Western Australian Current Acts Western Australian Current Acts[s. 4(1)]
CONVENTION ON PROTECTION OF CHILDREN AND COOPERATION IN RESPECT OF
INTERCOUNTRY ADOPTION
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 intercountry 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 intercountry
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 —
a to establish safeguards to ensure that
intercountry adoptions take place in the best interests of the child and with
respect for his or her fundamental rights as recognized in international law;
b to establish a system of cooperation amongst
Contracting States to ensure that those safeguards are respected and thereby
prevent the abduction, the sale of, or traffic in children;
c 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 intercountry adoption is the in the child’s best
interests;
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
d 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 may be necessary; and
c have determined that the child is or will be
authorised 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 cooperate with each
other and promote cooperation 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 it
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 intercountry adoption;
e 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
intercountry 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 authorised 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 intercountry
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 authorised 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 of Article 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 person 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 intercountry 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 provide 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 recognised 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 recognise 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 recognised, 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 recognises 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 recognises 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 consent 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, and Article 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 intercountry adoption.
2 Only costs and expenses, including reasonable
professional fees of person 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
be public authorities of that State shall be construed as referring to those
authorised 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 person, 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 with Article 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 matter 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;
f the denunciations referred to in Article 47.
In whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The Hague, on the twenty-ninth day of May 1993 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.
[Schedule 2B inserted: No. 7 of 1999 s. 19.]