Hague Conference on Private International Law

Convention on Protection of Children and Co-operation in

respect of Inter-country Adoption

Purpose of presentation

Is to obtain Parliament’s approval

for South Africa to accede to this

Convention to be ratified and

considered in terms of section 231(2) of the Constitution

South Africa ratified the UN Convention on the Rights of the Child (CRC) on 16 June 1995.

The UNCRC contains a comprehensive set international norms for the protection and well being of children

BACKGROUND

Cabinet, on 15 May 2002 supported the ratification of the above mentioned Instrument as itwould guarantee the protection of the fundamental rights of children from being sold or trafficked between parties or countries

BACKGROUND

The Hague Convention in Respect of Inter-country Adoption applies to all children under the age of 18 years and is in line with Section 28(2) of the Constitution

BACKGROUND

BACKGROUND

Child Care Act 72 of 1983, Section 18(4)(f) presently implies that only South African citizens or where one of the applicants is a South African, may adopt a child

This Section in the Child Care legislation however was found to be unconstitutional by the Constitutional Court during May 2000 and scrapped it. The decision of the Constitutional Court had immediate effect in that inter-country adoptions had to be considered despite the fact that South Africa had no legislation to deal with such adoptions.

Convention on Inter-country Adoptions Inter-country adoptions 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

Only adoptions, which creates a permanent parent-child relationship are covered

It also promotes the protection of children against being abducted, sold or trafficked

Objects of the Convention(Article 1) To establish safeguards to ensure that inter-country

adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;

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;

To secure the recognition in Contracting States of adoptions made in accordance with the Convention

Article 2

The Convention applies 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.

Responsibilities of the State of origin(Article 4)

Has to establish that the child is adoptable; Should determine, after having considered

possibilities for placement of the child within the State of origin, that an inter-country adoption is in the child’s best interests

Ensure that the consenting parties receive counselling

Ensures that consent was given freely; consents have not been induced by

payment or compensation of any kind and have not been withdrawn, and

Responsibilities of the State of origin(Article 4)

Ensures that the child, depending on his or her age and or maturity, 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;

Consideration has been given to the child’s wishes and opinions

Involvement of the child(Article 4)

Should determine that the prospective adoptive parents are eligible and suited to adopt

Ensures that the prospective adoptive parents have been counselled as may be necessary; and

have determined that the child is or will be authorised to enter and reside permanently in that State.

Responsibilities of the receiving State (Article 5)

Central authorities and accredited bodies(Article 6)

A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities

Co-operation between Central Authorities (Article 6(2)

They shall take directly all appropriate measures to -– provide information as to the laws of their

States concerning adoption and other general information, such as statistics and standard forms;

– keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application

Articles 7, 8, 9, 10…..

Roles and Responsibilities of the

Central Authorities Accreditation of bodies Monitoring Ensures proper financial management Facilitate, follow and expedite proceedings

with a view to obtaining the adoption Preparation of reports

Discussion

The text of this Hague Convention is not in conflict with the domestic laws and policies of South Africa

The Registrar of Adoptions has registered +- 107 inter-country adoptions since May 2000

Once the Convention is ratified the Central authority will have the power to regulate adoptions to and from SA

Monitoring and Evaluation

The ORC in the Presidency, which is responsible for the co-ordinating and monitoring the UN Convention on the Rights of the Child, could be charged with the monitoring the implementation of this Convention

Recommendation

That the Parliamentary Committees support the ratification of the Hague Convention on protection of children and co-operation in respect of Inter-Country Adoption