Interlandelijke adoptie | Defence for Children (Intercountry Adoption | Defense for Children)

International adoption

What is a Dutch intercountry adoption?

When a child born abroad, without Dutch nationality, is brought to the Netherlands for adoption, we call this a Dutch intercountry adoption. The Netherlands is the receiving country, the other country the country of origin or the sending country. Adoption literally means adopting a child. The child is given a new identity, including a new family, (surname) name and nationality.

How is intercountry adoption arranged in the Netherlands?

The most important rules that apply to Dutch prospective adoptive parents who want to adopt a child are contained in the UN Convention on the Rights of the Child, the Hague Adoption Convention and the (Dutch) Adoption of Foreign Children Act (Wobka) of 1998.

The 1989 UN Convention on the Rights of the Child (which entered into force in the Netherlands in 1995) applies to all intercountry adoptions, both in the country of origin and in the recipient country. The only country to which the Convention on the Rights of the Child does not apply is the US. The convention consists of 54 articles, one of which specifically deals with (intercountry) adoption (article 21). Other articles of the treaty may also apply.

In addition, the 1993 Convention on the Protection of Children and Cooperation in the Field of Intercountry Adoption, also referred to as the Hague Adoption Convention (HAV), applies in the Netherlands. This builds on the provisions of the Convention on the Rights of the Child. Countries that are party to the Hague Adoption Convention have agreed to adhere to the rules contained in the convention. The treaty entered into force in 1998 for the Netherlands. According to the Hague Adoption Convention, each contracting country must have a Central Authority that provides for the implementation and enforcement of the treaty provisions. In the Netherlands, this is the Central Authority for International Children's Affairs, part of the Ministry of Justice and Security.

According to the website of Adoption Services, the adoption process has nine steps, from applying for the permission in principle to completing the formalities after an adopted child has arrived in the Netherlands. For more information, see: https://adoption.nl/adoptionprocedure/ .

What does the UN Convention on the Rights of the Child say about intercountry adoption?

The UN Convention on the Rights of the Child is leading for us as a children's rights organization. The treaty leaves it up to the signatory states themselves whether or not they recognize and/or allow (intercountry) adoption. The Netherlands has chosen to allow intercountry adoption. Before proceeding with intercountry adoption, the government must ensure that the best interests of the child are the primary consideration. In addition, it must be established that no form of suitable alternative care is available in the country of origin. This is also known as the principle of subsidiarity, or the 'last resort'. Both rules are contained in Article 21 of the Convention on the Rights of the Child.

What is the subsidiarity principle?

According to the UN Convention on the Rights of the Child (Article 21), intercountry adoption is only permissible if no other suitable domestic alternatives are available. Intercountry adoption is therefore seen as a last resort. This is also known as the subsidiarity principle. The question is what should be understood by appropriate domestic alternatives. The Convention mentions (in Article 21(b), see also Article 20(3)) placement in a foster or domestic adoptive family, or in appropriate institutions. Informal care such as extended family can also be considered .

The Hague Adoption Convention has further elaborated Article 21 of the Convention on the Rights of the Child, but a different subsidiarity principle seems to have emerged. According to the Explanatory Report to the Hague Adoption Convention, the best alternative for a child who cannot be cared for within the family is domestic adoption. When this is not possible, intercountry adoption is seen as the best solution. Taking care of the child in foster care or an institution seems to be seen as a less good solution. This is not in line with the UN Convention on the Rights of the Child. See also the research report ' The future of the intercountry adoption chain ' by consultancy firm Andersson Elffers Felix (AEF) from 2016 (https://www.defenceforchildren.nl/actueel/nieuws/familie/2016/geen-eenduidig-beeld-over-totstandkoming-adoption/ ).

For us as a children's rights organization, the UN Convention on the Rights of the Child is leading. That is why we start from the principle of subsidiarity as it is included in this treaty. The Convention on the Rights of the Child (Article 21(c)) states that a receiving country must assess whether the child would also be eligible for adoption according to its own standards. For alternative care in the Netherlands, foster care, domestic adoption and, when necessary, small-scale residential institutions are called upon. The same line should be followed for the adoption of children from abroad.

As a recipient country, it is impossible for the Netherlands to check whether the subsidiarity principle is actually observed in the country of origin. The Hague Adoption Convention is based on the principle of trust. This means that the Netherlands must rely on the outcome of the assessment made by the state of origin.

What are Illegal Adoptions?

Illegal adoptions continue to this day. These are adoptions that have come about through what appears to be a legal adoption procedure, but which are the result of previous illegal, unauthorized and criminal practices. In illegal adoptions, several rights of children are not respected, such as the principle of subsidiarity, or are violated. This concerns, for example, the right of a child to know its parents and to be cared for by them or the right to retain its own identity (respectively Article 7 paragraph 1 and Article 8 of the Convention on the Rights of the Child).

Illegal adoptions are, for example, the result of child trafficking, abduction or sale of children (Article 35 of the Convention on the Rights of the Child and the 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography). Despite the ban on financial gain (Article 21(d) of the Convention on the Rights of the Child and Article 8 of the Hague Adoption Convention), the fact that large sums of money are involved in the intercountry adoption system encourages illegal adoptions.

The report ' The sale of children and illegal adoption' by international child protection expert Nigel Cantwell (2017) shows the ways in which the international rules for a careful adoption procedure have been used, circumvented, covered up or bought off by all kinds of parties involved in intercountry adoptions.

The right to identity: information about one's own history

Separating parents and child because of (international) adoption is an irreversible decision, the consequences of which not only the children, but also the birth parents will carry the consequences with them for a lifetime. For many intercountry adopted children and adults, information about the origin (genetic lineage, circumstances surrounding distance and adoption, and information about the original family) is vital for the formation and development of their own identity and personality. According to case law, the right to parentage information, and more broadly, to personal history, is a fundamental right, falling under the right to identity.

The right to protection and restoration of identity and appropriate assistance

When intercountry adoptees look for information about their adoption, original family and their descent history, that information often turns out to be impossible to retrieve. When they discover that their adoption is surrounded by abuses, this can also lead to emotions such as anger, sadness or the feeling of being betrayed, according to the Joustra committee. The government is obliged to take an active role in protecting the right to identity of intercountry adoptees (Articles 7 and 8 paragraph 1 of the Convention on the Rights of the Child).

When it comes to victims of illegal adoptions, the government must, according to the UN Convention on the Rights of the Child (article 8 paragraph 2), provide appropriate assistance and protection where necessary to quickly restore the identity of the victim. The government is also responsible for the mental, physical and social reintegration of children who are victims of illegal adoptions (Article 39 of the Convention on the Rights of the Child and Article 9 of the Optional Protocol). Appropriate compensation may also be required.

Intercountry adoption has been suspended in early 2021. Why?

The Joustra Committee found in its report 'Committee to Investigate Intercountry Adoption', published in 2021, that the current adoption system contains vulnerabilities that entail a risk of abuse. The committee concluded that the current system of intercountry adoption cannot therefore be maintained. The committee also expressed serious doubts about the possibility of designing a realistic system in which the abuses that had been established would no longer occur. The committee's advice was to suspend the implementation of intercountry adoptions. The then Minister for Legal Protection Dekker complied with this. See: https://www.defenceforchildren.nl/actueel/nieuws/familie/2021/interlandelijke-adoption-de-overheid-heeft-jaarlang-wegkijk-van-misstanden/ .

The Minister for Legal Protection wants to allow intercountry adoption again under certain conditions. What conditions are these?

Minister for Legal Protection Weerwind informed the House of Representatives on April 11, 2022 that he wants to resume intercountry adoption. To combat abuses, he proposes setting up a new adoption system, with stricter conditions. The best interests of the child must be paramount. In November 2022, the minister decided that he wants to reduce the risk of abuses by bringing the mediation of intercountry adoption together at one central mediation organization, which will be placed under stricter government authority. This role will be fulfilled by the Wereldkinderen Foundation. The minister acknowledges that the risk of abuses cannot be completely eliminated. The minister also states that a child may only be eligible for intercountry adoption if there really is no suitable care in the country of birth and if the government of the country of origin requests that this child be taken care of in the Netherlands. In addition, the minister wants to prevent intercountry adoption from undermining the development of alternative forms of reception in the countries of origin. He investigates how the Netherlands can help countries apply the principle of subsidiarity and their youth protection in the context of international cooperation. In addition, cooperation with countries of origin will be terminated if countries themselves make too little effort in this area. The same applies to countries that must be considered capable of providing adequate reception themselves.

The adoption relationship with the following eight countries is being phased out: United States, China, Slovakia, Czech Republic, Peru, Columbia, Burkina Faso and Haiti. The adoption relationship will be continued with seven countries of origin/areas: the Philippines, Hungary, Lesotho, Taiwan, Thailand, South Africa and Portugal. The adoption relationship with Bulgaria remains suspended until further information is obtained.

What is Defense for Children's position on the future of intercountry adoption?

Intercountry adoption is a very drastic form of youth protection. After all, it leads to separation of the child from her or his biological parents and country of birth. This can be the best solution for a child in individual cases and have a positive impact on her or his life.

At the same time, several studies show that abuses in intercountry adoption cannot be ruled out, not even in the 'new' system proposed by the minister. A country of origin determines itself whether a child can be offered for intercountry adoption, the Netherlands has no say in this. For example, it is impossible for a recipient country such as the Netherlands to check whether the subsidiarity principle is actually being observed. The system proposed by the minister does not change that, while it costs millions of euros every year. We believe that the Netherlands can better use the money to support the development of local forms of reception, such as foster care, in the countries of origin. This will reach a much larger group of children.

Every child who becomes a victim of abuse or otherwise suffers from intercountry adoption is one too many. Because neither the current intercountry adoption system nor the system proposed by the minister is sustainable and watertight, we are urging a definitive end to intercountry adoption.

For more information about our position, see .

What about intercountry adoption and the 'acceptable term'?

The Dutch child protection system uses the term 'acceptable term'. This concerns the family supervision order (Section 1:255 paragraph sub b DCC: period in which work can be done on home placement after a family supervision order) and the termination of parental authority (Section 1:266 DCC: period before a parent's parental authority can possibly be terminated). terminated). The 'acceptable term' is associated by some with intercountry adoption. This term is said to have originated in the 2009 UN Guidelines for Alternative Care for Children. These guidelines, which are legally non-binding, are said to have been influenced by the international pro-adoption lobby to encourage intercountry adoption of children .

In particular, but not only, the Guidelines for Alternative Care elaborate on the right to special protection and assistance for children in alternative forms of care, as set out in the UN Convention on the Rights of the Child (Article 20). The starting point is that every effort should be made to have children grow up with their biological parents or carers, in their own environment and culture (see also Article 30). If this is not possible or is not in the best interests of the child, stable and final solutions should be sought within an appropriate period of time (referred to elsewhere in the guidelines as 'reasonable time'). The guidelines mention adoption and kafalah under Islamic law. If this is not possible, other long-term options, such as foster care, appropriate residential care or informal care (extended family ), are considered.

Those who link the 'acceptable period' to intercountry adoption believe that the emphasis in the guidelines on 'an appropriate period' and 'stable and final solutions' is the result of the international pro-adoption lobby. Whether and, if so, to what extent this lobby has influenced the text of the guidelines is unknown to us as Defense for Children Netherlands. Importantly, the guidelines state that if (domestic or intercountry) adoption is not possible, other appropriate solutions should be considered. In doing so, Article 21 of the Convention on the Rights of the Child must be observed. According to this article, there are several possibilities why adoption is not possible. For example, countries cannot recognize and/or not allow domestic and/or intercountry adoption.

The guidelines say nothing about the length of the 'appropriate period'. However, the implementation guide 'Moving Forward' published in 2012 states that sufficient time must be devoted to and everything possible must be done to return the child and reunite with her or his family. According to the guide, this process could take up to two years. The Dutch articles of law on supervision and termination of parental authority deliberately do not provide precise time limits. This is stated in the 2009 explanatory memorandum to those articles. Since the introduction of the articles in 2015, guidelines from the Netherlands Youth Institute (NJi) and three professional associations recommend using terms of six months to a year. There is a lot to do about this at the moment. Therefore, these guidelines are now under scrutiny.

The Guidelines for Alternative Care for Children do not interfere with the provisions of Article 21 of the Convention on the Rights of the Child. They also do not elaborate on the term 'suitable period'. They therefore do not form the basis for the interpretation of the Dutch statutory term 'acceptable term'.