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:

• Ordinary adoption. It enables those who have not any children to adopt one. This form of adoption, which does not break the links of the adopted person with the family of origin (the adopted person remains son or daughter of the natural parents), is often used in order to transmit the family name and rights through inheritage.
• Full adoption (or legitimating adoption). It is aimed at providing children with a new family. On one hand, it confers to the adopted child and to the adopter the same rights and obligation as applied to a child born in lawful wedlock and to his parents respectively. On the other hand, the rights and obligations of any kind between the adopted child and his father and mother or any other person or body cease to exist. This is the form of adoption the Strasbourg Convention promotes, as it is the one which is more suited to take into account the interest of the child (14).
• International adoption. This form of adoption implies the transfer of the child from one State (the State of origin) to another State (the receiving State) for the purpose of an adoption.
• Adoption "at distance." It is not legally provided but it is a very important way of improving solidarity between people of different countries. It consists in providing financial help to families located in another country which are in a situation of great financial difficulty (poverty), in order to help them to sustain their children and to avoid that the children must be given in adoption.

• Part I contains the undertakings and specifies the field of application.
• Part II (Article 4 to 16) includes the 'essential provisions,' amounting to basic principles which are binding on Member States and concern prerequisites for procedure and effects of adoption (15).
• Part III (Article 17 to 20) contains a supplementary set of principles, the Contracting Parties are free to accept and give effect to or not: Article 2 requires the Contracting Party only "to give consideration to" these provisions, which set out principles it has seemed only desirable to introduce into national legislation.
• Part IV is devoted to the final clauses.

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:

• to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child;
• to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
• to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

• have established that the child is adoptable;
• have determined that an intercountry adoption is in the child's best interests;
• have ensured that the persons, institutions and authorities whose consent is necessary for adoption, have given their consent freely, in the required legal form, and that the consents have not been induced by payment or compensation of any kind; and
• have ensured, having regard to the age and degree of maturity of the child, that he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required, and such consent has not been induced by payment or compensation of any kind.

• provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;
• keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.
• facilitate, follow and expedite proceedings with a view to obtaining the adoption;
• promote the development of adoption counselling and post-adoption services in their States;
• provide each other with general evaluation reports about experience with intercountry adoption;

• pursue only non-profit objectives;
• be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and
• be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

Articles 23 - 27 deal with the effects of adoption, by specifying, among other things, that

• an adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized in the other Contracting States;
• the recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.

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:

• maternal affiliation of every child born out of wedlock shall be based solely on the fact of the birth of the child (Article 2);
• paternal affiliation of every child born out of wedlock may be evidenced or established by voluntary recognition or by judicial decision (Article 3);
• the voluntary recognition of paternity may not be opposed or contested insofar as the internal law provides for these procedures unless the person seeking to recognise or having recognised the child is not the biological father (Article 4);
• in actions relating to paternal affiliation scientific evidence which may help to establish or disprove paternity shall be admissible (Article 5).

• the parents of a child born out of wedlock shall have the same obligation to maintain the child as if it were born in wedlock (Article 6);
• where the affiliation of a child born out of wedlock has been established as regards both parents, parental authority may not be attributed automatically to the father alone (Article 7);
• where the father or mother of a child born out of wedlock does not have parental authority over or the custody of the child, that parent may obtain a right of access to the child in appropriate cases (Article 8);
• a child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father's or mother's family, as if it had been born in wedlock (Article 9);

the marriage between the father and mother of a child born out of wedlock shall confer on the child the legal status of a child born in wedlock (Article 10).
   

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(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>.