Section 12.

Inter-country adoption in an international perspective

• Trafficking and sale of children
• Poverty
• The international Convention on the Rights of the Child

Review of the Adoption of Children Act 1965 (NSW)

INTRODUCTION

12.1 Children, as powerless members of most societies, are vulnerable to abuse in many circumstances - in their homes, in the education system and in welfare systems. The process of inter-country adoption is no exception to this general rule and children have suffered abuses of their rights in the name of inter-country adoption. Abuses may occur intentionally, where a child is abducted for the purposes of adoption or inadvertently, when people mistakenly believe they are acting in the best interests of a child.

12.2 The international community attempts to prevent abuses of children's rights by formulating conventions which set standards for States' treatment of children. These include the International Convention on the Rights of the Child (ICROC) and the Hague Convention on International Co-operation and Protection of Children in Respect of Inter-country Adoption. The United Nations and some of its constituent parts,[1] along with non-government organizations,[2] Monitor the treatment of children around the world.

12.3 The first part of this chapter will examine some of the problems that the international community has to combat in order to safeguard children. In the context of inter-country adoption, trafficking and sale of children and endemic poverty are two of the most significant problems that arise. The second part of the chapter will examine some of the international conventions that have been drawn up to try and deal with these problems. Particular attention will he paid to the sections of ICROC that relate to adoption and to the Hague Convention as a whole.

TRAFFIC AND SALE OF CHILDREN

12.4 Prevention of the trafficking and sale of children is now high on the international agenda. The United Nations Commission on Human Rights appointed a Special Rapporteur to investigate the problem in 1990.[3] It is relevant to the practice of inter-country adoption because there is a risk that some children who are adopted by foreign nationals may have been abducted and sold. This risk is considerably higher for couples who proceed through lawyers or other intermediaries and who pay large sums of money to facilitate the adoption. Even if couples act in good faith, they may be unwittingly contributing to the trafficking of children. For example, if they find a child through a lawyer, which some Australian couples do, the child may have been bought by the lawyer from a child abductor. In a study on the trafficking of children in Bolivia, evidence emerged of a woman who had abducted five babies in three months and sold all to a lawyer for an average of $US5 each.[4] Forged relinquishment or abandonment papers can he arranged for such children and Western couples offered the children, oblivious to the circumstances in which they were obtained.

12.5 Inter-country adoption provides incentive and opportunity for child trafficking to occur.[5] Some South American and Asian countries that have high rates of legitimate inter-country adoptions also have high rates of child abduction and sale. The combination of poverty, ineffective legislation and bureaucracy in donor countries, with money and desperation for children in receiving countries, provides the perfect climate for trafficking and sale to flourish.

POVERTY

12.6 Poverty is the single greatest problem affecting children in the world today. Two hundred and fifty thousand children die every week from malnutrition and disease.[6] Many of these deaths could be prevented if communities were provided with the means to feed, immunise and medically treat their children. Poverty is not only responsible for the deaths of children, it is responsible for children's lack of adequate housing, access to education and basic opportunities in life.

12.7 Many children are relinquished for inter-country adoption because of poverty. Families may want to care for their children but they do not have the means to do so because of the endemic poverty that affects their country or region of the world.

12.8 Poverty and adoption are often closely connected. In Australia, thousands of women relinquished their children because of poverty. Prior to the introduction of the single mothers' pension in 1973, women without family support often had no choice but to relinquish their children for adoption. After 1973, the number of children relinquished for adoption steadily decreased from 9,798 in 1972 to 3,337 in 1980. [7]

12.9 The connection between poverty and adoption is a cause for concern in the international community, especially amongst non-government organizations. Damien Ngabonziza, of the International Social Service argues that inter-country adoption can be a bandaid solution for a small number of children and that it may ignore the real problems that children face. He states that "the response to hunger is food, not ICA [inter-country adoption]. Likewise, poverty, lack of adequate health care and such do not require ICA as a remedy".[8]

12,10 Other commentators support this statement arguing that inter-country adoption is an inappropriate way to care for poor children because it does not address their real needs. They argue that the majority of poor children are not orphaned or abandoned. They have a family but that family cannot provide for them. Instead of providing the existing family with the means to support their children, inter-country adoption provides the child with a new family. Maria Josefina Becker of the Brazilian Federal Child Welfare Agency states that:

"the great majority of poor children in Latin America, whether they are found in the streets of our cities or in public or private children's institutions, whose numbers are in the millions, are not abandoned. These children, together with their families, are victims of the serious economic conditions affecting our part of the world ... To the extent that they actively undertake the search for children to be adopted, couples and agencies involved in international adoption, their generous and humane motives notwithstanding, increase the pressures favouring a rupture between the poor child and his or her family rather than strengthening the ties between them ... In this way conditions encouraging the "production" of abandonment are created, apparently motivated by the assistance and protection of the child, which in reality serve the interests of adoptive parents."[9]

12.12 The Regional Expert Meeting on Protecting Children's Rights in Inter-country Adoptions and Preventing Trafficking and Sale of Children organised by Defence for Children International in co-operation with the Philippine Government recommended that:

a reassessment of the need for ICA is clearly essential. There is a widespread misconception about the numbers of children in need of ICA. The "demand' for such children in the US, Europe and Australia is much larger than their "availability".[10]

"The first type is that which places the needs of the child as a priority. This means those needs are identified and the appropriate adoptive parents located and evaluated by a responsible, professional and legally recognised agency ... The second type is relative adoption ... [and the] third type is that of couples, childless or not, who want to adopt and, because adoptive children are not readily available in their own country, travel overseas or turn to overseas resources, usually to deprived areas where there is a surplus of needy children, in the hope of locating a child to meet their own criteria. It is not in every case that the child's needs are the motivating factor, but rather the desires of the adoptive parents."[11]

INTERNATIONAL LAW

12.15 As a result of concerns similar to those raised above, the international community sought to regulate inter-country adoption. In 1986 the General Assembly of the United Nations adopted by consensus the Declaration on the Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally. This laid down the principle that inter-country adoption was only to be considered as a placement option if a child could "not be placed in a foster or an adoptive family or [could] not in any suitable manner be cared for in the country of origin".[12]

12.16 In 1990, the Convention on the Rights of the Child (ICROC) came into force. This is a general document on the rights of children, but it includes an article on national and international adoption.[13] A more specialised convention, the Hague Convention on International Co-operation and Protection of Children in Respect of inter-country Adoption, was finalised in 1993 at the Hague Conference on Private International Law. This convention will be the focus of much of the following discussion.

12.17 The role of international law is sometimes ambiguous owing to the lack of international enforcement mechanisms. There is no international court with automatic jurisdiction to ensure compliance with international conventions, so that if a breach occurs it will not necessarily be litigated in the way a breach of domestic law might be. The absence of such a court also means that there is no body of case law interpreting the articles of conventions.[14] This can make it difficult to state definitively the precise meaning of an article, particularly as they are often couched in broad, non-specific terms. Despite these reservations about international law, the obligations that Australia has undertaken in signing conventions are ones that must be taken seriously.

International Convention on the Rights of the Child (ICROC)

12.18 Under the ICROC, Australia must "respect and ensure" the rights in the Convention [15] and it must provide periodic reports to the Committee on the Rights of the Child detailing the measures it has taken to give effect to the rights.[16] The Committee is made up of ten independent experts [17] who can make "suggestions and general recommendations" on Australia's progress, which will be reported in the General Assembly of the United Nations.[18] Other State Parties can also comment on Australia's report.

12.19 The ICROC enshrines the principle that the best interests of the child is the paramount consideration in making adoption arrangements. Article 21 states that:

State Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

1. ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

2. recognise that inter-country adoption may be considered as an alternative means of a child's care, if the child cannot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

3. ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

4. take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved;

5. promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework to ensure that the placement of the child in another country is carried out by competent authorities or organs.[19]

Footnotes

1. For example the Committee on the Rights of the Child, established by article 43 of ICROC.

2. For example Defence for Children International, an independent non-government organization based in Geneva.

3. he mandate of the Special Rapporteur was created by the Commission on Human Rights by resolution 190/68 for one year in 1990. The mandate was extended to two years and then again for three years from 1992. The Special Rapporteur furnishes annual reports to the Commission updating his progress.

4. Defence for Children International Protecting children's rights in international adoptions: Selected Documents on the problem of sale and trafficking of children (Geneva, 1989) at 6.

5. See M Jimenez "Trafficking in Central America: The case of Honduras" (1993) 10(1-2) International Children's Rights Monitor 6.

6. United Nations Children's Fund The State of the World's Children 1993 (Oxford University Press, Oxford, 1993) at 57.

7. R Winkler and M van Keppel Relinquishing Mothers in Adoption: Their long-term adjustment (Institute of Family Studies, Melbourne, 1984) at 5. The availability of abortion and the change in society's attitude to single motherhood also played a role in the decrease in relinquishments.

8. D Ngabonziza "Inter-country adoption: in whose best interests?" (1988) 12 (1) Adoption and Fostering 35 at 40.

9. "The pressure to abandon" (1988) 5 (2/3) International Children's Rights Monitor cited in Defence for Children International Protecting children's rights in international adoptions: Selected Documents on the problem of sale and trafficking of children (Geneva, 1989) at 24-5.

10. The Regional expert meeting on Protecting Children's Rights in Inter-country Adoptions and Preventing Trafficking and Sale of Children organised by Defence for Children International in cooperation with the Department of Social Welfare and Development of the Government of the Republic of the Philippines (April 1992, Manilla, Philippines) at 6.

11. Ngabonziza at 35.

12. Article 17.

13. Article 21.

14. Breaches of conventions and treaties can be brought before the International Court of Justice but only if both States submit to the Court's jurisdiction. Further, individuals have no standing before the Court so that it can only adjudicate inter-State disputes. As a result, the Court does not often have the opportunity to comment on conventions and treaties which relate to human rights. There are however various United Nations committees, established under covenants and conventions, which interpret the articles of their parent document. These committees can develop a body of case law in relation to specific articles, for example the Human Rights Committee's case law in relation to the International Covenant on Civil and Political Rights.

15. Article 2.

16. Article 44. Australia was due to report in January 1993 but has not yet done so at the time of writing (January 1994).

17. Article 43(2).

18. Article 45(d).

19. Article 21(b)-(e).

20. For example for some countries that have traditionally provided no State care for children, church or State-run homes may look ideal in contrast to life on the streets, where children without families formerly would have lived.

21. New South Wales changed its age criteria for inter-country and local adoption to bring them into line with each other, after Australia signed the ICROC. Difference in age criteria for inter-country adoptive parents and local adoptive parents cannot be justified as being in the best interests of the child. There are however other differences in legislation affecting inter-country adoption which it is considered can be justified, eg Adoption of Children Regulations reg 20(2B) which gives the Director-General a discretion to assess and approve couples who do not meet all the gazetted criteria for inter-country adoption.