Doc. 9377

1 March 2002

International adoption: respecting children’s rights

Recommendation 1443 (2000)

Reply from the Committee of Ministers

adopted at the 785th meeting of the Ministers’ Deputies (26–27 February 2002)

1.       The Committee of Ministers has carefully examined Parliamentary Assembly Recommendation 1443 (2000) - International adoption: respecting children’s rights.

2.       In the Recommendation the Assembly points out that, in any international adoption, the child’s best interests must come first. The Committee of Ministers agrees with the Assembly. The child’s best interests must be the prime consideration in any decisions; that is a concept which the Committee of Ministers championed in its Political Message on Children, adopted at the 108th ministerial session (11 May 2001), a message which appealed to member states to ratify and implement fully all treaties and apply all standards which promoted the child’s best interests.

3.       In this context the Committee of Ministers recognises the importance of having regard to the child’s views in adoption proceedings if the child is regarded as having sufficient understanding, in line with the European Convention on the Exercise of Children’s Rights.

4.       The Committee of Ministers likewise agrees about the importance of assistance and co-operation between states in international adoption. It shares the Parliamentary Assembly’s concern that the 1993 Hague Convention on protection of children and co-operation in international adoption be ratified more widely since that convention establishes the child’s best interests and respect for the child’s fundamental rights as the guiding principles in international adoption. The subsidiarity principle as contained in that convention, whereby international adoption is to be considered only where there are no national solutions, is of undoubted value. International adoption can, nevertheless, have the advantage of providing a permanent family home to a child for whom no suitable family can be found in the country of origin. In this connection the Assembly may recall that in November 2000 the Secretary General of The Hague Conference convened a special commission to discuss implementation of the Convention.

5.       For its part, the Committee of Ministers, via the Forum for Children and the Family, a specialised body in the intergovernmental co-operation sector working on the protection and promotion of children’s rights, has undertaken an activity focusing on the issue of children at risk and children placed in institutions. The work will have two main aims: first, better co-ordination of prevention and social and educational work with parents and children; secondly, improved operation of arrangements relating to the placement of children, ie above all in a manner that fully respects the rights of the child. The intention behind the guidelines that are to be drawn up is to give priority to alternatives to the placement of children in institutions and to keep them in, or if possible return them to, their families of origin. The Council of Europe is conducting assistance activities in this field in some central and east European countries.

6.       The Committee of Ministers notes the Assembly’s proposal concerning adopted children’s right to learn of their origins. It agrees about the importance of that and acknowledges that all children have a legitimate interest in knowing their origins. It would, however, point out that substantive discussions are in progress on that question in several member states and that, in some situations and some countries, it has been deemed necessary to withhold some or all information about a child’s origins (for example, in cases of medically assisted procreation involving an anonymous sperm donor).

7.       Further to the Parliamentary Assembly’s suggestion on revising the 1997 European Convention on Nationality, the Committee of Ministers enlisted the expertise of the European Committee on Legal Co-operation (CDCJ) and its Committee of Experts on Nationality (CJ-NA). Having considered the possibility of extending that convention so as to facilitate acquisition of the receiving country’s nationality for foreign children who, on account of a failed adoption, would otherwise become stateless, the CDCJ delivered an opinion which the Committee of Ministers wishes to bring to the Assembly’s notice in an appendix to this reply.

8.       The Committee of Ministers agrees with the Assembly about the need to combat trafficking in children and eliminate mafia-type or other criminal networks existing in certain countries and generating fraudulent adoptions. However, co-operation through Europol, which the Assembly mentions as a possible approach in this matter, is not available to the majority of Council of Europe member states. Yet, the Committee of Ministers would point out in this connection that all Council of Europe member states are also members of Interpol and that this organisation has placed crimes against children and the trafficking in human beings amongst its top priorities.

9.       On 31 October 2001 the Committee of Ministers adopted Recommendation Rec(2001)16 on the protection of children against sexual exploitation, which replaced, and extensively added to, Recommendation R(91)11. The new Recommendation lays down a set of guidelines for member states concerning, among other things, trafficking in children and international co-operation to combat this form of transnational crime. The Committee of Ministers will later be considering setting up machinery to monitor the provisions of this Recommendation and will be looking at the Council of Europe’s role in co-ordination of action in this sphere at European level.

10.       In addition, the Committee of Ministers welcomes the fact that the Council of Europe delegation played a very active role at the 2nd World Congress against Commercial Sexual Exploitation of Children held in Yokohama in December 2001 where the problem of the trafficking in children was also addressed. Thanks to close collaboration between the Council of Europe delegation, the European Union and the delegations from European countries, it had proved possible to reach a joint position of the European countries (the Explanatory Declaration) which enabled the final declaration of the Congress to go much further than it had in the initial draft. This explanatory declaration stressed the European countries’ commitment to combating sexual exploitation in all its forms and to extending the protection of children up to the age of 18. Furthermore, the Committee of Ministers notes with satisfaction the positive results of the European Preparatory Conference to the World Congress (Budapest, November 2001), in the form of the adoption of the Budapest Commitment and Plan of Action, which were appended to the Yokohama final declaration.

Appendix

Opinion of the European Committee on Legal Co-operation (CDCJ)

on Parliamentary Assembly Recommendation 1443 (2000)

on international adoption: respecting children’s rights

1.       The CDCJ noted that, following the adoption by the Parliamentary Assembly of Recommendation 1443 (2000) on international adoption: respecting children’s rights, the Committee of Ministers had requested the Committee of Experts on Family Law (CJ-FA) to prepare an Opinion on this Recommendation.

2.       The Opinion of the CJ-FA was submitted to the Committee of Ministers through the intermediary of the CDCJ (see CDCJ(2000)41 item 14 of the agenda and Appendix IX). When submitting this Opinion, the CDCJ invited the Committee of Ministers to note that it had decided, taking into account the suggestion made in the Opinion prepared by the CJ-FA, to forward this Recommendation to the Committee of experts on nationality (CJ-NA) and to request the CJ-NA to give its opinion on the possibility of extending the European Convention on Nationality in order to facilitate the acquisition of the nationality of the receiving country for foreign children who, owing to a failed adoption, would otherwise become stateless.

3.       The CDCJ, on the basis of the opinion of the CJ-NA, adopted the present Opinion for the attention of the Committee of Ministers.

4.       The CDCJ welcomed the initiative of the Parliamentary Assembly to study questions of nationality of children in cases of failed adoption.

5.       The CDCJ recalled that statelessness should not arise if the States concerned applied Article 7, paragraph 1, subparagraph g of the European Convention on Nationality, according to which a State Party may only provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party in the case of adoption of the child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. The CDCJ also supported the Parliamentary Assembly in encouraging a wider ratification of the Hague Convention of 1993 on the Protection of Children and Co-operation in respect of Inter-Country Adoption.

6.       The CDCJ emphasised that international adoption always involves the legal order of two or more States and that the adoption should have legal effect both in the State of origin of the child and in the State of nationality or residence of the adoptive parents.

7.       The CDCJ expressed its concern over cases where a child is brought from his or her State of origin to another State in view of adoption, but is unable to acquire the nationality of the receiving country although the child remains in this country.

8.       The CDCJ further noted that there are problems other than those of statelessness that may arise from international adoption in the field of nationality. In many States, the adopted child has to reside in the receiving State for a number of years and to fulfil certain other conditions before he or she is eligible for the nationality of this State. The CDCJ noted that the acquisition of the nationality of the receiving State may be further complicated if the adopting family breaks up.

9.       The CDCJ emphasised that the child has the right to a nationality and is of the opinion that this nationality, in case the child would otherwise be stateless, should follow that of the adoptive parents or other persons having parental responsibilities and/or the State where the child has his or her permanent residence.

10.       The CDCJ considered that these problems deserve further attention and that the possible introduction of new rules in this regard, supplementing the European Convention on Nationality, should be deliberated in the context of the current work of the CJ-NA on the conditions for acquisition and loss of nationality.