Queensland University of Technology Law and Justice Journal
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Queensland University of Technology Law and Justice Journal |
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CELICA BOJORGE[*]
With the rise in demand for children and people’s willingness to
pay large sums of money to obtain a baby, lucrative businesses
had developed in
the trafficking of children in a number of countries aided by lax national
controls over intercountry adoption and
a lack of international
regulation.[1] International
cooperation was therefore needed to protect children’s rights and to
prevent the sale and trafficking of
children.[2] In response to
international concern, on 29 May 1993, during the 17th Session of the
Hague Conference on Private International Law, 63 States signed The
Convention on Protection of Children and Cooperation in Respect of Intercountry
Adoption (“the Hague
Convention”).[3]
Australia
ratified the Hague Convention on 25 August 1998 and it entered into force on 1
December 1998.[4] The Commonwealth
Government implemented the Hague Convention via:
Since World War II, intercountry adoption has become increasingly popular
and widespread.[9] Primarily
arising as a humanitarian response to wars (World War II, the Korean and Vietnam
Wars), intercountry adoption is now growing
in response to, inter alia, affluent
countries’ decline in babies and children available nationally for
adoption, low fertility,
greater availability of contraception, increased
availability of welfare and social acceptability of single mothers and the rise
in population and poverty in developing
countries.[10] According to figures
by S L Kane, from 1980 to 1989 some 170,000-180,000 children were involved in
intercountry adoption, with 90%
of the children coming from 10
countries.[11] The major
“sending” countries were Korea (61,235), India (15,325) and Colombia
(14,837).[12] The United States is
the major “receiving” country with 19,237 immigration visas issued
to orphans in 2000-2001 and
the majority of children coming from China (4,681),
Russia (4,279), South Korea (1,870) and Guatemala
(1,609).[13]
In Australia,
intercountry placement adoptions have increased overall by 50% since
1981-1982.[14] In the 1990s
intercountry adoptions remained stable with 301 adoptions nationally (a 23%
increase from the previous year), with
60 in Queensland in
1999-2000.[15] Sixty-six of the
adoptions were carried out in conformity with the Hague
Convention.[16] In 2000-2001 there
were 289 national placement adoptions (40 in Queensland) and 240 intercountry
adoptions which were not finalised
by 30 June
2001.[17] There were 51 Hague
adoptions of children from Romania (20), the Philippines (18), Colombia (9) and
Sri Lanka (4).[18] As of 31
December 2001 there were 496 applicants listed on the Foreign Children’s
Adoption List in Queensland.[19]
Since the early 1990s the majority of children adopted are from India, South
Korea and
Thailand.[20]
Adoption costs
can vary greatly depending on the country of origin. In Australia, fees for
overseas adoption agencies and travel
costs can range from $7,000 to $30,000,
which are additional to the expression of interest and assessment
fees.[21] Currently, the expression
of interest fee is $53 and the assessment fee is
$2,000.[22] Administrative costs
for adopting a child from Guatemala are approximately $17,700-$19,300, Romania
$7,250-$15,300, Korea $10,500,
Taiwan $14,000-24,000 and Thailand requires a
voluntary contribution of $500.[23]
China has administrative costs of $6,000 plus costs for certification of
documents, travelling to the country, visa application
and migration health
check.[24] Applicants wanting to
adopt children from Colombia must be able to travel to Colombia on short notice
and reside there for at least
two months while the adoption order is being
finalised.[25] Similarly, in the
United States agency fees for intercountry adoption may range from $US10,000 to
$US30,000.[26]
The Hague Convention aims to establish safeguards to ensure intercountry
adoptions take place in the child’s best interests
and with respect for
his or her fundamental rights as recognised in international
law.[27] A similar provision is
found in s 10 of the Queensland Act, which states that the welfare and interests
of the child concerned must
be regarded as the paramount consideration. The
Hague Convention also endeavours to establish a system for cooperation amongst
Contracting
States to ensure that those safeguards are respected and thereby
prevent the abduction, the sale, or the trafficking of
children.[28] This prevention
though is only indirect, as the Hague Convention does not regulate criminal
aspects of abuses against
children.[29] It also seeks to
ensure the recognition by Contracting States of adoptions made in accordance
with the Hague Convention.[30]
However, the Hague Convention only applies to Contracting
States[31] and to adoptions that
create a permanent parent-child
relationship.[32]
Under
Article 2(1) of the Hague Convention, a child need not be a national of the
Contracting State to be adoptable, only ‘habitually
resident’ in
that Contracting State. However, if a child is a national of a Contracting
State but not habitually resident
in a Contracting State, the Hague Convention
will not apply to that child.[33]
The Hague Convention, therefore, only applies to refugee and internationally
displaced children where the child and the prospective
adoptive parents
habitually reside in different Contracting
States.[34] The Special Commission
on the Implementation of the Hague Conference that convened in 1994 adopted the
proposal of the Working Group
to Study the Application to Refugee Children of
the Hague Convention (with some amendments), and recommended that the Hague
Convention
should also apply to the more common cases involving children and
adoptive parents who were habitually resident in the same Contracting
State.[35] Australia, however, has
declared that while it accepts the obligations imposed by the Hague Convention
in its application to refugee
and internationally displaced children, Australia
is not bound by the recommendations of the Special Commission of
1994.[36]
Contracting States must designate a national Central Authority to carry
out the duties imposed by the Hague
Convention.[37] In Australia, the
Commonwealth Attorney-General’s Department is the Federal Central
Authority and the Department of Families,
Youth and Community Care (DFYCCQ) is
the Queensland Central
Authority.[38] The Central
Authority may also allow public authorities or accredited bodies to perform its
functions.[39] However, an
accredited body under Article 10 must satisfy the minimum requirements set by
Article 11, namely, to:
(a) pursue non-profit objectives (within limits established by competent authorities); and
(b) be directed and staffed by persons qualified by their ethical standards and training or experience in the field of intercountry adoption; and
(c) be subject to supervision by the competent authorities regarding its composition, operation and financial situation.
Conversely,
under Article 22 of the Hague Convention, non-accredited bodies or persons are
not limited to pursue non-profit
objectives.[40] Article 22 allows
private adoptions, subject to the reports under Articles 15 and 16 being
prepared under the responsibility of
the Central
Authority.[41] They are
still to meet the requirements of integrity, professional competence, experience
and accountability of that State and to
be qualified by ethical standards and
training or experience to work in the field of intercountry
adoption.[42] Moreover, Contracting
States can declare to the depositary of the Hague
Convention[43] that only Central
Authorities, public authorities, or accredited bodies are to arrange
adoptions.[44]
The
Commonwealth-State agreement provides that in order for a body to be eligible
for accreditation, the body:
In
Queensland only the DFYCCQ can arrange
adoptions.[46]
Under Article 4 of the Hague Convention, an adoption can only take place
if competent authorities of the State of origin:
‘Adoptable’ is undefined, however Parra-Aranguren in his
commentary to the Hague Convention states that ‘adoptable’
is in
accordance with legal, psychological, social and cultural
factors.[47] It is suggested that
countries must take particular care to ensure children are declared abandoned or
orphaned before considering
the child for adoption. In particular, children
should not be ‘adoptable’ immediately following a socio-political
upheaval
or natural disaster, where children may only be temporarily separated
from their parents.[48] It would
have been preferable for the Hague Convention to have defined
‘adoptable’ clearly and perhaps outlined circumstances
in which
countries are prohibited from allowing children to be adopted, unless it is in
the child’s best interests.
This subsidiary principle arose from Article 21 of the United Nations
Convention on the Rights of the Child (“the CRC”), which
requires national options to be exhausted before placing a child abroad.
However, during the drafting
of the Hague Convention, delegates concurred that,
in certain circumstances, intercountry adoption may be in the child’s best
interests, even if a family was available in the country of origin, for
instance, if the adoption is by relatives abroad or if the
child is handicapped
and he or she cannot be adequately cared for in the country of
origin.[49] The guiding principle
is always the best interests of the child. Countries in upheaval or emergency
situations should be providing
temporary measures to care for children and
taking steps to reunite them with their family or
relatives.[50] Where children are
adoptable, national adoptions should be encouraged and preference should be
given to nationals (if the required
criteria are satisfied) to minimise the
necessity of intercountry adoptions. However, as the third paragraph of the
preamble suggests,
a ‘family’ in a receiving State is to be
preferred over institutional care in the country of origin. This represents
a
change from Article 21 of the CRC, in which non-permanent foster placement and
institutional care in the country of origin are
preferred over intercountry
adoption.[51]
(1) 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; and
(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing; and
(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
Counselling to those giving consent at this point is only general, as the
prospective parents are not yet
known.[52] Under Article 9(c) of
the Hague Convention, Central Authorities, public or accredited bodies are to
promote the development of adoption
counselling and post-adoption services. It
is suggested that the Hague Convention should have required that counsellors
trained
in the field of intercountry adoption provide such counselling. There
should also be a minimum amount of counselling required of
the relevant persons,
in terms of sessions/time, to enable the relevant persons to be properly
counselled and informed. For instance,
a 15 minute counselling session would
not be adequate to counsel and inform the relevant persons and bodies of the
effects of the
adoption.
The requirement to provide parents, institutions
and authorities with information on whether their legal relationship with the
child
will be terminated is a positive step as, in some cases, parents in the
past have been misled into relinquishing their child in the
belief that the
legal relationship was not
severed.[53] Additionally, parties
should be informed about consent and the revocation of
consent[54] and, where available,
whether they may exercise rights of contact with the child and adoptive parents
through correspondence or other
means after the adoption. In cases of adoptions
by relatives, the relevant persons and bodies should also be informed that the
legal
relationship will only be severed as between the biological parents and
the child and not with other
relatives.[55]
The
requirement that consent be ‘freely’ given, that is, not obtained
under duress, fraud, mistake or undue
influence[56] is vitally important
in the fight against trafficking and sale of children. Under Article 4(c)(2) of
the Hague Convention, Central
Authorities must assume responsibility and make
enquiries of the country of origin to determine whether consent was informed and
freely given. Under the Queensland Act defective consent includes fraud,
duress, or other improper means.[57]
Equally important, is the requirement that consent not be induced by payment or
compensation of any kind.[58] This
requirement should be read in conjunction with Articles 8 and 32 of the Hague
Convention.[59] Article 8 requires
Central Authorities and public authorities to take ‘all appropriate
measures’ to prevent ‘improper’
financial or ‘other
gain’ in connection with the adoption. What constitutes
‘appropriate measures’ is left
to the laws of the Contracting
States. Therefore, the success of this provision will largely depend on
countries’ willingness
to implement measures to enforce that requirement.
Under subsection 43(1) of the Queensland Act, a person is not to (whether before
or after the birth of the child concerned) make, give or receive, or agree to
make, give or receive, a payment or reward, for or
in consideration of:
(a) the adoption or proposed adoption of a child; or
(b) the giving of consent or the signing of an instrument of consent, to the adoption of a child; or
(c) the transfer of possession or custody of a child with a view to the adoption of a child; or
(d) the making of arrangements with a view to the adoption of a child.
A person who commits an offence against the Queensland
Act can be liable to a penalty not exceeding 40 penalty units or imprisonment
not exceeding six
months.[60]
Under Article 8
of the Hague Convention, however, only ‘improper’ financial gain is
prohibited, allowing ‘proper’
financial gain to be
made.[61] Neither ‘improper
financial gain’ nor ‘other gain’ is defined in the Hague
Convention, which leaves room
for diverse interpretations of what constitutes
proper and improper gain. As the New South Wales Law Reform Commission
(“the
NSW LRC”) pointed out, trafficking and selling children can be
easily held to be at the extreme end of the ‘improper’
scale, the
difficulties arise in determining when something borders on the
‘improper’.[62] For
instance, when considering a donation made by prospective adoptive parents to
the child’s orphanage, which can be compulsory
in some countries, when can
it be said that the donation is so vital and onerous as to constitute improper
financial gain?[63] The NSW LRC
suggested separating the donation from the adoption process to avoid conflicts
of interest between the adoptive parents
and the overseas agency or
orphanage.[64] The Special
Commission on the Practical Operation of the Hague Convention, which convened in
2000, recommended that donations by
prospective adopters to bodies involved in
the adoption process must not be sought, offered or
made.[65] Similarly, any support
offered to improve national protection services in the country of origin should
not compromise the integrity
of the adoption process or create a dependency on
income derived from intercountry
adoptions.[66] These are issues
which the Hague Convention could have addressed or at least made some attempt to
define and/or clarify and/or provide
some guidelines to which countries should
adhere.
Improper financial gain was debated during the drafting of
Article 21 of the CRC. In that instance, the Venezuelan delegate believed
that
all financial gain should be prohibited and stated that it was impossible to
combat the existing market in child trafficking
whilst simultaneously
institutionalising that market by permitting persons dealing with intercountry
adoptions to make a financial
gain.[67] Thus, the Hague
Convention missed an opportunity to make the rights of the child the paramount
consideration by prohibiting all
forms of financial gain, or at least, by
setting parameters or defining financial or non-financial gain or circumstances
that would
fall into either category.
Under Article 32 of the Hague
Convention, no one is to derive any improper financial or other gain from an
activity related to an
intercountry adoption. Only reasonable costs and
expenses are to be charged and directors, administrators and employees or bodies
involved in an adoption are not to receive any remuneration ‘unreasonably
high’ in relation to services
rendered.[68] The comments made
above regarding improper financial gain are equally applicable here. The issue
of ‘reasonable costs’
poses problems when costs vary greatly from
one country to another: for instance, in Brazil legal costs are $5,000 plus
$1,000 translation
cost.[69]
Consequently, what might be regarded as ‘reasonable’ in one country
can be unreasonably high and improper financial
gain in another country.
Australia’s Central Authorities must therefore scrutinise overseas costs
to assist in preventing
improper financial
gain.[70]
An inherent
weakness, however, in prohibiting financial gain is the fact that the Hague
Convention does not outline consequences for
breach.[71] As pointed out earlier,
the Hague Convention only aims indirectly to prevent the sale and trafficking of
children by establishing
safeguards for countries to abide by when conducting
adoptions. It does not directly prevent abuses of children’s rights nor
does it penalise contraventions. Furthermore, delegates believed that automatic
refusal to recognise the adoption, where an infringement
occurred, would
constitute too drastic a
measure.[72]
Requiring the
mother’s consent only after the birth of the child is an important
provision in assisting to curb practices of
pressuring mothers while at
hospitals or clinics, into giving up their child before it is born, particularly
unwed teenage mothers
in Latin American
countries[73] and
generally.[74] Under paragraph
24(1)(f) of the Queensland Act the chief
executive[75] must not make an
adoption order if it appears that the instrument of consent was signed by the
mother before the birth of the child.
Furthermore, s 24(2) of the Queensland
Act provides that:
the chief executive shall not make an adoption order in reliance on an instrument of consent signed by the mother of the child within 5 days after the birth of the child unless the chief executive is satisfied, on the certificate of a medical practitioner or on other adequate evidence, that, at the time the instrument was signed, the mother was in a fit condition to give the consent.
Article 4(c)(4) of the Hague Convention, however,
could have been made more effective by setting a minimum period, for instance 30
days, to allow mothers time to think about the adoption or other possibilities
and countries could legislate for longer periods if
necessary.[76] Similarly, the Hague
Convention should have required a minimum revocation period, for instance, of 30
days.[77] This way, once mothers
are counselled, they will have time to consider their decision or revoke their
consent.[78]
(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 the consent is required; and
(2) consideration has been given to the child’s wishes and opinions; and
(3) the child’s consent to the adoption, where such consent was 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[79]
During the drafting of the Hague Convention, the age at which a
child’s consent would be required was discussed, with some delegates
suggesting a minimum age, however,
the broader approach was favoured and the
discretion rests on the competent authorities to determine when a child’s
wishes
and consent should be
considered.[80] States, therefore,
could take advantage of this provision and may always consider the wishes of the
child, at any age, having regard
to his or her level of maturity. Under section
26 of the Queensland Act, an adoption order for a 12-year-old is not to be made
without
the child’s consent, unless there are special reasons related to
the welfare and interests of the child. The NSW LRC suggested
that a
12-year-old’s consent should be the only consent
required.[81] Importantly,
irrespective of other consents that may be required, a child’s wishes and
opinions are to be considered and taken into account, not merely allowing
the child to express his or her
views.[82] This mirrors Article
12(1) of the CRC, which states that:
State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, those views of the child being given due weight in accordance with the age and maturity of the child.[83]
Under Article 13(1) of the CRC, a child also has a right to
freedom of expression.[84] The
comments made above regarding counselling and inducing consent through payment
or compensation, are equally applicable here.
Once the Central Authority
is satisfied that a child is adoptable, it prepares a report that includes
information regarding the child’s
identity, adoptability, background,
social environment, family history, medical history (including the
family’s medical history)
and any special needs of the
child.[85] The Central Authority is
to give due consideration to the child’s upbringing and to his or her
ethnic and cultural background,
to ensure that consents have been obtained in
accordance with Article 4 and to determine, on the basis of the reports relating
to
the child and the prospective adoptive parents, that the placement is in the
child’s best interests.[86]
Once the report is finalised, it is transmitted to the Central Authority of the
receiving State together with reasons for the determination
and placement
(without revealing the identity of the child’s parents in the State of
origin) and proof that the consents have
been
obtained.[87]
Under the Hague Convention, the Central Authority of the receiving State has
certain minimum responsibilities, which enables Australia
as a Contracting State
to expand upon those requirements. Under Article 5, the competent authority of
the receiving State must:
Under regulation 7 of the Adoption of Children Regulation 1999
(Qld) (“the Queensland Regulation”) to be eligible to be
on the expression of interest register for non-resident children, a
person
must:
However,
with special needs children or in exceptional circumstances, a single person can
apply to be on the adoption list provided
he or she does not have more than four
children in his or her custody and is less than 41 years (if not a previous
adopter) or 43
years (if a previous
adopter).[89] Suitability is
determined under paragraph 13B(2)(b) of the Queensland Act. The chief executive
assesses whether the persons named
in the expression of interest register are of
good repute and fit and proper persons to become adoptive parents. The chief
executive
takes into consideration the quality and stability of the
persons’ marriage, the persons’ capacity to be adoptive parents
(emotionally and financially) and the persons’ capacity to ensure a
child’s safety and
wellbeing.[90] The chief executive
also has regard to the persons’ attitudes and understanding of the
child’s physical and emotional
development, of the responsibilities of
parenthood, of the issues relevant to adoptive parents (including informing the
child about
the adoption) and of the significance of the adopted child’s
natural family.[91] Under section
14 of the Queensland Act the chief executive may, before making an adoption
order, make a further assessment of the
prospective
adopters.
Consequently, regulations 7 and 9 of the Queensland Regulation
allow married couples or a single person (if married living separately
from his
or her spouse)[92] to be on the
expression of interest register, but not de facto couples (same sex or
heterosexual). Under regulation 9 one of the
de facto spouses could apply
individually to adopt a special needs child or in exceptional circumstances.
Arguably, an individual
homosexual or lesbian could come under regulation 9.
Nonetheless, even if expressions of interest by homosexuals or lesbians or
de
facto couples were accepted in Queensland, the country of origin will ultimately
determine whether they find the applicants suitable.
Moreover, countries could
rely on Article 24 of the Hague Convention and refuse applications by
homosexuals or lesbians, or not
recognise such adoptions, on the basis that it
is contrary to that country’s public
policy.[93] Before the Hague
Convention came into being, the Special Commission (on intercountry
adoption)[94] and the Diplomatic
Conference considered whether de facto couples, same sex couples, lesbian or
homosexual individuals could be covered
by the Hague Convention and, ultimately,
delegates opted to limit themselves to the issue of ‘spouses’ male
and female
and ‘a person’, married or
single.[95] The issue of
homosexuals or lesbians being able to adopt was considered too sensitive and not
within the scope of the Hague
Convention.[96]
It is
suggested that, in keeping with the Preamble (Paragraphs 1 and 3) to the Hague
Convention and the principle that the best interests
of the child are the
paramount consideration, de facto couples (heterosexual or same sex) should be
permitted under the Hague Convention
and the Queensland legislation to be on the
expression of interest register.[97]
Neither the term ‘family’ nor ‘family environment’ is
defined in the Hague Convention or in the CRC. Given
the diverse types of
families throughout the world, with extended, blended, single and interracial
families, it is unrealistic to
limit the scope of ‘family’ to a
nuclear family with married spouses. De facto couples and same sex couples or a
single
person can provide a child with a family environment in an atmosphere of
happiness, love and understanding as required by the Hague
Convention. Should
de facto couples be permitted to adopt, the same requirements should apply
regarding the quality and duration
of the
relationship.[98] For instance, a
requirement could be that de facto couples have lived together on a genuine
domestic basis in a relationship based
on intimacy, trust and personal
commitment to each other for two years, as required under section 260 of the
Property Law Act 1976 (Qld) when dealing with financial matters between
de facto spouses. In relation to same sex couples, as the NSW LRC pointed out,
there is no positive or negative correlation between parenting ability and
sexual orientation.[99] There is,
therefore, no reason why homosexuals and lesbians should not be allowed to be on
the expression of interest
register.[100] The focus should
be on whether the person is suitable to meet and promote the child’s best
interests and not on stereotypes
and assumptions about homosexuality and marital
status.[101] Sexual orientation
should only be considered in relation to suitability when matching an applicant
with a particular
child.[102]
Furthermore, in
light of anti-discrimination legislation, eligibility requirements should be in
conformity with those principles,
provided that the best interests of the child
remain the paramount
consideration.[103] The best
interests of the child are not being served if potentially suitable persons are
being excluded.[104] The NSW LRC
recommended that legislation should only provide minimum requirements for
eligibility and that trained professionals
in the field should select the best
possible parent for a
child.[105]
Once the
Central Authority is satisfied that applicants are eligible and suited to adopt,
it prepares an assessment report to transmit
to the country of
origin.[106] The report includes
information about the applicants’:
Regulation 11(e) of the Queensland Regulation requires the chief
executive to have regard to the extent of the person’s (the
person named
in the expression of interest register) participation in educational programs
relevant to the adoption, including any
programs conducted by the chief
executive. The DFYCCQ requires a person who lodges an expression of interest to
attend Adoption
Educational
Sessions.[108] These educational
sessions are separate from other information days and educative activities
provided by support groups and community
organisations.[109] No other
education seminar is required after that. This is similar to the approach taken
in the Netherlands where prospective adopters
are required to attend the
information programs before the assessment report is
done.[110] This provides a good
opportunity for future adoptive parents to understand the differences and
similarities between being a birth
parent and an adoptive
parent.[111] Particularly, it
allows for the exploration of their expectations, and provides opportunities to
learn about the child’s possible
experiences in the country of origin and
future adjustments, to learn about challenges ahead and to assess their own
ability to become
adoptive
parents.[112] In this way,
parents can determine at an early stage whether they are able to undertake the
responsibilities or opt out of the adoption
program.[113] This enables
applicants to be better prepared and informed about the adoption before
eligibility and suitability are determined
and also to meet other applicants at
an early stage of the process to develop a support
base.[114]
Under section 18D of the Queensland Act an adoption order may be made by
the chief executive only if, at the time of the order:
Queensland is the only State that allows the
Director General of the DFYCCQ to approve both national and intercountry
adoption orders.[115] Pursuant to
the Commonwealth-State agreement, the DFYCCQ can continue working with countries
that have not ratified the Hague Convention
until that agreement is
reviewed.[116] Under Article 17
of the Hague Convention any decision in the State of origin that a child should
be entrusted to the prospective
adoptive parents may only be made if:
Central Authorities of both States are then required
to take all necessary steps to obtain permission for the child to leave the
State
of origin and enter into and reside permanently in the receiving
State.[117] Under Article 19 of
the Hague Convention a child may then be transferred to the receiving State, in
secure and appropriate circumstances
and, where possible, accompanied by the
prospective adoptive parents.
An adoption certified by the competent authority (which complies with the
Hague Convention) will be automatically recognised in other
Contracting
States.[118] Under the Queensland
Act foreign adoptions are recognised under Division 1 of Part 4. Pursuant to
Article 26(1) of the Hague Convention,
the recognition of an adoption includes
the recognition of:
The Hague Convention applies to
‘full adoptions’ (the legal relationship between the child and the
biological parents
is completely severed) and to ‘simple adoptions’
(where the legal relationship between the child and the biological parents
is
not completely severed).[119] If
the State of origin makes a simple adoption order, Article 27 of the Hague
Convention allows a receiving State to convert the
adoption into a full
adoption, provided that the law allows it and the consents in Article 4 of the
Hague Convention have been given.
The adoption will then be recognised by other
Contracting States under Article 23 of the Hague
Convention.[120] This has been
provided for under Division 2 of Part 4 of the Queensland Act. If adoption
orders are not finalised in the State
of origin, the child will be under the
guardianship of the Commonwealth Minister for Immigration and Multicultural
Affairs until
the adoption order comes into effect (usually 12
months).[121] The DFYCCQ will
normally have this responsibility delegated to them by the
Commonwealth.[122]
The
recognition of adoptions is the most useful mechanism provided for under the
Hague Convention. This mechanism eliminates the
need to legalise the adoption
yet again when the child arrives in the receiving State, it guarantees the
rights of children in the
receiving State and it gives adoptive parents duties
and responsibilities regarding the child or children.
The value of and the need for continuity in a child’s ethnic or
cultural background has now been widely acknowledged and
accepted.[123] There is a growing
body of opinion that cultural heritage is important to the development of a
child’s identity.[124] As
noted earlier, under Article 16(1)(b) of the Hague Convention, the country of
origin is to give due consideration to the child’s
upbringing and to his
or her ethnic, religious and cultural background. Intercountry adoption
children (especially older children)
are likely to undergo both a grieving
process and a period of adjustment with a new family, language and
culture.[125] It is therefore in
the child’s best interests to minimise the adjustments required by placing
the child, where possible, in
a familiar cultural
environment.[126] With general
adoptions, the chief executive is to have regard to the indigenous or ethnic
background and the cultural background
of the child and is to approve a
prospective adopter who (or prospective adopters, one of whom) has a similar
indigenous or ethnic
background and cultural background, unless no adopters are
available and cannot reasonably be expected to become available, or the
best
interests of the child could not be best served by doing
so.[127] It is suggested that the
same placement principle should apply with intercountry adoptions, as it could
make children’s adjustment
into a new country easier and less
traumatic.
In determining the persons’ suitability, the chief
executive considers the persons’ ability and willingness to understand
the
child’s background and to develop and maintain the child’s
‘indigenous, ethnic and cultural
identity’.[128] Regulations
14(2)(a) and (b) of the Queensland Regulation require the chief executive to
have regard to the persons’:
However, neither the term ‘culture’ nor
‘ethnicity’ is defined in the Queensland Act or Regulation. The NSW
LRC recommended that for the purpose of the legislation ‘cultural
heritage’ be defined as: ‘beliefs, morals, laws,
customs, religion,
superstitions, language, diet, dress and
race’.[129] Whether the
Queensland Act or Regulation intended that the concept of ‘culture’
or ‘ethnicity’ be this expansive
is unclear.
Whilst
regulations 11 and 14 of the Queensland Regulation are valuable for ascertaining
whether prospective adoptive parents will
be prepared to continue a
child’s cultural heritage, they neglect to mention specifically race,
religion and language. Regulation
14, for instance, concentrates on the
child’s ‘country’ and ‘its culture’. The NSW LRC,
when examining
this issue of cultural placement (‘the heritage placement
principle’), recommended that if the applicants were of a different
culture to the child they should demonstrate:
The
Queensland legislation already has in place the first two requirements, however,
the last two requirements are equally important
and should be incorporated. It
is insufficient for parents to assert that they will be willing to help the
child learn about the
country and its culture if parents are not actively
involved in seeking to have contact with the child’s cultural or ethnic
community so that the child can also develop relationships with people from his
or her cultural background. This will enable both
adoptive parents, adopted
children and siblings to take part in activities and events conducted by the
particular ethnic community
and to develop a support base, to which they can
turn for assistance if experiencing difficulties. Making this contact may be
more
difficult in circumstances, for example, where the ethnic or cultural
community in Queensland is relatively small or non-existent.
Nonetheless, it
should be encouraged and perhaps parents and children could be part of a larger
community that shares the same cultural
traditions as the country of origin.
For instance, if a child is adopted from Colombia and that community in
Queensland is too small
or non-existent, then the Latin American community could
be approached, as it shares the same culture and language.
The capacity
and willingness of adoptive parents to help the child cope with racism should
also be included amongst the factors considered.
As was pointed out by the NSW
LRC, that parents make the effort to acquaint a child with his or her cultural
background is not enough
to prepare that child for racial discrimination and
prejudice which may be encountered at school or in the
community.[131] It would be
difficult for parents who are not members of a minority group themselves to
understand the importance and implications
of race and
discrimination.[132] The issue of
race and race identity and discrimination is one that would be more likely to
emerge as a child grows older and is
not solely under the parent’s
protection.[133] With a large
number of the intercountry adoptions being of children from India, Korea, Sri
Lanka and Thailand, adoptive parents
should be especially aware of and prepared
to help a child cope with racism and be able to engender in the child a positive
sense
of race
identity.[134]
Further
matters for which provision should have been made in the Queensland Act
are:
The
child’s religion is a matter to be considered by the country of origin
when preparing its report under Article 16 of the
Hague Convention (which
resembles Article 20(3) of the
CRC).[136] Under Article 14(1) of
the CRC, State Parties are to respect the right of a child to freedom of
thought, conscience and
religion.[137] The
adoptive parents’ attitude towards raising the child in a particular
religion is therefore important if the child wishes
to be of a particular
religion, or in cases involving adoption of older children. As with cultural
factors, this may be difficult
if the religious group is a relatively small one.
However, parents should endeavour to maintain the religious link if that is the
child’s wish and it is in the child’s best
interests.
Similarly, language should be a matter for consideration,
particularly with older children with developed speech patterns, or where
the
child wished to maintain his or her first language. The continuation of the
child’s language may be important to the child
and provide a connection to
his or her culture and past.[138]
Parents could also attempt to learn the child’s language (or at least
words and phrases), which may in turn assist with understanding
the child, his
or her background and culture. Moreover, under Article 30 of the CRC:
in those States in which ethnic, religious or linguistic minorities or persons of indigenous origins exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion or to use his or her own language.[139]
This
is a right conferred on individual children belonging to minority groups or who
are indigenous which is distinct from, and additional
to, the other rights
enjoyed under the CRC.[140] Also,
under Article 29(1)(c) of the CRC an aim, as regards education of a child, is
the development and respect for the child’s
parents and his or her own
cultural identity, language and values of the country from which he or she may
originate and for civilisations
different from his or her
own.[141]
It is suggested that the Hague Convention and the Queensland Act should
have provided children with the ability to revoke their consent
or, at least,
veto their own adoption.[142] A
child’s ability to revoke his or her consent could have been easily
included in Article 4(d) of the Hague Convention. If
children’s opinions
and consent are considered to be important, then equally so, is their ability to
revoke that consent.
The NSW LRC recommended children, like parents, should
have the ability to revoke
consent.[143]
Furthermore,
Central Authorities must recognise and accept that children, especially older
children, should be more actively involved
in the adoption process and in
deciding matters affecting their own future. Children and youth should be
allowed to determine if
they find the potential adoptive family
suitable.[144] If the child or
youth does not consent to the adoption, then an adoption should not
proceed.[145]
Further
relevant factors are the consent and attitudes to the adoption of the children
of the prospective adoptive
parents.[146] If the children of
the prospective adoptive parents disapprove or do not consent to the adoption,
then this ought to be a strong
indication that an adoption should not be allowed
as it could have extremely adverse effects on the adopted child. This would
obviously
not be a welcoming environment for a child when, on arrival in his or
her new family, he or she may be alienated or ignored by his
or her new
siblings. Hence, it would be in the best interests of both the adopted child
and their future siblings for the latter
to consent to, and approve of, the
adoption and to be counselled as to the effects of the adoption.
When
arranging adoptions of children from non-convention countries, Australia needs
to enter into bilateral arrangements (as it has
with
China)[147] and to ensure that the
consent of parents and children has been obtained freely and under the same
guidelines as for the Hague Convention.
It is suggested that if Australia
proposes to permit children to be adopted from non-convention countries,
especially Guatemala
(where abuses of children’s rights take
place)[148] it should adopt the
practice of the United States and Canada, of requiring DNA tests to ensure
parents providing consent are in fact
the biological parents of that child and
not persons passing off as the
parents.[149] This would hamper
child traffickers, or at least, make it more difficult to enable child
traffickers to sell children for adoption.
Under Article 9(c) of the Hague Convention, Central Authorities are to
take appropriate measures to promote the development of adoption
counselling and
post-adoption services. Presently, volunteer parent support groups provide
support to parents after the
adoption.[150] Assistance is
provided to adopters and adopted children under section 57A of the Queensland
Act, where it appears to the chief executive
that the welfare of the child
requires that assistance be given. The chief executive has discretion as to how
that assistance is
given and for how
long.[151] The DFYCCQ normally
monitors adoption placements for the first 12 months. The visits by the DFYCCQ
(as of 1 July 2000) are during
the first, fourth, seventh and tenth month
following placement.[152] It is
suggested that there should also be periodic reviews beyond the first 12 months,
to ensure that both the adoptive parents
and the child or children are adjusting
to the new arrangements and to enable problems or difficulties to be detected at
an early
stage so that additional assistance may be provided. This way parents
could feel free to call on the DYFCCQ for help and advice
should the need
arise.[153]
The only monitoring available under the Hague Convention is via the Special
Commissions convened by the Secretary General of The Hague
Conference on Private
International Law under Article 42. The Special Commissions are convened at
regular intervals to review the
practical operation of the Hague Convention and
to enable the Permanent Bureau of the Hague Conference on Private International
Law
to advise governments on how to implement the
Convention.[154] All parties to
the Hague Convention, as well as non-members and international organisations,
may attend.[155] This process,
however, does not monitor an individual’s behaviour nor provide
individuals with an avenue to bring a complaint
before an independent human
rights committee.[156] The Hague
Convention, like the Committee on the Rights of the Child (“the
Committee”) does not have the power or resources
to do
so.[157] This method of
enforcement is therefore the weakest one available under international
law.[158]
Arguably, another
means of reviewing implementation of children’s rights in intercountry
adoption could be via the Committee
under Article 44 of the
CRC.[159] The CRC requires
governments to submit reports to the Committee every five years outlining the
government’s measures of
implementation.[160] A private
meeting is held by a pre-sessional working group of the Committee to analyse the
reports, generate a list of issues and
highlight areas of
concern.[161] Governments then
respond in writing to these questions in advance of a public plenary
session.[162] In the public
plenary session the Committee examines all aspects of the
reports.[163] Dialogues ensue
between the Committee and the Governments to assess the implementation and the
Committee makes
recommendations.[164] Whilst
recommendations are not legally binding, they are a means of scrutinising
government policy and
practice.[165] This review
process does not allow for individual complaints to the Committee, but it does
provide non-government organisations
and advocate groups with an opportunity to
be more actively involved in contributing to the preparation of the
reports.[166] Since the
Australian Government is required to provide reports every five years to the
Committee, in order to make information collection
easier and more efficient,
there should be cooperation amongst the various departments to collect common
sets of information, which
can then be applied to the different Conventions and
engrossed with specific information for the particular
Committees.[167]
Furthermore,
the Central Authorities should ensure that reports made under the Hague
Convention are widely known and available, as
required under Article 44(6) of
the CRC. Governments and competent authorities should disseminate information
and reports regarding
the Hague Convention in various languages through national
and State campaigns.[168]
Children and youth should be encouraged to take a proactive role in providing
opinions and in the decision making process of matters
affecting
them.[169] Under Article 13 of
the CRC, children have a right to freedom of expression, which includes:
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.[170]
The
experiences and views of adopted children and their families would provide
valuable insight and information that could directly
influence future proposals,
action and changes to policy and legislation. Children’s rights under the
various Conventions,
including the Hague Convention and the CRC (to which the
former is closely connected), ought to be made part of the school curriculum
for
primary and secondary
schools.[171] Australia could
perhaps adopt an approach similar to Costa Rica’s National Plan of Action
where a social rights audit monitors
and evaluates the country’s
fulfilment of the CRC and involves children and communities in a process
designed to analyse rights
and to find
solutions.[172] The
recommendations made during the World Summit for
Children,[173] which Australia
attended, should be heeded. Australia must therefore encourage in its National
Plan of Action, the re-examination
of national plans, programs and policies to
determine whether children’s programs are being
prioritised.[174] Australia
should allocate resources to the protection and development of children and
encourage different bodies to take proactive
roles in the decision-making
process.[175] Ties and dialogues
should be encouraged between adoptive families, the relevant government
departments (eg the DFYCCQ) and ethnic
communities.
Since neither the
Hague Convention nor the CRC confer individuals with a right to bring complaints
before the Special Commission or
the
Committee,[176] the Optional
Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict and the Optional Protocol to the Convention on
the Rights of the child on the sale of children, child prostitution and child
pornography can provide greater protection of children’s rights by
allowing individuals access to the Committee when rights are violated.
The UN
General Assembly adopted both Optional Protocols on 25 May
2000.[177] The Optional Protocol
on the sale of children entered into force on 18 January
2002.[178] The Optional Protocol
on armed conflict entered into force on 12 February
2002.[179] Article 1 of the
Optional Protocol on the sale of children requires State Parties to prohibit the
sale of children, child prostitution
and child
pornography.[180] Under Article
2(a) sale of children means ‘any act or transaction whereby a child is
transferred by any person or group of
persons to another for remuneration or any
other
consideration.’[181]
State
parties are to ensure that, as a minimum, improperly inducing consent (as an
intermediary, for the adoption of a child in violation
of international legal
instruments on adoption) be an offence fully covered in criminal or penal laws,
whether the offences are committed
domestically, transnationally, individually
or on an organised basis.[182]
Under Article 3(5), State Parties are to take all appropriate legal and
administrative measures to ensure all persons involved in
the adoption of a
child act in conformity with applicable international instruments. Offences in
Article 3 are taken to be extraditable
offences in any extradition treaty
existing between State Parties and are to be included as extraditable offences
in subsequent extradition
treaties.[183] Article 9(2) is
also important as it requires State Parties to promote awareness in the public
at large, including children, about
the preventive measures and harmful effects
of the offences referred to in the Protocol, through information (by all
appropriate
means), education and training. State Parties are to encourage the
participation of the community, in particular children and child
victims, in
such information, education and training programmes, including at the
international level.[184]
Reporting obligations will also apply to State Parties, with an initial report
two years after ratification and every five years
thereafter.[185] Currently,
Australia is only a signatory to the Optional Protocol on sale of children, but
not to the Optional Protocol on armed
conflict.[186] If Australia
ratifies both Optional Protocols, children’s rights would be afforded
greater protection.
Under section 39B of the Queensland Act, an adopted person can obtain the
name and date of birth of his or her birth parent as at
the date of consent to
the adoption.[187] Under section
39A, an adopted person, for the purposes of Part 4A, means a person who has been
adopted in accordance with the law
of Queensland and who has attained the age of
18. Consequently, the right to information is not a right of a child but one of
an
adult.[188] Article 30(2) of
the Hague Convention states that competent authorities are to ensure that the
child or his or her representative has access to information preserved
about the child’s origin, in particular information concerning
the
identity of his or her parents and medical
history.[189] Article 30(2) also
states that such access is available as ‘permitted by the law of the
State’. Thus, Contracting States
ultimately determine when access is
allowed.
During the drafting of the Hague Convention, the Special
Commission considered when and whether unlimited access to information should
be
allowed to adopted children.[190]
The right of a child to know about their adoption needs to be balanced against a
biological parent’s, or parents’, right
to
privacy.[191] Delegates believed
that information should be given after appropriate measures had been taken,
having regard to the age of the child
and any conditions requiring special
precautions.[192] Under Article
4(d)(2) of the Hague Convention consideration must be given to the child’s
wishes and opinions. This is similar
to Article 12(1) of the
CRC.[193]
It is futile to
draft provisions in the Hague Conventions giving children a right to obtain
information about themselves and to express
their views or opinions, if the
ability to exercise that right is unavailable until they reach
majority.[194] In those
circumstances, ‘the right of the child’ is non-existent. Children
can be considered sufficiently mature to
be employed before reaching 18 years of
age, yet they cannot obtain information about their origins until they reach
majority. It
is suggested that a mature, informed and counselled youth, for
instance, should have access to information regarding him or herself,
if they
wished to access that information and it is in their best interests.
Private adoption was a challenging issue for the Hague
Convention.[195] This matter had
been discussed at the third Special Commission in February
1993.[196] Some delegates and
international organisations believed that this area was prone to abuse and bad
practices, while other delegates,
such as the United States, were concerned that
a non-inclusion in the Hague Convention of private adoptions would imply that
such
adoptions were
prohibited.[197]
It is
suggested that the compromise reached is not in the best interests of the child.
Non-accredited bodies are able to pursue profitable
objectives, which leaves
room for abuses to occur. Bearing in mind that abuses in intercountry adoption
seem to occur mainly in
private
adoptions,[198] non-accredited
bodies or persons should either not be allowed to arrange adoptions, or at
least, more restrictions should be placed
on the functions those agencies
perform. Furthermore, such bodies should not be pursuing profitable objectives.
Particularly deficient
is the default provision under Article 22(4), which is
only effective if countries expressly object, as, otherwise, silence infers
acceptance.[199] Moreover, the
declaration under Article 22(4) can be rescinded at any time by giving notice to
the depositary.[200] Governments
can therefore amend their policies, providing no guarantee that such adoptions
will be prohibited. Australia has utilised
Article 22(4) of the Hague
Convention and declared that only persons who reside in countries where public
authorities or accredited
bodies perform the functions of the Central Authority
may adopt children habitually resident in
Australia.[201] However, this
declaration only protects children if Australia is the sending country; not if
Australia is the receiving country.
The objectives of the Hague Convention have been effectively achieved to
some extent. The mechanisms of cooperation under Articles
4 and 5 and the
automatic recognition of adoptions under Article 23 are crucial steps in
achieving international uniformity in adoption
procedures. Equally important
advances have been:
[*] Assistant Parliamentary
Counsel, Australian Office of Parliamentary Counsel. The views expressed in
this paper are the views of
the author and may not represent the views of the
Commonwealth Government. This article was originally submitted as a Masters
paper
in the Faculty of Law, Queensland University of Technology. The author
would like to acknowledge the assistance given by Ms Sally
Kift in the
preparation of this article.
[1] O
Calcetas-Santos, ‘Report of the Special Rapporteur on the sale of
children, child prostitution and child pornography’
(27 January 2000),
United Nations Economic and Social Council, Commission on Human Rights
53rd Session, 5-6 at
<http://casa-alianza.org.EN/human-rights/sexual-exploit/ONU/sale.shtml>
W Duncan, ‘The Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption’
(1993) 17(3) Adoption
and Fostering 9.
[2] S
Detrick and P Vlaardingerbroek, Globalization of Child Law The Role of the
Hague Conventions (Martinus Nijhoff Publishers: The Hague, 1999) 19; J
Degeling, ‘Intercountry Adoption—a New Convention for
Australia?’
(1993) 1(5) Australian Law Librarian
215.
[3] Duncan, above n 1, 9; P
H Pfund, ‘Intercountry Adoption: The 1993 Hague Convention: Its Purpose,
Implementation and Promise’
(1994) 28(1) Family Law Quarterly
54.
[4] Joint News Release
Minister for Foreign Affairs The Hon. Alexander Downer at
<http:law.gov.au.aghome/agnews/1998newsag/Join_11_98.htm>;
‘Status Sheet Convention #33’ Hague Conference on Private
International Law, 2 at
<http://www.hcch.net/e/status/adoshte.html>
.
[5]
Section 111C(1) - (2) Family Law Act 1975. The Family Law (Hague
Convention on Intercountry Adoption) Regulations 1998 commenced on 1
December 1998.
[6] The
Commonwealth-State agreement commenced operation on 9 April
1998.
[7] The Parliament of the
Commonwealth of Australia, Joint Standing Committee on Treaties, Fifteenth
Report (June 1998) 9 at
<http://www.aph.gov.au /house/committee/jsct/reports/report15.pdf>
.
[8]
The amendments to the Adoption of Children Act 1964 commenced on 16
April 1999.
[9] M Humphrey and H
Humphrey (eds), Intercountry Adoption Practical Experiences
(Travistock/Routledge: London, 1993) 119, 121; N Cantwell, ‘Intercountry
Adoption’ (1998) 4 Innocenti Digest 2 at
<http:unicef-icdc.org/pdf/digest4e.pdf>.
[10]
Humphrey, above n 9, 121; Cantwell, above n 9, 2; Duncan, above n 1,
9.
[11] Cantwell, above n 9,
3.
[12]
Ibid.
[13] ‘Intercountry
Adoption’ National Adoption Information Clearing House, 1 at
<http://www.calib.com/naic/pubs/s_inter.htm>
‘Immigration Visas Issued to Orphans Coming to the U.S. Top Countries of
Origin’ at
<http://travel.state.gov/orphan_numbers.html>
.
[14]
Adoptions Australia 1998-1999, Child Welfare Series, Australian Institute of
Health and Welfare, Canberra,
8.
[15] Adoptions Australia
1999-2000, Child Welfare Series, Australian Institute of Health and Welfare,
Canberra, 14; Adoptions Newsletter
(August 2000) 2(1), Department of Families,
Youth and Community Care Queensland, Adoption Services Branch, 1 at
<http://www.families.qld.gov.au>
.
[16]
30 adoptions were from Romania, 23 from the Philippines, 11 from Colombia and 2
from Sri Lanka, at Adoptions Australia 1999-2000,
above n 15,
14.
[17] Adoptions Australia
2000-2001, Child Welfare Series, Australian Institute of Health and Welfare,
Canberra, 15-18.
[18]
Ibid.
[19] Adoptions Newsletter
(February 2002) 4(1), Department of Families, Adoptions Services Branch, 5 at
<http://www.families.qld.gov.au>
. As a result of the amendments made to the Adoption of Children Act 1964 (Qld) by the Adoption of Children Amendment Act 2002 (No 21), as of 1 July 2002 the For
eign Children’s
Adoption List and the General Children’s Adoption List have been replaced by the ‘expression of interest register’
and the ‘assessment register’.
[20]
Adoptions Australia 2000-2001, above n 17,
43.
[21] ‘Adoption
services—Foreign Children’s Adoption program’, Department of
Families, Youth and Community
Care Queensland Government, 4 at
<http://www.families.qld.gov.au>
.
[22]
Schedule 1 Adoption of Children Regulation 1999
(Qld).
[23] Senator Hill,
‘Intercountry Adoption Agreement with China’, 1 at
<http//aph/parliamentaryinfo/>
[24]
Ibid.
[25] Adoption Newsletter
(August 2000), above n 15,
9.
[26] ‘Cost of
Adopting’, National Adoption Information Clearinghouse at
<http://www.calib.com/naic/pubs/s_cost.htm>
.
[27]
Article 1(a), Paragraph 4 of the Preamble to the Hague Convention,
Article 21 of The United Nations Convention on the Rights of the
Child.
[28] Article 1(b)
Hague Convention.
[29] G
Parra-Aranguren, ‘Explanatory Report #33 on The Convention on Protection
of Children and Cooperation in Respect of Intercountry
Adoption’ (1993),
10 at
<http:www.hcch.net/e/conventions/expl33e.html>.
[30]
Article 1(c) Hague
Convention.
[31] Article
41 Hague Convention.
[32]
Article 2(2) Hague Convention. Parra-Aranguren, above n 29, 17; New
South Wales Law Reform Commission, Report 81 (1997), Review of Adoption of
Children Act 1965 (NSW), 397 (‘NSW LRC R
81’).
[33] ‘Report
of the Working Group to Study the Application to Refugee Children of the Hague
Convention of 29 May 1993 on Protection
of Children and Cooperation in Respect
of Intercountry Adoption’ The Permanent Bureau, 12-14 April 1994, 5 at
<http://www.hcch.net/e/conventions/wgrpt33e.html>
.
[34]
Parra-Aranguren, above n 29, 88; ‘Report of the Working Group’,
above n 33, 4-5; ‘Report of the Special Commission
on the Implementation
of the Hague Convention of 29 May 1993 on Protection of Children and Cooperation
in Respect of Intercountry
Adoption’, The Permanent Bureau, 17-21 October
1994, 4 at
<http://www.hcch.net/e/conventions/screport33e.html>
.
[35]
‘Report of the Working Group’, above n 33, 10; ‘Report of the
Special Commission’, above n 34,
4.
[36] ‘Full Status
Report Convention #33’, 2 at
<http://www.hcch.net/e/status/stat33.html>
.
[37]
Article 6 Hague
Convention.
[38] Article
6(2) of the Hague Convention allows Federal systems to appoint more than
one Central Authority.
ACT—Australian Capital Territory Family
Services, NSW—New South Wales Department of Community Services, Norfolk
Island—Norfolk
Island Community Services, NT—Northern Territory
Health Services, SA—South Australian Department of Human Services,
TAS—Tasmanian
Department of Health and Human Services, VIC—Victorian
Department of Human Services, WA—Western Australian Department
of Family
and Children’s Services, in ‘Authorities—Intercountry Adoption
Convention’ at
<http://www.hcch.net/e/authorities/caadopt.html>
.
[39]
Articles 8 and 9 Hague
Convention.
[40]
Parra-Aranguren, above n 29, 56; Pfund, above n 3,
62.
[41] Article 22(5) Hague
Convention; Pfund, above n 3,
62.
[42] Article 22(2)(a) and
(b) Hague Convention.
[43]
The depositary of the Hague Convention is the Ministry of Foreign Affairs of
the Kingdom of the
Netherlands.
[44] Article 22(4)
Hague Convention.
[45]
The Parliament of the Commonwealth of Australia, Joint Standing Committee on
Treaties, Fifteenth Report (June 1998) 10-11 at
<http://www.aph.gov.au>
.
[46]
The Northern Territory Australian Aiding Children Adoption Agency Inc, an
accredited body, can conduct intercountry adoptions in
the Northern Territory,
at
<http://www.hcch.net/e/authorities/caadopt.html>
Adoptions Australia (2000-2001), above n 17, 26,
40.
[47] Parra-Aranguren, above
n 29, 20; Cantwell, above n 9,
14.
[48] Cantwell, above n 9,
9.
[49] Parra-Aranguren, above n
29, 21.
[50] Cantwell, above n
9, 9.
[51] Detrick and
Vlaardingerbroek, above n 2,
21.
[52] Parra-Aranguren, above
n 29, 22. Article 29 of the Hague Convention prohibits contact between
adoptive parents and relinquishing parents until Article 4(a)-(c) and Article
5(a) have been complied
with.
[53] Parra-Aranguren,
above n 29, 23.
[54]
Ibid.
[55]
Ibid.
[56]
Ibid.
[57] Paragraph 24(1)(b)
Adoption of Children Act 1964
(Qld).
[58] Article 4(c)(3)
Hague Convention.
[59]
Parra-Aranguren, above n 29,
33.
[60] Section 53 Adoption
of Children Act 1964
(Qld).
[61] Parra-Aranguren,
above n 29, 76.
[62] NSW LRC R
81, above n 32, 403-404.
[63]
Ibid 404.
[64] Ibid
407.
[65] ‘Report and
Conclusions of the Special Commission on the Practical Operation of the Hague
Convention of 29 May 1993 on Protection
of Children and Co-operation in Respect
of Intercountry Adoption’, 28 November-1 December 2000, Permanent Bureau,
27-30 at
<http://www.hcch.net/e/conventions/adospec_e.html>
.
[66]
Ibid.
[67] M Freeman and P
Veerman, The Ideologies of Children’s Rights (Martinus Nijhoff
Publishers: Dordrecth, 1992) 107; S Detrick, A Commentary on the United
Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers:
The Hague, 1999) 353.
[68]
Article 32 Hague
Convention.
[69] NSW LRC R
81, above n 32, 405; C Gray, NSW Law Reform Commission, Research Report 6
Intercountry Adoption and Parent Support Groups, para 7.44 (“NSW LRC
RR 6”) at
<http://www.lawlink.nsw.gov.au>
.
[70]
NSW LRC R 81, above n 32,
405.
[71] Parra-Aranguren, above
n 29, 76.
[72]
Ibid.
[73] Calcetas-Santos,
above n 1, 8-11.
[74]
Parra-Aranguren, above n 29,
25.
[75] Under section 6 of the
Adoption of Children Act 1964 (Qld) ‘chief executive for child
protection’ means the chief executive of the department in which the
Child Protection Act 1999 (Qld) is
administered.
[76] NSW LRC RR6,
above n 69, para 5.68.
[77]
Ibid.
[78]
Ibid.
[79] Article 4(d)(1)-(4)
Hague Convention.
[80]
Parra-Aranguren, above n 29,
26.
[81] NSW LRC R 81, above n
32, 178.
[82] Parra-Aranguren,
above n 29, 26.
[83] Detrick,
above n 2, 213-214.
[84] Ibid
231.
[85] Article 16(1)(a)
Hague Convention.
[86]
Article 16(1)(b), (c) and (d) Hague
Convention.
[87] Article
16(2) Hague Convention. Section 45 of the Adoption of Children Act
1964 (Qld) prohibits publication of the names of the applicant, child,
parent of the child or adopter or any matter reasonably likely to
identify those
persons in relation to an application under the Act or under another law of a
State or Territory, or the proceedings
of an
application.
[88] Regulation
7(2)(a)-(f) Adoption of Children Regulation 1999 (Qld); s 13AC
Adoption of Children Act 1964
(Qld).
[89] Regulation
9(3)-(6) Adoption of Children Regulation 1999 (Qld), paragraph
12(3)(a)-(c) Adoption of Children Act 1964
(Qld).
[90]
Regulations 11(a) and (b) Adoption of Children Regulation 1999
(Qld).
[91]
Regulation 11(c) Adoption of Children Regulation 1999
(Qld).
[92] Section 12(4)
Adoption of Children Act 1964
(Qld).
[93]
Parra-Aranguren, above n 29,
14.
[94] Ibid 4-5, the first
meeting of the Special Commission took place from 11-21 June 1990, the second
meeting took place from 22 April
to 3 May 1990, and the third meeting took place
from 3-14 February 1992.
[95]
Ibid 14-15.
[96]
Ibid.
[97] NSW LRC R 81, above
n 32, 229.
[98] Ibid
230.
[99]
Ibid.
[100]
Ibid.
[101]
Ibid.
[102]
Ibid.
[103] Ibid
233.
[104] Ibid
232.
[105] Ibid
233.
[106] Article 15 Hague
Convention.
[107]
Ibid.
[108]
‘Considering adoptions from overseas?’, Department of Families,
Queensland Government at
<http://www.families.qld.gov.au/adoptions/considadoptfromoverseas.html>
.
[109]
Adoptions Newsletter (April 2000) 1(3), Department of Families, Youth and
Community Care Queensland, Adoption Services Branch, 7
at
<http://www.families.qld.gov.au>
.
[110]
NSW LRC R 81, above n 32, 431; Cantwell, above n 9,
14.
[111] Cantwell, above n 9,
14.
[112]
Ibid.
[113]
Ibid.
[114]
Ibid.
[115] ‘Foreign
Children’s Adoption Program’, Department of Families, Youth and
Community Care Queensland, 2-3 at
<http://www.families.qld.gov.au/adoptions/applying_foreign.html>
Adoptions Australia 2000-2001, above n 17,
36.
[116]
Ibid.
[117] Article 18
Hague Convention.
[118]
Article 23 Hague
Convention.
[119]
Parra-Aranguren, above n 29, 17; Duncan, above n 1, 10-11; ‘Report on the
Working Group’, above n 33,
5.
[120] Article 27(2)
Hague Convention.
[121]
Adoptions Australia 1998-1999, above n 14,
7-8.
[122] Section 27C
Adoption of Children Act 1964
(Qld).
[123] NSW
LRC R 81, above n 32,
318.
[124] Ibid
312.
[125] Ibid 318; Humphrey,
above n 9, 314.
[126] NSW LRC
R 81, above n 32, 318.
[127]
Section 18A Adoption of Children Act 1964
(Qld).
[128]
Regulation 11(d) Adoption of Children Regulation 1999
(Qld).
[129] NSW
LRC R 81, above n 32,
302.
[130] Ibid
320.
[131] Ibid
315.
[132]
Ibid.
[133] Ibid; Humphrey,
above n 9, 129.
[134] C
Bagley, International Adoption and Transracial Adoption A Mental Health
Perspective (Avery: Aldershot, 1993)
74.
[135] Under paragraph
13C(c) of the Adoption of Children Act 1964 (Qld), the chief executive is
to have regard to the wishes of the child’s parents, as expressed in the
consent, with respect
to religious upbringing, in cases of a special needs child
or in adoptions by
relatives.
[136] Article
16(1)(b) Hague
Convention.
[137]
‘Special Rapporteur on Religious Intolerance’, Child Rights Advocacy
Project at
<http://193.129.255.93/mcr/srri.htm>
.
[138]
NSW LRC R 81, above n 32,
317.
[139] Detrick, above n 2,
531.
[140] Ibid
536.
[141] Ibid
537.
[142] ‘Intercountry
Adoption, Committee on the Rights of the Child, Guides to Implementation’
at
<http://www.unicef-icdc.org/infor...y-adoption/committee/6-guides.htm>
.
[143]
NSW LRC R 81, above n 32,
177.
[144] ‘Intercountry
Adoption, Committee on the Rights of the Child, Guides to Implementation’,
above n 142.
[145] NSW LRC R
81, above n 32, 177.
[146]
‘Intercountry Adoption, Committee on the Rights of the Child, Guides to
Implementation’, above n
142.
[147] Sections
111C(3)-(8) Family Law Act 1975 (Cth). The Family Law (Bilateral
Arrangements—Intercountry Adoption) Regulations 1998 (Cth) commenced
on 14 July 1998. Australia entered into a bilateral agreement with China in
December 1999. China signed the Hague
Convention on 30 November 2000, but is yet
to ratify it, at ‘Status Sheet Convention # 33’, see above n
4.
[148] Calcetas-Santos,
above n 1, 5-11, 20-24; ‘Report and Conclusions of the Special Commission
on the Practical Operation of the
Hague Convention of 29 May 1993 on Protection
of Children and Co-operation in Respect of Intercountry Adoption’, 28
November-1
December 2000, Permanent Bureau, 27-30 at
<http://www.hcch.net/e/conventions/adospec_e.html>
.
[149]
Calcetas-Santos, above n 1, 11; Cantwell, above n 9, 16; ‘International
Adoption—Guatemala’ at
<http://travel.state.gov/adoption_guatemala.html>
.
[150]
NSW LRC R 81, above n 32,
410.
[151] Section 57A(1)
Adoption of Children Act 1964
(Qld).
[152]
Adoptions Newsletter (August 2000), above n 15,
2.
[153] Bagley, above n 134,
329.
[154] Cantwell, above n
9, 15. A Working Group met on 12-14 April 1994 to draft Recommendations and a
Report for examination by the Special
Commission. The latter convened on 17-21
October 1994 and again on 28 November to 1 December 2000, ‘Special
Commission Meeting
on Convention #33’ at
<http://www.hcch.net/e/>
.
[155]
Parra-Aranguren, above n 29,
85.
[156] J Harvey, et al,
Implementing the UN Convention on the Rights of the Child in Australia
(South Australia’s Children’s Bureau: Adelaide, 1993)
49.
[157] ‘Who Monitors
Implementation of the Convention?’, The Committee on the Rights of the
Child, 2 at
<http://unicef.org/crc/monitoring.htm>
.
[158]
Harvey, above n 156, 49.
[159]
The Committee itself reports on its activities to the UN Economic and Social
Council every two years.
[160]
Reports are sent to the Office of the UN High Commissioner for Human Rights in
Geneva, see ‘Who Monitors Implementation of
the Convention?’, above
n 157, 2.
[161] Ibid, 3;
‘Fact Sheet No 10 (Rev 1) The Rights of the Child’, Office of the
High Commissioner for Human Rights, 6 at
<http://wwww.unhchr.ch/html/menu6/2/fs10.htm>
.
[162]
‘Who Monitors Implementation of the Convention?’, above n 157,
3.
[163]
Ibid.
[164]
Ibid.
[165]
Ibid.
[166] Ibid
2.
[167] Harvey, above n 156,
50.
[168] Toward Taking
Australia’s Children Seriously A Commissioner for Children and Young
People (1998), Defence for Children International Australian Section, 69,
71; Cantwell, above n 9,
16.
[169]
Ibid.
[170] Detrick, above n
2, 231.
[171] Ibid
42.
[172] ‘Who Monitors
Implementation of the Convention?’, above n 157,
4.
[173] World Summit
conducted on 29-30 September
1990.
[174] R J Himes (ed),
Implementing the Convention on the Rights of the Child, Resource Mobilization
in Low Income Countries (Martinus Nijhoff Publishers: The Hague, 1995)
56.
[175]
Ibid.
[176] P Alston (ed),
The United Nations and Human Rights A Critical Appraisal, (Clarendon
Press: Oxford, 1992) 420.
[177]
‘Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict’, Office
of the High
Commissioner for Human Rights at,
<http://www.unhchr.ch/html/menu2/6/protocolchild.htm>
‘Optional Protocol to the Convention on the Rights of the Child on the
sale of children, child prostitution and child pornography’,
Office of the
High Commissioner for Human Rights at
<http://www.unhchr.ch/html/menu2/dopchild.htm>
.
[178]
J M Petit, ‘Report of the Special Rapporteur on the sale of children,
child prostitution and child pornography’ (4 February
2002) United Nations
Economic and Social Council, Commission on Human Rights, 58th
Session, at
<http://www.unhchr.ch/children/rapporteur.htm>
‘Australian Treaty Series (not yet in force) Optional Protocol to the
Convention on the Rights of the Child [of 20 November
1989] on the Sale of
Children, Child Prostitution and Child Pornography’ at
<http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2000/9.html>
.
[179]
‘Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict’, above
n
177.
[180] Ibid.
[181]
Ibid.
[182] Ibid Article
3.
[183] Ibid Article
5(1).
[184] Ibid Article
9(2).
[185] Ibid Article
12.
[186] Australia signed the
Optional Protocol on sale of children on 18 December 2001, ‘Status of
ratifications’ at
<http://www.unhchr.ch/hchr_un.htm>
.
[187]
Adoption of Children Regulation 1999 (Qld) Schedule 1: $50.00 fee, no
fee for pensioners.
[188] K
Funder, Citizen Child—Australian Law and Children’s Rights
(Australian Institute of Family Studies: Melbourne, 1996)
47.
[189] Article 30(1)
Hague Convention.
[190]
Parra-Aranguren, above n 29,
75.
[191]
Ibid.
[192]
Ibid.
[193]
Ibid.
[194] Funder, above n
188, 47.
[195] Pfund, above n
3, 60.
[196] Ibid 61;
Parra-Aranguren, above n 29,
54.
[197] Pfund, above n 3,
60.
[198] Cantwell, above n 9,
8.
[199] Parra-Aranguren,
above n 29, 54.
[200] Ibid
57.
[201] ‘Full Status
Report Convention #33’, above n 36.
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