4th Meeting of the Special Commission on the Hague Convention

NORDIC ADOPTION COUNCIL July 2015 Birgitta Löwstedt

4TH SPECIAL COMMISSION 8-12 June 2015

"20 years of the 1993 Hague Convention”

The objective of the 4th Special Commission (SC) was to review the practical operation of the 1993 Hague Convention; in the light of the 20 years that have passed since its birth. The discussions included presentations by some experts and some 'round table' sessions to introduce certain topics. After each presentation and round table sessions, there was time for discussions, questions and comments. Special for this year: A preparatory meeting was held on Saturday 6th June, for new States parties to the convention and for those States seriously considering ratification of, or accession to, the Convention. 19 States participated, with totally 33 experts. It was very successful and appreciated by participants.

THE NORDIC APPROACH TO INTERCOUNTRY ADOPTION

is based on the rights of the child and higher ethical standards in intercountry adoption

The Nordic Adoption Council’s Conference 2009 on intercountry Adoption took place in Iceland from 3th to 6th of September. Present at the Conference were all of the NAC-members, who represent all but one of the Nordic organizations, i.e. the organizations from Norway, Sweden, Finland, Iceland and Denmark, accredited to work with intercountry adoptions plus parents organizations from some of the countries. The Conference agreed upon the following joint global venture in intercountry adoption context, based on the ambition to put children’s rights and higher ethics at the forefront of the agenda when it comes to practices and basic rules in intercountry adoption.

The background is well known: intercountry adoption is under increasing pressure due to the fact, that more and financially strong receiving countries have dramatically increased their number of approved families for adoption, while many of the traditional countries of origin have either put restrictions or barriers upon intercountry adoption or have closed up their intercountry adoption programmes completely due to better living conditions in the country, increased domestic adoption or - in worst case - excessive pressure from potential adoptive families resulting in scandals involving trafficking.

The Nordic organizations have – globally - the longest experience in mediating in intercountry adoption due to the fact, that intercountry adoption became a recognized social and legal phenomenon in the Nordic countries already some years after the Second World War. At the conference celebrated in Iceland, the Nordic Adoption Organizations – many of whom have celebrated 40 years’ anniversary - agreed on the following standpoints to secure intercountry adoption processes based on ethics and responsibility:

Ask the EU

. .

https://m.youtube.com/watch?si=HX4SjqFECXHEla8y&fbclid=IwAR19P8ONw1SBDaDtyorXiRn_3WgkcdyP23IE1v1ovQ02zhdH_peS6yOKnIo&v=1q3971KJzNM&feature=youtu.be

The 1993 Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption

Information Brochure

Vacancy: PROJECT COORDINATOR (FULL-TIME)

Just over 200 adoptions were finalised in Australia last year - an all time low and dramatic decline since reporting began more than 50 years ago.

The Australian government started recording adoptions in 1968-1969.

The number of children adopted increased from 6773 in the first year to a peak of 9798 in 1971-1972.

But the latest data in a report from the Australian Institute of Health and Welfare shows a combined 201 domestic and inter-country adoptions were recorded in 2022-2023, a decline of 98 per cent since the early 1970s peak.

Over the last five years the number of adoptions has decreased from 330 to 201.

Erik Staal (59) has recently been called Redering again: the surname he was given by his biological mother. Erik was adopted as a child via the transition home Moederheil in Breda. And that adoption was annulled by the judge last week. That is quite unique at his age: it only happens once a year. Still, Erik had no choice: "It is a bizarre situation that you can be an orphan in the eyes of the law but still sit next to your mother."

Erik's mother José de Vos (75) gave her son Erik up for adoption in the 1960s at the Moederheil maternity clinic. She did so under great pressure, but that happened more often in those days. José was not married and an unmarried woman who had a child was a disgrace to the entire family.

At a later age, Erik was 46, he went looking for his mother. When children get to know their biological parent at a later age, the contact is sometimes difficult and distant. There is too little in common. But with Erik and José it went more than well. They feel a deep bond with each other and see each other every Thursday.

“Why didn't I do it sooner?”

For years Erik had been thinking about undoing his adoption. He had no good contact with his adoptive parents and they have since passed away. So Erik went to court, with José at his side.

Inconsistent jurisprudence related to adoption for Muslim couples renders parents and the young rudderless. These circumstances are enabled by a backward looking and rigid politics of the Muslim Personal Law Board (MPLB).On March 4, 2024, Live Law published a report of the Supreme Court rendering an important judgment in a custody matter in which both the parties were Muslims. What made this March 4 verdict quite distinct and path breaking? The SC didn't just reiterate the jurisprudence in matters of custody while highlighting the inconsistencies of the Orissa HC order, but also called out the flaw of court in framing the issue erroneously.In this article, the author engages with some case law on the subject to show how inconsistency creeps into judgments and what the extant jurisprudence on the matter is.

Legal certainty is one of the cardinal guarantors of the rule of law. However, when judgments end up losing sight of legal certainty, and infirmities and inconsistencies creep into jurisprudence set by constitutional courts — either by way of framing of issues or through analysis—it is the rule of law that gets undermined. The evolving jurisprudence of child’s custody, in cases where both the parties are Muslims is one such domain wherein one can witness such glaring legal uncertainty.

On March 4, 2024, the Supreme Court in Shazia Aman Khan & Ors vs The State of Orissa & Others (hereinafter ‘Shazia’) while setting aside an order passed by the Orissa High Court altering the custody of a minor girl child observed that “she cannot be treated as a chattel at the age of 14 years”. This is a very important and much needed judgment in terms of setting the record straight on jurisprudence on custody between Muslim parties in India.

In Shazia, the Supreme Court essentially made two important points. Firstly, unlike the Orissa High Court which observed that “in absence of adoption, the custody of the minor child is liable to be termed as illegal detention”, the Supreme Court did not just make the fine distinction between adoption, custody, and guardianship, but also noted that the three concepts (or definitions) are neither same nor interchangeable.

Secondly, in matters of custody, besides welfare, the Apex Court underscored, “Stability of the child is also of paramount consideration”. These two observations by the Apex Court, significantly, didn’t just further the principles of natural justice, but are also in conformity with the mandate of and jurisprudence under the Guardians and Wards Act, 1890. The glaring error that the Supreme Court identified in the High Court order, might have occurred on two counts. This could be either due to a misreading of these legal concepts (adoption, custody and guardianship) and their relationship to the stance of the Muslim Personal Law Board (MPLB) or may have been rendered in sheer haste in keenly framing the issue.