48 In its concluding observation regarding Guatemala it states: “The Committee suggests that the State party seek urgent technical assistance from the Hague Conference on Private International Law on the development of national legislations, as well as its practical application.” Report on the Forty-fifth session (from 21 May - 8 June 2007), CRC/C/OPSC/GTM/CO/1 of 6 July 2007, para. 28. In its Report on the Forty-fourth session (from 15 January – 2 February 2007, CRC/C/44/3, para. 111 (d)), the Committee urges Kenya: “to (…) (c) Strengthen its monitoring of intercountry adoptions, in particular by ratifying and implementing the 1993 Hague Convention No 33 on Protection of Children and Co-operation in Respect of Intercountry Adoption; (d) seek technical assistance from the Hague Conference on Private International Law for the above-mentioned purpose.” Kenya ratified the 1993 Hague Convention in February 2007 and on 1 June 2007 the Convention entered into force for this State.
A.
Convention-specific Technical Assistance Programmes
1.
Intercountry Adoption Technical Assistance Programme (ICATAP)
States involved in the pilot scheme for the Intercountry Adoption Technical Assistance Programme (ICATAP) are Guatemala and Cambodia. The success of the pilot programme was followed by specific requests for technical assistance in 2008 from authorities in Contracting States: Azerbaijan, Kenya, Mauritius, Mexico and Panama and non-Contracting States: Namibia, Nepal and Viet Nam.
ICATAP, which was launched in 2007 to support the implementation of the 1993 Intercountry Adoption Convention, is operated directly by the Centre under the supervision of the Permanent Bureau, utilising staff and resources dedicated to this project, as well as external international consultants and experts. An initial grant by the Government of the Netherlands and subsequent support by the Governments of the United States of America and Australia assisted with the ICATAP staff and running costs for pilot countries Guatemala and Cambodia (and Kenya) until December 2008. The need for technical assistance for Guatemala and Kenya has also been recognised by the United Nations Committee on the Rights of the Child.48
Pilot Programme for Guatemala
The Permanent Bureau has been active since 2002 in providing assistance to Guatemala for the implementation of the 1993 Intercountry Adoption Convention. Following the accession to the Convention in 2002 a group of neighbouring and other interested Central Authorities met in May 2003 in The Hague to discuss possible assistance to Guatemala. This assistance, however, was suspended when the accession was declared unconstitutional by the Guatemalan Constitutional Court in 2003 and suspended until May 2007 when, following a visit of the Secretary General to Guatemala in 2005, the Guatemalan Congress finally reapproved the Hague Convention. In February / March 2007 a fact-finding mission to Guatemala was carried out through the International Centre which laid the basis for the work of the international advisory group that was created upon the request of, and in consultation with, the Guatemalan Authorities to give legal advice on the 2007 Adoption Bill. This advisory group consisted of experts from Colombia, Germany, Norway, Spain, the United States of America and the Permanent Bureau.
The Permanent Bureau and the advisory group were invited by the Government of Guatemala, by the President of Congress and the Vice-Minister of Foreign Affairs, and supported by UNICEF Guatemala, to visit Guatemala and provide information sessions and training. Experts from the Permanent Bureau, the United States of America (receiving country) and Colombia (country of origin) took part in the mission in July 2007. In addition to training and information sessions, intensive work was done on the draft legislation. A final report, including the recommendations made during the visit, was addressed to Congress at the end of the mission. The mission was followed by a meeting in September 2007 in The Hague with representatives of the Central Authorities of Belgium, Chile, Colombia, France, Guatemala, Netherlands, Norway, Spain, Sweden, Switzerland, United Kingdom and United States of America. These Central Authorities recalled their willingness to assist Guatemala in implementing the 1993 Intercountry 34
Adoption Convention and expressed their willingness to provide support through training by their experts and / or written materials, and specific projects of co-operation were presented by the United States of America and Chile. The September meeting supported the continued assistance of the International Advisory Group on the Draft Adoption Law. Finally, on 11 December 2007 the Congress approved the Decree (No 77) issuing the Law on Adoptions (No 3217). On 31 December 2007 the new law entered into force and the 1993 Intercountry Adoption Convention became effective again in Guatemala. In February 2008 the Central Authority, the Consejo Nacional de Adopciones (CNA), started operating under the Convention.
During 2008 technical assistance continued to be given by the Centre, mainly to the staff of the CNA. In order to be informed about the initiatives developed for the implementation of the 1993 Convention by the Guatemalan authorities, the Permanent Bureau undertook a mission to Guatemala in April 2008. The Report of the April 2008 mission underlined the need for training and capacity building of the different bodies taking part in the adoption procedure, in particular to strengthen the operation of the new Central Authority, the Courts and the Attorney General’s Office, the Procuraduria General de la Nación (PGN). It was further revealed that there is an urgent need to have an efficient investigation of the family of origin and extended family carried out by PGN in order that a judge can declare the genuine adoptability of the child, a first step to ensure that the adoption has been properly carried out. A proposal for the sending of different experts to Guatemala was launched in 2008, in the framework of projects developed by UNICEF, to give in-house, one-on-one training and mentoring to personnel in the different bodies that are involved in the child protection and adoption process. In December 2008 a group of experts of the Central Authority of Chile (the Servicio Nacional de Menores, Sename) was sent by its Government to give training and assistance under ICATAP.
During 2008 the CNA reviewed the situation of intercountry adoptions that had started under the previous law (adoptions in transition), it arranged 51 national adoptions and declared 197 children adoptable in the country. 227 domestic prospective adoptive parents have registered their interest to adopt a child. These figures show that the CNA worked hard to guarantee the principle of subsidiarity, which means that placement of the child within Guatemala has been given priority when this served the child’s best interest.
Pilot programme for Cambodia
In 2008 the Centre gave technical assistance to Cambodia following a request from its Government in November 2007. The first stage of training was developed by the Permanent Bureau and an international expert was engaged by the Permanent Bureau. The expert started work as per September 2008 for the duration of two months in Phnom Pen, thanks to the financial contribution of the Governments of the Netherlands and Australia. The expert provided much needed practical support and advice to Cambodian officials to ensure that laws and regulations can operate effectively and are consistent with Hague Convention principles and procedures, and to prepare for their operation in practice. A number of draft recommendations were developed to address the most urgent problems in Cambodia’s adoption system, those that pose the biggest obstacles to achieving the basic protection for children under the Hague Convention. In December 2008, all receiving countries that had been active in Cambodia received a request to take part in a Working Group of Concerned Countries, in order to make a joint effort together with the Centre and the Permanent Bureau to continue supporting the Cambodian Government as it implements the Hague Convention.
A request for further funding to engage an expert to assist Cambodia was launched towards the end of 2008 to all the Members of the Hague Conference, the purpose of which is to assist with capacity building of the Central Authority and other authorities and bodies. 35
Other countries
In relation to Kenya, discussions were undertaken in 2008 with the Office of the Vice President and Ministry for Home Affairs, the Chief Justice of Kenya, and with UNICEF with a view to providing technical assistance, including legislative advice and co-operation with the judiciary. A first stakeholder discussion and information session for the judiciary will be the next step.
In April 2008, the Hague Conference received an official request from the Prime Minister’s Office in Mauritius for technical assistance, including training for reinforcing the Central Authority (the National Adoption Council), and to bring the new draft Adoption Bill in line with the Hague Convention.
In September 2008, the Hague Conference, at the request of UNICEF Namibia, discussed the possibility of providing technical assistance under ICATAP to assist in the preparation of the new Child Care and Protection Bill which will need to be aligned with the 1993 Intercountry Adoption Convention and the 1996 Child Protection Convention.
Finally, in October 2008, a delegation of officials from the State Committee for Family, Women and Children Affairs of the Republic of Azerbaijan, accompanied by child protection specialists from UNICEF, visited the Hague Conference. The meeting at the Permanent Bureau focused on the issues of Accredited Bodies and how to structure Central Authorities and internal laws. The delegation expressed an interest in receiving technical assistance under ICATAP.
http://www.hcch.net/upload/wop/genaff2009pd12e.pdf