Advice Towards a stronger children's view on intercountry adoption

The Committee for Welfare, Public Health and Family of the Flemish Parliament is once again organizing hearings on intercountry adoption. This time, the final report of the expert panel on intercountry adoption gave the starting signal. This final report examines whether and how malpractice in intercountry adoption can be prevented. The panel of experts gave twenty recommendations to fundamentally reform intercountry adoption and accommodate victims of malpractice.

The Children's Rights Commissioner participated in the expert panel. We endorse all recommendations of the final report. Nevertheless, with our advice we will go deeper into some recommendations that touch on children's rights or complaints and reports that came to us:

States that allow or recognize adoption must ensure that the best interests of the child are the primary consideration. But simply referring to the best interests of the child as the primary consideration in adoption is not enough. It is especially relevant to describe and assess that importance in terms of content. What is in the best interests of the child cannot be determined or described in advance and can only be assessed on a case-by-case basis, depending on the situation, the personal context, one's own needs and requirements. There are various sources of inspiration to fulfill that interest of the child.

The principle of subsidiarity makes intercountry adoption the exception rather than the rule. From a children's rights perspective, adoption only comes into play when all other appropriate care options in the country of origin have been exhausted. Although it is not clear from a legal point of view what exactly appropriate internal solutions are and how subsidiary intercountry adoption is compared to other care solutions, no generally unanimous answer is needed here. Every situation is different. In the interest of each child, the different care solutions must be weighed up against each other.

Informed consent from children from 12 years and from the first parents is required. The Children's Rights Commissioner finds the age limit of 12 years to give permission arbitrary. By analogy with the decree on the legal position of minors in Integrated Youth Care, we argue for a presumption of competence from the age of 12, but with the option of deviating if the minor who is younger is indeed sufficiently mature and competent to make certain decisions. to take. Whether the law in the country of origin expressly requires the consent of the first parents must be decisive in deciding whether or not to cooperate with a country of origin.

Countries of origin, not countries of arrival, must take the step for intercountry adoption, if this is necessary for a child. But the current recognition and subsidy structure in Flanders obliges the adoption services to actively look for new channels. If the demand from the country of origin for intercountry adoption is decisive, this has two consequences: Flanders may no longer actively search for adoptable children in countries of origin and no longer investigate new channels.

On the basis of a shared framework of standards in the country of origin and destination, draw up clear and official criteria to determine adoptabilityof children in the country of origin. There are currently none. The country of origin assesses the possible adoptability of a child against these criteria. If intercountry adoption comes out as a suitable care solution for the child, Flanders will receive a documented and motivated file. Flanders goes through this file critically and thoroughly. Also engage independent organizations or consular representatives who are familiar with the local context for a double check or to gather more information. Have the Federal Central Authority (FCA) carry out the public order review of intercountry adoption earlier than now so that it can intervene at a time when the adoption can still be stopped.

Also focus on expanding and supporting alternative care for children in countries of origin. Steps can be found for those extraterritorial obligations in legal doctrine and case law. It also responds to legitimate concerns about the conditions in which many children in countries of origin have to grow up and to the principle of subsidiarity.

Eliminate financial incentives for intermediaries in countries of origin by only partnering with countries of origin that apply transparent criteria for a reasonable remuneration of intermediaries.

Open adoption means that the first parents have more of a say in adoption and that all parties involved – the first parents, the adoptee and the adoptive parents – can stay in touch with each other. Apply the concept to intercountry adoption, both regular and full adoption. Adjust the legal framework accordingly.

More adoptions of children with special developmental needs also require additional support and care that is better tailored to the needs of those children and their adoptive parents, both before and after the adoption.

Discuss with prospective adoptive parents even more topics such as identity, discrimination and racism, and the impact of possible malpractice. Enable adoptees to tell their story. Let these themes be discussed more in the research by the Social Research Service.

Make structural aftercare mandatory for adoptees by law, such as in foster care that offers perspective. Also invest in a quality network of peer contacts.

Based on the Convention on the Rights of the Child, we emphasize the right to give minors access to identifying and non-identifying data of the first parents. In order to give the right to access to adoption files as broadly as possible, we ask:

After the minimum retention period, transfer the adoption files to an archive institution.

Formulate in more concrete terms how the exercise of the right of inspection will take shape.

Clarify what happens if the Flemish Center for Adoption (VCA) or the adoption services do not have a file or if the file is incomplete.

Consider the possibility of knowing the identity of the original parents as a criterion for collaborating with countries of origin.

Legally anchor open adoption.

Ensure that an independent center such as the Pedigree Center can support adoptees morally, psychologically, legally, administratively and financially in their quest to contact their first parents or relatives.

Store and register all adoption data in one place. Digitize all adoption data as well. Work with the countries of origin to set up a shared archive. Only work with countries of origin that register adoptions openly, accessible and systematically.

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