Legalising adoptions – food for thought (1)

1 April 2011

United Adoptees International (UAI), on their Blog, alert to the fact that the fastest growing Dutch adoption agency NAS is pushing for reopening Haitian adoptions by way of an Internet petition. The Dutch Secretary of State Fred Teeven had decided in December 2010 to temporarily suspend these adoptions. „Due to the limited capacity of the Haitian government, a careful adoption process can not be guaranteed at this time,“ He planned a visit to Haiti in March 2011, but that now has been postponed because the new Haitian government is not yet in place.

In their Dutch Blog posting, UAI is quoting a letter they received from the Dutch Ministry of Justice (March 21, 2011) about the finalizing of the adoptions of children from the Dutch babylifting in January 2010:

„I am aware that the court so far only has converted a few cases of these weak adoptions into strong adoptions, partly because of these children not all original documents are available. Considering the fact that these conversions concern private matters, I have no access to information on all of these cases and I can not give you exact figures. „

Private???

First of all, these children were flown in by a plane paid by the Dutch government.

Second, the Dutch government asked authorisation from the Haitian Prime Minister to do so.

Under the Dutch law on access to documents (WOB), ACT requested the formal correspondence about this:

 Full text HERE (in Dutch and French).

Ttranslated from Dutch/French:

Since Friday 15 January, Dutch humanitarian aid is in full move in Haiti. Considering the dramatic situation also for the children in the children’s homes, the Dutch government has put in place an evacuation program for the children in adoption procedures by Dutch families. It concerns in total 102 children in three different ‘creches’. The files of 60 children passed the Court of First Instance of Port au Prince; 52 files are either with IBESR or at ‘Parquet’ for necessary follow up. Therefore, the Haitian adoption of these 52 files has not yet been finalized. 
[…]
I can guarantee you that the Dutch government, immediately after the arrival of the children in the Netherlands, will start the adoption procedure of these children in close cooperation with the Haitian government. Also follow up reports after six (6) months and after one (1) year are guaranteed.

I ask you in the name of my Government and in name of the 102 adoptable children to inform me as soon as possible about your decision. We need your written agreement or your approval by signing this letter.

So, after guaranteeing the Haitian Prime Minister that the Dutch Government will start the adoption procedures, now the Dutch Minister tells UAI that finalising of the adoption is a PRIVATE MATTER.

The Minister also is not able to give further information? Interestingly enough Dutch courtcases are available online. We have found several cases where the Dutch Courts refused to acknowledge the Haitian adoption decision. And as a result also refused guardianship to the adoptive parents.

Remember: Haiti only knows ‘weak’ adoption, so the legal parent-child bond remains in tact.

Was the Ministry perhaps not aware of possible problems in getting Haitian adoptions legalised?

Did they not know about these problems when they wrote their reassuring letter to the Haitian Prime Minister – just days after the devastating earthquake?

Sure they knew. Already in 2002 there were serious problems with adoptions from Haiti. The Dutch Youth Inspection, responsible for monitoring the functioning of adoption agencies, wrote a report about adoptions done by FLASH. FLASH has merged in the meantime with NAS.

Report Inspection Youth Care: 1 October 2002

Also not protected in the Netherlands 
When the children arrive in the Netherlands they are by Haitian law adopted by parents who collect them at Schiphol, but under Dutch legislation this is not the case. The parents in question need, when are married, first have to have had the children in care for one year before the adoption process can start in the Netherlands. 

For single parents, the period of care is three years. 
There is no registration system in the Netherlands, in which is monitored when the children 
should be adopted and whether that happened. 
Also custody during the period of care until adoption is not standardly provided. The children are in some cases registered by the local administration „visiting relatives“. Information about the custody is not clear and on questions by the Inspection about the custody relationship sometimes parents reacted shocked as the parents do not know.”
[…]

Conclusion:

The custody relationship between the adoptive parents and children at the time of entry into Netherlands is not clear. For Haitian law, the parents are the legal representatives.
In Haiti there is a parent-child relationship. In the Netherlands, the adoptive parents must provide their children first 3 years of care and education before they  actually can adopt. The Civil Code states that for any minor there needs to be provision for custody. It remains unclear how the adoption legislation relates to the requirement of the Civil Code and whether the Dutch law provides for the custody of the minor.

The current problems with the finalization of the Haitian adoptions are, however, not specific to the Netherlands:

 “According to Céline Boyard, vice president of the Federation, Enfance et Familles d’Adoption, 600 children have arrived since January 2010. “They all had the papers, many more than those who recently arrived, and it is a battle at the Courts. The families all have difficulties to obtain the conversion and full French adoption. “

These legal obstacles are not limited to France. According to Céline Boyard, in the Netherlands and Germany, families are also struggling in the Courts. It is impossible to adopt Haitian children without documents. “

 Today’s French news revealed the existance of about a document of the French Ministry of Justice, of 22 December 2010, that instructs French judges to refuse converting weak adoptions into full adoptions for children recently arrived in France.

In Germany the District Court took it a step further. On 31 May 2010 the German District Court of Düsseldorf ruled that an Ethiopian adoption could  not be accepted under German law, as it is obviously incompatible with the fundamental principles of German law, in particular with the fundamental rights. This decision was appealed by the adoptive parents.

On 18 January 2011 the German Higher Regional Court (Dusseldorf) confirmed this ruling. This decision cannot not be appealed.

The ruling was based on the fact that article 21-b of the UN Convention on the Rights of the Child was not complied with, meaning that a child may only be transferred for adoption into a foreign country and into another culture, when all avenues have been exhausted for the placement of the child in his own family and in its own country.

Article 21
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
[…]
(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

Additionally, the Court rulet that the appointment of new (adoptive) parents further requires that they have factually grown into the role of the failed parents, so in terms of German law that between the child and his new parents and vice versa, a parent-child relationship has been founded or its formation can be expected.  Therefore, the personality right of the child has not sufficiently enough been respected, as far as before the adoption no initiation of a parent-child relationship took place, which for practical reasons (visa handling ) should have taken place in Ethiopia.

Full text (informal translation): HERE

What to conclude? Intercountry adoptions are nowadays rarely in compliance with article 21b of the UNCRC. And even so  it is rare that parents have grown into the role of the failed parents before they adopt the child in the country or origin.

The question then remains: how could all previous adoption have been granted in Germany, and elsewhere?

Food for thought!