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 recognized in international law and 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.
PRACTICE DIRECTIVE 01 of 2009 from the Office of the Deputy Judge President PM Mojapelo
Applications in terms of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996
Schedule 1
HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION (29 May 93)(a)(b)(c)(d)(e)( f )
The States signatory to the present Convention,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,
Recognizing that inter-country adoption 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,
Convinced of the necessity to take measures to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,
Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986),
Have agreed upon the following provisions—
CHAPTER I
SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are—
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 recognized 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
(1) The Convention shall apply 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.
(2) The Convention covers only adoptions which create a permanent parent-child relationship.
Article 3
The Convention ceases to apply if the agreements mentioned in Article 17, sub-paragraph c, have not been given before the child attains the age of eighteen years.
CHAPTER II
REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS
Article 4
An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin—
(a)
have established that the child is adoptable;
(b)
have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an inter-country adoption is in the child’s best interests; and
(c)
have ensured that—
(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin;
(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing;
(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn; and
(4) the consent of the mother, where required, has been given only after the birth of the child; and
have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she 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;
(2) consideration has been given to the child’s wishes and opinions;
(3) the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing; and
(4) such consent has not been induced by payment or compensation of any kind.
Article 5
An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State—
(a)
have determined that the prospective adoptive parents are eligible and suited to adopt;
(b)
have ensured that the prospective adoptive parents have been counselled as maybe necessary; and
(c)
have determined that the child is or will be authorized to enter and reside permanently in that State.
CHAPTER III
CENTRAL AUTHORITIES AND ACCREDITED BODIES
Article 6
(1) A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
(2) Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
(1) Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.
(2) They shall take directly all appropriate measures to—
(a)
provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;
(b)
keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.
Article 8
Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.
Article 9
Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to—
(a)
collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;
(b)
facilitate, follow and expedite proceedings with a view to obtaining the adoption;
(c)
promote the development of adoption counselling and post-adoption services in their States;
(d)
provide each other with general evaluation reports about experience with inter-country adoption;
reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.
Article 10
Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.
Article 11
An accredited body shall—
(a)
pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation;
(b)
be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of inter-country adoption; and
(c)
be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.
Article 12
A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorized it to do so.
Article 13
The designation of the Central Authorities and, where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.
CHAPTER IV
PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION
Article 14
Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.
Article 15
(1) If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment reasons for adoption, ability to undertake an inter-country adoption, as well as the characteristics of the children for whom they would be qualified to care.
(2) It shall transmit the report to the Central Authority of the State of origin.
Article 16
(1) If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall—
(a)
prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child;
(b)
give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background;
(c)
ensure that consents have been obtained in accordance with Article 4; and
(d)
determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.
(2) It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.
Article 17
Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if —
(a)
the Central Authority of that State has ensured that the prospective adoptive parents agree;
(b)
the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;
(c)
the Central Authorities of both States have agreed that the adoption may proceed; and
(d)
it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.
Article 18
The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.
Article 19
(1) The transfer of the child to the receiving State may only be carried out if the requirements ofArticle 17 have been satisfied.
(2) The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.
(3) If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.
Article 20
The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.
Article 21
(1) Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular—
(a)
to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;
(b)
in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care; an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents;
(c)
as a last resort, to arrange the return of the child, if his or her interests so require.
(2) Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.
Article 22
(1) The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.
(2) Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or persons who—
(a)
meet the requirements of integrity, professional competence, experience and accountability of that State; and
(b)
are qualified by their ethical standards and by training or experience to work in the field of inter-country adoption.
(3) A Contracting State which makes the declaration provided for in paragraph 2 shall keep the Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.
(4) Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph 1.
(5) Notwithstanding any declaration made under paragraph 2, the reports provided for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph 1.
CHAPTER V
RECOGNITION AND EFFECTS OF THE ADOPTION
Article 23
(1) An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph c, were given.
(2) Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.
Article 24
The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.
Article 25
Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognize adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.
Article 26
(1) The recognition of an adoption includes recognition of
(a)
the legal parent-child relationship between the child and his or her adoptive parents;
(b)
parental responsibility of the adoptive parents for the child;
(c)
the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.
(2) In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognized, rights equivalent to those resulting from adoptions having this effect in each such State.
(3) The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognizes the adoption.
Article 27
(1) Where an adoption granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving State which recognizes the adoption under the Convention, be converted into an adoption having such an effect—
(a)
if the law of the receiving State so permits; and
(b)
if the consents referred to in Article 4, sub-paragraphs c and d , have been or are given for the purpose of such an adoption.
(2) Article 23 applies to the decision converting the adoption.
CHAPTER VI
GENERAL PROVISIONS
Article 28
The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child’s placement in, or transfer to, the receiving State prior to adoption.
Article 29
There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, sub-paragraphs a to c, andArticle 5, sub-paragraph a, have been met, unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.
Article 30
(1) The competent authorities of a Contracting State shall ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.
(2) They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.
Article 31
Without prejudice to Article 30, personal data gathered or transmitted under the Convention, especially data referred to in Articles 15 and 16, shall be used only for the purposes for which they were gathered or transmitted.
Article 32
(1) No one shall derive improper financial or other gain from an activity related to an inter-country adoption.
(2) Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.
(3) The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.
Article 33
A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken.
Article 34
If the competent authority of the State of destination of a document so requests, a translation certified as being in conformity with the original must be furnished. Unless otherwise provided, the costs of such translation are to be borne by the prospective adoptive parents.
Article 35
The competent authorities of the Contracting States shall act expeditiously in the process of adoption.
Article 36
In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units—
(a)
any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
(b)
any reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit;
(c)
any reference to the competent authorities or to the public authorities of that State shall be construed as referring to those authorized to act in the relevant territorial unit;
(d)
any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.
Article 37
In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
Article 38
A State within which different territorial units have their own rules of law in respect of adoption shall not be bound to apply the Convention where a State with a unified system of law would not be bound to do so.
Article 39
(1) The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.
(2) Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.
Article 40
No reservation to the Convention shall be permitted.
Article 41
The Convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin.
Article 42
The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.
CHAPTER VII
FINAL CLAUSES
Article 43
(1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.
(2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.
Article 44
(1) Any other State may accede to the Convention after it has entered into force in accordance withArticle 46, paragraph 1.
(2) The instrument of accession shall be deposited with the depositary.
(3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.
Article 45
(1) If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.
(2) Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.
Article 46
(1) The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.
(2) Thereafter the Convention shall enter into force—
(a)
for each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;
(b)
for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.
Article 47
(1) A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.
Article 48
The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth
Session and the States which have acceded in accordance with Article 44, of the following—
(a)
the signatures, ratifications, acceptances and approvals referred to in Article 43;
(b)
the accessions and objections raised to accessions referred to in Article 44;
(c)
the date on which the Convention enters into force in accordance with Article 46;
(d)
the declarations and designations referred to in Articles 22, 23, 25 and 45;
(e)
the agreements referred to in Article 39;
the denunciations referred to in Article 47.
In witness whereof the undersigned, being duly authorized thereto, have signed this Convention.
Done at The Hague, on the day of 19 , in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Seventeenth Session and to each of the other States which participated in that Session.
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