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Sunday, 16 December, 2018
Adoption : European Convention on the Adoption of Children is Revised!
on 2008/8/8 12:00:00 (6999 reads)

Council of Europe:

New provisions introduced by the convention: 1) The father’s consent is required in all cases, even when the child was born out of wedlock. – The child’s consent is necessary if the child has sufficient understanding to give it. 2) It extends to heterosexual unmarried couples who have entered into a registered partnership in States which recognise that institution, and to single. It also leaves States free to extend adoptions to homosexual couples and same sex-couples living together in a stable relationship. 3) The new convention strikes a better balance between adopted children’s right to know their identity and the right of the biological parents to remain anonymous. 4) The minimum age of the adopter must be between 18 and 30, and the age difference between adopter and child should preferably be at least 16 years.

The Revised Convention

8. All of the above led the CDCJ, at its 77th meeting in May 2002, to entrust the CJ FA with the task of examining the 1967 European Convention on the Adoption of Children, taking into account the European Convention on the Legal Status of Children born out of Wedlock and the White Paper, with a view to ascertaining the feasibility of reviewing it and bringing it up to date and reporting back to the CDCJ in 2004.

9. In order to achieve this task, the Working Party on Adoption (the CJ FA GT1, hereinafter the “Working Party”) was set up in early 2003 with the task of drafting a report containing detailed proposals on the feasibility of reviewing the 1967 European Convention on the Adoption of Children.

10. The Working Party completed in March 2004, for the attention of the CDCJ, a final report on proposals for the revision of the 1967 Convention. It based its proposals and conclusions primarily on the replies received to a questionnaire. 24 replies to the questionnaire were received: 23 replies from States and one from the International Social Service (ISS). Of the 23 States replying, 11 had ratified the 1967 European Convention on the Adoption of Children and 3 had signed it. The 9 other States that replied had neither signed nor ratified the 1967 Convention.

11. The CDCJ, at its 79th meeting in May 2004, approved the project to draft a revised Convention. The Committee of Ministers approved the new terms of reference of the CJ FA at its 890th meeting on 30 June 2004, in which it is instructed to prepare, for the attention of the CDCJ, a new Convention on the adoption of children, taking into account the final report containing detailed proposals for the revision of the 1967 European Convention on the Adoption of Children [ETS No. 58] and the submissions made by the member States.

12. The draft of the revised Convention and its explanatory report were prepared by the Working Party on Adoption, during two meetings in April and July 2006. They were amended and approved by the CJ FA during its 36th meeting on 17 November 2006 and by the CDCJ during its 82nd meeting on 1 March 2007.

13. The draft revised Convention was submitted by the CDCJ to the Committee of Ministers which adopted the text and decided to open it for signature on […2008}].

General considerations

14. In a sense, there is only one principle essential to good adoption practice, namely that adoption should be in the best interests of the child as stated in Article 4, 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 develops this principle so as to give it precision and define its scope. This principle is also specifically mentioned in the context of a revocation or an annulment of an adoption (Article 14, paragraph 1).

15. When drafting the 1967 Convention, it was decided to select as many of the more important features as were both suitable for inclusion in a legal instrument and likely to gain wide enough acceptance by governments of the member States of the Council of Europe. These features had been included in Part II (“Essential provisions”) of the 1967 Convention.

16. But there were certain other features of good adoption practice which were not suitable for inclusion in a legal instrument on an obligatory basis. They had been inserted into Part III (“Supplementary provisions”) and States Parties were free to give effect to them on a voluntary basis (see Article 2 of the Convention of 1967: “to give consideration to…”).

17. The replies received to the Working Party’s questionnaire indicated that a majority of States were in favour of moving the content of Article 20, paragraphs 2 and 3, of the 1967 Convention from Part III to Part II because the provisions concerning access to information about the adopted child’s identity should be obligatory. Therefore, when drafting the revised Convention the previous structure was abandoned.

18. Furthermore, any difference of treatment between children born in and children born out of wedlock has been eliminated throughout the whole revised Convention (see Articles 5, 10 and 12 of the 1967 Convention). Any legal solution which makes a discriminatory distinction in relation to the rights of children born to married and non married parents is henceforth contrary to numerous international instruments and the case law of the European Court of Human Rights.

19. While international adoption is covered formally only by Articles 12 and 15, clearly the Convention as a whole will exert an important influence on international adoptions. It will provide an effective complement to the Hague Convention of 1993, notably by ensuring that adoptions which are not covered by the Hague Convention of 1993 are regulated in such a manner as to comply with the underlying aims of any adoption, which must be child centred, in the child’s best interests and should provide him or her with a harmonious home.

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