Regaining lost ground:
tackling the practices that put children's
rights at risk in intercountry adoption
Nigel Cantwell
Conference on ‘Redefining Adoption in a New Era’
University College Cork, Ireland – 5 September 2014
The ‘lost ground’…
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Concern about problems in ICA usually focuses on tackling more
effectively activities that violate human rights and are already
prohibited – trafficking, fraud, etc.
However, there are many practices that are tolerated or have
even been consecrated in ICA systems, legislation and
agreements that similarly jeopardise respect for the rights of the
child.
In addition, while the ‘best interests of the child’ are to be
nothing less than ‘the paramount consideration’ in adoption
decisions, there is still a disturbing lack of consensus on how
they are to be determined.
This is the ‘lost ground’ that must be regained in ‘a new era’.
Money matters
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Cf. Hague PB Note on the Financial Aspects of ICA (2014)
Development Aid
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Contributions/donations
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What is the child rights-based logic of requiring, and agreeing to
provide, development aid in exchange for the ‘right’ to adopt
children abroad?
Implications of PAPs being required to fund this aid (e.g. prohibited
in Sweden, but mandatory in Ireland for VN)
Inter alia largely contribute to perpetuating residential care in the
country of origin: the paradox of ‘orphanages’ funded from abroad
Administrative fees
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Arbitrary requirements set by countries of origin (and accepted by
receiving countries)
Pressure
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Pressure on potential countries of origin to open up
ICA programmes
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Pressure not to suspend or close ICA programmes
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The very sticky ‘country of origin’ label
The role of Central Authorities
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Non-Hague countries
From flood to drought (DRC…)
Oversight and cooperation, not promotion
Post-disaster situations: the litmus test of respect for
standards
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Haiti: ‘expedited’ adoptions or unwarranted evacuations?
The ‘agency system’
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Involvement of private agencies is a legacy from the very start
of ICA when it was unregulated (idem ‘independent adoptions’)
By the time regulation began, their role had become almost
unquestioned, and was solidly formalised in HC 1993
How well-equipped and qualified are agencies to mediate, in
particular, the ICAs of ‘the new era’?
What are the possible implications for children’s rights when
agencies are wholly or mainly financed by PAPs?
However ‘ethical’ they are – and paradoxically sometimes
precisely because of their ethical approach – many agencies are
fighting for survival in ‘the new era’: a potentially very
dangerous situation for children’s rights…
Examining ‘adoptability’ [1]
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Material poverty?
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Irish Law Reform Commission doc (2008):
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ICA is more accessible than domestic adoption ‘because a child
is generally available for adoption in an intercountry context,
such is the extent of deprivation in many countries…’
Guidelines for the Alternative Care of Children (2009), § 15:
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‘Financial and material poverty, or conditions directly and
uniquely imputable to such poverty, should never be the only
justification for […] receiving a child into alternative care […]
but should be seen as a signal for the need to provide
appropriate support to the family.’
Surely all the more relevant for definitive decisions on ICA…
Examining ‘adoptability’ [2]
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‘Relinquishment’ or ‘abandonment’?
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The influence of national law
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Guatemala: the vast majority of children in ICA
were ‘relinquished’ because law made
abandonment difficult to prove + court
procedure required (-> moratorium)
Nepal: most children in ICA were ‘abandoned’
because law made it difficult to disprove… (->
US: 73 ICAs in 2004, just 3 in 2012)
The ‘best interests’ trap [1]
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“We will work to achieve excellence in
adoption and adoption related services,
with the best interests of children as
our primary consideration.”
“[W]e will remember the lessons of
family separation. Our focus will be on
protecting the fundamental rights of
children…”
The ‘best interests’ trap [2]
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International human rights treaties mention
consideration of “interests” or “best interests” solely
in relation to children
No mention of best interests (of anybody!) in
international humanitarian or refugee law
Only as regards children in private international law:
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HC 1965 Art 6: the authorities ‘shall not grant an adoption
unless it is in the interest of the child’;
HC 1993 Art 4: an intercountry adoption shall only take
place if the competent authorities of the State of origin have
determined that it is in the best interests of the child
The ‘best interests’ trap [3]
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1959 Declaration (+ first Polish CRC proposal 1978)
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Principle 2: The child shall enjoy special protection, and shall
be given opportunities and facilities […] to enable him to
develop physically, mentally, morally, spiritually and socially
in a healthy and normal manner […]. In the enactment of
laws for this purpose, the best interests of the child shall be
the paramount consideration.
1989 CRC (with no prior debate on ramifications)
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Art 3: In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
The ‘best interests’ trap [4]
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‘Best interests’ concept deliberately left vague/flexible…
… yet elevated to ‘the paramount consideration’ for adoption…
… and is designated a General Principle of the CRC underlying
interpretation of the whole treaty, while being seen as
superfluous or even counter-productive for achieving the human
rights of others.
Symptomatically, CRC Committee General Comment #14 took
23 years to appear, yet resolves little for ICA decisions…
‘Best interests’ can be useful as foreseen grounds for derogation
from a specific right, or in a choice between two or more rightscompliant solutions, but agreed assessment and determination
responsibilities, procedures and criteria are then needed
The ‘best interests’ trap [5]
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We ‘invite’ countries to carry out ICAs, then complain about
their inadequate resources or commitment for best interests
determination – or in some cases we contest the outcomes of
that process, particularly at policy level
Receiving countries’ actions often betray very divergent
interpretations of ‘best interests’ as ‘the paramount
consideration’ – e.g. selective moratoria and closures in
Cambodia, Ethiopia, Guatemala, Haiti, Viet Nam…
This also sends confusing and erroneous messages to countries
of origin as to what ICA is about
Without consensus, on what basis can respect or non-respect
for ‘best interests’ be argued?
By way of conclusion…
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Many challenges for law and practice in the new era:
difficult for one country to act alone, but…
Opportunities to improve policy:
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Refuse country of origin demands for development aid or
contributions from any source involved in ICA
Encourage applications for bilateral aid + positive responses
Refuse to countenance ICAs from non-Hague States
Examine reasons for declarations of ‘adoptability’
Opportunities to improve practice:
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Ensure accredited agencies are viable without PAP fees
Refrain from exerting pressure in all forms
Initiate moves to consensus on best interests determination