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INTERCOUNTRY ADOPTION AND THE SUBSIDIARITY PRINCIPLE: A PROPOSAL FOR A VIA MEDIA

Article 20 of the CRC states that when a child is deprived of parental care
the state should provide alternative care which may include foster care,
kafalah,8
adoption or placement in a suitable institution. Article 21(b) of the CRC specifies when intercountry adoption may be used. It directs that
countries shall “recognise that intercountry adoption may be considered as
an alternative means of child’s care, if the child cannot be placed in a foster
or an adoptive family or cannot in any suitable manner be cared for in the
child’s country of origin”.
It is clear that article 21(b) accords first priority to national adoption or
foster care, or any other suitable form of national care, and rates intercountry
adoptions as a second-best solution.9

Although the key phrase “in any
suitable manner” is not defined, a reading of article 20(3) together with
article 21(b) of the CRC suggests that all appropriate forms of national care
have priority over intercountry adoption.10 Article 20(3) requires that in
selecting care “due regard shall be paid to the desirability of continuity in a
child’s upbringing and to the child’s ethnic, religious, cultural and linguistic
background”.
Similarly to the CRC, article 24(b) of the AC characterises intercountry
adoption as a last resort, less preferable than national adoption, foster care,
or other domestic alternatives.11 However, in one important respect it is more
restrictive than the CRC. It directs state parties to place children in
intercountry adoptions only in destination countries which have signed the
CRC or the AC.12
In contrast to the CRC and AC, the Hague Convention seems to prioritise
all permanent family solutions equally, regardless of their national or
international character. Its Preamble at paragraph 1 recognizes that “for the
full and harmonious development of his or her personality” every child
“should grow up in a family environment, in an atmosphere of happiness,
love and understanding”. And paragraph 2 gives unqualified support to
intercountry adoptions, stating that they “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”. Article 4(b) of the Convention permits intercountry
adoptions when competent authorities “have determined, after possibilities
for placement of the child within the State of origin have been given due
consideration, that an intercountry adoption is in the child's best interests”.
Since the Hague Convention prioritizes all permanent family solutions it
can be interpreted13 as preferring intercountry adoption over national foster care and institutionalization.14 This has been supported by the Permanent
Bureau of the Hague Conference.15 It declared:
“It is sometimes said that the correct interpretation of ‘subsidiarity’ is that
intercountry adoption should be seen as ‘a last resort’. This is not the aim of
the Convention. National solutions for children such as remaining permanently
in an institution, or having many temporary foster homes, cannot, in the
majority of cases, be considered as preferred solutions ahead of intercountry
adoption. In this context, institutionalisation is considered as “a last resort”.16
A difficulty with this is that it does not fit with the wording of the CRC and
the AC. As shown above these prioritise national forms of care, including
foster care and institutionalization, over intercountry adoptions.
Commentators have noted the different approaches in the conventions.
Bhabha, for example, mentioned that in the Hague Convention “the CRC’s
emphasis on the primacy of domestic placement is replaced by a weaker
reference to the unavailability of a ‘suitable family’ in the home country and
the obligation to merely give ‘due consideration’ to adoption within the state
of origin”.17 Maravel went so far as to argue that the Hague Convention
“rejected the UN Convention’s preference for nonpermanent foster care or
institutional care in the State of origin”.18
The differing provisions of the AC, CRC and the Hague Convention have
become a battleground for proponents and critics of intercountry adoptions.
No clear solution to the tensions in wording has been agreed upon
internationally. And unfortunately the guidance from international bodies
remains inconsistent.19 This complicates the situation, especially for countries like South Africa which are parties to the Hague Convention, the
CRC and the AC. As a way forward Duncan proposes that it is unnecessary
to interpret the Hague Convention as prioritising intercountry adoption over
domestic foster care or institutionalisation in all cases. Referring to article
4(b), he argues that its wording leaves some flexibility in deciding on
possibilities for placing a child nationally and on how to give “due
consideration” to alternatives.20 This elastic interpretation can be used to
produce a realm of discretion for state parties.

Social policy approaches to intercountry adoption

To pick up on the themes of conflict and ambiguity, there is a significant difference between the Hague Convention and the 1989 UN Convention on the Rights of the Child (CRC). The Hague Convention states that ICA ‘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’ (emphasis added). The CRC, meanwhile, recognizes that ICA may be appropriate in certain cases, but only if the child cannot be cared for ‘in any suitable manner’ in his/her country of origin (Article 21). This could conceivably include a wide range of alternatives, such as small family-type homes, child-headed households and informal communitybased solutions. Such options may be more suitable than ICA for many children who do not live with their birth families, given that very few separated children are abandoned or orphaned healthy babies (Graff, 2008; Saclier, 2000). 

There is tension between the two approaches and the Hague Convention appears to be in the ascendancy, but there are efforts to gloss over the differences. Ambiguity is the key diplomatic skill. This is apparent in the United Nations Children’s Fund (UNICEF)’s Position Statement on ICA. UNICEF looks to the CRC as its touchstone and has an ambivalent position on ICA. It says that it supports the Hague Convention but considers ICA ‘one of a range of care options which may be open to children, and for individual children who cannot be placed in a permanent family setting in their countries of origin, it may indeed be the best solution’ (UNICEF, n.d., emphasis added).

Wikileaks - Viewing cable 08CAIRO2562, UPDATE ON BABY TRAFFICKING NETWORK - Egypt

Viewing cable 08CAIRO2562, UPDATE ON BABY TRAFFICKING NETWORK

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Mariela Neagu: Ultima plat? c?tre organiza?ia "Pentru Copiii No?tri" a fost f?cut? de Bogdan Panait

Mariela Neagu: Ultima plat? c?tre organiza?ia "Pentru Copiii No?tri" a fost f?cut? de Bogdan Panait

Mariela Neagu: Ultima plat? c?tre organiza?ia "Pentru Copiii No?tri" a fost f?cut? de Bogdan Panait (Imagine: Mediafax Foto)

ARTICOLE PE ACEEA?I TEM?

Udrea, refuzat? de Curtea de Conturi

Sandu îl amenin?? pe Condescu cu controale efectuate de Curtea de Conturi

Pasports refused - fake paperwork?

Reisverslag

Nicole en Brendie, 22 december 2008
Kenia Kenia Nairobi


Paspoorten

 

Na vorige week maandag eindelijk (na 5 keer) goedgekeurd te zijn door de court begon voor ons de volgende uitdaging (lees stress).
Kunnen we nog voor de kerst thuis komen???
Onze lawer vertelde ons dat er een klein kansje was en dat we er voor zouden gaan.
Tot en met donderdag ging alles voorspoedig. Hij had in 1 dag de courtorder. Het adoptiecertificaat was er woensdag al en toen alleen de paspoorten nog.
Tja, daar kwam het eerste probleem. De vrouw die moest tekenen wilde niet tekenen omdat ze het niet vertrouwde. Ze zag de datums van de court en van de adoptiecertificaat en bedacht dat dat nooit zo snel kon. Ze dacht dat de papieren vals waren. De lawer moest daarom maandagmorgen een bewijs laten zien dat alle papieren niet vals waren. Uiteindelijk is hij bij de baas terecht gekomen en die heeft opdracht gegeven om de paspoorten te printen, dit gebeurde om 15.00. Om 17.00 is de lawer terug gegaan om de paspoorten te halen. Deze waren gelukkig klaar. Toen moest hij nog het adoptiecertificaat laten veranderen. De naam van Nicole stond er namelijk niet op. Om 17.30 stond hij bij ons op de stoep om alle papieren af te leveren.
Hij vertelde ons dat hij nog maar 1 keer eerder door de week bij een rechter mocht komen. En dat was maar 1 keer. Hij had dit nog nooit mee gemaakt, 5 keer terug naar een rechter en dan door de weeks.
Tevens vertelde hij ons dat het ooit 1 keer eerder gelukt was alle vertrek papieren in 1 week bij elkaar te krijgen. Dit was dus een record !!!

Morgen om 08.30 staan wij bij de ambassade om de visum te regelen zodat we morgenavond met het vliegtuig naar Nederland kunnen.

Vergeef ons de spelfouten in ditbericht, het is snel geschreven.

Groeten Brendie en Nicole

S'porean adoption agency owner accused of baby-trafficking

>> ASIAONE / NEWS / LATEST NEWS / ASIA / STORY

Sun, Dec 21, 2008

The New Paper

S'porean adoption agency owner accused of baby-trafficking

BY: ARUL JOHN

Madoff Mess Means Business for Pawnshops and Lazard

Madoff Mess Means Business for Pawnshops and Lazard

December 19, 2008, 11:43 AM

Bernand L. Madoff’s giant Ponzi scheme has created legions of losers across the world. These include huge European banks, charitable organizations, Eliot Spitzer’s family and many, many others.

But a few people seem be getting a boost from the debacle. One of these may be Levi Touger, who runs a scruffy pawnshop in Royal Palm Beach, Fla.

Mr. Touger tells The Associated Press that he’s seen an uptick in well-heeled customers since the Madoff scandal broke. Mr. Madoff, pictured above, was a big wheel in Palm Beach society, and many of its wealthy (or perhaps formerly wealthy) residents are facing serious reversals of fortune.

Swiss re-elected to UN child rights committee

Dec 18, 2008 -
08:06

Swiss re-elected to UN child rights committee


Jean Zermatten will sit for another four years on the 18-member UN Committee on the Rights of the Child

Image Caption: Jean Zermatten will sit for another
four years on the 18-member UN Committee on the Rights of the Child (Swiss
Mission to the UN)

Swiss child rights advocate Jean Zermatten has been re-elected for a further
four-year term on the United Nations Committee on the Rights of the Child
(CRC).

The
extension of Zermatten's position on the 18-member committee, which oversees the
implementation of the UN Convention on the Rights of the Child, is an
affirmation of Switzerland's position on human rights and development, the
country's ambassador to the UN in New York says.

Verslag Haiti bijeenkomst bij Wereldkinderen dd 17-12-2008

Verslag bijeenkomst bij Wereldkinderen dd 17-12-2008

Aanwezig waren Pauline Hillen, die net een week in Esperance is geweest, Ingrid en Sigrid en Dik Seltonrijch, die als voorzitter fungeerde (prima job, Dik!).

Eerst vertelt Pauline uitgebreid over haar bezoek.

Het doel van haar bezoek was om te kijken waar er nu stagnatie in de procedure is, hoe het komt en of er wat aan te doen is. Dit op het niveau van het beleid in het kindertehuis, de verhuizing, de medewerkers en de instanties.

TEHUIS

Family Reunion

Family Reunion
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Gopu Mohan Posted: Dec 14, 2008 at 2313 hrs IST


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Family Reunion
Gopu Mohan Posted online: Dec 14, 2008 at 2313 hrs
Barry and Julia Rollings wouldn’t have given the internet news item a second glance had it not been from Chennai. It was from here that the Australian couple had adopted their children, Akil and Sabila, eight years ago. But on that day in March 2006, the couple froze as they looked at their computer screen. The report was about a woman’s complaint against an adoption racket in Chennai and the agency from where they got Akil and Sabila was among the suspects.
After the initial shock, the Rollings knew they had to plan carefully. The couple and their eight children—apart from their two biological daughters, the Rollings had adopted a son each from South Korea and Taiwan, two from Nagpur and then Akil and Sabila—had just come back to Canberra from a vacation in India and now they would have to go back to trace Akil and Sabila’s biological parents. It was a journey that would throw up an extraordinary story of two families and their 16 members, of painful separation and a joyous reunion.
The beginning
It all began in 1996 when the Rollings—Barry is a sports journalist and Julia a social worker—decided to adopt a pair of siblings from India
“After our two daughters were born, we decided that we should try and help children in other parts of the world who would otherwise be left uncared for in their orphanages,” said Julia, looking perfectly content with her children on a recent rainy day in Chennai.
“We were a big family by then, but all of us felt there was space for more children,” Barry said. And that was how they came to Chennai in 1996 and finally filed an application for adoption.
By mid-1997, MASOS, an adoption agency in Chennai, said the Rollings could adopt a three-year-old boy and his two-year-old sister. The children, the couple was told, were put up for adoption five months earlier, in October 1996, as their ‘terminally ill parents’ were unable to take care of them. But that was all they knew of the children’s parents. “They told us the children were born in Vaniyambadi, a 4-hour drive from Chennai, and that they were brought to the agency for adoption by an agent, who was approached by the children’s parents, Sunama and Imam,” said Julia.
In August 1998, after the paperwork and formalities, Julia finally flew home with Akil and Sabila. But the doubts lingered—of the children’s biological parents and whether they were alive—and the Rollings vowed to find out.
Twist in the tale
Despite several trips to Chennai, the Rollings knew nothing more about Akil and Sabila—till eight years later, in March 2006, when they came across the innocuous-looking internet report on an adoption racket in Chennai.
The report set off a storm in Julia’s mind. Were Akil and Sabila put up for adoption with their parents’ permission, like the adoption agency claimed? And if they weren’t, would they lose their children now? Julia and Barry decided to set these doubts to rest. They had just come back from a trip to India but were now preparing to go back.
“As our agency was also named in the complaint and since it wasn’t very helpful in our search for the children’s parents, we asked our friends in Chennai to find out more about the family. We wanted to know the real story. As a mother, it troubled me that the children might have been taken away from their mother without her permission,” said Julia.
With the names of the parents in hand, in July 2006, the Rollings’ friends located the house in Vaniambadi, where Akil and Sabila’s parents had lived earlier. In a few hours, they confirmed the Rollings’ worst fears: the children’s father Imam, was a drunk who used to beat up the kids and their mother Sunama. Imam had forged his wife’s signature and had given away the children to the adoption agency in exchange for money.
Sunama’s story
Sunama was married off when she was 12 and a few years later, Akil was born. Sameera, as Sabila was known then, was born later. In 1996, Sunama and Imam left for Chennai looking for a job, but ended up living on the pavements. “One morning when I woke up, my children and husband were not to be seen.”
Sunama then went back to her hometown alone. “I thought someone had kidnapped the children for their kidneys or had pushed them into begging. I had heard stories of that kind,” said Sunama, recalling how helpless she felt.
Imam resurfaced a few days later—completely drunk, wagging some notes and bragging how he had sold the kids. Sunama’s relatives and neighbours beat him him. “I haven’t seen him ever since and I didn’t want to,” she said.
By the time Sunama came to know that her children were alive and well—in July 2006, through the Rollings’ friends—her life had changed. She had married Anwar, had had four children with him and was pregnant with the fifth. “But I could never forget my first two children. It was painful—I knew Imam had sold them to someone but didn’t know whether they were alive or dead,” she said.
So when the Rollings’ friends landed at her doorstep—at a village near Chennai—with a photograph of Akil and Sabila, that was the first time she saw her lost children in nearly 10 years.
“My prayers had been answered. My children were not dead, but instead, were doing well in another country. So when they told me I would get to meet my children, I couldn’t hide my excitement,” she said.
Between the first contact and the eventual reunion, Sunama had given birth to a baby girl, Zeenath, and the families warmed up to each other by sending letters and messages sent through friends. Sunama learned that her son, Akil, was a promising soccer player and that her daughter learnt Bharatnatyam and had two fat mice for pets. “They said they would call me Ammi and call Julia mom.”
The reunion finally took place in March 2007, when the Rollings flew down to India, two months after Sunama gave birth to Zeenath. “I did not know what to tell them. I didn’t understand a word of what they said either. But they are my children,” she said.
Sunama and her children met the second time, earlier this month, at a flat that Julia and Barry rented for the reunion. As Sunama and the Rollings took turns to narrate their stories, the children listened spell-bound. When our conversation veered off to the legal aspects and procedural flaws in adoption, the children turned their attention to each other, hugging and giggling. Their warm hugs seemed to convey emotions and messages that their languages could not.
Meanwhile, Sunama met with another tragedy when her second husband, Anwar, died in June 2007. But with the Rollings’ financial support, Sunama and her children have overcome the tragedy.
One big family
So that’s where the story ends—with two families and their 16 members. “Well, we thought we had room for one or two more members in our family but found out that we had space for many more. So far, Akil and Sabila were the youngest. But that was before Fareeda, Anwar, Zarina, Jaan Basha and little Zeenath came along,” said Barry, as each one of the children looked at him when their names were mentioned.
Ever since they learnt of their children’s biological mother and her family, the Rollings have stopped going on overseas vacations. Instead, they save their holidays and money to come to Chennai, where Akil and Sabila get to spend time with ‘Ammi’ and juniors. Julia has written a book, Love Our Way, on their amazing story and proceeds from the sale of the book will go into supporting her extended family in Chennai.
As the Rollings returned to Australia with Akil and Sabila, they promised to come back soon. Which is why little Fareeda, who bears a striking resemblance to Sabila, is so keen on her English classes. “I am in Class IV. I have started going to an English medium school,” she said.