative Analysis of its Effect on Domestic adoption Rates’, Full Research Report, ESRC End of Award Report, RES-000-22-1840. Swindon: ESRC, 2009.
- 31.
A theme continued in the U.N. Convention (Article 11) and in the Hague Convention (the Preamble).
- 32.
[1965] 1 Ch. 831.
- 33.
See Dicey, Morris and Collins, The Conflict of Laws, Sweet & Maxwell, London, 2006) at p. 1081. For an account of the difficulties that non-recognition of an adoption can cause see Rose, The Final Decision on Adoption Recognition in Europe, RD Publishers, 2002.
- 34.
In July 2002 Sweden withdrew from the Convention following changes in its national adoption laws allowing for adoption by homosexual couples in a registered partnership, as it determined that this aspect of its new national adoption laws conflicted with Article 6(1).
- 35.
See, Article 4.
- 36.
Subject to the requirement that “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.
- 37.
In 2005, the 4th World Congress on Family Law and Children’s Rights issued a Communiqué, which, while noting the tension between the Convention on the Rights of the Child and some aspects of international adoption, stated that international adoption has a place, even as a last resort, provided it is properly regulated for the protection of orphaned and refugee children. See 4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, 20–23 March 2005 at www.childjustice.org/html/2005.htm.
- 38.
See, for example, Dyer, A., The Internationalisation of Family Law, 30 UC Davis Law Review 625 (1997).
- 39.
The other two being the Convention on the Civil Aspects of International Child Abduction 1980 and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996.
- 40.
The Report of the Hague’s Special Commission on the Practical Operation of the Convention in 2005 recommended that member countries actively discourage direct contacts between prospective adoptive parents and authorities in the child’s country of origin until authorized to do so by those authorities.
- 41.
See, the Permanent Bureau, ‘The Implementation and Operation of the 1993 Hague International Adoption Convention: A Guide to Good Practice’, The Hague, 2008. Also, see publications by the Permanent Bureau in 2012: by the Working Group established to develop a common approach to preventing and addressing illicit practices in intercountry adoption cases’; and by the Expert Group on the Financial Aspects of Intercountry Adoption.
- 42.
‘A Guide to Good Practice’, The Hague, 2008, ibid., at p. 22.
- 43.
See, Estin, A., ‘Families Across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’ at p. 90. See, further, at: http://www.law.uiowa.edu/documents/Estin_BOOK.pdf.
- 44.
See, further, at: http://portal.euradopt.org/index.php?option=com_content&view=article&id=6&Itemid=15&lang=en.
Note the “Accreditation and Adoption Accredited Agencies: General Principles and Guide to Good Practice”, Hague Conference, is available at http://www.hcch.net/upload/wop/adop2010_pd02e.pdf.
- 45.
See, Bartholet, E., ‘International Adoption: Current Status and Future Prospects’, op cit, p. 101.
- 46.
See, further, Triseliotis, J., ‘Intercountry adoption: global trade or global gift?’, Adoption & Fostering, London, BAAF, vol, 24, no. 2, pp. 45–54, 2000.
- 47.
See, Hayes, P., ‘Intercountry Adoption: A Comparative Analysis of its Effects on Domestic Adoption Rates’, ESRC End of Award Report, RES–000-22-1840, Swindon, 2009, at p. 1.
- 48.
Ibid., citing: Dickens, J., ‘The Paradox of Intercountry Adoption: Analysing Romania’s Experience as a Sending Country’, International Journal of Social Welfare, 11, 2002, pp. 76–83; and Bainham, A., ‘International Adoption from Romania: Why the Moratorium Should not be Ended’, Child and Family Law Quarterly, Vol. 15, Issue 3, 2003, pp. 223–36.
- 49.
Op cit at p. 19; citing Hermann Jr and Kasper, 1992; Triseliotis, 2000; Masson, 2001; Shiu, 2001.
- 50.
Op cit at p. 20.
- 51.
A considerable body of research testifies to the ability of transracial adoptees to assume the cultural characteristics of the receiving country; see, for example, Feigelman, W. and Silverman, A. Chosen Children: New Patterns of Adoptive Relationships, New York, Praeger (1983), and Saetersdal, B. ‘What became of the Vietnamese “baby life children”?’, Melbourne, paper in conference proceedings on Permanence for Children (1989). However, this must be set against the evidence from adoptees transnational groups that adulthood often brings difficulties with cultural identity.
- 52.
See, Bartholet, E., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012, at p. 388.
- 53.
Op cit at p. 19.
- 54.
See, Silberman, L., ‘The Hague Children’s Conventions: The Internationalization of Child Law’ in Katz, S., Eekelaar, J. and Maclean, M. (eds.) Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000, at p. 607; citing D’Amato, A., Cross-Country Adoption: A Call to Action, 73 Notre Dame Law Review 1239 and Bartholet, E., International Adoption: Propriety, Prospect and Pragmatics, 13 J Am Acad Matrim L 181 (1996).
- 55.
See, Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 181.
- 56.
See, Estin, A., ‘Families Across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’ at p. 90. See, further, at: http://www.law.uiowa.edu/documents/Estin_BOOK.pdf.
- 57.
See, Chou, S. and Browne, K., ‘The relationship between institutional care and the international adoption of children in Europe’, Adoption & Fostering, Vol. 32, Issue 1, 2008, pp. 40–48, at p. 45.
- 58.
See, Haimes, E. and Timms, N., Adoption, Identity and Social Policy, London, Gower, 1985 at p. 80.
- 59.
- 60.
Those being: the Convention on the Civil Aspects of International Child Abduction 1980; the Hague Convention on Intercountry Adoption 1993; the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007; and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996.
- 61.
For further details on implementation requirements see Hague Conference on Private International Law, Guide to Good Practice: The Implementation and Operation of the Hague Intercountry Adoption Convention (2008) at: https://assets.hcch.net/docs/bb168262-1696-4e7f-acf3-fbbd85504af6.pdf.
- 62.
As of December 2009, this Convention had received some 81 ratifications and accessions. Vietnam ratified in February 2012.
- 63.
‘Habitual Residence and Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption’ (a revised version of Preliminary Document No 4 on ‘Globalisation and international mobility: habitual residence and the scope of the 1993 Convention’) at: https://assets.hcch.net/docs/12255707-4d23-4f90-a819-5e759d0d7245.pdf.
- 64.
A prohibition given effect in the 2002 Act by sections 83 and 92–97.
- 65.
The Report of the Hague’s Special Commission on the Practical Operation of the Convention in 2005 recommended that member countries actively discourage direct contacts between prospective adoptive parents and authorities in the child’s country of origin until authorized to do so by those authorities.
- 66.
The Preamble also refers to its links with the 1986 U.N. Declaration.
- 67.
See, Duncan, W. ‘Regulating Intercountry Adoption—an International Perspective’, in Bainham, A., Pearl, D.S. and Pickford, R. (eds) Frontiers of Family Law (2nd ed), John Wiley and Sons, 1995 at p. 51.
- 68.
Special Rapporteur report, A/HRC/34/55, op cit at paras 74–77.
- 69.
Ibid. at para 76.
- 70.
In England and Wales recognition is provided under s 66 of the 2002 Act and conversion under s 88 ensures that all Convention adoptions are treated as full adoptions. In order to deal with the diversity of national interpretations encountered in the context of intercountry adoption, s 88 of the 2002 Act also provides a procedure whereby those simple adoptions that are not amenable to conversion, perhaps because evidence of full and informed parental consent is not available, are sifted out and an alternative order is made.
- 71.
See, Godelli v. Italy, Application No. 33783/09 (2013).
- 72.
Note to author (23.04.2020).
- 73.
See, Bartholet, E., International Adoption: Current Status and Prospects, The Future of Children, Vol. 3, Issue 1, 1993 at p. 91. A view that lost validity in the U.S. with the introduction of the Intercountry Adoption Universal Accreditation Act 2012 on 14th July 2014.
- 74.
Ibid. at p. 92.
- 75.
See, Hollinger, J.H., Chapter 11 ‘Intercountry Adoption: Legal Requirements and Practical Considerations’, in …
- 76.
See, Recommendation CM/Rec (2010) 5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. See, Council of Europe Commissioner for Human Rights, ‘Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe’, Council of Europe Publishing, June 2011.
- 77.
Andorra, Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands. Norway, Portugal, Spain, Sweden and the United Kingdom.
- 78.
Namely, Estonia, Italy, Slovenia, San Marino and Switzerland.
- 79.
Explanatory Report, paragraph 19.
- 80.
In 1998 the rate of intercountry adoption, expressed per million of the population in the receiving country was: 116 in New Zealand; 52 in the Netherlands; 26 in Sweden; and 117 for Norway.
- 81.
See, Selman, P., ‘The Rise and Fall of Intercountry Adoption in the 21st Century’, International Social Work, Vol. 52, Issue 5 (2009), pp. 575–594.
- 82.
See, Cretney, S., Masson, J. and Bailey-Harris, R., Principles of Family Law, London, Thomson Sweet & Maxwell, 2003 at p. 832. The U.N. Population Division then estimated the flow at 40,000 annually.
- 83.
Citing, Selman, P., ‘The demographic history of intercountry adoption’ in Selman, P., (ed.) Intercountry Adoption (2000).
- 84.
Citing, Second Report to the UN Committee on the Rights of the Child by the UK (1999), para 7.23.8.
- 85.
See, Selman, P., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012.
- 86.
See, Selman, P., ‘Trends in International Adoption: Analysis of Data from 20 Receiving Countries, 1998–2004’, Journal of Population Research, Vol. 23, No 2, pp. 183–204.
- 87.
See, Selman, P., in Gibbons, J.L. and Rotabi, K.S. (eds), op cit. Figures from International Social Services (ISS) show a global decline of nearly fifty per cent, from 43,142 adoptions in 2004 to 21,991 adoptions in 2011.
- 88.
In Russia, political reaction to a number of US disrupted placements (particularly the summary return of Artyom Savelyev, a 7-year-old adopted child, by his American adopter who sent him back alone by plane to Russia) resulted in a reduced flow of children from 5862 in 2004 to 749 in 2012. In China, changes in policy (rejection of single applicants and of obese applicants) resulted in a fall from 7038 in 2004 to 2696 in 2012.
- 89.
See, generally, Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012.
- 90.
Research shows that this is the case in nine out of ten such adoptions; see, for example, Hoksbergen. R, Juffer, F. and Waardenburg, B., Adopted Children at Home and at School, Lisse, Sweets and Zeitlinger (1987).
- 91.
Joint United Nations Programme on HIV/AIDS, UNICEF and USAID, 2004; as cited in Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’ op cit.
- 92.
See, Hayes, P. and ‘Openness in Korean Adoptions: From Family Line to Family Life’, Adoption Quarterly, 2008, pp. 53–78 at 54 and 71.
- 93.
Selman, P., ‘Global Trends in International Adoption: 2001–2010’, Adoption Advocate, No 44, Feb 2012.
- 94.
In 1993 Britain and Romania signed a bilateral agreement which had the effect of practically ending the sending of Romanian children to the U.K.
- 95.
See, generally, Doek, van Loon and Vlaardingerbroek (eds) Children on the Move, Martinus Nijhoff Publishers, 1996. Also, see, Selman, ‘The Demographic History of Intercountry Adoption’ in Selman (ed) Intercountry Adoption: Developments, Trends and Perspectives, British Agencies for Adoption and Fostering, London, 2000 at p. 16. See also conference papers entitled ‘Intercountry Adoption in the New Millennium: the ‘Quiet Migration’ Revisited’ delivered at the European Population Conference, Helsinki, Finland, 7–9 June 2001 and ‘Movement of Children for Intercountry Adoption: A Demographic Perspective’ delivered at 24th IUSSP General Population Conference, Salvador, Bahia, Brazil, 18–24 August 2001.
- 96.
See, www.ssb.no/english.
- 97.
Statistics cited in Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 183.
- 98.
Subject to situations where the laws of a country such as Russia, prohibits the tracing of birth parents after a local adoption. See, Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.
- 99.
See, for example, ‘All God’s Children, International’.
- 100.
[2004] EHRR 275.
- 101.
Recommendation 1443 (2000) International Adoption: Respecting Children’s Rights, adopted by the Parliamentary Assembly of the Council of Europe on 26 January 2000. See www.coe.int.
- 102.
See, for example, Flintshire County Council v. K [2001] 2 FLR 476, the ‘internet twins’ case. Note that since April 2008, when the U.S. ratified the Hague Convention, all such agencies are now required to be registered.
- 103.
See, for example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111 which concerned a white British couple who had adopted a baby from a black American couple after paying approximately £17,500 to an American adoption agency. The home study reports, prepared by a British social worker, were criticised by the court as “deeply flawed and inadequate documents” and it also referred to “the evil and exploitive trade” of buying and selling babies.
- 104.
See, ‘Rights of the Child’ in U.N. Concern About the Commercial Sale of Children For Adoption, Commission on Human Rights (59th session), 6th Jan. 2003, at Item 13, p. 25 (at: http://www.originscanada.org/adoption-human-rights/united-nations/united-nations-commercial-sale-adoption/). That ICA practices should be considered such as to fall within the brief of the Special Rapporteur, on the sale of children, child prostitution and child pornography in accordance with Commission on Human Rights resolution 2002/92 is revealing.
- 105.
See, Ojedokun, U.A. and Atoi, E.N., ‘Baby Factory Syndicates: An Emerging Child Adoption Racket in Nigeria’, African Journal for the Psychological Study of Social Issues, Vol. 19 (2016), pp. 47–59.
- 106.
See, Roos, H., ‘The Service and Capacity Review for Victims of Sexual Exploitation and Human Trafficking in Nunavut’, Ottawa, 2014. See, further, at: http://news.nationalpost.com/2014/01/30/start-waking-up-report-warns-of-inuit-child-selling-cites-anecdotal-evidence-of-abuse-trafficking/.
- 107.
See, Bartholet, E., International Adoption: Current Status and Prospects, The Future of Children, Vol. 3, Issue 1, 1993 at p. 100.
- 108.
[2006] IEHC 64, [2007] 1 ILRM 81.
- 109.
In its 2005 Draft Guide to Good Practice under the Hague Convention, the Hague Conference on Private International Law points out that States should avoid a position where a child would be left stateless, in the context of traditional intercountry adoption where sending and receiving countries are involved. It draws attention to Article 7(1) of the 1989 United Nations Convention on the Rights of the Child which directs that the child shall have the right to acquire a nationality. See, further at www.hcch.net/index_en.php. Also, see, Duncan, W., ‘Nationality and the Protection of Children Across Frontiers: The Case of Intercountry Adoption’ paper delivered at the 3rd European Conference on Nationality-Nationality and the Child, Strasbourg, 11–12 October 2004.
- 110.
Several countries now require foreign prospective parents, or the social services of the adopting country, to make regular reports on the child’s progress to its country of origin. This “follow-up period” is 10 years in the case of Sri Lanka, four for Peru, three for Paraguay and two for Romania.
- 111.
- 112.
Globally ICAs fell by 35% between 2004 and 2009. Spain and France are among the countries that have seen a significant drop in the adoption of foreign babies: falling by 48% and 14%, respectively, from 2004 to 2010.
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O’Halloran, K. (2021). Intercountry Adoption and the Hague Convention. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 86. Springer, Cham. https://doi.org/10.1007/978-3-030-65588-4_5
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