HCCH - The Judges' Newsletter on International Child Protection - Vol. XVII - Spring 2011

The Judges’ Newsletter on International Child Protection Volume XVII | Spring 2011 Special Focus 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, June 2010 Case Comments and Perspectives > Abbott v. Abbott, Supreme Court of the United States of America A publication of the Hague Conference on Private International Law Pour la version française, retourner la LettreThe Judges’ Newsletter on International Child Protection The Judges’ Newsletter is published biannually by the Hague Conference on Private International Law under the supervision of William Duncan, Deputy Secretary General, with the assistance of Nicolas Sauvage, Legal Offi cer. This journal is written by and for judges with the aim of exchanging the information necessary for effi cient judicial co-operation in the fi eld of international child protection. We would like to thank Irène Rognier for her translations. Contact details for the Permanent Bureau of the Hague Conference on Private International Law are as follows: Hague Conference on Private International Law Permanent Bureau Scheveningseweg 6 2517 KT The Hague The Netherlands

Tel: +31 (70) 363.3303

Fax: +31 (70) 360.4867

E-mail: TheJudgesNewsletter@hcch.nl

secretariat@hcch.net Website: http:/ /www.hcch.net Copyright©2011 Hague Conference on Private International Law All rights reserved. Articles contained herein may be reproduced for educational purposes. No part may, however, be reproduced for commercial purposes without the express written consent of the Permanent Bureau of the Hague Conference on Private International Law. INTERNATIONAL BOARD OF JUDICIAL ADVISERS  H.E. Justice Antonio Boggiano; former President of the Supreme Court of Argentina  The Honourable Judge Peter Boshier; Principal Family Court Judge, New Zealand  The Honourable Judge Eberhard Carl, Judge at the Regional Superior Court at Frankfurt/Main, Germany

Supreme Court of Argentina  The Honourable Judge Peter Boshier; Principal Family Court Judge, New Zealand  The Honourable Judge Eberhard Carl, Judge at the Regional Superior Court at Frankfurt/Main, Germany  The Honourable Justice Jacques Chamberland; Court of Appeal of Quebec, Canada  The Honourable Justice James Garbolino; former Presiding Judge of the Superior Court of California, United States of America  Ms Catherine Gaudet Bossard; Honouree Judge, former Conseiller to the Court of Appeal of Bourges, France  The Honourable Mrs Justice Catherine McGuinness; former Judge of the Supreme Court of Ireland  The Honourable Dr Katalin Murányi; Chairperson of the Civil College, Budapest, Hungary  The Honourable Elisa Pérez-Vera; Constitutional Court of Spain  The Honourable Judge Adel Omar Sherif; Deputy Chief Justice, Supreme Constitutional Court, Cairo, Egypt  The Right Honourable Lord Justice Mathew Thorpe; Head of International Family Justice, England and Wales1on International Child Protection Table of contents Special Focus The Third Meeting 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, 17-25 June 2010 Theme I | Report, by J ennifer DEGELING and Sandrine PÉPIT 2 Theme II | Conclusions and Recommendations 11 Theme III | List of Preliminary Documents 14 Case Comments and Perspectives • Abbott v. Abbott (2010), Supreme Court of the United States of America, Professor Barbara STARK 15 • The United States Supreme Court Rules in Its First Case Interpreting The 1980 Convention, The Honourable Justice James GARBOLINO 15 • Abbott v. Abbott (2010), Supreme Court of the United States of America, Professor Peter

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VY 16 Judicial Communications

• The United States Supreme Court Rules in Its First Case Interpreting The 1980

Convention, The Honourable Justice James GARBOLINO 15 • Abbott v. Abbott (2010), Supreme Court of the United States of America, Professor Peter

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VY 16 Judicial Communications • Refl ections regarding the operation of instruments for the international return of children – Strengths and weaknesses and challenges, Judge Graciela TAGLE 18 International Child Protection Conferences and Seminars • International Symposium on Child Abduction (Berlin), Chairman’s Statement (4 December 2009) 21 • Cross-Frontier Child Protection in the Southern and Eastern African Region: The Role of the H ague Children’s Conventions (22-25 February 2010) 22 • Washington International Judicial Conference on Cross-Border Family Relocation (23-25 March 2010) 25 • Nordic Baltic Seminar on International Child Abduction (10-11 June 2010) 27 • London Conference on International Child Abduction, Forced Marriage and Relocation (30 June – 2 J uly 2010) 27 • Morocco Judicial Seminar on Cross-Border Protection of Children and Families (13-15 December 2010) 31 • Training of Moroccan judges on the 1980 Hague Child Abduction Convention (15-17 December 2010) 34 • Inter-American Experts Meeting on International Child Abduction (23-25 February 2011) 35 Hague Conference update • The International Protection of Children - Launch of the Incadat Funding Campaign 36 • Upcoming Special Commission on the 1980 and 1996 Hague Conventions 37 • Developments regarding the Guides to Good Practice under the 1980 Hague Child Abduction Con vention 37 • Latest developments in Latin America 38 Hague Children’s Conventions Status 39 Members of the International Hague Network of Judges 40 Personal Note 432 The Judges’ Newsletter “ Accreditation and Adoption Accredited Bodies: General

Abduction Con vention 37 • Latest developments in Latin America 38 Hague Children’s Conventions Status 39 Members of the International Hague Network of Judges 40 Personal Note 432 The Judges’ Newsletter “ Accreditation and Adoption Accredited Bodies: General Principles and Guide to Good Practice”, which the Special Commission reviewed in detail over the course of one and a half days. The agenda of the Special Commission followed a number of specifi c themes which stimulated a detailed discussion on a range of current issues. The highlights of those discussions are mentioned in this Report. The Special Commission themes were: 1. abduction, sale and tra ffi c in children in the context of intercountry adoption; 2. applying the safeguards of the Convention; 3. co-operation issues; 4. issues concerning Convention procedures; 5. learning from experience; 6. draft Guide to Good Practice on Accreditation. The following members of the Permanent Bureau were involved in the preparation of the Special Commission: Mr William Duncan (Deputy Secretary General), Ms Jennifer Degeling (Secretary), Ms Laura Martínez-Mora (Adoption Programme Co-ordinator), Ms Trinidad Crespo Ruiz (Adoption Programme Consultant), Ms Sandrine Pépit (Legal Offi cer), Mr Stuart Hawkins (Administrative Assistant for the Adoption Programme), Ms Laura Molenaar (Head of Administration ad interim) and Mr Alexander Kunzelmann (Intern).

1. Abduction, sale and tra ffi c in children in the context of adoption Recalling that one of the objects of the 1993 Hague Intercountry Adoption Con vention2 is to prevent the abduction, sale and traffi c in children, the Special Commission meeting of June 2010 provided the opportunity for a full day of presentations and discussions to consider the extent of the problem at the present time. This special day was made possible by a generous grant from the Government of Australia.

A global perspective of the issues was given by Professor David

2010 provided the opportunity for a full day of presentations and discussions to consider the extent of the problem at the present time. This special day was made possible by a generous grant from the Government of Australia. A global perspective of the issues was given by Professor David Smolin. An African perspective was given by Dr Ben Mezmur. A documentary fi lm entitled “Paper Orphans” was introduced by Joseph Aguettant of the Terre des hommes Nepal offi ce. The International Social Service presented fi ndings of their research on the grey areas of intercountry adoption.3 Each of these presentations made clear that the illicit procurement of children for intercountry adoption is not uncommon. This view contrasts with the offi cial information from most States that there is no abduction, sale or traffi c in children in the context of adoption or that cases are very rare. The tendency of many receiving States has been, up till now, to accept at face value the paper work presented by a State Special Focus The Third Meeting 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, 17-25 June 2010

Theme I: Report of the meeting Jennifer DEGELING Secretary of the Hague Conference on Private international Law and S andrine PÉPIT Legal Offi cer, Hague Conference on Private

Int ernational Law Introduction The Third Meeting 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 (hereinafter the “1993 Hague Intercountry Adoption Convention”) took place from 17 to 25 June 2010 in The Hague. This was the largest meeting ever organised by the Hague Conference on Private International Law, with over 250 experts from 86 countries and 13 international and non-governmental

Convention”) took place from 17 to 25 June 2010 in The Hague. This was the largest meeting ever organised by the Hague Conference on Private International Law, with over 250 experts from 86 countries and 13 international and non-governmental organisations attending. As is customary, invitations were sent to the Member States of the Hague Conference, to States Parties to the 1993 Hague Intercountry Adoption Convention and to non-Member States that participated in the negotiation of the Convention, but also to certain non-Member States that have demonstrated a keen interest in the Convention. Of the 86 States represented at the Special Commission, 66 were Parties to the 1993 Hague Intercountry Adoption Convention (19 of which were not Members of the Hague Conference), and seven were Members of the Hague Conference but not Parties to the Convention. A further 13 States that were neither Members of the Hague Conference nor Parties to the Convention were represented as Observers. Twenty States in total (11 Contracting and nine non-Contracting) and four organisations (two intergovernmental and two nongovernmental) participated for the fi rst time in the Special Commission. Ms Marie Riendeau (Canada) was elected Chair of the Special Commission along with fi ve Vice-Chairs: Mr Stephansen (Norway), Ms Sloth-Neilson (South Africa), Ms Morales Ibáñez (Chile), Ms Abejo (Philippines) and Ms Bond (United States of America). Five Preliminary Documents drawn up by the Permanent Bureau were transmitted to participants prior to the Special Commission.1 The most important of these Preliminary Documents was the draft Guide to Good Practice No 2, Notes 1 Available on the website of the Hague Conference at < www.hcch.net > under “Intercountry Adoption Section” then “Special Commissions”. 2 Art. 1. 3 Most of these papers can be found on the Hague Conference website at < www.hcch.net >.3on International Child Protection a) e ff ective application of Hague Convention procedures

under “Intercountry Adoption Section” then “Special Commissions”. 2 Art. 1. 3 Most of these papers can be found on the Hague Conference website at < www.hcch.net >.3on International Child Protection a) e ff ective application of Hague Convention procedures and safeguards including, as far as practicable, in relation to non-Convention adoptions; b) independent and transparent procedures for determining adoptability and for making decisions on the placement of a child for adoption; c) strict adherence to the requirements of free and informed consent to adoption; d) strict accreditation and authorisation of agencies, and in accordance with criteria focussing on child protection; e) adequate penalties and eff ective prosecution, through the appropriate public authorities, to suppress illegal activities; f ) properly trained judges, offi cials and other relevant actors; g) prohibition on private and independent adoptions; h) clear separation of intercountry adoption from contributions, donations and development aid; i) regulated, reasonable and transparent fees and charges; j) effective co-operation and communication between relevant authorities both nationally and internationally; k) implementation of other relevant international instruments to which States are parties; l) public awareness of the issues.” of origin for each child to be adopted. This is evident from the country responses to a questionnaire on traffi cking, one of the preliminary documents of the Special Commission.4 There is confusion concerning the term “traffi cking”. It has connections with human traffi cking and exploitation, whereas in the context of intercountry adoption, it was taken to mean the illicit procurement of children or “child laundering”. The falsifi cation of documents is one methode of facilitating the illicit procurement of children (this was the subject of the fi lm “Paper Orphans”). In its Conclusions and Recommendations, the Special Commission proposed some essential features of a wellregulated intercountry adoption system. Recommendation No 1 of the Special Commission states:

illicit procurement of children (this was the subject of the fi lm “Paper Orphans”). In its Conclusions and Recommendations, the Special Commission proposed some essential features of a wellregulated intercountry adoption system. Recommendation No 1 of the Special Commission states: “1. Concerned to prevent, in the context of intercountry adoption, the abduction, sale and tra ffi c in children and their illicit procurement, the Special Commission draws the attention of States to the following as essential features of a well regulated system: Notes 4 “Questionnaire on the abduction, sale of, or tra ffi c in children and some aspects of the practical operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-Operation in Respect of Intercountry Adoption”, Prel. Doc. No 4 of April 2010 for the attention of the Special Commission of June 2010 on the practical Participants to the Third 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. operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. The questionnaire and responses are available on the website of the Hague Conference at < www.hcch.net > under “Intercountry Adoption Section” then “Special Commissions”.4 The Judges’ Newsletter The best interests of the child is the overriding principle. It should be the ultimate safeguard for the person making the fi nal adoption decision. That person has the possibility to refuse any adoption that is not in a child’s best interests, including an adoption in which the essential safeguards were not followed. b) Exercising fi nancial control Improper fi nancial gain from adoption is prohibited by the Convention (Art. 32). Article 32 puts into practice Article 21 d) of the Convention on the Rights of the Child to “Take all appropriate measures to ensure that, in inter-country

b) Exercising fi nancial control Improper fi nancial gain from adoption is prohibited by the Convention (Art. 32). Article 32 puts into practice Article 21 d) of the Convention on the Rights of the Child to “Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper fi nancial gain for those involved in it.” In this context, improper means illegal, excessive or unreasonable material benefi t. Accredited bodies (licensed adoption agencies) must be non-profit organisations (Art. 11). However, a person or body may charge reasonable fees to cover their costs for providing an adoption service. The Special Commission recommended, as a new approach to the issue, that the Permanent Bureau examine the feasibility of posting on the Hague Conference website tables indicating the costs associated with intercountry adoption and the charges imposed on prospective adoptive parents for each Contracting State. Eff ective regulation of the fi nancial aspects of adoption can be achieved with more transparency of costs; better accountability of service providers; and criminal penalties for persons making improper fi nancial gain. Eff ective regulation also requires co-operation between States of origin and receiving States to exchange information about costs so as to establish reasonable fees and prevent improper fi nancial gain. These factors are emphasised in the draft Guide to Good Practice No 2 (see section 6 below).

3. Co-operation issues The 1993 Hague Intercountry Adoption Convention is a Convention based on cooperation, and its importance is recognised by the inclusion of the term in the title of the Convention. As there are no sanctions or penalties in the Convention for non-compliance, it is essential to have good co-operation, communication and networking between Convention States and their Central Authorities, as well as other authorities and bodies involved in the intercountry adoption procedures. The Special Commission discussed the importance of co-operation between States of origin and receiving States highlighting issues such as improving

co-operation, communication and networking between Convention States and their Central Authorities, as well as other authorities and bodies involved in the intercountry adoption procedures. The Special Commission discussed the importance of co-operation between States of origin and receiving States highlighting issues such as improving the exchange of information, co-operation to achieve good practices especially with respect to dealing with pressure on States of origin from receiving States, and the need to break the link between co-operation projects and intercountry adoption. Among the other matters discussed, two are particularly important as current challenges: intercountry adoption in the context of globalisation and international mobility; and setting the limits of ethical activity in cooperation (development aid) projects. In addition, it was agreed that “ An informal group co-ordinated by the Australian Central Authority with the participation of the Permanent Bureau will consider the development of more eff ective and practical forms of co-operation between States to prevent and address specifi c instances of abuse. The result of this work will be circulated by the Permanent Bureau for consideration by Contracting States.”5

2. Applying the safeguards of the Convention The establishment of a system of safeguards is the fi rst stat ed object of the Convention in Article 1. The meeting focussed on some of the procedures required to maintain a comprehensive system of safeguards, in particular, applying the principle of subsidiarity,6 establishing whether a child is genuinely adoptable, 7 obtaining informed consents to the adoption,8 careful selection and preparation of prospective adoptive parents, 9 review of documents and procedures before agreements are given under Article 17, and control of fi nancial aspects of intercountry adoption.10 Some of these procedures need to be applied in the State of origin, and some need to be applied in the receiving State. Recommendation

No 1 mentioned above refers to those safeguards as some of the essential features of a well-regulated adoption system. a) Subsidiarity The subsidiarity principle is a cornerstone of the United

procedures need to be applied in the State of origin, and some need to be applied in the receiving State. Recommendation No 1 mentioned above refers to those safeguards as some of the essential features of a well-regulated adoption system. a) Subsidiarity The subsidiarity principle is a cornerstone of the United Nations Convention of 1989 on the Rights of the Child (Art. 21) and the 1993 Hague Intercountry Adoption Convention. It requires that States Party to the Convention recognise that a child should be raised by his or her birth family or extended family whenever possible. If that is not possible or practicable, other forms of permanent family care in the country of origin should be considered. Only after due consideration has been given to national solutions should intercountry adoption be considered, and then only if it is in the child’s best interests. The Special Commission debate highlighted different issues including the necessity of having a separate authority responsible for examining alternative care options for the child and in charge of adoptions. Additionally, practices supporting the family and community in fi nding solutions, better coordination between national authorities, and attention to the needs of the child with respect to time are important in applying the principle of subsidiarity (a child’s perception of time diff ers from an adult’s perception). Notes 5 See Recommendation No 2 of the « Conclusions and Recommendations of the Special Commission on the practical operation of the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption (17-25 June 2010) », available on the website of the Hague Conference, < www.hcch.net >, then « Intercountry Adoption Section » then « Special Commissions ».

6 Art. 4 b). 7 Art. 4 a). 8 Art. 4 c) and d). 9 Arts 5 a), 5 b), 9 c), 15(1), 16(1) d), 17 d). 10 Arts 8, 11, 32.5on International Child Protection A separate ethical problem concerns private and independent adoptions. These are permitted by some receiving States and States of origin. In these cases, prospective adopters may or may not be offi cially approved to adopt, and often they go to the State of origin to fi nd a child to adopt. These adoptions come within the scope of the 1993 Hague Intercountry Adoption Convention but all the safeguards of the Convention are not being applied. Training is needed for judges in States of origin to recognise when the Convention should apply and to stop procedural abuses when they occur. Several problem situations were discussed can creat diffi culty and require for their resolution co-operation between countries. These include cases when the prospective adoptive parents have made a valid application but change their place of residence during the adoption procedure; adoption by persons who are habitually resident in, but not nationals of, the State of origin (and national adoption by foreigners is not permitted); adoption by persons who are resident in, but not nationals of, the receiving State, and the nationality of the receiving State is a requirement to adopt; adoption by persons who are nationals of a third State (neither the State of origin nor the receiving State). In many of the situations described, the risks to the child’s rights and the rights of the birth family are signifi cant. For the prospective adopters, the practical and legal problems are also important as some receiving States will not permit the child to enter the country because the Convention procedures were not followed. a) Intercountry adoption in the context of globalisation and international mobility The modern phenomena of globalisation and international mobility, brought about by the ease of travel, ease of

receiving States will not permit the child to enter the country because the Convention procedures were not followed. a) Intercountry adoption in the context of globalisation and international mobility The modern phenomena of globalisation and international mobility, brought about by the ease of travel, ease of fi nding information and communicating through diff erent technologies, the possibility or the need to live and work in diff erent counties, has thrown up particular problems for the regulation of intercountry adoption. It is evident that the 1993 Hague Intercountry Adoption Convention is often not applied in relevant cases, or it is applied to which it should not be. Article 2 of the Convention fi xes its scope, and the relevance of habitual residence of the parties. 11 There are two main categories of intercountry adoptions when the Convention should be applied and often is not: “intra-family” or “relative” adoptions; and adoption by persons who are nationals of the State of origin but habitually resident in another Convention State. There are also cases of adoption by persons who are temporarily resident in a State of origin which are treated as national adoptions when they should be intercountry adoptions. Some prospective adopters may attempt to obtain a national adoption in a State of origin when they have not been approved to adopt by their own State. Notes 11 Art. 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”) Mr Ignacio Goicoechea, Liaison Legal Offi cer for Latin America, Permanent Bureau, Mrs Laura Martínez-Mora, Adoption Technical Assistance Programme Co-ordinator, Permanent Bureau,

M. Hans van Loon, Secretary General, Hague Conference, Ms Marie Riendeau, Chair of the Special Commission

(Canada), Ms Jennifer Degeling, Secretary, Hague Conference, Mr William Duncan, Deputy Secretary General, Hague Conference

Mrs Laura Martínez-Mora, Adoption Technical Assistance Programme Co-ordinator, Permanent Bureau,

M. Hans van Loon, Secretary General, Hague Conference, Ms Marie Riendeau, Chair of the Special Commission

(Canada), Ms Jennifer Degeling, Secretary, Hague Conference, Mr William Duncan, Deputy Secretary General, Hague Conference 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.”6 The Judges’ Newsletter The Special Commission adopted the following Recommendations to address these issues: “Where the habitual residence of the prospective adoptive parents is uncertain the concerned Central Authority should provide advice on their particular situation before they proceed with an adoption application.”12 “Central Authorities should co-operate in the completion of any formalities necessary for the acquisition by the child of the nationality, where appropriate, either of the receiving State or of an adoptive parent.”13 “The question of whether nationality will be granted to the child may, where appropriate, be a relevant factor when a State of origin is considering co-operation with a particular receiving State.”14 “ Adoptions which are arranged directly between birth parents and adoptive parents (i.e., private adoptions) are not compatible with the Convention.”15 “Independent adoptions, in which the adoptive parent is approved to adopt in the receiving State and, in the State of origin, locates a child without the intervention of a Central Authority or accredited body in the State of origin, are also not compatible with the Convention.”16 “It was strongly recommended that training be provided for judges and other authorities or persons exercising functions under the Convention. This training should address in particular the problems surrounding private and independent adoptions, as well as other possible ways of circumventing the procedures and safeguards of the Convention.”17 b) Co-operation and development aid The provision of development aid to States of origin by adoption agencies of receiving States has become a challenging ethical issue in intercountry adoption. Some States of origin require

adoptions, as well as other possible ways of circumventing the procedures and safeguards of the Convention.”17 b) Co-operation and development aid The provision of development aid to States of origin by adoption agencies of receiving States has become a challenging ethical issue in intercountry adoption. Some States of origin require this aid to be given by a receiving State as a condition of allowing intercountry adoptions with that State. These arrangements result in an unhealthy dependence on intercountry adoption money. The challenge is to provide the necessary aid for capacity building and training and to help poor countries build up their services for children and families, but in a way which does not compromise the integrity of the adoption process. The Special Commission noted that a clear delineation between humanitarian aid and intercountry adoption is difficult but emphasised the necessity of monitoring humanitarian projects, ensuring that there is transparency and independence with intercountry adoptions. In relation to the issue of co-operation (development aid) projects, the 2010 Special Commission made the following recommendation: “The Special Commission emphasised the need to establish, in all cases, a clear separation of intercountry adoption from contributions, donations and development aid.”18

4. Issues concerning convention procedures a) Certi fi cate of conformity under Article 23

A number of procedural problems were discussed in the

Special Commission. The Article 23 certifi cate is essential to allow automatic recognition of adoptions made in accordance with the Convention. However, some Contracting States have not designated an authority pursuant to Article 23(2) of the 1993 Hague Intercountry Adoption Convention to issue the certifi cate; sometimes an Article 23 certifi cate is diffi cult or impossible to obtain; some certifi cates are not in conformity with the Convention, and are incomplete or incorrect; Article 23 certifi cates have been issued for adoptions which were not made in accordance with the Convention;