Cantwell to Iara de Witte - intern ACT

Van: "Nigel Cantwell"

Datum: 28 nov. 2011 17:29

Onderwerp: Re: question: subsidiarity principle and ICA

Aan: "iara de witte"

Cc:

Dear Iara,

This week I'm sorry I simply don't have time to respond in a personalised way. Attached you will find a couple of things I have written that may be of "help":

- on "illegal" adoptions: extract from "my" part of a report on Ukraine

- on hierarchy of options (CRC/Hague): an article I did for an issue of the Van Leer Foundation's" Early Childhood Matters" - notably pp 9-12.

Both date from 2005 - and obviously therefore don't take account of either the 2009 UN Guidelines or the new EU directive - but I still basically stand by the reasoning!

As of next week I should be a little more available - so if you have more specific questions after reading the documents, please don't hesitate to let me know.

Very best wishes

Nigel

*****************************************************

Nigel Cantwell

120 route de Ferney, CH-1202 GENEVE

+41 22 733 8069 - (mobile) +41 79 706 3833

On 28 November 2011 13:20, iara de witte wrote:

Dear Mr Cantwell,

Recently I met Pien Bos at a workconference on ICA in the Netherlands. She told me she was going to meet you and I suggested her to ask you a question about your opinion on the principle of subsidiarity with regard to intercountry adoption and child protection.

Let me introduce myself and the question first: I am a student in European Policy at the University of Amsterdam and I am writing my MA thesis on the new EU Anti-trafficking Directive, where for the first time 'illegal adoption' is included in what should be regarded as form of trafficking in human beings.

For my thesis it is important to know what can be considered 'illegal adoption'. Generally it would mean an adoption outside official channels, which is formalised by a judge afterwards, maybe a few years, when 'family life' is established and the child 'cannot be returned'. However, for the fine tuning: a problem is the perception of ICA as a child protection measure.

The UNCRC provides for ICA as a last resort solution. The Hague Convention, however, prefers ICA as a 'permanent' solution. In other words: a child adopted from a suitable institution would be "illegal" under the UNCRC, but not under the Hague Convention.

Coming back to my question, Pien Bos told me that it was clear to her that you advocate the principle of subsidiarity. However, the UNCRC and the HC have different definitions of this. Pien Bos admitted that she did not ask you this specifically. Therefore I would like to ask you, according to you, would the position of ICA be

In accordance with the UNCRC,

1. Original family

2. Domestic alternative care solutions, with residential care if necessary.

3. ICA as last resort

In accordance with the Hague Convention,

1. Original family

2. Domestic adoption

3. ICA

4. Domestic foster care

5. Residential care as last resort

Or something else?

I hope you have time to answer my questions and I'd like to thank you in advance,

Yours sincerely,

Iara de Witte

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