2. The European Convention on the Adoption of Children (Strasbourg, 24 April 1967). General Purposes of the Instrument.
The ticklish topic of adoption has been dealt with in a number of international instruments. Just to mention the most important ones, it will be enough to spend some words upon the European Convention of 1967 and the Hague Convention of 1993.
The European Convention on the Adoption of Children, which was developed under the auspices of the Council of Europe, was opened to signature by the Member States in Strasbourg, on 24 April 1967, and entered into force on 26 April 1968 (12). 15 Member States have ratified it. The main purpose of this instrument is to lay down provisions, which may allow harmonising the national laws of Member States in order to overcome the problems arising, on an international level, from the differences in the adoption legislation of the individual States. The Convention dictates a minimum of essential principles to which each contracting party would give effect. Such provisions allow adoption of a child only under specific safeguards and provide for precise criteria of evaluation and choice.
First of all, adoption is considered as an institute whose primary purpose is to give a family to those children who have none or one that is not suitable. Most European countries have already accepted this principle, which is based on the protection of the interest of the child, as it is stated just at the beginning of the Explanatory Report (13).
It may be useful to recall that the word adoption is used, both at international and national level, to indicate different forms of adoption:
3. The European Convention on the Adoption of Children (Strasbourg, 24 April 1967). Commentary on its Essential Provisions. The Adopted Children. Form of the Adoption and Parents' Consent.
The Convention applies to the adoption of children who, at the time when the adopter applies to adopt, have not attained the age of 18, who are not or have not been married or who have not come of age (Article 3). Being designed for the protection of children at the time of their adoption, the Convention of course excludes adults, and, among minors, it also excludes persons who have been emancipated by marriage or in some other manners and those who have attained the age of 18.
Other issues which the Convention deals with and which are governed differently by the legislation of the European States are those concerning the number of children that may be adopted, the adoption of a child in the presence of children born in lawful wedlock and the adoption of his own child not born in lawful wedlock. In this regard, the Convention provides (art. 12) that the number of children who may be adopted by the same adopter may not be restricted by law; that no law may prohibit adoption in the presence of children born in lawful wedlock, and that no person may be prevented from adopting his own child not born in lawful wedlock if the adoption improves the legal position of the child.
Under Article 4 of the Convention, adoption is valid only if granted by an administrative or judicial authority. The purpose of this provision is to avoid that a child may be adopted through a private agreement, which excludes that the State controls and guarantees that the adoption is made in the interest of the child.
Particular importance should be attached to the provision concerning consent to be given by the child's parents, in consideration of the fact that adoption entails the transfer of the child from his own family to the adopter's family. In this regard, Article 5 of the Convention specifies that the consent to adoption by the parents of the child, or by any other person who exercises parental rights, is an essential condition for the granting of a valid adoption. Also the consent of the adopter's spouse is required. However, it is possible under national legislation to set aside from consent of the natural parents when they have been deprived of their parental rights (16). In order to avoid that parents waive their rights and duties towards children owing to difficult circumstances, the Convention provides that the consent of the mother to the adoption of her child may not be given unless six weeks have elapsed since the birth of the child (17).
Article 8 does not allow the competent authority to grant an adoption unless it is satisfied that the adoption will be in the child's interest and will provide him with a stable and harmonious home.
4. The European Convention on the Adoption of Children (Strasbourg, 24 April 1967). Commentary on its Essential Provisions. The Adopters.
Adoption may be granted either to a married couple, who may adopt simultaneously or successively, or to a single person, whereas it may not be granted to an unmarried couple. There is only an obligation contained in Article 6, which consists in prohibiting adoption by unmarried couples; States which are part to the Convention are free to consent adoption only by married couples or also by a single person. According to the Explanatory Report, preference should be given to adoption by a couple, having been considered that the interest of the child is to be grown up by both father and mother. The report clarifies that in a country where the law only permits adoption by a couple, the provision would not make it obligatory to introduce adoption by one person. The Convention is in conformity with most European countries, where adoption by both spouses is the rule. Normally the spouses must adopt jointly.
The minimum age prescribed for adoption should be neither less than 21 nor more than 35 years. The provision is completed by Article 8, which requires that the difference in age between the adopter and the child must not be less than the difference normally existing between parents and their children. The purpose of Article 7 and 8 is to provide the child with a father and a mother who are of an age as near as possible to that of its natural parents, though allowing States to fix it within these limits.
In this regard, in some European countries national law provides for a minimum age to adopt and, in some cases, for the maximum age as well; in other countries reference is made to a difference in age which must exist between adopter and adopted child, while others provide for the fulfilment of both conditions. In some States national legislation requires simply an 'appropriate' difference to exist, whereas in others this difference is determined specifically. Almost all legal systems provide for exceptions where adoption concerns a person's natural child or the spouse's child; in these cases the required difference in age is reduced.
5. The European Convention on the Adoption of Children (Strasbourg, 24 April 1967). Commentary on its Essential Provisions. Enquiries by Competent Authority. Effects of the Adoption.
Article 9 provides for the competent authority to grant adoption only after appropriate enquiries have been made concerning the adopter, the child and his family. This precaution as well as special care in the choice of the most suitable adopting family are a feature of all European legal systems on account of the purposes served by legitimating adoption and of the interests which it aims to protect.
Article 10 is specifically devoted to full adoption. Full adoption confers on the adopted child and the adopter the same rights and obligations as apply to a child born in lawful wedlock and to his parents, respectively. At the same time, the rights and obligations of any kind existing between the adopted child and his father or mother or any other person or body cease to exist. As it is said in the Explanatory Report, the main object of this Article is to ensure that an adopted child should be treated by every standpoint like a legitimate child and that all ties with his natural parents should be broken (but does not impose to States any specific obligation as to the content of rights and obligations).
The adopted person acquires the surname of the adopter or adds it to his own, but the Convention does not lay down any absolute rule on the subject.
In matters of succession, par. 5 of this Article aims to avoid discrimination between children born in wedlock and adopted. It deals only with the right of the adopted child to share in the estate of his adopter, but does not prevent a State from allowing a child to inherit from members of the adopter's family, nor to conserve his rights of succession in his natural family.
Adoption may not be revoked (Article 13) until the adopted child comes of age; revocation may only take place following a decision of an administrative or judicial authority, on serious grounds, and only if revocation on that ground is permitted by the law. The Explanatory Report emphasises that revocation is a grave step and that it must therefore be surrounded by very explicit guarantees in law and in its application.
6. The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (The Hague, 29 May 1993). General Purposes of the Instrument.
The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, drawn up in the framework of the Hague Conference on Private International Law, deals with the serious problems currently created by international adoption; it was signed on 29 May 1993 (18).
First of all, it should be underlined that this Convention, following the same pattern of the United Nation's Convention on the Rights of the Child (Preamble and art. 21), recognises the "subsidiarity principle," according to which inter-country adoption should be admitted only when it is clear that the child cannot be cared of in a suitable way in the country of origin.
Taking into account the fact that since the late 1960s a dramatic increase had occurred in international adoption, so that it had become a world-wide phenomenon involving migration of children over long geographical distances and from one society and culture to another very different environment, the main purpose of this convention is to provide a set of rules which establishes legally binding standards and a machinery (the Central Authorities) to ensure co-operation among States, as well as supervision to assure that the provided standard are observed (19).
7. The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (The Hague, 29 May 1993). Outlines of the Relevant Provisions.
Objects of the Hague Convention (Article 1) are:
Articles 23 - 27 deal with the effects of adoption, by specifying, among other things, that
8. The European Convention on the Legal Status of Children Born out of Wedlock (Strasbourg, 15 October 1975).
The European Convention on the Legal Status of Children Born out of Wedlock (Strasbourg, 15 October 1975) (20) has been drawn up by the Council of Europe in order to improve the legal status of illegitimate children by reducing the differences between their legal status and that of children born in wedlock which are to the legal or social disadvantage of the former. It aims also to contribute to a harmonisation of the laws of the member States in this field, through the formulation of certain common rules concerning the legal status of such children.
Therefore the Convention sets off some basic principles dealing with the establishment of children's status, such as follows:
(12) The text of the Convention is available at the following URL: <http://www.coe.fr/eng/legaltxt/58e.htm>.
(13) "In a sense, there is only one principle essential to good adoption practice, namely that adoption should be in the interest of the child as stated in Article 8, paragraph 1, of the Convention. This principle is indispensable but if taken by itself it might not be totally effective. For this reason the Convention elaborates this principle so as to give it precision and define the scope of its application."
(14) This idea is not explicitly expressed in the Strasbourg Convention, but it comes out from Article 24. This Article concerns those states whose law recognises several forms of adoption and provides that at least one of these (i.e. full adoption) must be governed by the totality of the rules of the Convention (account being taken of the reservations which may be made under Article 25) (see Bianchi Bonomo, The European Convention on the Adoption of Children, Report for the Seminar On The Protection Of Children's Rights, organised by the Council of Europe and held in Kiev, 29 - 30 August 1996).
(15) As stated in Article 1 "Each Contracting Party undertakes to ensure the conformity of its law with the provisions of Part II of the Convention and to notify the Council of Europe of the measures taken for that purpose." This notification has an important role in assuring the implementation of the Convention. According to the Explanatory Report, such measures will usually take the form of legal or administrative text, but a Contracting Party will, however, be considered to have fulfilled its obligation if a firm and constant practice implementing those provisions exists (see Bianchi Bonomo, The European Convention on the Adoption of Children, cit.).
(16) The Convention envisages the possibility that the persons whose consent is required cannot be traced or are incapable and it is also possible that the refusal of consent is based upon reason which may be regarded as a misuse of their rights; as the interest of the parents should not prevail over those of the child, the Convention provides that it is possible for national laws to dispense for a consent or to overrule a refusal of consent on exceptional grounds (see Bianchi Bonomo, The European Convention on the Adoption of Children, cit.).
(17) In compliance with the Convention, the national laws of all European countries, apart from Italy, make the consent of the child's parents a basic prerequisite for adoption. The rule of consent may be derogated from, in a few countries, if the parent(s) failed to fulfil his(their) obligations towards the child or whenever the refusal to grant adoption is likely to seriously affect the child. A different solution regarding the consent of the parents of the child has been adopted by other countries, which require, along with the consent of the parent(s), a declaration that the child has been abandoned (see Bianchi Bonomo, The European Convention on the Adoption of Children, cit.).
(18) The text of the Convention is available at the following URLs: <http://www.adoptionscentrum.se/english/hague_convention_english.htm>; <http://hcch.net/e/conventions/menu33e.html> ; an exhaustive bibliography upon this convention can be found at the following URL: <http://hcch.net/e/conventions/bibl33e.html>; see also Dogliotti, Adozione internazionale: ratifica della convenzione de L'Aja e nuova disciplina, in Famiglia e diritto, 1999, p. 11-16.
(19) In order to widen the geographical area of the convention and to have as many states as possible ratifying it, it was decided that not only the states which are members of the Hague Conference on Private International Law, but also other states could participate in the drafting of the convention. In this way it was possible to have many south American countries present in the meetings, these countries being the ones where live a great number of adopted children (see Bianchi Bonomo, The European Convention on the Adoption of Children, cit.).
(20) The text of the Convention is available
at the following URL: <http://www.coe.fr/eng/legaltxt/85e.htm>.