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.