Hague Conference on Private International Law Convention on Protection of Children and Co-operation in respect of Inter-country Adoption

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Hague Conference on Private International
LawConvention on Protection of Children and
Co-operation in respect of Inter-country Adoption
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Purpose of presentation

• Is to obtain Parliaments approval
• for South Africa to accede to this
• Convention to be ratified and
• considered in terms of section 231(2) of the
  Constitution

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South Africa ratified the UN Convention on the
Rights of the Child (CRC) on 16 June 1995.The
UNCRC contains a comprehensive set international
norms for the protection and well being of
children
BACKGROUND
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Cabinet, on 15 May 2002 supported the
ratification of the above mentioned Instrument as
itwould guarantee the protection of the
fundamental rights of children from being sold or
trafficked between parties or countries
BACKGROUND
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The Hague Convention in Respect of Inter-country
Adoption applies to all children under the age of
18 years and is in line with Section 28(2) of the
Constitution
BACKGROUND
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BACKGROUND
Child Care Act 72 of 1983, Section 18(4)(f)
presently implies that only South African
citizens or where one of the applicants is a
South African, may adopt a child This Section in
the Child Care legislation however was found to
be unconstitutional by the Constitutional Court
during May 2000 and scrapped it. The decision of
the Constitutional Court had immediate effect in
that inter-country adoptions had to be considered
despite the fact that South Africa had no
legislation to deal with such adoptions.
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Convention on Inter-country Adoptions

• Inter-country adoptions 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
• Only adoptions, which creates a permanent
  parent-child relationship are covered
• It also promotes the protection of children
  against being abducted, sold or trafficked

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Objects of the Convention(Article 1)

• To establish safeguards to ensure that
  inter-country adoptions take place in the best
  interests of the child and with respect for his
  or her fundamental rights as recognised in
  international law
• To establish a system of co-operation amongst
  Contracting States to ensure that those
  safeguards are respected and thereby prevent the
  abduction, the sale of, or traffic in children
• To secure the recognition in Contracting States
  of adoptions made in accordance with the
  Convention

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Article 2

• The Convention applies 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.

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Responsibilities of the State of origin(Article 4)

• Has to establish that the child is adoptable
• Should determine, after having considered
  possibilities for placement of the child within
  the State of origin, that an inter-country
  adoption is in the childs best interests
• Ensure that the consenting parties receive
  counselling

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Responsibilities of the State of origin(Article 4)

• Ensures that
• consent was given freely
• consents have not been induced by payment or
  compensation of any kind and have not been
  withdrawn, and

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Involvement of the child(Article 4)

• Ensures that the child, depending on his or her
  age and or maturity, 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
• Consideration has been given to the childs
  wishes and opinions

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Responsibilities of the receiving State (Article
5)

• Should determine that the prospective adoptive
  parents are eligible and suited to adopt
• Ensures that the prospective adoptive parents
  have been counselled as may be necessary and
• have determined that the child is or will be
  authorised to enter and reside permanently in
  that State.

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Central authorities and accredited bodies(Article
6)

• A Contracting State shall designate a Central
  Authority to discharge the duties which are
  imposed by the Convention upon such authorities

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Co-operation between Central Authorities (Article
6(2)

• They shall take directly all appropriate measures
  to -
• provide information as to the laws of their
  States concerning adoption and other general
  information, such as statistics and standard
  forms
• keep one another informed about the operation of
  the Convention and, as far as possible, eliminate
  any obstacles to its application

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Articles 7, 8, 9, 10..

• Roles and Responsibilities of the
• Central Authorities
• Accreditation of bodies
• Monitoring
• Ensures proper financial management
• Facilitate, follow and expedite proceedings with
  a view to obtaining the adoption
• Preparation of reports

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Discussion

• The text of this Hague Convention is not in
  conflict with the domestic laws and policies of
  South Africa
• The Registrar of Adoptions has registered - 107
  inter-country adoptions since May 2000
• Once the Convention is ratified the Central
  authority will have the power to regulate
  adoptions to and from SA

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Monitoring and Evaluation

• The ORC in the Presidency, which is responsible
  for the co-ordinating and monitoring the UN
  Convention on the Rights of the Child, could be
  charged with the monitoring the implementation of
  this Convention

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Recommendation

• That the Parliamentary Committees support the
  ratification of the Hague Convention on
  protection of children and co-operation in
  respect of Inter-Country Adoption