All Member States have national provisions governing the recognition of adoption orders, but legal procedures differ significantly across the EU. As legislation currently stands, there is no legal protection or guarantee that domestic adoptions carried out in one EU Member State will be recognised in another. This means that European families who move to another Member State after adopting a child may face significant practical problems, and may be obliged to go through national recognition procedures or even to re-adopt their child. The situation leads to legal uncertainty and may harm children’s rights, including the right to family life, non-discrimination, inheritance rights and the right to nationality.
Substantive family law is an area of national competence, but the EU may adopt measures on aspects of family law with cross-border implications. Parliament adopted a resolution on improving adoption law in 1996. In 2009, the European Commission and the European Parliament both issued studies showing that there was public support and further scope for EU action on adoption of children and putting forward concrete recommendations. The European Parliament subsequently adopted a Resolution on international adoption in the European Union, which called for consideration of coordinated European level strategies and mutual legal recognition of the documents necessary for adoption. This EP Resolution has not so far been followed by a legislative initiative by the European Commission.
During the European Parliament’s eighth term, its Committee on Legal Affairs (JURI) issued a legislative initiative report on cross-border recognition of adoptions with specific recommendations to the Commission (rapporteur, Tadeusz ZWIEFKA, EPP, Poland). The preparatory work highlighted that whilst the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption requires automatic recognition of adoptions, it only applies to situations where adoptive parents and the adopted child come from two different countries and does not cover domestic adoptions, i.e. situations where the adopters complete the adoption procedure in one Member State, and then later, decide to move to another EU Member State with the child. In addition, the Brussels II Regulation does not cover adoption or the recognition of adoption orders. Therefore, at the EU level, there is currently no legal instrument, which regulates the recognition of an adoption order made in another Member State.
The European Added Value Assessment (EAVA) accompanying the report analysed possible policy options and the potential additional value of taking legislative action at the EU level. It estimated that, as well as the social, health and fundamental rights consequences for individuals, the cost of the lack of EU rules on automatic recognition of adoption decisions is approximately €1.65 million per annum. It argues that EU legislation would reduce administrative and legal costs and allow for better protection of the interests of the child and of the fundamental rights of adoptive parents. Any EU legislation should cover: issues of jurisdiction and conflict of law; a uniform certification process and adoption certificate, as well as the effects of certification; conditions for recognition of adoption orders; a principle of mutual recognition as a default principle; and grounds for non-recognition.
The subsequent European Parliament resolution of 2 February 2017 with recommendations to the Commission on cross border aspects of adoptions, based on the own-initiative legislative report: