GUIDANCE NOTE ON INTERCOUNTRY ADOPTION IN THE CEE/CIS/BALTICS REGION (exceptional measure)

Source: www.unicef.org

Publication date: 1 February 2003

REVISED – FEBRUARY 2003

GUIDANCE NOTE ON

INTERCOUNTRY ADOPTION

IN THE CEE/CIS/BALTICS REGION

This Guidance Note is primarily intended to provide assistance to UNICEF offices and National

Committees in the CEE/CIS/Baltics region in dealing with policy and practice issues regarding

intercountry adoption and its abuses.

A. THE NATURE, PURPOSE AND CONTEXT OF INTERCOUNTRY ADOPTION

Intercountry adoption involves the transfer of a child from his or her country of origin (or of habitual

residence) to another country where he or she will live with the adoptive parents, and implies the total

and definitive rupture of his or her relationship with the biological family.

Because it involves physical displacement across borders and a complete change in identity (name,

family ties and, invariably, nationality), almost always without the child’s consent because of his or her

age, decisions on intercountry adoption are of extraordinary significance in relation to the rights of the

child. With that proviso, it is a practice that is foreseen, subject to a number of stringent conditions, in

international human rights law (CRC Art. 21).

Intercountry adoption is intended solely as an individualised child welfare measure. It is designed to

provide a long-term care solution for a child who cannot, for whatever reason, be brought up by his or

her parents, and for whom no suitable care can be identified and arranged in his or her country of

origin.

Intercountry adoption is therefore to be considered as both a very exceptional measure and one that

cannot be looked at in isolation. It is one possible option in an overall child welfare and protection

policy covering the whole spectrum of responses to children actually or potentially in need of substitute

care. In addition to adoption, whether national or intercountry, these range from – as a priority –

provision of support to maintain them in or return them to their biological family, through to various

types of foster-care and placement in group homes or other institutions.

It is widely agreed that three principles should guide decisions regarding long-term substitute care for

children, once the need for such care has been demonstrated:

- family-based solutions are generally preferable to institutional placements,

- permanent solutions are generally preferable to inherently temporary ones,

- national (domestic) solutions are generally preferable to those involving another country.

Intercountry adoption fulfils the first two but not the third. It is therefore invariably to be considered

“subsidiary” to any foreseeable solution that corresponds to all three, and must be weighed carefully

against any others that also meet two of these basic principles.

Naturally, the solution chosen and the manner in which it is effected must always fully respect the

rights and best interests of the child. In this regard, it should be borne in mind that adoption is the only

sphere covered by the CRC where the best interests of the child are to be the primary consideration, as

opposed to being simply a primary consideration in all other fields. This clearly demonstrates the

absolute primacy of a “child-driven” approach to adoption issues.

The practical procedures and safeguards for ensuring optimal respect for the rights and best interests of

children concerned are contained in the 1993 Hague Convention (see Annex 1).

B. INTERCOUNTRY ADOPTION IN THE REGION

Intercountry adoption is a highly significant issue in the region:

- In the year 2000, over 12,000 – probably between 25 and 30 per cent of the world total –

intercountry adoptees came from the region;

- With the sole exception of China, by 2000 Russia and Romania had become overall the most

important countries of origin of intercountry adoptees, and for certain receiving States they had in

fact become the two major “source” countries;

- there have constantly been, and continue to be, clear indications and evidence of undue financial

gain and illegal, illicit and/or unprofessional activity around intercountry adoption, and violations

of children’s rights in that regard, in many countries of the region. This is evidenced by, inter alia,

the fact that no less than eight countries in the region found it necessary to resort to moratoria at

given moments between 1991 and 2001 in view of the scale of abuse.1 In addition, the Committee

on the Rights of the Child has expressed preoccupations – sometimes grave – regarding the

practice in several countries of the region (see Annex 2).

C. UNICEF’S POSITION ON INTERCOUNTRY ADOPTION

Although UNICEF currently has no official, general and explicit policy in regard to intercountry

adoption, it naturally founds its approach to this, as to all other child-related questions, on the CRC.

The CRC’s major thrusts on this issue are (Article 21):

- the best interests of the child are the paramount consideration in decisions concerning adoption;

- competent authorities ensure that an adoption is allowable and undertaken in a legal manner, with

free and informed consent on the part of those responsible for the child;

- intercountry adoption should only take place if the child cannot be suitably cared for in his or her

country of origin;

- no improper gain should result for any party to an adoption.

Furthermore:

- UNICEF’s overall policy and efforts are actively and systematically directed towards bringing

about conditions whereby all children can be properly cared for by their families or, where

necessary, others in their country of origin;

- UNICEF therefore promotes and facilitates national (domestic) solutions whilst recognising, in

accordance with international standards, that in certain individual cases intercountry adoption can

constitute a measure that is most suited to ensuring the rights and best interests of the child

concerned,

- By direct implication, UNICEF could never promote intercountry adoption as such; at the same

time, it necessarily promotes and defends the rigorous application of international standards when

intercountry adoption is contemplated or takes place;

- UNICEF has joined other organisations, such as UNHCR and International Social Service, in

calling for intercountry adoption to be prohibited in certain circumstances, including: emergency

or post-emergency situations; from countries where safeguards are demonstrably insufficient; and

in instances where a child’s removal abroad was not initially and ostensibly motivated or justified

by intercountry adoption plans (e.g. evacuation, respite care, medical treatment).

D. THE MAIN ISSUES AND CONCERNS

Many realities, issues and concerns regarding intercountry adoption in the region are common to other

regions where the practice exists, or even universally. Others are more specific to the region, its

characteristics and recent history.

1 Albania (1992), Belarus (1997), Georgia (199?), Kazakhstan (1998, 2001), Moldova (2001),

Romania (1992, 2001), Russia (1995) and Ukraine (1994).

D.1. General issues and concerns

- intercountry adoption has become seen increasingly as a means for couples (and sometimes others)

to secure a child, and no longer as a welfare measure decided on a case-by-case basis and

necessitated by the special circumstances, needs and interests of a child, i.e. it has tended to

become parent-driven rather than child-driven;

- this effective “demand” for children has increasingly spawned a “market” response: a range of

actors – from adoption agencies, “orphanages” and middle-men to lawyers, civil servants, judges

and in some cases high-ranking government officials – frequently take advantage of the

determination and relative wealth of those wishing to adopt, for their (substantial) financial gain;

- intercountry adoption is too rarely approached as a facet of an integrated child welfare and

protection system, and too often in isolation;

- it is difficult to combat abuses of intercountry adoption by action in the country of origin alone –

reduction of effective demand is also required in the receiving countries;

- there is a lack of trustworthy and up-to-date data at world level.

D.2. Additional issues and concerns specific to the region

- the great majority of countries in the region had very little experience, if any, of intercountry

adoption prior to the start of the transition, and have therefore been unprepared in every way to

cope with “demand” from abroad;

- in recent years, more and more countries in the region have become involved in intercountry

adoption

- most countries in the region are not yet Parties to the 1993 Hague Convention that regulates

intercountry adoption, including many of those that are the most concerned (see Annex 1);

- demand for children from the region is particularly high because of their physical characteristics,

shored up by the relatively easy physical access of the region and the media attention that has been

given to children’s problems in certain of its countries;

- this demand has often taken advantage of the understandable lack of preparedness of the

authorities of the countries concerned in terms of legislation, structures, procedures and training;

- when the authorities in one country restrict or halt intercountry adoptions because of gross

irregularities, demand may suddenly become focused on one or more others in the region;

- in most countries there was – and in some cases continues to be – an over-reliance on the

institutional placement of children which is now decried and has given weight to those promoting

intercountry adoption;

- at the same time authorities may come under conflicting political pressures from outside as to the

desirable attitude to adopt towards intercountry adoption;

- there is evidence that adoption is not being used as an alternative to institutionalisation in the

region: increases in the number of adoptions are often accompanied by a rise in institutional

placements (indeed requirements that adoptions take place only from among institutionalised

children have been known simply to lead to a rise in relinquishments to institutions);

- there is unfamiliarity with, or resistance to, domestic adoption and other types of formal familybased

substitute care in many countries of the region, often leaving a stark choice between

institutionalisation and intercountry adoption;

- there is frequently a societal predisposition to emigration from the region, meaning less

reservations about the idea of children being adopted abroad.

E. A UNICEF RESPONSE IN THE REGION: RECOGNISING AND COUNTERING RISKS

To be effective and credible interlocutors, all UNICEF bodies must have basic knowledge of

intercountry adoption practice in their respective countries, and of issues relevant to this.

UNICEF’s presence in the countries of the region varies from fully-fledged country programmes, small

country offices and National Committees. This may cause complications for the development of a

viable across-the-board policy and the systematic implementation of a preventive and remedial strategy

as regards abuses of intercountry adoption. However, recent experience shows that virtually every

country of the region must be considered as currently or potentially concerned, including those where

intercountry adoption is ostensibly banned or discouraged at present for whatever reason (see Annexes

3 and 4).

The following constitutes a basic four-point plan for the minimum knowledge acquisition necessary to

underpin an appropriate and credible preventive and remedial strategy. It sets out both what needs to be

known and, invariably, what signs or indications of risk need to be looked out for.

E.1. Assessment and monitoring of the significance and nature of the practice

ISSUE INDICATION OF RISK

Rates of abandonment/relinquishment since 19892 High rates; increasing rates over time

Annual absolute figures for intercountry adoption

since 1989

Sudden substantial changes – especially increases –

in numbers adopted abroad; lack of the relevant

centralised data

Breakdown of intercountry adoptions by age of the

child: 0-3 months, 4-6 months, 6-11months, and by

year groupings thereafter

High proportion in the first two groupings, which

may indicate “babies to order”, inadequate

opportunity to express/withdraw consent or to seek

domestic solutions, etc.; high proportion of children

over 5 years, which may indicate potential

exploitation; significant changes in these ratios over

time

Breakdown of intercountry adoptions by child’s sex Significant gender skew; significant changes over

time

Breakdown of intercountry adoptions by place of

birth or residence

Unusual concentrations of intercountry adoptees in

certain areas

Proportion of children adopted from institutions and

directly from families

Significant proportion from families; changes in this

proportion over time

Ratio of intercountry adoptions to domestic

substitute care measures: fostering, adoption,

residential placement

High ratio; increase in ratio over time, especially

between intercountry and domestic adoptions

Breakdown of numbers by receiving country Sudden changes in “distribution” over time

Breakdown of destinations within receiving

countries

High concentrations in certain localities

E.2. Assessment and monitoring of the role of government

ISSUE INDICATION OF RISK

Is intercountry adoption a recognised practice? ---

If so, is there specific legislation covering

abandonment, adoption and intercountry adoption?

No such legislation

As regards abandonment, what conditions are

required for a child to be recognised as abandoned

and what time-scales for decision-making are set

out?

Inadequate opportunities for preventing

abandonment, inadequate safeguards regarding free

and informed consent, inadequate opportunities and

time for reversing consent

As regards intercountry adoption, does legislation

comply with the 1993 Hague Convention?

Non-compliance

Do policy and legislation set intercountry adoption

within an overall child welfare and protection

framework?

No such framework

Has governmental policy and approach regarding

intercountry adoption changed over time?

Sudden “u-turns” or significant re-orientation of

attitude

Is there a designated and specialised public body in

charge of intercountry adoptions?

No such body

What is the level of staffing, required training, and

staff turnover rate in this body?

Inadequate or superfluous staffing, inadequate

training, high turnover rate

Is there an established and functioning mechanism

for co-operation between the authorities and those

of receiving countries?

No such mechanism

2 “Relinquishment” differs from “abandonment” in that it involves handing the child into the care of a

specific person or institution. The term “abandonment” is widely used to describe both acts, however.

Are there bilateral agreements on intercountry

adoption with receiving countries, and if so which?

Adoptions take place without or outside such

agreements, unless they fall under the 1993 Hague

Convention

Is there a criteria-based system for authorising,

accrediting or otherwise regulating national and

foreign agencies and persons involved at any stage

of the intercountry adoption process?

No such system; incomplete coverage, inadequate

or inappropriate criteria

Have the authorities ratified the 1993 Hague

Convention and, if not, how do they view this

Convention?

Non-ratification; no knowledge; lack of interest; no

concrete steps to achieve ratification; concern over

budgetary implications of ratification; refusal of

Convention’s principles

Are there reliable, centralised disaggregated data on

intercountry adoption?

Lack of, or poor, data at central government level

E.3. Assessment and monitoring of the role of other actors

ISSUE INDICATION OF RISK

What functions are authorised/accredited non-State

bodies and individuals (including lawyers) allowed

to carry out in the intercountry adoption process?

Involvement in identifying and matching potential

adoptees and adoptive parents, decisions on

solutions for a given child, contact with potential

relinquishing parents, role of lawyers other than

representational in court

How many such bodies are authorised/accredited? Large number in relation to number of adoptees

Are non-accredited/non-authorised bodies involved

at any stage in the intercountry adoption process?

Such involvement

What is the average total amount of monies paid to

any State or non-State body or person in the country

– i.e. excluding foreign agencies – in relation to an

intercountry adoption?

Amount does not correspond to actual expenditures

or services rendered

Are there any limitations set on fees, costs and/or

contributions and donations requested or solicited

by State or non-State bodies, institutions and/or

individuals providing intercountry adoption

services?

No limitations, amounts set abnormally high in

relation to actual expenditures or services rendered,

donations as a condition for adopting a child

E.4. Other relevant factors

ISSUE INDICATION OF RISK

What level of pre-/post-natal and family support

(psycho-social, educational, financial) is provided?

Lack or low level of any or all aspects of such

support

What efforts are made to re-integrate children with

their families once they have been placed in

alternative care?

Lack or low level of such efforts

Have the media, professionals or others, within or

outside the country, reported on alleged abuses of

intercountry adoption?

Existence of such reports; lack of

investigation/action as a result

Has the Committee on the Rights of the Child

expressed concern on the issue?

Concern expressed; Committee’s recommendations

not acted upon

Are external bodies – agencies, foreign government

representatives, regional or international bodies –

suggesting or pressuring for increased intercountry

adoption from the country?

Existence of such pressures

F. ADVOCACY AND POLICY RESPONSES

F.1. At country level

Carrying out the data-collection exercise above as completely and in as detailed a manner as possible is

fundamental to effective advocacy.

The data, seen in the light of the policy and other considerations discussed under sections A-D of this

Note, provide a basis for developing – as a first step at least – an advocacy and monitoring strategy,

with a region-wide coherence but country-specific thrusts. The aim would be two-fold: to prevent

abuses and to tackle identified problems regarding intercountry adoption.

The framework of the advocacy and monitoring strategy can be set out as follows:

- The listing under section E can be used as a check-list of issues for discussion with governmental

partners, in particular those areas where indications of risk have been identified, and with an

emphasis on up-grading preventive and in-country responses, the latter to include in particular the

promotion of domestic adoption;

- Regularly monitoring government response and other developments on the basis of that listing;

- In countries which are not yet Parties to the 1993 Hague Convention and which allow and/or

recognise the practice of intercountry adoption (even if numbers are low), active encouragement

must be given (including the offer of facilitating or providing technical assistance if necessary) to

bringing about the conditions enabling the authorities to proceed with ratification;

- In countries which are already States Parties, it is desirable to recall the Recommendation of the

Contracting States to the 1993 Hague Convention, at a December 2001 Special Commission, that

“States Parties, as far as practicable, apply the standards and safeguards of the Convention to the

arrangements for intercountry adoption which they make in respect of non-Contracting States”

- Ensuring that the issue is covered adequately (according to its nature and importance in the

country concerned) in Situation Assessments and Analyses and in Country Programmes;

- Encouraging full consideration of this issue in State Party reports to the CRC Committee;

- Ensuring provision of additional relevant information to the CRC Committee when it considers the

State Party report in question;

- Contacting the diplomatic missions of receiving countries to ascertain their experience and

viewpoint on the issue, and explaining the UNICEF stance;

- Contacting the representatives of sister agencies (e.g. UNHCR, UNHCHR, IOM), regional bodies

(particularly European Union, Council of Europe, OSCE), child-focused NGOs and any agencies

involved in intercountry adoptions to ascertain their experience and viewpoint on this issue, and

explaining the UNICEF stance.

F.2. At regional level

The Regional Office will support country-level efforts – and be kept fully informed of these efforts and

of all relevant developments in country situations – by ensuring liaison and, where appropriate,

advocacy with the Council of Europe and its Parliamentary Assembly, the European Union and the

European Parliament, and the Hague Conference on Private International Law.

G. GUIDANCE ON SELECTED KEY ISSUES

G.1. “The last resort”: intercountry adoption or institutionalisation?

The general principle determining the optimal long-term goal in the provision of substitute care for

children is for that care to be family-based, permanent and in-country. Neither institutional placements

nor intercountry adoption fulfil all three of these “conditions” (nor, in most cases, does foster-care, for

that matter). This general principle, however, is not a hard and fast rule, but a guide for evaluating the

suitability of solutions in relation to an individual child’s circumstances, characteristics and needs. The

key concept here is “suitable individualised care responses”.

“Suitable” responses can, as noted in the CRC, include institutional placement “if necessary”. This

may, for example, be appropriate for children whose families are in principle only temporarily unable

to care for them for whatever reason and where foster-care is not available, for children who are unable

to function in a family environment, or for those with certain special needs that cannot be catered to

outside an institutional setting. Such suitability may be all the greater if the “institution” is – as is

increasingly the case – a “group home” or other small, well-staffed facility, integrated in the

community and as close to a family environment as possible. If decided, such a placement should be

foreseen as an integral part of an individual care plan for the child, with a timetable for reunification

efforts.

According to international standards, intercountry adoption may be considered and proposed as an

option only if no in-country family-based form of care can be secured and no other “suitable” care is

available to meet the needs of the child in question. In principle, therefore, the subsidiarity of

intercountry adoption does not apply when the only alternative is long-term institutionalisation.

The clear implication is, however, once again that every effort must be made to develop and promote

the use of in-country solutions as a priority, since they are a key element of the most desirable forms of

long-term care. These efforts should first and foremost be directed towards support for parents who

would otherwise abandon their child or relinquish him or her to a third party or into public care, but

they also need to involve the creation or expansion of national adoption and foster-care opportunities.

G.2. The role of foster-care and other domestic alternatives to adoption

If national adoption is not suitable, or cannot be arranged, for a child for whatever reason – including

the need for more time to identify suitable adoptive parents – there are several short- or long-term

alternatives that can be considered before intercountry adoption should be envisaged.

Formal foster-care – placement of a child with another family by the competent public authority or

service – is essentially designed as a temporary child welfare measure pending either the child’s return

to his or her family once the problem provoking the placement has been resolved or a more permanent

care measure (notably adoption). In most countries of the region, formal foster-care is neither wellknown

nor widely used. It requires special training and skills on the part of the foster-parents (often

including the ability to relate constructively with the biological parents) as well as effective back-up

and monitoring by the public authority or service concerned. A foster-care system also requires

financial provision to the foster-parents to enable them to cover the extra costs involved and provide

some compensation for their activity, but not at a level that might constitute their main motivation for

undertaking this role.

When well-conceived and resourced, such foster-care can provide an excellent short-term alternative

care solution. But foster-care is often poorly prepared and misused, being seen as a cheap and easy

form of substitute care, whereas it is neither. The consequences can be far-reaching for children:

constant and increasingly destabilising changes of foster-home because foster-parents are ill-equipped

for their role and/or the children themselves cannot function in a family environment; uncertainty over

the future because the “temporary” placement becomes long-term in an unplanned manner; rejection;

abuse; absconding, etc.

The inherent longer-term insecurity of foster-care – including the minimal formal obligations on the

part of the foster-parents and the fact that it bestows no inheritance rights – means that it is best viewed

as a planned, time-limited response to cover a period prior to stable care provision. However, there are

special instances when foster-care can validly be envisaged as a longer-term solution, particularly for

older children for whom adoption is no longer a realistic proposition.

Informal kinds of foster-care are prevalent in many countries of the region, notably though not only

involving the extended family. Such informal arrangements can naturally be very positive for the child,

and generally bring with them a higher level of moral responsibility for the long-term care of the child

than formal placements with strangers. They should, however, at least be officially registered (as

opposed to approved, as is the case for formal foster-care); a minimum level of monitoring may also be

appropriate.

The appointment, through a legal process, of a guardian responsible for the child’s welfare also

constitutes a recognised practice in many countries of the region when fully-fledged adoption is not a

viable option.

G.3. The role of private bodies in intercountry adoption

The 1993 Hague Convention allows considerable leeway in terms of the kinds of involvement of

private bodies at various stages of the intercountry adoption process, in response to the very different

viewpoints and realities of countries concerned.

“Accredited bodies” – which must be non-profit, competent and subject to State monitoring – may be

allowed or mandated to carry out a wide range of tasks in facilitating, following and expediting

adoption proceedings, as well as pre- and post-adoption counselling. However, accreditation by one

country does not mean that the body may automatically act in another. The names of all such bodies are

registered with the Hague Conference on Private International Law, and the list for each country can be

consulted.

Other bodies and persons – again on condition of competence and integrity, but without the “nonprofit”

requirement – may also be authorised to perform these functions in a given State, but any other

State may declare that it will not allow the adoption of children from its territory unless these functions

are performed directly by the competent authorities (Central Authority or other public body) or by

“accredited bodies”. It is important that governments of “sending countries” be made fully aware of

this possibility and encouraged to use it.

Despite this flexibility in international standards, it is widely felt that, in the light of experience,

activities related to intercountry adoption in countries of origin are best carried out by State bodies at

national and local levels. In particular, as a general rule, there are special concerns that private bodies

should not be allowed to work on intercountry adoptions if they are also involved in other child care

programmes that may give rise to a conflict of interests, e.g. running institutions. It is also felt that

decisions on “matching” children with prospective adopters should never be made by such bodies.

Final decisions on the child’s future should always be made by a public body.

G.4. Financial issues

- reasonable fees

Whilst clearly no specific amounts can be cited as a general rule, it is agreed that fees charged

by any body or person at any stage of the adoption process must correspond to those charged

for similar kinds of services in the country concerned, taking account of remuneration levels

there, and thus not result in “undue financial gain”. The Contracting States to the 1993 Hague

Convention agreed, in a December 2000 Special Commission, that prospective adoptive

parents should be provided in advance with an itemised list of the costs and expenses that the

process would likely involve, and that information on the costs, expenses and agency fees

should be made available to the public.

- Donations and contributions

The December 2000 meeting of the Contracting States to the 1993 Hague Convention agreed

on the following recommendation in regard to donations:

“Donations by prospective adopters to bodies concerned in the adoption process must not be

sought, offered or made.”

As concerns contributions that may be demanded of adopters and/or adoption agencies

towards family or child protection services in the country of origin, that same meeting

concluded that receiving countries should support the development of such services but in a

manner which did not compromise the adoption process itself:

“… this support should not be offered or sought in a manner which compromises the integrity

of the intercountry adoption process, or creates a dependency on income deriving from

intercountry adoption. In addition, decisions concerning the placement of children for

intercountry adoption should not be influenced by levels of payment or contribution. These

should have no bearing on the possibility of a child being made available, nor on the age,

health or any characteristic of the child to be adopted.”

H. TECHNICAL RESOURCES AVAILABLE

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