REPORT with recommendations to the Commission on cross border aspects of adoptions
6.12.2016 - (2015/2086(INL))
Committee on Legal Affairs
Rapporteur: Tadeusz Zwiefka
(Initiative – Rule 46 of the Rules of Procedure)
MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
with recommendations to the Commission on cross border aspects of adoptions
The European Parliament,
– having regard to Article 225 of the Treaty on the Functioning of the European Union,
– having regard to Articles 67(4) and 81(3) of the Treaty on the Functioning of the European Union,
– having regard to the UN Convention on the Rights of the Child of 20 November 1989, and in particular Articles 7, 21 and 35 thereof,
– having regard to Article 2 of the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 25 May 2000,
– having regard to the Vienna Convention on Consular Relations of 24 April 1963,
– having regard to the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption,
– having regard to the Issue Paper of the Commissioner for Human Rights on Adoption and Children: a Human Rights Perspective, published on 28 April 2011,
– having regard to Rules 46 and 52 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Petitions (A8-0370/2016),
Common minimum standards for adoptions
A. whereas in the area of adoption, it is essential that any decision should be taken in accordance with the principle of the best interests of the child, non-discrimination, and with respect for his or her fundamental rights;
B. whereas the purpose of adoption is not to give adults the right to a child, but to give the child a stable, loving and caring environment to grow up and develop in harmoniously;
C. whereas the adoption procedure concerns children who, at the time adoption is applied for, have not yet attained 18 years of age or the age of majority in their country of origin;
D. whereas a good balance needs to be struck between the right of the adopted child to know its true identity and the right of the biological parents to protect theirs;
E. whereas the relevant authorities should not consider the economic circumstances of the biological parents as the only basis and justification for the withdrawal of parental authority and giving a child up for adoption;
F. whereas adoption proceedings should not commence before any decision withdrawing parental authority from the biological parents is final, and the latter have been given the opportunity to exhaust all legal avenues of appeal against that decision; whereas the recognition of an adoption order taken in the absence of such procedural guarantees can be refused by other Member States;
G. whereas greater efficiency and transparency will enable improvements to be made to domestic adoption procedures and could make international adoptions easier, which could increase the number of children being adopted; whereas, in this respect, compliance with Article 21 of the UN Convention on the Rights of the Child, which all Member States have ratified, should be the primary benchmark for all procedures, measures and strategies regarding adoptions in a cross‑border context, while respecting the best interests of the child;
H. whereas more work should be done in a determined manner in order to prevent prospective parents interested in adoption from being exploited by unscrupulous intermediary organisations, and whereas cooperation in combating crime and corruption within the EU therefore needs to be stepped up in this area as well;
I. whereas the placement of siblings in the same adoptive family should be encouraged as far as possible, in order to spare them further trauma arising from their separation;
Intercountry adoptions under the 1993 Hague Convention
J. whereas the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which all Member States have ratified, provides a system of administrative cooperation and recognition for intercountry adoptions, i.e. adoptions where the adopters and the child or children do not have their habitual residence in the same country;
K. whereas the Hague Convention stipulates that recognition of intercountry adoptions is automatic in all signatory states, without the need for any specific procedure for recognition to be effective;
L. whereas, under the Hague Convention, recognition may be refused only if the adoption is manifestly contrary to the public policy of the state concerned, taking into account the best interests of the child;
Civil justice cooperation in the field of adoption
M. whereas judicial training in the widest sense is key to mutual trust in all areas of law, including that of adoption; whereas existing EU programmes covering judicial training and support for the European judicial network therefore need to include a stronger focus on specialised courts, such as family courts and juvenile courts;
N. whereas citizens should be given better access to comprehensive information on the legal and procedural aspects of domestic adoption in Member States; whereas the e-Justice portal could be expanded in this connection;
O. whereas cooperation within the European Network of Ombudspersons for Children was established in 1997, and Europe's ombudsmen on children's matters should be encouraged to cooperate and coordinate more closely in that forum; whereas efforts to do so could include involving them in existing EU-funded judicial training schemes;
P. whereas an in‑depth analysis should be conducted, as more needs to be done to prevent and combat the cross-border trafficking of children for the purpose of adoption and to improve the proper and efficient implementation of existing rules and guidelines to combat child trafficking; whereas cooperation in combating crime and corruption within the EU therefore needs to be stepped up in this area to prevent the abduction, sale, or trafficking of children;
Cross-border recognition of domestic adoption orders
Q. whereas the principle of mutual trust between the Member States is of fundamental importance in Union law as it allows an area without internal borders to be created and maintained; whereas the principle of mutual recognition, which is based on mutual trust, obliges Member States to give effect to a judgment or decision originating in another Member State;
R. whereas, despite the international rules that exist in this field, opinions still differ in the Member States as regards the principles that should govern the adoption process, just as differences exist in respect of adoption procedures and the legal effects of the adoption process;
S. whereas the European Union has competence to take measures aimed at enhancing judicial cooperation between the Member States without affecting national family law, including in the field of adoptions;
T. whereas public policy exemptions serve to safeguard the identity of the Member States, which is reflected in the substantive family law of the Member States;
U. whereas there is currently no European provision for the recognition – whether automatic or otherwise – of domestic adoption orders, i.e. concerning adoptions which are carried out within a single Member State;
V. whereas the absence of such provisions causes significant problems for European families who move to another Member State after adopting a child, as the adoption may not be recognised, meaning that the parents may have trouble legally exercising their parental authority, and may encounter financial difficulties regarding the different fees applicable in this field;
W. whereas the lack of such provisions thus puts at risk the rights of children to a stable and permanent family;
X. whereas currently, when moving to another Member State, parents may be obliged to go through specific national recognition procedures, or even re-adopt the child, creating significant legal uncertainty;
Y. whereas the current situation can cause serious problems and prevent families from fully exercising free movement;
Z. whereas there may be a need to review and assess the overall situation through consultation among Member States' competent authorities;
AA. whereas the Brussels II Regulation does not address the question of the recognition of adoption orders, as it exclusively covers parental responsibility;
AB. whereas it is therefore of the utmost importance to adopt legislation providing for the automatic recognition in a Member State of a domestic adoption order granted in another Member State, on condition that full respect for national provisions on public policy and for the principles of subsidiarity and proportionality is ensured;
AC. whereas such legislation would complement Council Regulation (EC) No 2201/2003[1] (Brussels IIa) on issues of jurisdiction and parental responsibility and fill the existing gap on recognition of adoptions as provided under international law (the 1993 Hague Convention);
Common minimum standards for adoptions
1. Calls on the authorities of the Member States to take all decisions in adoption matters with the best interests of the child in mind and with respect for his or her fundamental rights, while always taking into account the specific circumstances of the particular case;
2. Stresses that children who have been put up for adoption should not be seen as the property of a state, but as individuals with internationally recognised fundamental rights;
3. Underlines that each adoption case is different and must be assessed on its individual merits;
4. Considers that in cases of adoption with cross-border aspects the cultural and linguistic traditions of the child should be taken into consideration and be respected as much as possible;
5. Considers that in the context of adoption proceedings, the child should always be given the opportunity to be heard without pressure, and express his or her view on the adoption process, taking into account his or her age and maturity; considers, therefore, that it is of the utmost importance that, whenever possible and regardless of age, the child's consent to the adoption should be sought; in this respect, calls for special attention towards young children and babies, who cannot be heard;
6. Considers that no decision on adoption should be taken before the biological parents have been heard and, where applicable, exhausted all legal remedies concerning their parental authority, and the withdrawal of parental authority from the biological parents is final; calls, therefore, on the authorities in the Member States to take all necessary measures for the well-being of the child while legal remedies are being exhausted, and throughout the entire legal proceedings relating to the adoption, whilst providing the child with the protection and care needed for his or her harmonious development;
7. Calls on the Commission to consider a comparative study to analyse complaints regarding non-consensual adoptions with cross-border aspects;
8. Stresses that the relevant authorities should always first consider the possibility of placing the child with relatives, even when those relatives live in another country, if the child has established a relationship with those members of the family and following an individual assessment of the child's needs, before giving the child up for adoption by strangers; considers that the habitual residence of family members who wish to take over responsibility for a child should not be considered to be a deciding factor;
9. Calls for equal treatment of parents of different nationalities during procedures relating to parental responsibility and adoption; calls on Member States to ensure the equality of procedural rights of the relatives involved in adoption procedures and who are nationals of other Member States, including by the provision of legal assistance and timely information about hearings, the right to an interpreter, and the provision of all documents relevant to the case in their native language;
10. Stresses that where a child being considered for adoption is the citizen of another Member State, the consular authorities of that Member State and the child's family residing in that Member State should be informed and consulted prior to any decision being taken;
11. Calls, moreover, on the Member States to pay very particular attention to unaccompanied minors who have applied for or have refugee status, ensuring they receive the protection, assistance and care that Member States are required to furnish by virtue of their international obligations, preferably by placing them in foster families in the interim period;
12. Stresses the importance of providing social workers with adequate working conditions to properly perform their assessment of individual cases, without any kind of financial or legal pressure and fully taking into account the best interests of the child with the short, mid and long term perspectives all considered;
Intercountry adoptions under the 1993 Hague Convention
13. Notes the successes of, and the importance of applying, the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, and encourages all countries to sign, ratify or accede to it;
14. Deplores the fact that problems often occur concerning the issuance of adoption certificates; calls, therefore, on the authorities of the Member States to ensure that the procedures and safeguards established by the Hague Convention are always followed in order to ensure that recognition is automatic; calls on the Member States not to create unnecessary bureaucratic impediments to the recognition of adoptions within the scope of the Hague Convention that might lengthen the procedure and make it more expensive;
15. Points out that further efforts could be made in order to respect and scrupulously enforce the provisions of the Hague Convention, as some Member States require additional administrative procedures or charge disproportionate fees in connection with the recognition of adoptions, for example in order to establish or amend civil status records or to obtain nationality, although this is contrary to the provisions of the convention;
16. Calls on Member States to respect the procedures concerning the counselling and consent requirements set out in Article 4 of the Hague Convention;
Civil justice cooperation in the field of adoption
17. Calls on the Member States to intensify their cooperation in the field of adoption, including both legal and social aspects, and calls for greater cooperation between the responsible authorities for follow-up assessments where necessary; in this respect, calls also for the EU to maintain a consistent approach to children’s rights across all of its major internal and external policies;
18. Calls on the Commission to establish an effective European network of judges and authorities specialised in adoption in order to facilitate the exchange of information and good practice, which is particularly useful when adoption involves a foreign element; believes it to be extremely important to facilitate coordination and the exchange of good practice with the current European judicial training network, in order to achieve the greatest possible degree of consistency with the schemes already being funded by the EU; in this respect, calls on the Commission to provide funding for the specialised training of judges working in the field of cross-border adoptions;
19. Believes that training and meeting opportunities for judges working in the field of cross-border adoption can assist to precisely identify expected and required legal solutions in the field of the recognition of domestic adoptions; calls, therefore, on the Commission to provide funding for such training and meeting opportunities at the stage of drafting the regulation;
20. Calls on the Commission to publish on the European e-Justice Portal relevant legal and procedural information on adoption law and practice in all the Member States;
21. Takes note of the activities of the European Network of Ombudspersons for Children and considers that this cooperation should be further developed and strengthened;
22. Stresses the need to cooperate closely, including through European authorities such as Europol, to prevent the cross-border abduction, sale and trafficking of children for adoption purposes; notes that reliable national birth registration systems may prevent child trafficking for adoption purposes; calls, in this respect, for improved coordination in the sensitive area of adoption of children from third countries;
Cross-border recognition of domestic adoption orders
23. States that there is a clear need for European legislation to provide for the automatic cross-border recognition of domestic adoption orders;
24. Requests the Commission to submit, by 31 July 2017, on the basis of Articles 67 and 81 of the Treaty on the Functioning of the European Union, a proposal for an act on the cross-border recognition of adoption orders, following the recommendations set out in the Annex hereto, and in line with existing international regulations in this area;
25. Confirms that the recommendations annexed to this motion for a resolution respect fundamental rights and the principles of subsidiarity and proportionality;
26. Considers that the requested proposal does not have negative financial implications, as the ultimate goal, the automatic recognition of adoption orders, will bring about a reduction in costs;
27. Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council, and to the parliaments and governments of the Member States.
- [1] Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338, 23.12.2003, p.1).
ANNEX TO THE MOTION FOR A RESOLUTION:DETAILED RECOMMENDATIONS FOR A REGULATION OF THE COUNCIL ON THE CROSS-BORDER RECOGNITION OF ADOPTION ORDERS
A. PRINCIPLES AND AIMS OF THE PROPOSAL REQUESTED
1. Exercising their right to free movement, an increasing number of EU citizens decide each year to move to another Member State of the Union. This creates a number of difficulties regarding the recognition and the legal resolution of the personal and family law situation of mobile individuals. The Union has made a start on addressing these problem situations, for example by adopting a regulation concerning succession, and by putting in place enhanced cooperation regarding the recognition of certain aspects of matrimonial property regimes and the property effects of registered partnerships.
2. The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption is in effect in all Member States. It concerns the procedure for adoptions across borders, and mandates the automatic recognition of such adoptions. However, that convention does not cover the situation of a family with a child adopted under a purely national procedure which then moves to another Member State. This can lead to significant legal difficulties if the legal relationship between the parent(s) and the adopted child is not automatically recognised. Additional administrative or judicial procedures may be required, and in extreme cases recognition may be refused altogether.
3. It is therefore necessary, in order to protect the fundamental rights and freedoms of such Union citizens, to adopt a regulation providing for the automatic cross-border recognition of adoption orders. The proper legal basis for such a proposal is Article 67(4) TFEU, which concerns the mutual recognition of judgments and decisions, and Article 81(3) TFEU, which concerns measures in the field of family law. The regulation is to be adopted by the Council after consulting the European Parliament.
4. The proposed regulation provides for the automatic recognition of adoption orders made in a Member State under any procedure other than under the framework of the 1993 Hague Convention. As European families may also have connections with or have lived in a third country in the past, the regulation also provides that, once one Member State has recognised an adoption order made in a third country under its relevant national procedural rules, that adoption order shall be recognised in all other Member States.
5. However, in order to avoid forum shopping or the application of inappropriate national laws, that automatic recognition is subject, firstly, to the condition that recognition must not be manifestly contrary to the public order of the recognising Member State, while emphasising that such refusals may never lead de facto to discrimination prohibited by Article 21 of the Charter of Fundamental Rights of the European Union, and, secondly, that the Member State which took the adoption decision had jurisdiction under Article 4. Only the Member State of the habitual residence of the parent or parents or of the child can have that jurisdiction. However, where the adoption decision was taken in a third country, jurisdiction for the initial recognition within the Union of that adoption can also lie with the Member State of nationality of the parents or child. This is in order to ensure access to justice for European families resident overseas.
6. Specific procedures are required for deciding on any objections to recognition in specific cases. These provisions are similar to those encountered in other Union acts in the area of civil justice.
7. A European Certificate of Adoption should be created in order to speed up any administrative query over automatic recognition. The model for the certificate is to be adopted as a Commission delegated act.
8. The proposal only concerns the individual parent-child relationship. It does not oblige the Member States to recognise any particular legal relationship between parents of an adopted child, as the national laws relating to couples differ considerably.
9. Finally, the proposal contains the usual final and transitional provisions encountered in civil justice instruments. The automatic recognition of adoptions only applies to adoption decisions taken from the date of application of the regulation, and, as from that date also, to any earlier adoption orders if the child is still a minor.
10. The present proposal complies with the principles of subsidiarity and proportionality, as the Member States cannot act alone to set up a legal framework for the cross-border recognition of adoption orders, and the proposal goes no further than absolutely necessary to ensure the stability of the legal situation of adopted children. It does not affect the family law of the Member States.
B. TEXT OF THE PROPOSAL REQUESTED
Regulation of the Council on the cross-border recognition of adoption orders
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 67(4) and 81(3) thereof,
Having regard to the European Parliament’s request to the European Commission,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the European Economic and Social Committee,
Acting in accordance with a special legislative procedure,
Whereas:
(1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, it is necessary that the Union adopt measures relating to judicial cooperation in civil matters having cross-border implications, including in the area of family law.
(2) Pursuant to Articles 67 and 81 of the Treaty on the Functioning of the European Union (TFEU), those measures are to include measures aimed at ensuring the mutual recognition of decisions in judicial and extrajudicial cases.
(3) In order to ensure free movement for families which have adopted a child, it is necessary and appropriate that the rules governing jurisdiction and the recognition of adoption orders be governed by a legal instrument of the Union which is binding and directly applicable.
(4) This Regulation should create a clear, comprehensive legal framework in the area of the cross-border recognition of adoption orders, provide families with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where an adoption order legally made in one Member State is not recognised in another.
(5) This Regulation should cover the recognition of adoption orders made or recognised in a Member State. However, it should not cover the recognition of intercountry adoptions performed in accordance with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, as that convention already provides for the automatic recognition of such adoptions. This Regulation should therefore apply only to the recognition of domestic adoptions, and to international adoptions not performed under that convention.
(6) There must be a connection between an adoption and the territory of the Member State which made the adoption order, or recognised it. Accordingly, recognition should be subject to compliance with common rules of jurisdiction.
(7) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the adopting parents' habitual residence, or the habitual residence of one of those parents or of the child. Jurisdiction should be limited to this ground, save in situations involving third countries, where the Member State of nationality may be a connecting factor.
(8) As adoption generally concerns minors, it is not appropriate to give parents or the child any flexibility in choosing the authorities which will decide on the adoption.
(9) Mutual trust in the administration of justice in the Union justifies the principle that adoption orders made in, or recognised by, a Member State should be recognised in all other Member States without the need for any special procedure. As a result, an adoption order made by a Member State should be treated as if it had been made in the Member State addressed.
(10) The automatic recognition in the Member State addressed of an adoption order made in another Member State should not jeopardise respect for the rights of the defence. Therefore, any interested party should be able to apply for refusal of the recognition of an adoption order if he or she considers one of the grounds for refusal of recognition to be present.
(11) The recognition of domestic adoption orders should be automatic unless the Member State where the adoption took place did not have jurisdiction or if such recognition would be manifestly contrary to the public policy of the recognising Member State, as interpreted in accordance with Article 21 of the Charter of Fundamental Rights of the European Union.
(12) This Regulation should not affect the substantive family law, including the law on adoption, of the Member States. Furthermore, any recognition of an adoption order under this Regulation should not imply the recognition of any legal relationship between adopting parents as a consequence of the recognition of an adoption order without, however, preconditioning the possible decision on the recognition of an adoption order.
(13) Any procedural questions not addressed by this Regulation should be dealt with in accordance with national law.
(14) Where an adoption order implies a legal relationship which is not known in the law of the Member State addressed, that legal relationship, including any ensuing right or obligation, should, to the extent possible, be adapted to one which, under the law of that Member State, has equivalent effects attached to it and pursues similar aims. How, and by whom, the adaptation is to be carried out should be determined by each Member State.
(15) In order to facilitate the automatic recognition provided for by this Regulation, a model for the transmission of adoption orders, the European Certificate of Adoption, should be drawn up. For that purpose, the power to adopt acts in accordance with Article 290 of the TFEU should be delegated to the Commission in respect of the establishment and amendment of that model certificate. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.
(16) Since the objective of this Regulation cannot be sufficiently achieved by the Member States and can be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(17) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and to TFEU, [the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation]/[without prejudice to Article 4 of the Protocol, the United Kingdom and Ireland will not participate in the adoption of this Regulation and will not be bound by it or be subject to its application].
(18) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark will not participate in the adoption of this Regulation and is not therefore bound by it or required to apply it,
HAVE ADOPTED THIS REGULATION:
Article 1
Scope
1. This Regulation shall apply to the recognition of adoption orders.
2. This Regulation does not apply to or affect:
(a) the laws of the Member States on the entitlement to adopt or on other family law matters;
(b) intercountry adoptions under the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
3. Nothing in this Regulation requires a Member State to:
(a) recognise the existence of any legal relationship between parents of an adopted child as a consequence of the recognition of an adoption order;
(b) make adoption orders in circumstances in which the relevant national law does not so allow.
Article 2
Definition
For the purposes of this Regulation, ‘adoption order’ means the judgment or decision creating or recognising a permanent, legal parent-child relationship between a child who has not yet reached the age of majority and a new parent or parents who are not biological parents of that child, howsoever that legal relationship is named in national law.
Article 3
Automatic recognition of adoption orders
1. An adoption order made in a Member State shall be recognised in the other Member States without any special procedure being required, provided that the Member State making the order has jurisdiction in accordance with Article 4.
2. Any interested party may, in accordance with the procedure provided for in Article 7, apply for a decision that there are no grounds for refusal of recognition as referred to in Article 6.
3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of refusal of recognition, that court shall have jurisdiction over that question.
Article 4
Jurisdiction for adoption orders
1. The authorities of a Member State may only make an adoption order if the adopting parent or parents or the adopted child are habitually resident in that Member State.
2. Where an adoption order has been made in respect of a child by the authorities of a third country, the authorities of a Member State may also make such an order, or decide on the recognition of the third country order in accordance with the procedures established by national law, if the adopting parent or parents or the adopted child are not habitually resident in that Member State, but are citizens of the same.
Article 5
Documentation required for recognition
A party who wishes to invoke in a Member State an adoption order made in another Member State shall produce:
(a) a copy of the adoption order which satisfies the conditions necessary to establish its authenticity; and
(b) the European Certificate of Adoption issued pursuant to Article 11.
Article 6
Refusal of recognition
On the application of any interested party, the recognition of an adoption order made in a Member State may only be refused:
(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;
(b) if the originating Member State did not have jurisdiction under Article 4.
Article 7
Application for refusal of recognition
1. On application by any interested party as defined by national law, the recognition of an adoption order shall be refused where one of the grounds referred to in Article 6 is found to exist.
2. The application for refusal of recognition shall be submitted to the court which the Member State concerned has communicated to the Commission pursuant to point (a) of Article 13 as the court to which the application is to be submitted.
3. The procedure for refusal of recognition shall, in so far as it is not covered by this Regulation, be governed by the law of the Member State addressed.
4. The applicant shall provide the court with a copy of the order and, where necessary, a translation or transliteration of it.
5. The court may dispense with the production of the documents referred to in paragraph 4 if it already possesses them or if it considers it unreasonable to require the applicant to provide them. In the latter case, the court may require the other party to provide those documents.
6. The party seeking the refusal of recognition of an adoption order taken in another Member State shall not be required to have a postal address in the Member State addressed. Nor shall that party be required to have an authorised representative in the Member State addressed unless such a representative is mandatory irrespective of the nationality or the domicile of the parties.
7. The court shall decide on the application for refusal of recognition without delay.
Article 8
Appeals against the decision on the application for refusal of recognition
1. The decision on the application for refusal of recognition may be appealed against by either party.
2. The appeal is to be lodged with the court which the Member State concerned has communicated to the Commission pursuant to point (b) of Article 13 as the court with which such an appeal is to be lodged.
3. The decision given on the appeal may only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated by the Member State concerned to the Commission pursuant to point (c) of Article 13.
Article 9
Appeals in the Member State of origin of the adoption order
The court to which an application for refusal of recognition is submitted or the court which hears an appeal lodged under Article 8(2) or (3) may stay the proceedings if an ordinary appeal has been lodged against the adoption order in the Member State of origin or if the time for such an appeal has not yet expired. In the latter case, the court may specify the time within which such an appeal is to be lodged.
Article 10
No review as to substance
Under no circumstances may an adoption order made, or judgment given, in a Member State be reviewed as to its substance in the Member State addressed.
Article 11
European Certificate of Adoption
The authorities of the Member State which has made the adoption order shall, at the request of any interested party, issue a multilingual European Certificate of Adoption conforming to the model established in accordance with Article 15.
Article 12
Adaptation of adoption order
1. If a decision or judgment contains a measure or an order which is not known in the law of the Member State addressed, that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests. Such adaptation shall not result in effects going beyond those provided for in the law of the Member State of origin.
2. Any interested party may challenge the adaptation of the measure or order before a court.
Article 13
Information to be provided by Member States
1. By 1 July 2018, the Member States shall communicate to the Commission their national provisions, if any, concerning:
(a) the courts to which the application for refusal of recognition is to be submitted pursuant to Article 7(2);
(b) the courts with which an appeal against the decision on the application for refusal of recognition is to be lodged pursuant to Article 8(2); and
(c) the courts with which any further appeal is to be lodged pursuant to Article 8(3).
2. The Commission shall make the information referred to in paragraph 1, as well as any other relevant information on adoption procedures and the recognition thereof in the Member States, publicly available through any appropriate means, in particular through the European e-Justice Portal.
Article 14
Legalisation and similar formality
No legalisation or other similar formality shall be required for documents issued in a Member State in the context of this Regulation.
Article 15
Power to adopt delegated acts
The Commission is empowered to adopt delegated acts in accordance with Article 16 concerning the establishment and amendment of the model for the multilingual European Certificate of Adoption referred to in Article 11.
Article 16
Procedure for the adoption of delegated acts
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 15 shall be conferred on the Commission for an indeterminate period of time from 1 July 2018.
3. The delegation of power referred to in Article 15 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
5. A delegated act adopted pursuant to Article 15 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 17
Transitional provisions
This Regulation shall apply only to adoption orders made on or after 1 January 2019.
However, adoption orders made before 1 January 2019 shall also be recognised from that date where the child in question has not yet reached the age of majority on that date.
Article 18
Relationship with existing international conventions
1. This Regulation shall not apply to adoption orders made in application of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
2. Without prejudice to the obligations of the Member States pursuant to Article 351 of the Treaty on the Functioning of the European Union, this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time when this Regulation enters into force which lay down rules relating to the recognition of adoptions.
3. However, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.
Article 19
Review clause
1. By 31 December 2024, and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. The report shall be accompanied, where appropriate, by proposals to adapt this Regulation.
2. To that end, Member States shall communicate to the Commission the relevant information on the application of this Regulation by their courts.
Article 20
Entry into force and date of application
This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 January 2019, with the exception of Articles 13, 15 and 16, which shall apply from 1 July 2018.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
Done at Brussels, [date]
For the Council
The President
EXPLANATORY STATEMENT
Your rapporteur is submitting this report at a time when a number of issues surrounding adoptions in cross-border contexts have been brought to the attention of the European Parliament. Those various issues require different responses, which is why your rapporteur is proposing non-legislative solutions to some of the issues, but is suggesting the adoption of a regulation to deal with the specific issue of the cross-border recognition of domestic adoption orders.
I. Common minimum standards for adoptions
Your rapporteur believes that some of the controversy concerning adoptions could be usefully addressed by drawing up common minimum standards for adoptions. However, those standards should not take the form of legislation, but should be seen more as best practice guidelines, which are particularly relevant in the case of adoptions with an international element. In particular, it must be recognised by all that any adoption order made is purely in the interest of the child, and must be considered on the case's individual merits. Some of the problems between Member States could be solved if the relevant consular authorities were kept informed of any proposed adoption decision concerning a child who has the nationality of another Member State.
II. Intercountry adoptions under the 1993 Hague Convention
Your rapporteur notes with satisfaction the positive operation of the 1993 Hague Convention on Intercountry Adoption. That convention provides for the automatic recognition in all signatory states (which include all Member States of the European Union) of any adoption decision taken in accordance with the procedure provided for in the convention. However, whilst the legal framework is satisfactory, it must be noted that the procedural provisions of the convention are not always complied with, for example concerning the counselling and consent requirements for the child's biological parents. The requirement for automatic recognition is not always followed through, as problems frequently occur with the transcription of civil status records on the basis of the certificates delivered under the convention.
III. Civil justice cooperation in the field of adoptions
Your rapporteur also considers that more work needs to be put into civil justice cooperation in the field of adoptions. The cross-border recognition of adoption orders, whether intercountry or domestic, would benefit from an increase in mutual trust between judicial and administrative authorities, which can be best ensured by increased training opportunities. The Commission could possibly also encourage better cooperation and easier access to justice by publishing relevant information on adoptions on the European e-Justice Portal.
IV. Cross-border recognition of domestic adoption orders
In the course of the consultations and research leading up to the release of this report, your rapporteur has come to the conclusion that, for the purpose of the easier cross-border recognition of domestic adoption orders, legislative action at European level is necessary. Currently, there is no binding international or European framework for the recognition of adoption orders made following a national procedure, as opposed to those made under the 1993 Hague Convention. Many Member States have provisions in their national law for the recognition of such foreign adoptions, but by no means all. This situation contrasts with the increased economic and social integration within the European Union, which has led to increased mobility for families across Europe. Some of those families include adopted children. In many cases, the move of such a family to another Member State does not cause legal problems. However, in some cases, it does, as the parent-child relationship may not be recognised without an additional administrative or judicial procedure. This contradicts the adopted child's right to a stable legal situation. The right to family life and to the free movement of European citizens requires a clear legal framework providing for the automatic and reciprocal recognition of domestic adoption orders across Europe. The only grounds for refusal of recognition of an adoption order arise where jurisdiction rules have not been complied with or the adoption goes against the public order of a Member State. For the detailed background to the legislative proposal, the reader is referred to the annex to the resolution above.
OPINION of the Committee on Petitions (21.4.2016)
for the Committee on Legal Affairs
on cross-border aspects of adoptions
(2015/2086(INL))
Rapporteur: Notis Marias
SUGGESTIONS
The Committee on Petitions calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following suggestions into its motion for a resolution:
1. Considers that the best interest of children is of highest importance, which must be also the main criterion when taking any kind of decision related to their adoption; calls on Member States to ensure the implementation of the children's right to freely express their views and have these taken into consideration according to their age and maturity, as enshrined in Article 24 of the Charter of Fundamental Rights;
2. States that there is no mechanism within the Union governing automatic mutual recognition of domestic adoption orders made within Member States, which represents a barrier to free movement of families; insists on the absolute necessity to ensure legal certainty and the full respect of the principles of mutual recognition and mutual trust in the field of cross-border recognition of domestic adoption for the protection of parents' and children's rights, respecting and promoting at the same time Union law provisions as regards citizenship and the Charter of Fundamental Rights; considers that the Member States should ensure that the exercise of the freedom of movement and residence does not compromise the right to family life;
3. Notes that to ensure the protection of the best interests of the child, enhanced cooperation between European judges in this area is needed;
4. Calls on the Member States to avoid heavy bureaucracy in the process of recognition of inter-country adoptions already recognised in another Member State so as to ensure a correct implementation of the 1993 Hague Convention; invites Member States to encourage non-contracting states to join the 1993 Hague Convention, which would guarantee that all children and other involved stakeholders benefit from their respective rights and minimum procedural standards and timing that guarantee these rights, and help avoid a parallel system with less safeguards;
5. Calls on the Member States to ensure, when accurate, the full and effective implementation of Article 15 on the transfer of the case to a court better placed to hear it and Article 55 regarding principles of cooperation on cases specific to parental responsibility of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility in order to better protect the interest of the child and to improve the coordination and cooperation between Member States;
6. Believes that common minimum standards should be drawn up for the purpose of defining both 'habitual residence' and 'best interests of the child';
7 Calls on the Member States to compile regular statistics on cases of children who are nationals of another Member State and are placed into care or adopted.
8. Calls on Member States to promote specific training for social workers, judges, lawyers and any other public officers involved dealing with transnational procedures for adoption of children with a view to ensuring that they have the necessary knowledge and skills relating to the protection of the rights of the child at Union and national level;
9. Calls on Member States, in case of proceedings related to non-consensual adoptions with cross-border aspects, to systematically implement the provisions of the Vienna Convention on Consular Relations of 1963 and to make sure that the authorities of the States of origin of the parents involved are properly informed without any delay from the very beginning of the proceedings and throughout the whole process, including about the child’s hearings, and that they have proper access to the proceedings and the related files; underlines the importance of ensuring that adequate interpretation and legal aid is provided whenever necessary;
10. Recognises that while non-consensual adoptions are primarily meant to protect children from abuse or serious neglect, these also have severe consequences for birth parents and the adopted children; stresses that this type of adoption, while safeguarding the best interest of the child in every case, assessing it on individual basis and respecting the right of the child to be heard, must be decided as a last resort and restricted to particularly exceptional and well-grounded cases, when all the appropriate measures to support the biological family have been exhausted; urges the Member States to promote and/or shore up and improve such measures of support
11. Draws the attention of the European Commission, the Council and the Member States on the harmful consequences for birth parents and the adopted children caused by strictpractices of non-consensual adoptions applied in some Member States; calls on the European Commission to propose appropriate measures to address these practices in the planned reform of Regulation No 2201/2003; draws also their attention to the harmful consequences of non-consensual long-term fostering, which goes against the principle established in at least some Member States that fostering should be a temporary solution;
12. Calls on the Member States, in cases involving the adoption of children who have lost both their parents and cases of adoptions where the consent of the biological parents has not been obtained, and without prejudice to the possible priority assigned to stepchild adoption, to agree on a minimum threshold for the duration of cross-border adoption procedures, ensuring that the relatives of both biological parents are considered as permanent caretaker of the child before any definitive decision on custody is made; draws, in this regard, attention to international standards and recalls Articles 8 and 20 of the UN Convention on the Rights of the Child (UNCRC);
13. Remarks in light of the importance of preserving multilingualism and the cultural diversity, that children adopted or placed into care shall have sufficient links with their original culture and shall not lose their mother tongue, and particularly that visiting rights of biological parents shall take place with the adequate frequency and in their own language; unless such contact is proved detrimental to the best interest of the child, such as in cases of previous violence or abuses
14. Calls on the Member States' authorities involved in adoption procedures, to make every effort not to separate siblings; recalls, in this regard Article 8 UNCRC, underlining the obligation of governments to respect and protect children's identity, including their family relations;
15. In cases where children who have lost both parents are declared eligible for adoption or instances of forced adoption where the consent of the birth parents has not been obtained, and without prejudice to stepchild adoption, the suitability of members of the extended family to become foster parents must be assessed by social workers in both of the Member States involved;
16. Calls for equal treatment of parents with different nationality during proceedings in matters of parental responsibility and adoption;
17. Calls on the Member States to ensure compliance with all procedural rights of relatives involved in the process and who are nationals of another Member State, including the provision of legal assistance, duly and timely information about the hearings, an interpreter, all relevant to the case documents in their native language, etc;
18. When social workers of one Member State carry out missions to establish the facts of the case for adoption in other Member states, calls upon the sending State to inform all appropriate authorities in the country where the mission is conducted;
19. Points out that austerity policies and the spending cuts some Member States have been obliged to make by the Commission are seriously undermining the quality and availability of social services; stresses the importance of providing social workers with adequate working conditions to properly perform their assessment of individual cases, without any kind of financial or legal pressure and fully taking into account the best interest of the child with the short, mid and long term perspectives all considered;
20 Underlines the necessity to improve support structures for families; therefore, calls on the Commission and Member States to co-finance and promote the set-up of networks of NGOs providing assistance to Union citizens who live with their families in another Member State and require additional help in their cooperation with child welfare services and local authorities;
21 Calls on the Member States to give to victims of domestic violence, alcohol or drug abuse who have their children removed a reasonable chance to fully recover before the Court takes a final decision for adoption;
22. Urges Member States to take account of complaints of violence within the family as a crucial criterion in cases of adoption, in particular gender-based and/or sexual violence against children by action and/or omission on the part of the biological parents;
23. Urges the Commission, in the case of complaints regarding non-consensual adoptions that have cross-border aspects, to carry out a comparative study to analyse whether fewer such complaints are made in Member States that have a strong infrastructure and well-regulated fostering system, along with other pre-adoption care schemes;
24. Calls on the European Commission to provide a clear and easy accessible guide with practical information for citizens on the institutional arrangements for child protection, especially as concerns the adoption without parental consent and parents' rights in different Member States.
25. Calls on Member States to exchange information and conduct awareness campaigns among citizens about the cultural traditions and rules regarding the raising of children applied in other Member States in order to be informed about practices that would lead to the withdrawal of their parental rights and giving their children for adoption;
RESULT OF FINAL VOTE IN COMMITTEE ASKED FOR OPINION
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Date adopted |
19.4.2016 |
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Result of final vote |
+: –: 0: |
21 0 8 |
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Members present for the final vote |
Marina Albiol Guzmán, Margrete Auken, Alberto Cirio, Pál Csáky, Rosa Estaràs Ferragut, Eleonora Evi, Peter Jahr, Rikke Karlsson, Jude Kirton-Darling, Notis Marias, Edouard Martin, Roberta Metsola, Marlene Mizzi, Julia Pitera, Gabriele Preuß, Eleni Theocharous, Jarosław Wałęsa, Cecilia Wikström, Tatjana Ždanoka |
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Substitutes present for the final vote |
Enrique Calvet Chambon, Kostadinka Kuneva, Miltiadis Kyrkos, Julia Reda, Sven Schulze, Ángela Vallina |
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Substitutes under Rule 200(2) present for the final vote |
José Blanco López, Martina Dlabajová, Elena Gentile, Zbigniew Kuźmiuk |
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RESULT OF FINAL VOTE IN COMMITTEE RESPONSIBLE
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Date adopted |
29.11.2016 |
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Result of final vote |
+: –: 0: |
21 2 0 |
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Members present for the final vote |
Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux, Rosa Estaràs Ferragut, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Dietmar Köster, António Marinho e Pinto, Emil Radev, Julia Reda, Evelyn Regner, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka |
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Substitutes present for the final vote |
Daniel Buda, Angel Dzhambazki, Angelika Niebler, Virginie Rozière, Kosma Złotowski |
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Substitutes under Rule 200(2) present for the final vote |
Mylène Troszczynski |
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