REPORT on improving the law and cooperation between the Member States on the adoption of minors
22 November 1996
Committee on Legal Affairs and Citizens' Rights
Rapporteur: Mr Carlo Casini
At the sitting of 15 February 1995 the President of Parliament announced that he had referred the motion for a resolution on improving the adoption laws, tabled pursuant to Rule 45 of the Rules of Procedure by Mrs Colli Comelli and Mr Danesin, on behalf of the Forza Europa Group, to the Committee on Legal Affairs and Citizens' Rights as the committee responsible.
At its meeting of 23 March 1995 the Committee on Legal Affairs and Citizens' Rights decided to draw up a report and, by letter of 24 March 1995, duly requested authorization. At the sitting of 13 June 1995 the President announced that the Conference of Presidents had authorized the committee to report on the subject and that the Committee on Civil Liberties and Internal Affairs and the Committee on Culture, Youth, Education and the Media had been asked for their opinions.
The Committee on Legal Affairs and Citizens' Rights appointed Mr Carlo Casini rapporteur at its meeting of 23 March 1995.
It considered the report at its meetings of 27 November 1995, 1 and 2 October 1996, 28 October 1996 and 19 November 1996.
At the last meeting it adopted the motion for a resolution by 10 votes to 0, with 7 abstentions.
The following were present for the vote: C. Casini, chairman and rapporteur; Rothley, first vice-chairman; Palacio Vallelersundi, second vice-chairman; Barzanti, third vice-chairman; Ahlqvist, Añoveros Trias de Bes, Berger, Colombo Svevo (for Janssen van Raay), Fabre-Aubrespy, Falconer, Ferri, Gebhardt, Gröner (for Cot), Lehne, Oddy, Schlechter, Sierra González and Zimmermann.
The opinions of the Committee on Civil Liberties and Internal Affairs and the Committee on Culture, Youth, Education and the Media are attached.
The report was tabled on 22 November 1996.
The deadline for tabling amendments will be indicated in the draft agenda for the relevant part-session.
A MOTION FOR A RESOLUTION
Resolution on improving the law and cooperation between the Member States on the adoption of minors
The European Parliament,
- having regard to the motion for a resolution by Mrs Colli Comelli and Mr Danesin, on behalf of the Forza Europa Group, on improving the adoption laws (B4-0568/94),
- having regard to Rule 45 of its Rules of Procedure,
- having regard to the Universal Declaration of Human Rights,
- having regard to the United Nations Convention on the Rights of the Child of 20 November 1989,
- having regard to the Treaty on European Union, with particular regard to Articles K.1(6) and K.3 thereof on judicial cooperation in civil matters, and Article 220 of the EC Treaty,
- having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950,
- having regard to its resolution of 16 March 1989 on artificial insemination 'in vivo' and 'in vitro',
- having regard to its resolution of 13 December 1991 on the problems of children in the European Community,
- having regard to the European Convention on Child Adoption adopted by the Council of Europe on 24 April 1967,
- having regard to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption of 29 May 1993,
- having regard to the report by the Committee on Legal Affairs and Citizens' Rights and the opinions of the Committee on Civil Liberties and Internal Affairs and the Committee on Culture, Youth, Education and the Media (A4-0392/96),
A. whereas the essential objective that adoption must pursue is the benefit of the child being adopted and the protection of that child's rights,
B. whereas the interests of an adopted child are best served by a family unit comprising a father and a mother and whereas, to this end, there must be effective cooperation between government institutions, NGOs and people wishing to adopt children,
C. whereas a child has a right to be brought up by its original parents wherever possible, and in cases where they are temporarily unable to do so must be entrusted to persons capable of protecting its dignity and rights, avoiding the child's institutionalization, and whereas when it is established, and verified by the relevant authorities, that a child has effectively been abandoned the child has a right to be adopted, thus breaking its links with the original family,
D. whereas through adoption an abandoned minor becomes the child of the adopting parents,
E. whereas in all the Member States of the Union the birth rate is falling sharply and there is a strong demand for adoption, only a small percentage of which can be satisfied, which explains the increase in the number of intercountry adoptions,
F. whereas there is now a risk that, as a legal institution, adoption - particularly intercountry adoption - will become debased; whereas its real purpose as a means of providing a home for abandoned children without regard for national borders should therefore be reasserted and more thorough control procedures should be introduced, provided that this tighter control does not make adoption impossible in practice,
G. whereas intercountry adoption should only be resorted to in cases where it is impossible - even if appropriate economic and social assistance is provided - for the child to remain in its family of origin or, at the very least, a foster family living in the same country; whereas, however, should the state of abandonment be genuine and duly recognized as such, intercountry adoption should be encouraged, inter alia by means of appropriate measures to make the procedures outside the country of origin transparent and to avoid unnecessary difficulties for the prospective adoptive parents,
H. whereas, therefore, the private arrangements which currently apply with regard to intercountry adoptions must be replaced by a system of compulsory intermediation in procedures which take place outside the country of origin by duly accredited non-profit-making organizations under public control,
I. whereas other procedures such as temporary guardianship or fostering on a national or intercountry basis may be used in emergency situations arising from wars, natural disasters or the plight of under-age asylum seekers,
J. whereas a legal statute for adoptive children must be drawn up and must ensure, on the basis of an intergovernmental cooperation system, mutual recognition of adoptions effected in the Member States,
1. Believes that any legislative or administrative measure to make adoption more straightforward should always form part of a strong policy of financial and social help for families in difficulties and of direct support measures to prevent children from being abandoned or placed in institutional care;
2. Calls on the Member States to include individuals and persons in long-term relationships in those who are granted the right to adoption;
3. Calls on those Member States that have not yet done so to ratify at the earliest opportunity the 1993 Hague Convention, so as to resolve the current conflict between legal systems which give jurisdiction over adoption matters to the legal authorities, and those which give jurisdiction to the administrative authorities;
4. Calls on the Commission and Council to bring sustained pressure to bear on non-member countries which are the countries of origin of children adopted in the Member States of the Union, to ratify the Hague Convention as soon as possible;
5. Maintains that the contractual arrangements for adoption provided for in some national legal systems, which are subject only to approval by the courts, can give rise to ethical and legal problems, in addition to contact between the original parents and the adoptive parents;
6. Reaffirms the principle that both national and intercountry adoption may only take place once the child has been declared adoptable by the competent public authorities and only subject to the assurance that the consent of the relevant persons or institutions or those having parental authority over the child - where such consent is required - has been given freely and in writing;
7. Calls on the Member States to introduce measures to prepare, assist and follow up couples wishing to take part in national or intercountry adoption procedures;
8. Calls on the Member States to standardize the age group in which people willing to adopt children have the right to apply for adoption;
9. Maintains that, given the difficulties involved in intercountry adoptions, Member States should grant approval only after checking that the prospective adoptive parents meet appropriate requirements;
10. Calls on Member States to ensure that only public bodies or organizations which have been duly recognized and accredited by the State and which are totally reliable and non-profit-making are permitted to act as intermediaries in adoption procedures;
11. Deplores, in the light of the Union's ambitions and the issues now facing it, the inadequate degree of progress made on Chapter VI of the Treaty, which deals with justice and home affairs;
12. Calls on the Council of Europe to continue, in cooperation with the Member States, its work on the legal and social aspects of family policy in general and adoption in particular, not least with a view to playing, vis-à-vis the countries of Central and Eastern Europe (from which many adoptive children come), its role as a coordinating body between the countries making the transition to democracy and the established European democracies;
13. Calls on the Council and Commission to step up their activity in the legal and social sphere with regard to adoption matters, while complying with the international law applicable, in the course of cooperation with the associated States;
14. Calls on the Commission to submit practical proposals for appropriate measures to promote cooperation in civil matters, designed inter alia to prevent abandonment and to ensure that, wherever possible, children stay in their original family or otherwise in an adoptive or foster family in their own country;
15. Believes it essential for the Council to adopt at the earliest opportunity 'joint actions' pursuant to Article K.3(2)(b) of the TEU seeking to:
- introduce a visa policy to prevent children from being subjected to illicit practices set up by international adoption networks under the pretext of the free movement of persons within the European Union;
- forestall and combat the trade in children;
- establish a programme to promote training and exchange initiatives aimed at those responsible for combating the abduction of and trade in children;
- extend the responsibilities of the Europol Drugs Unit to cover combating the abduction of and trade in children;
16. Calls on the competent Community authorities to make specific provision in such joint actions for the introduction of programmes covering prevention and the protection of abandoned children, and for controls to be carried out by the country of origin on the intermediaries required for intercountry adoptions;
17. Calls for the European dimension to be incorporated in the international adoption procedure, so as both to formalize the meeting of central authorities appointed by the Member States and to put in place appropriate decision-making and administrative measures and, in particular, set up an international reference centre in the form of a computerized data bank and a research and assessment unit to assist the adoption process;
18. Calls on the Member States to affirm the principle that adoption is a means of protecting the rights of children rather than those of adults, and thereby to demonstrate adoption's value to society as a means of providing a caring environment, even in cases where parents refuse or find it impossible to bring up their children in a suitable family setting;
19. Instructs its President to forward this resolution to the Council and Commission, the governments and parliaments of the Member States, UNICEF and the Parliamentary Assembly of the Council of Europe.
B. EXPLANATORY STATEMENT
Adoption practices have changed radically over the centuries. This report will deal with the adoption of children exclusively from the viewpoint of Parliament's concern to promote human rights in all areas, and in this specific case, children's rights. A distinction must therefore first be made between the Roman tradition, which was aimed at adults and was based on the goal of providing a child and heir for those without children, and the modern view of adoption as a means of providing a family for parentless children. This report focuses exclusively on the latter type of adoption, which is now subjected to the pressures of both cultural change and external events.
Our attitude to adoption is coloured by the changes taking place in modern-day society, which call into question our perception of human rights, the family, and the relationship between the State, the individual and basic social structures. This extends even to the very definition of the term 'child'. Globalization, relations between rich and poor countries, ease of movement and demographic changes also have practical implications for adoption. Even modern artificial procreation techniques may be seen as an alternative to adoption or, in some of the most extreme cases ('rent-a-womb', surrogate motherhood, offers to carry 'surplus' or 'superfluous' embryos), an extension of it.
Furthermore, adoption is also particularly affected by differences in national legal systems. Private international law and rules governing the movement of persons are also germane to the issue. In this connection, judicial cooperation in civil and criminal matters is considered by the Union to be a matter of common interest (Article K.1) and to constitute due grounds for the adoption of joint action by the Council, on the initiative of the Commission or any Member State. Parliament's interest in the subject is therefore justified.
II. ADOPTION: A CULTURAL AND POLITICAL ISSUE
(A) A child's right to a family
It must first be said that a major cultural change has taken place: adoption is now seen as a means of providing parents for a parentless child rather than the childless with a child. This new approach is now generally accepted, but, in practice, is not taken to its logical legal and cultural conclusion. It must also take into account another widely-repeated view: that children must be recognized as legal persons - a term which, although unnecessary from a legal standpoint (given that, under modern law, all human beings are taken to be legal persons), is useful for the purposes of determining which practical steps to take. In short, one must keep one basic principle firmly in mind: it is the child's interests, not the adult's, which must be protected.
Experience has shown the family - which is characterized by stability, exclusivity, and the simultaneous presence of a male figure (the father) and a female figure (the mother) - to have the almost indispensable function of developing a child's personality. Although this type of family unit does not always produce the best results in terms of upbringing, it does offer the most possible guarantees. Contemporary political opinion is increasingly moving towards a recognition of other types of family unit, and there have even been calls for the legal recognition of homosexual couples. However, we can leave such issues to one side if we decide to allow ourselves to be guided by the best interests of the child. It is self-evident that the public authorities must focus on those arrangements which best serve the child's interests and offer the soundest possible guarantees. A child's right to a family must therefore be understood as its right to live in a family environment in which it receives guidance from a father and a mother sharing a stable relationship based on mutual affection. For the same reason, preference should be given to full adoption by a married couple (since marriage offers a better guarantee of stability) over a couple simply living together, or a single person. The principle of the child's best interests precludes any charges of discrimination, which would only be justified if the underlying purpose of adoption were to protect the interests of adults rather than those of children. Similarly, the old approach under which adoption was only open to the childless should be turned on its head. The experience of living with brothers and sisters helps to develop a child's personality, and one could therefore envisage giving preference to a couple which already has children over a couple which does not and sees adoption as a means of solving its own problems. Following the same reasoning, one is obliged to assert that, in cases where more than one child from the same family has been abandoned, they should all be adopted by the same family, wherever possible. The term 'preference' has been used advisedly: there may obviously be exceptional situations in which, for example, adoption by a single person is the only possible solution and is preferable, in its turn, to leaving a child in a state of abandonment or to its being taken into institutional care.
There is, of course, no intention to place any negative connotation on the desire to have children. The intention is, in fact, to promote those options which best serve the interests of the child precisely by matching them with that very desire. A child's right to a family is, first and foremost, its right to a biological family, i.e. to be taken in, recognized and loved by its own birth parents. There is increasing acknowledgment of the right of every human being to its own identity, which implies the intangibility of its own genetic inheritance and its right to know about its own origins. One aspect of this right to an identity is the fact that it is in a child's interest for its biological filiation to be the same as that established by society, the law, and emotional ties. Our identity is linked to our origins, and any uncertainty or confusion in this respect can lead to a harmful situation in which a child is uncertain about its own psychological identity. Therefore, being abandoned by one's own biological parents can never be seen as something positive. Child adoption must thus be seen as a highly effective means of making up for a sometimes unavoidable evil. A number of important conclusions must therefore be drawn:
1. any policy designed to promote adoption should always go hand-in-hand with an extremely determined policy of assisting families with a view to preventing the abandonment of children as far as is possible;
2. any form of traffic in children for adoption is totally unacceptable, not merely because it violates human dignity, but also because it constitutes an inadmissible inducement to parents living in poverty to abandon their children;
3. the traditional 'contractual' approach deriving from Roman law should be abandoned: the biological family cannot 'sell' its children. The criterion for the adoptability of a child is not the consent of its parents, but an irreversible state of abandonment. The consent of the parents must be taken into consideration and is indeed desirable, but only insofar as it provides proof of abandonment and constitutes a means of deliberate, selfless cooperation with society for the greater good of the child;
4. poverty can never been seen as sufficient grounds for taking a child away from its parents; on the contrary, poverty constitutes grounds for the provision of economic assistance to families;
5. a child has a right to more than just a biological family: it above all has a right to the bonds of mutual affection and the indispensable educational support which a family should provide. Should these be totally lacking, the family may be said to exist in the formal sense only. A state of moral abandonment more harmful than mere physical abandonment may exist, justifying public intervention to make adoption possible;
6. the family's primacy over the state requires great care to be taken when declaring a child eligible for adoption and, where appropriate, support to be provided to the biological family, including in the form of temporary placement of children with other families.
(B) The effect of falling birth rates on intercountry adoption
An adult's desire to have a child must not therefore be seen as constituting a right, but as being a highly positive natural means of finding the best solution to the problems of an abandoned child. In this connection, consideration should be given to another major change which has taken place.
In the past, the number of children available for adoption outstripped the number of families wishing to adopt. This situation has now been reversed in all the EU Member States: adoption requests far exceed the number of children available for adoption. Claims that children's homes are full are not true. Generally speaking, the only children which remain in children's homes in EU Member States are unwanted by prospective adopters (since most of the demand is for small, healthy children) or have not been totally abandoned by their biological parents. The lack of children available for adoption is not in itself a bad thing: it can be interpreted as a sign of greater responsibility on the part of parents and a greater unwillingness to abandon children. However, one factor, which has a number of consequences, must be highlighted. Procedures in all the EU Member States appear particularly slow and cumbersome. In fact, owing to the general scarcity of children, most of those available for adoption have been taken away from their biological parents, a situation which inevitably and rightly requires the provision of sound legal guarantees.
Nonetheless, the main consequence has been a sharp rise in the number of intercountry adoptions, which in some Member States now exceeds the number of adoptions at national level. There is a very great risk of adoption degenerating under these conditions, particularly when the adoptive children are from developing countries. The authorities in Member States have no control over procedures in third countries, where the endemic poverty of certain population groups facilitates the traffic in children. Furthermore, couples travelling to non-Community countries with a view to adopting a child meet with enormous difficulties, such as unfamiliarity with the local language and procedures, economic problems and the need to take leave from work. At the same time, children from non-Community countries must be guaranteed the same rights as those from Community countries: they are not second-rate children. It must also be borne in mind that bringing a child into a family with a cultural background and traditions totally different from its own can cause serious problems for both the adopters and the adoptive child. There is also an unacceptable rivalry between countries, agencies and private operators all anxious to bring foreign children back to their own country in order to satisfy national demand. Lastly, differences between the various national legal systems lead to further complications. Nonetheless, intercountry adoption should not be discouraged, but promoted as an instrument of international solidarity, to be used in extreme cases where it is impossible to find a suitable placement for children in their country and culture of birth. A number of conclusions can be drawn from the above:
1. before intercountry adoption is considered, due care should be taken to check whether the problem of the abandonment of children in foreign countries cannot be solved by means of family policy measures or adoption at local level;
2. moves should be made to harmonize the relevant legislation at European level, starting with the ratification and full implementation of the international agreements in this area;
3. private arrangements should be avoided and provision should be made for compulsory intermediation by agencies or organizations under public control;
4. such agencies or organizations must be non-profit-making and prospective adopters should only be required to reimburse expenditure on the basis of a fixed, uniform scale;
5. particular attention should be paid to adequately preparing couples wishing to take part in intercountry adoption, and their suitability should be assessed on the basis of special criteria; they should continue to be helped and followed up even after they have taken the child into their care;
6. EU development cooperation policy should make provision for projects to assist children and to provide support and guarantees for intercountry adoptions; the intermediation bodies should also provide assistance to families and children in foreign countries, irrespective of whether there is any intention to adopt;
7. the national and Community authorities should make provision for and regulation the accompaniment of couples travelling abroad, with a view to making procedures clearer and more transparent.
Lastly, we must ask ourselves whether the reduction in the number of children available for adoption within the Union really does derive from a greater sense of responsibility and fewer abandonments. The traditional method - that of leaving newborn babies in a public place, at serious risk to their lives - still continues to be used. This situation is totally inadmissible in a modern society in which such a large number of families are willing to adopt. A law enabling mothers not to recognize their children at birth (subject to reconsideration within a given time limit) should be introduced and made known to the public. Other quick and effective measures could also be introduced, such as special emergency telephone help-lines enabling mothers not wishing to divulge the fact that they are pregnant or to keep the baby to receive advice and be offered alternatives to killing the baby or abandoning it in a public place. It is, of course, difficult to understand how, in a modern society, a mother might not wish it to be known that she had had a child, but it does happen, however rarely, and a human response must be found to such situations.
In order to be consistent, such a response must also take account of abortion which, to varying degrees and in varying ways, is widely practised and legal in most EU Member States. The controversies and sometimes violent divisions to which abortion legislation gives rise must not be allowed to distract our attention from a commonly-held belief which, in some cases, is enshrined in national law, namely that abortion, subject to the relevant time limits, must be seen as a last resort, only when all other possibilities of providing appropriate care for the unborn baby have been exhausted. Adoption is without doubt a possible alternative. There is no question of declaring an unborn baby eligible for adoption, since that would undermine the responsibility of the mother and her right to choose to keep her child, but a concept of adoption as being a possible alternative to abortion should be promoted through the schools and the media.
Furthermore, given the low success rate of in vitro insemination techniques, their invasiveness for women, the serious ethical issues to which they give rise, with particular regard to the inevitable waste and selection of human embryos, and the high economic costs involved, more detailed consideration should be given to the possibility of adoption, which should be further promoted and whose underlying principles should serve as a basis for legislation on the new phenomenon of artificial procreation.
II. LEGAL ASPECTS OF ADOPTION
In view of the legal uncertainties which unfortunately hang over many aspects of international adoption procedures, we shall first examine the existing legal provisions on the protection of children, particularly by their families and the public authorities, and then consider the basic principles governing intercountry adoption. Lastly, we shall look at the question from a Community perspective, with particular regard to the prospects for the adoption of joint actions under the provisions of Title VI of the Treaty on European Union.
(A) Legal provisions on the protection of children
The European Parliament, which is anxious that children living outside their country of origin should receive special attention on account of the vulnerability of their position, must help to ensure that intercountry adoption is given full legal validity.
All children who are citizens of the European Union must enjoy all the rights enshrined in the Treaty on European Union in accordance with the rules laid down by national law and the principles of Community law.
Irrespective of their country of origin, all the dependent children of nationals of a Member State must enjoy all the benefits to which their families are entitled under Community law.
Children from a third country whose parents are legally resident in an EU Member State must enjoy the same rights as children who are European citizens, and the same treatment as nationals of the Member State in which they reside.
No child within EU territory may be subjected to discrimination on the grounds of its nationality, filiation, ethnic background, colour, gender, language, social class, religious beliefs or state of health, or those of its parents.
Given that some people are now ready to 'pay any price' to adopt a child, the international community, and the European Union in particular, have a duty take appropriate steps to place adoption on a sound moral footing.
The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, which was adopted by 67 countries on 29 May 1993 following fourteen years of negotiations, constitutes a major step towards this goal. The Convention, which is in the process of being ratified - to date, among the EU Member States, only Spain has ratified it - complements, but does not replace, the bilateral legal instruments already signed by EU Member States (pursuant to the Treaty, the subsidiarity principle applies to such matters).
The Hague Convention on adoption is a far-reaching multilateral legal instrument ensuring a high level of protection for children. In order to be fully effective, it is important that it be ratified by as many countries as possible with a view to protecting the greatest possible number of children around the world. A universal legal instrument of this kind may be an appropriate response to the 'globalization' of adoption, superseding the regional instruments designed to cater for countries with close geographical and cultural links (e.g. the European Convention of 24 April 1967 or the La Paz Inter-American Convention of 29 May 1984).
The Hague Convention is an extremely comprehensive agreement, covering all adoptions involving the moving from on contracting state to another of children under the age of 18 (Article 2). It covers all forms of adoption which create a permanent parent-child relationship (the 'leafala' provided for in Islamic law is therefore excluded).
The main purpose of the Convention, which does not seek to unify private international law on adoption, is to promote cooperation. It is first and foremost a pragmatic cooperation agreement which seeks to promote cooperation between authorities with a view to the harmonization of procedures and the resolution of conflicts between laws. It does not cover adoption decisions themselves, but concentrates on the pre-adoption and post-adoption stages.
The traffic in children and legal uncertainty represent the greatest threats to the best interests of the child. With a view to providing adoptive children with a secure and sufficiently consistent legal status, attention must therefore be focused on the stage at which there is the greatest risk of trafficking. The relevant factors are the legal position of a child once it has been abandoned, the process leading to its placement in an institution or with its prospective adoptive parents, and the international validity of the adoption decision.
(B) Basic principles governing intercountry adoption
The concept of intercountry adoption is founded on four basic principles deriving from the United Nations Convention on the Rights of the Child of 20 November 1989.
The principle of the best interests of the child must be given international recognition and the continual reassertion of this principle is designed to establish the fact that priority must be given to determining and protecting the child's interests; the purpose of adoption is to provide a child with a family, and not a family with a child.
The subsidiarity principle was asserted for the first time in Article 21(b) of the UN Convention. It is also to be found in the Treaty on European Union. Intercountry adoption must only be considered if no alternative solution is available at national level, namely the possibility of the child being placed in an 'appropriate' family in its country of origin.
The Hague Convention formally enshrines this principle and stipulates that the authorities of the state of origin have exclusive responsibility for ensuring compliance, given that they are in the best position to do so.
The provision that prospective adoptive parents must go through accredited intermediaries provides an international guarantee for adoptions. The whole philosophy of intercountry adoption is based on the requirement that persons wishing to adopt a child from abroad must go through accredited and clearly identified intermediaries. Private adoption arrangements are categorically excluded. Under Article 14 of the Hague Convention stipulates that prospective adoptive parents 'shall apply to the Central Authority in the State of their habitual residence'.
This is an extremely important principle. The authors of the Convention are to be commended for this approach, since it goes some way towards placing intercountry adoption on a sound moral footing.
The same reasoning was behind the provision that there shall be no direct contact between the prospective adoptive parents and the child and its biological parents or their representatives until the necessary consent has been given.
(C) Adoption within the context of cooperation in the fields of justice and home affairs
It should first be noted that adoption itself comes within the exclusive responsibilities of the Member States. However, the various national legal systems differ in some respects; freedom of movement for children may be hampered as a result. Lastly, we have already clearly established the risk of trafficking to which adoption procedures are exposed. Many other similar points could be made.
Over the past few years, there has been a growing awareness of the need for cooperation at European and international level, particularly in civil and criminal matters. The new awareness is reflected in the Council's recent deliberations on matters coming under Title VI of the Treaty on European Union.
At its meeting of 25 and 26 September 1995 the Justice and Home Affairs Council decided to include child custody in the scope of the Convention on jurisdiction and the enforcement of judgments in matrimonial matters. At the same meeting, it adopted conclusions on terrorism and other forms of serious crime, recommending that police cooperation in exchanging information be stepped up and that national legislation be harmonized with a view to attaining this objective.
In the Spanish Presidency's conclusions, the Madrid European Council of 15 and 16 December 1995 expressed the wish that judicial cooperation should focus in particular on mutual judicial assistance in criminal matters and on the extension of the Brussels Convention and document transmission in civil matters.
On 27 September 1996, the Presidency of the Telecommunications Council stated that concrete proposals should be made with a view to protecting minors against the illegal use of the Internet.
The above initiatives reflect an awareness of the need to take appropriate steps at European level both to prevent and combat crime against minors and to step up judicial cooperation (on criminal and civil matters). In the field of intercountry adoption, steps must be taken to prevent and combat the abduction, sale of or traffic in children and to ensure that such adoptions are made in the best interests of the child and with respect for its fundamental rights. In this connection, the Treaty on European Union stipulates that the following areas shall be regarded as 'matters of common interest':
- judicial cooperation in civil matters;
- judicial cooperation in criminal matters; and
- police cooperation for the purposes of preventing and combating certain forms of international crime (see Article K.1(6), (7) and (9)).
With a view to the above, the Treaty provides, inter alia, for the adoption of 'joint action in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged' (Article K.3(2)(b)). We shall now examine the two aspects of judicial cooperation.
(1) Judicial cooperation on criminal matters
Although the only figures available are estimates, certain forms of adoption are illegal. They are therefore equivalent to trafficking in children, and should be combated with the greatest determination. The Union should therefore take steps as part of its policy on criminal matters to eradicate international practices of this kind, which are harmful to children.
This is all the more necessary in view of the fact that the definition of a criminal offence may vary from Member State to Member State. Furthermore, in the case of networks located outside the EU, the perpetrator of an offence may be outside the reach of the judicial authorities of the Member State in which that offence took place. Given that criminal law can only be enforced within national borders, which means that criminal activities connected with the abduction of and traffic in children are likely to escape punishment, it is therefore essential for the laws of the Member States to provide for similar penalties for this type of crime and for cooperation between Member States in criminal and police matters to be stepped up and also established with those third countries which are the countries of origin of the majority of children available for intercountry adoption.
In this connection, the Justice and Home Affairs Ministers meeting in Dublin on 26 and 27 September 1996 adopted a political agreement seeking to strengthen police cooperation within Europol in combating paedophilia and the traffic in children and women.
The Council must now complete the work in progress in this area, in particular by:
- adopting at the earliest opportunity a joint action pursuant to Article K.3(2)(b) of the TEU, with a view to taking tough action to combat the traffic in children, not only in connection with the most serious forms of sexual exploitation, but also in connection with the adoption of children in other countries; such trafficking should, furthermore, be classified as an offence subject to the provisions of the criminal law of all Member States; each Member States should provide for the criminal or civil liability of any moral persons involved, without prejudice to the liability of the natural persons also involved, and for the provisions of Directive 91/398 of 10 June 1991 on money laundering to be applied against such persons; each Member State should set up a specific administrative body at national and/or regional level with responsibility for combating the traffic in children and cooperating closely with the relevant national police, immigration and social security authorities and with the other accredited bodies set up in the other Member States; the latter must notify the others of all cases involving the disappearance of children which have been brought to their notice;
- adopting at the earliest opportunity a joint action pursuant to Article K.3(2)(b), making provision for a programme to promote coordinated initiatives to combat the traffic in children and the disappearance of minors; such a programme should be modelled on the 'Grotius' programme and should cover, inter alia, training, exchanges, courses and the exchange of information and should be aimed at judges, public prosecutors, police departments, civil servants, public services with responsibility for immigration and border controls and social and tax legislation, and private or public bodies with responsibility for children;
- adopting a joint action pursuant to Article K.3(2)(b), making provision for the extension of the remit of the Europol Drugs Unit to cover cases involving the abduction of or traffic in children.
The European Parliament should be consulted on such joint actions and its views should be 'duly taken into consideration' in accordance with Article K.6, paragraph 2, of the TEU.
These joint actions should, of course, be accompanied by a strengthening of international cooperation with the third countries from which the children come. In this connection, Parliament should urge the appropriate political authorities to ensure that the Member States sign and ratify the Hague Convention of 29 May 1993 in particular.
(2) Judicial cooperation on civil matters
Judicial cooperation on civil matters should, without prejudice to the rules established by the Member States, facilitate the exercise of individual rights by means of more effective cooperation in adoption matters. This could involve the transmission and recognition of judicial and extrajudicial documents and the promotion of systematic exchanges of information between the administrative authorities responsible for family and adoption matters.
The main aim is to facilitate the approximation of laws and practices, with a view to removing unjustified legal and judicial barriers in the fields of civil law, civil procedures, and administrative practices. Such barriers all too often preclude equal access to the courts and administrative authorities.
Support should therefore be shown for the following initiatives which the Council intends to take over the next two years:
- draft convention on the transmission of judicial and extrajudicial documents concerning civil and commercial matters;
- draft 'Brussels II' Convention (matrimonial matters and child custody);
- implementation of a joint action concerning liaison magistrates and consideration of the feasibility of establishing a network of contact magistrates.
It is to be hoped that the Council will complete its work on such matters at the earliest opportunity.
Furthermore, the Member States should focus their attention on the following questions:
- the transparency of adoption procedures;
- speeding up adoption procedures;
- equivalence/recognition of administrative and judicial decisions;
- the establishment of a directory of experts (networks of experts to draw up a code of conduct applicable to adoptions).
-  () This convention - which has yet to be adopted - seeks to extend the concept of the Brussels Convention on Jurisdiction and the Enforcement of Judgments to matrimonial matters.
Motion for a resolution, pursuant to Rule 45 of the Rules of Procedure, by Mrs Colli Comelli and Mr Danesin, on behalf of the Forza Europa Group, on improving the adoption laws (B4-0568/94)
The European Parliament,
A. noting that in a number of European Union countries the procedure for adopting a child is extremely difficult, not to say downright discouraging, because of insurmountable bureaucratic hurdles,
B. whereas, in the European Union, there are hundreds of thousands of children waiting to be adopted, as a result of which they are starved of affection and are often segregated in institutions which are not always able to guarantee an acceptable quality of life,
C. aware that the situation outside the European Union is much more serious, and is often desperate,
1. Calls for a specific undertaking by the European Union to achieve the fundamental objective of guaranteeing the dignity and equal treatment of all these children, and to ensure that all families have the opportunity to pursue their main objective which is to bring up children;
2. Calls on the Commission and the Council to draft a package of laws to simplify the bureaucratic procedures for adopting children;
3. Underlines the need to examine, with extreme care (from both the moral and the psychological points of view), the possibility of extending the practice of adoption to particularly suitable single parents.
O P I N I O N
(Rule 147 of the Rules of Procedure)
of the Committee on Civil Liberties and Internal Affairs
for the Committee on Legal Affairs and Citizens' Rights
on improving adoption legislation
Draftsman: Mrs Viviane Reding
At its meeting of 29 September 1996 the Committee on Civil Liberties and Internal Affairs appointed Mrs Viviane Reding draftsman.
At its meetings of 31 October and 11 November 1996, it considered the draft opinion.
At the last of the meetings it adopted the conclusions unanimously.
The following took part in the vote: Marinho, chairman; Colombo Svevo, vice-chairman; Reding, rapporteur; D'Ancona, Berger (for Crawley), Caccavale, Camisón Asensio (for D'Andrea), Cederschiöld, Chanterie (for Stewart-Clark), De Esteban Martin, Deprez, Elliott, Haarder, Lambrias (for Posselt), Lehne, Lööw, Oostlander (for Linzer), Nassauer, Pailler, Pradier, Terrón I Cusi and Zimmermann.
I - INTRODUCTION
Originally designed to secure rights of inheritance, adoption did not focus on the creation of a parent-child relationship. It was seen as a contract concluded between the adopter and the person adopted and was possible only between adults. The concept of adoption has fortunately evolved and society now recognizes that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. The primary aim of adoption now is to provide a family for minors who have none, taking into account the best interests of the child and respect for the child's fundamental rights enshrined in international law.
II - ADOPTION: A SOCIAL PROBLEM
Given its emotional, psychological, moral and educational aspects and public concern about the issue, adoption must be seen as a problem of society.
Every year there are between 30 and 35 000 full adoptions within the European Union, a figure which is insignificant compared with the 3.5 million births registered during the same period, making a ratio of one adoption for every 100 births. The figure of 35 000 adoptions accounts for only a quarter of the applications submitted. This situation has arisen from:
- differences between adoption laws from one Member State to another;
- the inflexible and complex adoption formalities;
- the fact that fewer children are available for adoption and demand outstrips the supply.
The fall in the number of children available for adoption in the Union is due to advances in contraception and abortion, women working, the fall in the number of marriages, the increase in second marriages, which means that women tend to have children older, and the fact that even parents who face very severe problems do not want to give up their children.
This situation has led to an increase in the number of intercountry adoptions, which raise other problems. In recent years the adoption of children from developing countries has become a worldwide problem which raises many administrative and legal difficulties due to the long distances and different legal cultures involved, and above all, because of the steady increase in irregular adoptions which often involve the abduction of and traffic in children.
Every year about 25 000 children are the subject of intercountry adoptions. But, at the same time, there are more than 200 million children in the world who are abandoned and need a family.
In this context, we believe it is crucial to improve the protection of children and their rights and interests, particularly in adoption and within the framework of the single market, which involves the opening up of frontiers and the increase in the number of intercountry adoptions which are creating a new evil: the traffic in children.
III - ADOPTION: LEGAL INSTRUMENTS
The importance of this subject has not gone unnoticed by international institutions. The UN Convention on the Rights of the Child of 19 November 1989 deals with matters such as adoption and the traffic in children in Articles 20, 34 and 35. On 24 April 1967 the Council of Europe adopted European Convention No. 58 on the adoption of children. In 1984 the Organization of American States adopted a convention on the conflict of laws in the adoption of minors. However, the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, which was adopted on 29 May 1993 at the 19th session of the Hague Conference on Private International Law (CPIL) is undoubtedly the most comprehensive legal instrument in this area. The Hague Convention is based on the principle that it is in the child's best interests to remain in the care of his or her its family of origin or, at the least, 'in his or her state of origin'. However, it recognizes that, failing this, intercountry adoption may offer the child the advantage of a permanent family. Its main aim is therefore to enable such adoptions to take place by establishing a system of cooperation among contracting states. The main provision of the Convention is that the signatory states should each designate a Central Authority responsible for selecting, on a case by case basis, children who may be adopted or adoptive parents, and to cooperate with its counterparts in ensuring that the adoption is successful. The system is based on a number of common principles such as the best interests of the child, consent, no compensation of any kind for the persons involved and any financial gain from adoption should be prohibited.
At Community level, the question of adoption has been raised by the European Parliament on numerous occasions, through motions for resolutions and written questions, and by the Economic and Social Committee, which adopted an opinion on the subject on 1 July 1992. No action has been taken by the Commission or the Council as they do not consider that adoption comes within their jurisdiction. The Treaty on European Union does not give the institutions specific responsibility for the adoption of children. However, the need for action in this area at Union, and in particular measures to stop the traffic in children are essential. In accordance with Article 220 of the EC Treaty and in the spirit of Title VI of the TEU, which seeks to create a legal European area, it would be desirable for the 15 Member States to harmonize their adoption legislation, particularly existing procedures, and to define a strategy to prevent and tackle international organized crime, which is behind the traffic in children for adoption. Action by the Union on adoption could be based on Article F, which refers to respect for the 1995 European Human Rights Convention (and consequently all the conventions adopted within that framework, in particular the 1967 Convention on the Adoption of Children), and Article K.1(6) on judicial cooperation in civil matters. Consequently the Council could adopt a joint action based on Article K.3 to harmonize the relevant national legislation. The provisions of the first and third pillars are therefore complementary.
The 1996 Intergovernmental Conference will have to examine the possibility of inserting clauses on the rights of the child and the family into any revised Treaty.
IV - ADOPTION: IMPROVING PROCEDURES
It would be wrong to say that adoption procedures vary widely from one Member States to another. However, there are a number of differences and it would be useful to harmonize procedures with a view to making them simpler, safer and fairer.
Firstly, the best interests of the child must always remain the basis of adoption legislation, procedures and facilities.
A number of bodies are involved in the procedure for adopting a child: judicial authorities, regional or local authorities, specialized agencies. As Article 6 of the Hague Convention stipulates, each Member State should set up a Central Authority, which would centralize the records of children available for adoption residing on national territory and the adoption of children born abroad, register applications for adoption approval and coordinate the work of the various departments concerned.
Only the competent public authorities, in particular the Central Authority and private specialist bodies, accredited by the State, should be involved in adoption.
With a view to improving adoption procedures and in the framework of freedom of movement established by the single market, Member States should accede to the Hague Convention, as a first step towards cooperation between the Member States of the Union in the area of adoption. However, since EU countries are essentially 'importers' of children available for adoption, it is vital that the countries of Asia and Latin America should also become parties to the Convention, which provides for adoptions arranged in accordance with its provisions to be recognized in the signatory states.
V - INTERNATIONAL TRAFFIC IN AND SALE OF CHILDREN FOR ADOPTION
The traffic in children for adoption is not new; it dates back to the 1950s but was then on a much more limited scale.
The traffic in children is now on a global scale, involving many countries in Asia, Latin America and Eastern Europe on the one hand, and the countries of North America and Western Europe on the other.
A number of methods are involved: purchase, consent obtained by fraud or coercion and the abduction of children. There may be a combination of these methods (for example parents may be coerced into selling their child); in some cases it may be difficult to say whether the child has been abducted or whether its biological parents have given their consent.
As regards the way in which the traffic is organized, criminals trafficking in children may be part of extensive networks. In some countries, lawyers and notaries, social workers (sometimes even those appointed by the courts), hospitals, doctors and child care institutions, sometimes converted into what amount to 'baby farms', and others combine forces to procure children and take advantage of parents in desperate situations, particularly women.
The traffic in children depends on the child leaving his or her country of origin legally or in a way that appears to be legal.
There are a number of ways of concealing a child's true situation, for example:
- clients, so-called 'parents', may declare that a child is their own and obtain a forged birth certificate as evidence of their parenthood;
- someone who is not the child's real mother may claim that a child is her own and immediately sign a declaration giving up the child and thus paving the way for an adoption by clients resident abroad;
- the would-be father recognizes the child as his, and the child is subsequently adopted by the adoptive mother.
In view of the financial interests often involved in intercountry adoptions, agencies which arrange such adoptions must be monitored. To prevent possible abuses, it is important to apply the safeguards set out in the relevant international conventions and particularly the Hague Convention. Family placements should be arranged by duly accredited authorities or bodies and comply with the same safeguards as for national adoptions.
In conclusion, it is clear that in the absence of an international system to tackle the traffic in children, the Union must have the practical instruments it needs to remedy the situation. It might therefore be possible to envisage (possibly through a joint action) extending Europol's remit to include the networks which control the traffic in children, as part of its responsibilities for dealing with trafficking in human beings.
VI - CONCLUSIONS
The Committee on Civil Liberties and Internal Affairs calls on the Committee on Legal Affairs and Citizens' Rights, as the committee responsible, to incorporate the following conclusions into its report.
1. The best interests of the child must always be the basis of adoption legislation, procedures and facilities. Adoption is the means of providing a family for children that who do not have one.
2. The Member States should ratify as soon as possible the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, adopted on 29 May 1993 by the Hague Conference on Private International Law (CPIL).
3. The Commission and Council should bring sustained pressure to bear on non-member countries which are the countries of origin of children adopted in the Member States of the Union, to ratify the Hague Convention as soon as possible.
4. The 1996 Intergovernmental Conference should examine the possibility of inserting in a future revised Treaty, provisions on the rights of the child and the family.
5. To prevent the international traffic in children, the Member States should incorporate the following provisions into their national legislation:
- All moral persons, under public or private law, acting as an agency for children for adoption, must first be approved by the national authority responsible. Individually arranged adoptions should no longer be allowed.
- Where the adoptive parents are nationals of a Member State of the Union, the laws in force in the country of permanent residence will apply. The adoption will then be recognized in the other Member States.
- Before any full adoption, formal proof of the legal abandonment of the child to be adopted must be provided.
- Legislation should be introduced to enable a State to take direct legal action against its own nationals who have engaged in trafficking with the purpose of adoption, even when this took place in another country.
6. The Council and Commission will have to examine closely the possibility of drawing up a Community code of conduct and practice for adoption, to ensure better coordination of different national legislation on adoption.
7. Within the Union a uniform approach is required to combat the illegal entry of children and the Schengen Information System could be used for this purpose.
8. The Union should consider the possibility of extending Europol's remit to include the networks that control the traffic in children for adoption, as part of Europol's responsibilities for the traffic in human beings.
9. Calls on the Member States to ensure that children who are adopted by citizens of the Union and who come from a country outside the Union have the possibility of acquiring citizenship of that country.
O P I N I O N
(Rule 147 of the Rules of Procedure)
of the Committee on Culture, Youth, Education and the Media
for the Committee on Legal Affairs and Citizens' Rights
on improving adoption legislation
Draftsman: Mrs Luisa Todini
At its meeting of 5 September 1995 the Committee on Culture, Youth, Education and the Media appointed Mrs Todini draftsman.
At its meetings of 24 October 1995 and 24 November 1995 it considered the draft opinion.
At the last meeting it unanimously adopted the conclusions unanimously.
The following took part in the vote: Dillen, acting chairman; Ahlqvist, Aparicio Sánchez, Arroni, Azzolini (for Todini), Barzanti (for Augias), Berend (for Banotti), de Coene, Holm (for Ripa di Meana), Leperre-Verrier, Mouskouri, Pack, Ryynänen and Seillier.
In every country of the European Union, the adoption of minors raises many legal, administrative, ethical and cultural questions.
Each of our national societies is based on ethical and cultural values and principles which differ from each other, particularly where the family is concerned. Common threads do exist, however, in all the Member States of the Union, and these have been aired in exchanges of experience and information and at seminars and conferences organized by the Commission as part of the European Year of the Family.
As a way of resolving problems coming under private international law, a convention on the adoption of children was signed in The Hague in 1965; it has been ratified by all the Member States of the European Union apart from the United Kingdom.
The application of the Hague Convention and legislation on children's rights (and hence adoption) is essentially a matter for the Member States.
The question of Community action by means of a legal instrument has been raised on a number of occasions, however, and calls for careful consideration by the European Parliament.
It should be stressed at the outset that, in many Member States, national legislation has progressed from the principle of facilitating the adoption of minors by families who are childless to that of facilitating the adoption of minors to provide families for children who do not have one.
This shift has made it possible, among other changes, to give priority to the rights and well-being of children when it comes to determining the conditions governing adoption, which are concerned with the age and economic, social and environmental situation of the adoptive parents.
Adoption legislation in several Member States, although giving priority to the interests of the child, recognizes the existence of single-parent families and unmarried partners.
Improving adoption legislation raises different questions depending on whether it concerns minors who are nationals of a Member State of the European Union or those from another country, particularly a developing country.
For thousands of orphans or children without families in the Third World, the only way of escaping abandonment is the chance of being accepted into a family in an industrialized country.
The practice of sponsoring is currently growing in many European countries, and provides a way of tackling the most serious problems facing children in poor countries, while allowing them to live in their original social and cultural surroundings.
Economic and social deprivation in developing countries, together with a corresponding demand in industrialized countries, sometimes combine to produce a trade in children from poor to rich countries, as was recently found in Paraguay.
In any event, the protection of the rights of minors in the process of adoption must simultaneously take into account the responsibility of the parents, the role of the public authorities and society as a whole, and also measures to prevent offences against and the abuse of minors, including sexual exploitation.
In order to be effective, such protection must go beyond health and safety and also embrace the education of both children and adults.
The human problems caused by conflict between adoptive and natural families should also be taken into account by adoption legislation. Finally, some thought should be given to the relationship between the culture of origin of adopted children and the culture of the adoptive family.
On the basis of the above considerations, the Committee on Culture, Youth, Education and the Media calls on the Committee on Legal Affairs and Citizens' Rights to include the following conclusions in its report:
A. While realizing that adoption legislation is essentially a matter for the Member States, considers that exchanges of experience and information concerning adoption should be encouraged;
B. Stresses the advisability of such exchanges being accompanied by Union-wide consultation (to be promoted by the Commission and Parliament) of all organizations involved with issues relating to children's rights and the adoption of minors;
C. Believes that such consultation should enable Community and national authorities to highlight the existence of common values such as the principle of facilitating adoption to provide families for children who do not have one;
D. Points out that one of the basic features of European society is its multi-ethnic and multi-cultural character, and that this must be taken into account in connection with adoption and the protection of minors so as to promote the ideal of reciprocal tolerance and respect which characterizes, albeit still imperfectly and partially, European thinking and the European way of life;
E. Considers that protection of the family, and particularly of minors, should be stated as one of the tasks of the Union when the Maastricht Treaty is revised so as to ensure explicit and legally binding recognition of such rights at Union level, although the drafting of the practical implementing rules on such matters is governed by the principle of subsidiarity;
F. Calls on the Council to evaluate the idea of including an article concerning minors in the Treaty on European Union and of establishing a European child monitoring centre to ensure greater coordination between the specific activities of the Member States in this sphere;
G. Calls on the Council and the Commission to consider carefully whether it would be worth issuing a recommendation to the Member States concerning closer coordination of their adoption legislation;
H. Considers that the protection of minors against offences and abuse should be strengthened in national legislation and that provision should be made for using the instruments of the third pillar of the Treaty on European Union to combat organized crime against minors.