“The well-being of the child has priority”

11 July 1982

If German parents adopt a child abroad, the adoption in the Federal Republic is initially considered non-existent. Rolf Bach, head of the Joint Central Adoption Agency for the four northern German states, says “there is no legal basis in the Federal Republic” for the recognition of the adoption.


It makes no difference whether the adoption came about through dubious agencies, reputable aid organizations such as Terre des Hommes and the International Social Service or, as is now the case in hundreds of cases, on personal initiative, for example when the parents contacted the state "commissioner" of the youth welfare authority in Colombo themselves.


The parents are quickly confronted with the legal uncertainty of the German authorities after their return if - the normal process - they want to have their adopted child entered in the family register at the local registry office. The “responsible administrative authorities are often overwhelmed” when it comes to the question of whether foreign adoption can be recognized or not, according to legal experts Helga Gross and Ingrid Baer from the International Social Service.


The registrars only rarely recognize this without further ado - citing Section 328 of the Code of Civil Procedure, which they apply analogously. According to this, decisions and judgments “of a foreign court” can be accepted if they do not deviate from German legal principles “to the detriment of a German party”.

Most of the time, however, municipal employees involve their supervisory authorities, obtain legal opinions or pass the matter on to the judiciary.

The district court, which is also the appeal authority for negative decisions from the registry office, promptly follows the parents' request if the foreign adoption "corresponds in its basic principles to German adoption law." According to a decision by the Stuttgart district court, this is always the case when "the child's well-being is given primary importance" - at least on paper, the aim of everyone involved.


However the recognition comes about, through a decision by the registrar or through a court order - it is insufficient for the parents and their child.

Because the positive decision from the authorities only amounts to limited “family law protection”. The decision of the registrar remains irrelevant for other authorities, for example for the residents' registration office when it comes to a German child's ID card, or for the child benefit fund, the youth welfare office and also the school authorities. Each administrative body would have to review and recognize it again.

The district court's decision, in turn, prevents "no other German court," as Ulrich Magnus and Frank Münzel from the Max Planck Institute for Foreign and International Private Law state, from "making a contrary decision in later proceedings."


"In order to achieve an undeniably effective adoption," Magnus and Münzel, as well as all youth welfare offices now recommend, the child should be "adopted again" in the Federal Republic - an auxiliary structure that shows the entire legal dilemma: parents adopt their adopted child.

For this second adoption under German law ("adoption as a child"), the parents still have to provide certificates such as a police certificate of good conduct, an official medical certificate, proof of salary and, of course, a care permit and report from the German social authorities. The child must also provide proof of birth certificate, proof of citizenship, marriage certificate of the biological parents and their declaration of consent, otherwise their death certificate and, instead, the consent of a guardian or a comparable government agency.


However, if papers are missing, which is not uncommon in such cases, the adoption does not necessarily have to fail because of this. For the well-being of the child, the guardianship courts resort to German exceptions, or, according to an adoption official in Hamburg, there is simply “cheating.”

Marriage certificates, for example, as expert Bach from the Central Adoption Office also knows, are “practically never seriously requested.” For the declaration of consent from parents or guardians, the usual form in the country of origin is sufficient. "Since we often don't know the customs in the country" or they differ depending on the region, ultimately "any customary document that looks somewhat authentic is sufficient" (Bach).

Then the German authorities sometimes see certificates like those from Western Australia, issued on the billing pad of a pub, certified by some justice of the peace, an amateur lawyer, a pharmacist or a full-time farmer. "There," says Bach, "the hair of every lawyer stands on end." Or papers from Islamic countries that, according to local law, only contain the father's consent to the adoption because women are not asked according to local custom. Other documents are signed by relatives because when the father dies, the "parental authority," according to Magnus and Münzel, "automatically passes to the grandfather, from the grandfather to the father's eldest brother, and so on."

The German judges then try to locate the mother or obtain complete documents through the embassies or the International Social Service. In practice, however, this effort only has the value of an alibi function.

The foreign authorities usually declare the parents "untraceable" or they don't even respond - reason enough for the German judges to replace the consent in accordance with German law, for example because the parent who cannot be found "grossly violates their duties towards the child or has shown through his behavior that he is indifferent to the child."

German judges rarely block such tricks. Last year, the Lüneburg district court rejected an adoption application for a Korean orphan "because one of the necessary requirements" was missing: "proof of who the child's parents are" and their consent.

The court assumed that in the case of a child "who was not born in a country where warlike conditions prevail, it must be determined who the child's parents are and whether they are still alive" - ​​as if it were in the slums of Seoul or Colombo would have a reporting requirement based on the German model.

The verdict only lasted for a month. The regional court upheld the complaint and approved the adoption. Since the whereabouts of the biological parents were “unknown, at least in the long term,” the district judges considered their consent to be “dispensable,” in line with German practice.

Every adoption of foreign children was ultimately legalized, even if, as in Lüneburg and a few other cases, it was done in the second instance by the courts - it was also appropriate for the child's best interests. In most cases, at the time of the legal dispute, the pupils have already grown into their new family environment.

The legal scientists from the Max Planck Institute also advocate “fundamentally recognizing adoptions ordered or confirmed by foreign authorities or courts” - as long as they are “not too far” from German principles.

p.44Married couple with their own son and legally adopted children from Indonesia, Vietnam, Africa and India.*