Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE ASSEMBLY
Adoption Amendment Bill 1998
A Bill for
An Act to amend the Adoption Act 1994 to provide for the
recognition of adoptions under bilateral arrangements and to give
effect to the Hague Convention on Protection of Children and
Cooperation in respect of Intercountry Adoption.
The Parliament of Western Australia enacts as follows:
page 1
44--1
Adoption Amendment Bill 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Adoption Amendment Act 1998.
2. Commencement
5 (1) Part 2 of this Act comes into operation on the day on which the
Act receives the Royal Assent.
(2) Part 3 of this Act comes into operation on such day, not being
earlier than the day on which the Hague Convention enters into
force in respect of Australia or the day referred to in
10 subsection (1), as is fixed by proclamation.
3. The Act amended
The amendments in this Act are to the Adoption Act 1994*.
[* Act No. 9 of 1994.
For subsequent amendments see 1997 Index to Legislation of
15 Western Australia, Table 1, p. 4.]
page 2
Adoption Amendment Bill 1998
Bilateral arrangements Part 2
s. 4
Part 2 -- Bilateral arrangements
4. Section 4 amended
Section 4(1) is amended by inserting, in the appropriate
alphabetical positions, the following definitions --
5 "
"adoption authority" means a person, body or office
in an overseas jurisdiction responsible for
approving the adoption of children;
"adoption certificate", in relation to an adoption, means
10 a certificate or other document issued by an adoption
authority in the overseas jurisdiction in which the child
to whom the certificate relates was habitually resident
before being adopted, stating that --
(a) the adoption took place in accordance with
15 the laws of that overseas jurisdiction; and
(b) the Director-General, or a person or a
delegate of a person whose functions in
another State or a Territory correspond with
those of the Director-General under this Act,
20 agreed that the adoption may proceed;
"overseas jurisdiction" means a country prescribed as
an overseas jurisdiction;
"parental responsibility" means, in relation to a child,
all the powers, responsibilities and authority which,
25 by law, parents have in relation to children;
".
page 3
Adoption Amendment Bill 1998
Part 2 Bilateral arrangements
s. 5
5. Section 38 amended
Section 38(1) is amended by inserting after "child" --
" under this Act or in an overseas jurisdiction ".
6. Section 138 amended
5 Section 138(1) is amended by deleting "An" and inserting
instead --
" Subject to sections 138A and 138B, an ".
7. Sections 138A to 138D inserted
After section 138 the following sections are inserted --
10 "
138A. Recognition in Western Australia of an adoption in
an overseas jurisdiction of a child from that
jurisdiction
(1) An adoption in an overseas jurisdiction --
15 (a) of a child who is habitually resident in the
overseas jurisdiction;
(b) by a person who is habitually resident in
Australia,
is recognized if --
20 (c) the adoption is granted in accordance with the
laws of that overseas jurisdiction; and
(d) an adoption certificate is in force in relation to
the adoption.
page 4
Adoption Amendment Bill 1998
Bilateral arrangements Part 2
s. 7
(2) An adoption that is recognized under subsection (1) is
effective on and from the date that the adoption takes
effect in the overseas jurisdiction.
138B. Effect of recognition of adoption
5 (1) If the adoption of a child is recognized under
section 138A, for the purposes of the laws of the
State --
(a) the relationship between the child and each of
the child's adoptive parents is to be treated as
10 being that of child and parent;
(b) each adoptive parent of the child has parental
responsibility for the child;
(c) if the laws of the overseas jurisdiction in which
the adoption was granted do not have the effect
15 of treating the relationship between the child
and the persons who were, immediately before
the adoption, the child's parents, as not being
that of child and parent, that relationship is to be
treated as not being that of child and parent and
20 the adoption of the child terminates the legal
relationship between the child and the
individuals who were, immediately before the
adoption, the child's parents;
(d) if the child had been previously adopted,
25 whether under the law of this State or
otherwise, the previous adoption does not have
effect and the relationship between the child and
the individuals who adopted the child under the
previous adoption is to be treated as not being
30 that of child and parent;
page 5
Adoption Amendment Bill 1998
Part 2 Bilateral arrangements
s. 7
(e) the child has the same rights as a child who is
adopted under this Act;
(f) the relationship of all persons to the child, the
person who adopted the child and the birth
5 parent or previous adoptive parent are to be
determined in accordance with this section; and
(g) an appointment, in a deed or will existing at the
time an adoption is effective, of a person as the
guardian of the child, ceases to have effect.
10 (2) Despite subsection (1), for the purposes of the law of
this State relating to sexual offences, being law for the
purposes of which the relationship between persons is
relevant, the recognition of the adoption of a child in an
overseas jurisdiction does not cause the cessation of any
15 relationship that would have existed if the adoption had
not occurred, and any such relationship is to be treated
as existing in addition to any relationship that exists by
virtue of the application of this section in relation to the
recognition of an adoption.
20 (3) In this section a reference to a "child" includes a
reference to a person who is 18 or more years of age.
(4) Nothing in this section affects the jurisdiction of a court
of the State or of the Commonwealth to entertain
proceedings, make an order, or take any other action in
25 relation to a child whose adoption is recognized under
section 138A.
page 6
Adoption Amendment Bill 1998
Bilateral arrangements Part 2
s. 7
138C. Evidential value of adoption certificate
An adoption certificate is evidence, for the laws of the
State, that the adoption to which the certificate relates
was carried out in accordance with the laws of the
5 overseas jurisdiction whose adoption authority issued
the certificate.
138D. Report on person who wishes to adopt a child in an
overseas jurisdiction
If a person --
10 (a) wishes to adopt a child in an overseas
jurisdiction; and
(b) is on the register of the names of persons who
are approved by an adoption applications
committee,
15 the Director-General may send an assessment report on
the person to the adoption authority of the overseas
jurisdiction.
".
page 7
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 8
Part 3 -- Hague Convention
8. Section 4 amended
Section 4 is amended as follows:
(a) in subsection (1), in the definition of "adoption order",
5 after paragraph (a) by deleting "or" and after
paragraph (b) by inserting --
"
or
(c) a child under section 78A(2);
10 ";
(b) in subsection (1) by inserting, in the appropriate
alphabetical positions, the following definitions --
"
"adoption compliance certificate" means a certificate
15 that is referred to in Article 23 of the Hague
Convention;
"Central Authority" means an authority designated
under Article 6 of the Hague Convention for a
Convention country;
20 "Commonwealth Central Authority" has the same
meaning as it has in the Family Law (Hague
Convention on Intercountry Adoption)
Regulations 1998 of the Commonwealth;
"competent authority" means an authority of a
25 Convention country that has power to issue an
adoption compliance certificate and that has been
notified to the depository of the Hague Convention
under Article 23.2 of the Convention;
page 8
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 8
"Hague Convention" means the Hague Convention on
Protection of Children and Cooperation in respect
of Intercountry Adoption signed at The Hague on
29 May 1993, a copy of the English text of which
5 is set out in Schedule 2B;
"State Central Authority" means the person
appointed under section 134A to be the Central
Authority for the State of Western Australia for the
purpose of Article 6.2 of the Hague Convention;
10 ";
(c) after subsection (2) the following subsection is
inserted --
"
(3) A reference in this Act to a Convention country is,
15 subject to Article 45 of the Hague Convention, a
reference to --
(a) a country specified in column 2 in Schedule 2 to
the Family Law (Hague Convention on
Intercountry Adoption) Regulations 1998 of the
20 Commonwealth;
(b) any other country for which the Hague
Convention has entered into force, other
than --
(i) Australia; and
25 (ii) a country in respect of which Australia
has raised an objection under Article 44
of the Hague Convention.
".
page 9
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 9
9. Section 38 amended
Section 38(1), as amended by section 5, is amended by deleting
"or in an overseas jurisdiction" and inserting instead --
" , in a Convention country or in an overseas jurisdiction ".
5 10. Section 39 amended
Section 39(1)(c) is amended by inserting after "State" --
"
or, if applying to adopt a child in a Convention country,
is habitually resident in this State
10 ".
11. Section 61 amended
Section 61(2)(a) is amended by inserting after "and (2)" --
" or section 78A(2) ".
12. Section 68 amended
15 Section 68 is amended as follows:
(a) in subsection (1), by deleting "An" and inserting instead --
" Subject to section 78A, an ";
(b) after subsection (1)(e) by deleting "and";
(c) after subsection (1)(f) by deleting the full stop and
20 inserting --
"
; and
(g) if the child is habitually resident in a Convention
country --
25 (i) the arrangements for the adoption of the
child have been made in accordance with
page 10
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 13
the requirements of the Hague
Convention;
(ii) the arrangements for the adoption of the
child are in accordance with the laws of
5 the Convention country;
(iii) the Central Authority of the Convention
country has agreed to the adoption of
the child; and
(iv) the State Central Authority has agreed
10 to the adoption of the child.
".
13. Division 11 inserted in Part 3
After section 78 the following Division is inserted --
"
15 Division 11 -- Adoption of a child in Western Australia
who is to live in a Convention country
78A. Arrangements for adoption
(1) Despite section 39(1)(a) and (c) and (2), a person who
is habitually resident in a Convention country who
20 wishes to adopt a child who is habitually resident in
Western Australia may make an application to the
Court for an adoption order.
(2) Despite any other provision in this Part to the contrary, the
Court may make an adoption order on an application
25 under subsection (1) if the Court is satisfied that --
(a) the child is in Western Australia;
page 11
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 13
(b) the child is not prevented from leaving
Australia --
(i) under a law of the Commonwealth, a
State or a Territory; or
5 (ii) because of an order of a court of the
Commonwealth, a State or a Territory;
(c) the arrangements for the adoption of the child
are in accordance with the requirements of the
Hague Convention;
10 (d) the Central Authority of the Convention country
has agreed to the adoption of the child;
(e) the State Central Authority has agreed to the
adoption of the child; and
(f) the application for the adoption complies with
15 such of the provisions of section 68(1) or (2) as
are relevant to the circumstances of or the
arrangements for the adoption.
78B. Issue of adoption compliance certificate
If the Court has made an adoption order in relation to a
20 child under section 78A(2), the State Central Authority
may, in relation to the child, issue an adoption
compliance certificate for the purpose of Article 23 of
the Hague Convention.
".
page 12
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 14
14. Section 130A inserted
After section 130 the following section is inserted --
"
130A. Delegation by State Central Authority
5 The State Central Authority may delegate for the
purposes of this Act, either generally or as otherwise
provided by the instrument of delegation, by writing
signed by the State Central Authority, to an officer of
the Department any of the State Central Authority's
10 functions under this Act or the Hague Convention,
other than this power of delegation.
".
15. Sections 134A and 134B inserted
After section 134, the following heading and sections are
15 inserted --
"
Division 2A -- State Central Authority
134A. State Central Authority
(1) The Minister is appointed to be the Central Authority
20 for the State of Western Australia for the purpose of
Article 6.2 of the Hague Convention.
(2) The Minister is to advise the Commonwealth Central
Authority that the Minister is the State Central
Authority and the address and functions of the State
25 Central Authority.
page 13
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 16
(3) As soon as practicable after a change to the address or
functions of the State Central Authority, the Minister is
to advise the Commonwealth Central Authority of the
change.
5 134B. Functions of the State Central Authority
The State Central Authority, in this State --
(a) has all the duties of a Central Authority under
the Hague Convention; and
(b) may exercise all of the powers of a Central
10 Authority under the Hague Convention.
".
16. Sections 136A to 136H inserted
After section 136 the following sections are inserted --
"
15 136A. Recognition in Western Australia of an adoption in
a Convention country of a child from that country
(1) Subject to section 136F, an adoption in a Convention
country (whether before or after the commencement of
this section) --
20 (a) of a child who is habitually resident in a
Convention country;
(b) by a person who is habitually resident in
Australia,
is recognized if an adoption compliance certificate
25 issued by a competent authority of that country is in
force in relation to the adoption.
page 14
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 16
(2) An adoption that is recognized under subsection (1) is
effective on and from the day the adoption compliance
certificate becomes effective.
(3) In any proceedings it is to be presumed, unless the
5 contrary appears, that an adoption of a child that was
made in a Convention country complies with
subsection (1).
136B. Order of termination of relationship of child and
parent in relation to a simple adoption
10 (1) If --
(a) a child who was or is habitually resident in a
Convention country was adopted in a
Convention country;
(b) the adoption was by a person who is habitually
15 resident in this State; and
(c) the laws of that country do not provide that the
adoption has the effect of treating the
relationship between the child and the persons
who were, immediately before the adoption, the
20 child's parents, as not being that of child and
parent,
any of the parties to the adoption may apply to the
Court for an order that the relationship between the
child and the persons who were, immediately before the
25 adoption, the child's parents, is to be treated as not
being that of child and parent.
page 15
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 16
(2) If the Court is satisfied that --
(a) an adoption compliance certificate issued by a
competent authority of the Convention country
is in force in relation to the adoption; and
5 (b) the child is permitted --
(i) to enter Australia; and
(ii) to reside permanently in Australia,
the Court may make an order that the relationship
between the child and the persons who were,
10 immediately before the adoption, the child's parents, is
to be treated as not being that of child and parent.
136C. Recognition in Western Australia of an adoption of
a child from a Convention country to another
Convention country
15 Subject to section 136F, if --
(a) a child who is habitually resident in a
Convention country is adopted by a person who
is habitually resident in another Convention
country; and
20 (b) an adoption compliance certificate issued by a
competent authority of the Convention country
in which the adoption was made or granted is in
force in relation to the adoption,
the adoption is recognized and effective for the laws of
25 the State on and from the day the certificate becomes
effective.
page 16
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 16
136D. Effect of recognition of adoption
(1) If the adoption of a child is recognized under
section 136A, for the purposes of the laws of the
State --
5 (a) the relationship between the child and each of
the child's adoptive parents is to be treated as
being that of child and parent;
(b) each adoptive parent of the child has parental
responsibility for the child;
10 (c) if the laws of the Convention country where the
adoption was granted provide that the adoption
has the effect of treating the relationship
between the child and the persons who were,
immediately before the adoption, the child's
15 parents, as not being that of child and parent --
the relationship between the child and those
persons is to be treated as not being that of
child and parent;
(d) if the child had been previously adopted,
20 whether under the law of this State or
otherwise, the previous adoption does not have
effect and the relationship between the child and
the individuals who adopted the child under the
previous adoption is to be treated as not being
25 that of child and parent;
(e) the child has the same rights as a child who is
adopted under this Act;
(f) the relationship of all persons to the child, the
person who adopted the child and the birth
30 parent or previous adoptive parent are to be
determined in accordance with this section; and
page 17
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 16
(g) an appointment, in a deed or will existing at the
time an adoption is effective, of a person as the
guardian of the child, ceases to have effect.
(2) Despite subsection (1), for the purposes of the law of
5 this State relating to sexual offences, being law for the
purposes of which the relationship between persons is
relevant, the recognition of the adoption of a child in a
Convention country does not cause the cessation of any
relationship that would have existed if the adoption had
10 not occurred, and any such relationship is to be treated
as existing in addition to any relationship that exists by
virtue of the application of this section in relation to the
recognition of an adoption.
(3) In this section a reference to a "child" includes a
15 reference to a person who is 18 or more years of age.
(4) Nothing in this section affects the jurisdiction of a court
of the State or of the Commonwealth to entertain
proceedings, make an order, or take any other action in
relation to a child whose adoption is recognized under
20 section 136A.
136E. Recognition of a decision in a Convention country
to convert a simple adoption
(1) Subject to section 136F, if a decision is made in a
Convention country to convert an adoption of a child in
25 accordance with Article 27 of the Hague Convention,
the decision is recognized and effective for the laws of
the State on and from the day the decision becomes
effective.
page 18
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 16
(2) The recognition of the decision includes the recognition
for the laws of the State that the decision has the effect
that the relationship between the child and the
individuals who were, immediately before the adoption,
5 the child's parents is to be treated as not being that of
child and parent.
136F. Refusal to recognize an adoption or a decision to
convert a simple adoption
(1) If the State Central Authority considers that --
10 (a) an adoption recognized under section 136A or
136C; or
(b) a decision made in accordance with Article 27
of the Hague Convention,
is manifestly contrary to public policy, taking into
15 account the best interests of the child to whom the
adoption or decision relates, the State Central Authority
may apply to the Court for a declaration that the
adoption or decision is not recognized.
(2) If the Court is satisfied that --
20 (a) an adoption recognized under section 136A or
136C; or
(b) a decision made in accordance with Article 27
of the Hague Convention,
is manifestly contrary to public policy, taking into
25 account the best interests of the child to whom the
adoption or decision relates, the Court may declare that
the adoption or decision is not recognized in this State
and that the adoption or decision has no effect in this
State.
page 19
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 16
(3) A declaration made under subsection (2) has effect
according to its tenor.
(4) If the State Central Authority makes an application to
the Court under subsection (1), the Authority is to give
5 the Commonwealth Central Authority written notice of
the application.
(5) After the Court has made a decision under
subsection (2), the State Central Authority is to give the
Commonwealth Central Authority written notice of the
10 Court's decision.
136G. Evidential value of adoption compliance certificate
Subject to a declaration made under section 136F(2), an
adoption compliance certificate is evidence, for the laws
of the State, that the adoption to which the certificate
15 relates --
(a) was agreed to by the Central Authorities of the
countries identified in the certificate; and
(b) was carried out in accordance with the Hague
Convention and the laws of the countries
20 identified in the certificate.
136H. Report on person who wishes to adopt a child in a
Convention country
If a person --
(a) wishes to adopt a child in a Convention country;
25 and
page 20
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 17
(b) is on the register of the names of persons who
are approved by an adoption applications
committee,
the State Central Authority is to prepare and send a
5 report that complies with Article 15 of the Hague
Convention to the Central Authority of the Convention
country.
".
17. Section 138 amended
10 Section 138(1) is amended by deleting "Subject to sections 138A
and 138B,", as inserted by section 6, and inserting instead --
"
Subject to sections 136A, 136B, 136C, 136D, 138A
and 138B,
15 ".
18. Section 143 amended
After section 143(3) the following subsection is inserted --
"
(4) Without limiting the generality of subsection (1),
20 regulations may be made prescribing all matters that are
necessary or convenient for giving effect to the Hague
Convention including --
(a) granting accreditation to a body for the
purposes of Article 9 of the Hague Convention;
25 (b) the functions that may be performed by a body
granted accreditation;
(c) the qualifications of and requirements to be
satisfied by an applicant for accreditation;
page 21
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 18
(d) the procedure for applications and grounds for
refusal of applications;
(e) the duration, renewal, revocation and
suspension of accreditation;
5 (f) the effect of the winding up of an accredited
body or revocation or suspension of
accreditation, in relation to records and
documents held by the accredited body or
former accredited body;
10 (g) the conferral of a right of appeal and the
procedure for and matters in relation to appeals
from the Minister's decisions as to applications
and accreditation;
(h) the requirements for public notification of the
15 accreditation of bodies;
(i) the provision of a biannual report to the
Minister on the operations of the body in
relation to the performance of authorized
functions and any other information as the
20 Minister may direct in writing; and
(j) the provision of a code of conduct for an
accredited body and its staff.
".
page 22
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
19. Schedule 2B inserted
After Schedule 2A the following Schedule is inserted --
"
Schedule 2B -- The Hague Convention
5 [s. 4(1)]
CONVENTION ON PROTECTION OF CHILDREN AND
COOPERATION IN RESPECT OF INTERCOUNTRY
ADOPTION
The States signatory to the present Convention,
10 Recognizing 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,
Recalling that each State should take, as a matter of priority,
appropriate measures to enable the child to remain in the care of his or
15 her family of origin,
Recognizing that intercountry adoption may offer the advantage of a
permanent family to a child for whom a suitable family cannot be
found in his or her State of origin,
Convinced of the necessity to take measures to ensure that intercountry
20 adoptions are made in the best interests of the child and with respect for his
or her fundamental rights, and to prevent the abduction, the sale of, or
traffic in children,
Desiring to establish common provisions to this effect, taking into account
the principles set forth in international instruments, in particular the United
25 Nations Convention on the Rights of the Child, of 20 November 1989, and
the United Nations Declaration on Social and Legal Principles relating to
the Protection and Welfare of Children, with Special Reference to Foster
Placement and Adoption Nationally and Internationally (General Assembly
Resolution 41/85, of 3 December 1986),
page 23
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
Have agreed upon the following provisions --
CHAPTER I -- SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are --
5 a to establish safeguards to ensure that intercountry adoptions take
place in the best interests of the child and with respect for his or her
fundamental rights as recognized in international law;
b to establish a system of cooperation amongst Contracting States
to ensure that those safeguards are respected and thereby prevent the
10 abduction, the sale of, or traffic in children;
c to secure the recognition in Contracting States of adoptions made
in accordance with the Convention.
Article 2
1 The Convention shall apply where a child habitually resident in one
15 Contracting State ( `the State of origin' ) has been, is being, or is to be
moved to another Contracting State ( `the receiving State' ) either after his
or her adoption in the State of origin by spouses or a person habitually
resident in the receiving State, or for the purposes of such an adoption in
the receiving State or in the State of origin.
20 2 The Convention covers only adoptions which create a permanent
parent-child relationship.
Article 3
The Convention ceases to apply if the agreements mentioned in
Article 17, sub-paragraph c, have not been given before the child
25 attains the age of eighteen years.
page 24
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
CHAPTER II -- REQUIREMENTS FOR INTERCOUNTRY
ADOPTIONS
Article 4
An adoption within the scope of the Convention shall take place only if
5 the competent authorities of the State of origin --
a have established that the child is adoptable;
b have determined, after possibilities for placement of the child
within the State of origin have been given due consideration, that an
intercountry adoption is the in the child's best interests;
10 c have ensured that
(1) the persons, institutions and authorities whose consent is necessary
for adoption, have been counselled as may be necessary and duly
informed of the effects of their consent, in particular whether or not
an adoption will result in the termination of the legal relationship
15 between the child and his or her family of origin,
(2) such persons, institutions and authorities have given their consent
freely, in the required legal form, and expressed or evidenced in
writing,
(3) the consents have not been induced by payment or compensation
20 of any kind and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only after
the birth of the child; and
d have ensured, having regard to the age and degree of maturity of
the child, that
25 (1) he or she has been counselled and duly informed of the effects of the
adoption and of his or her consent to the adoption, where such
consent is required,
(2) consideration has been given to the child's wishes and opinions,
page 25
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
(3) the child's consent to the adoption, where such consent is required,
has been given freely, in the required legal form, and expressed or
evidenced in writing, and
(4) such consent has not been induced by payment or compensation of
5 any kind.
Article 5
An adoption within the scope of the convention shall take place only if the
competent authorities of the receiving State --
a have determined that the prospective adoptive parents are eligible
10 and suited to adopt;
b have ensured that the prospective adoptive parents have been
counselled as may be necessary; and
c have determined that the child is or will be authorised to enter
and reside permanently in that State.
15 CHAPTER III -- CENTRAL AUTHORITIES AND
ACCREDITED BODIES
Article 6
1 A Contracting State shall designate a Central Authority to
discharge the duties which are imposed by the Convention upon such
20 authorities.
2 Federal States, States with more than one system of law or
States having autonomous territorial units shall be free to appoint more
than one Central Authority and to specify the territorial or personal
extent of their functions. Where a State has appointed more than one
25 Central Authority, it shall designate the Central Authority to which any
communication may be addressed for transmission to the appropriate
Central Authority within that State.
page 26
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
Article 7
1 Central Authorities shall cooperate with each other and promote
cooperation amongst the competent authorities in their States to protect
children and to achieve the other objects of the Convention.
5 2 They shall take directly all appropriate measures to --
a provide information as to the laws of their States concerning
adoption and other general information, such as statistics and standard
forms;
b keep one another informed about the operation of the Convention
10 and, as far as possible, eliminate any obstacles to it application.
Article 8
Central Authorities shall take, directly or through public authorities, all
appropriate measures to prevent improper financial or other gain in
connection with an adoption and to deter all practices contrary to the
15 objects of the Convention.
Article 9
Central Authorities shall take, directly or through public authorities or
other bodies duly accredited in their State, all appropriate measures, in
particular to --
20 a collect, preserve and exchange information about the situation of
the child and the prospective adoptive parents, so far as is necessary to
complete the adoption;
b facilitate, follow and expedite proceedings with a view to
obtaining the adoption;
25 c promote the development of adoption counselling and
post-adoption services in their States;
d provide each other with general evaluation reports about
experience with intercountry adoption;
page 27
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
e reply, in so far as is permitted by the law of their State, to
justified requests from other Central Authorities or public authorities
for information about a particular adoption situation.
Article 10
5 Accreditation shall only be granted to and maintained by bodies
demonstrating their competence to carry out properly the tasks with
which they may be entrusted.
Article 11
An accredited body shall --
10 a pursue only non-profit objectives according to such conditions
and within such limits as may be established by the competent
authorities of the State of accreditation;
b be directed and staffed by persons qualified by their ethical
standards and by training or experience to work in the field of
15 intercountry adoption; and
c be subject to supervision by competent authorities of that State
as to its composition, operation and financial situation.
Article 12
A body accredited in one Contracting State may act in another
20 Contracting State only if the competent authorities of both States have
authorised it to do so.
Article 13
The designation of the Central Authorities and where appropriate, the
extent of their functions, as well as the names and addresses of the
25 accredited bodies shall be communicated by each Contracting State to
the Permanent Bureau of the Hague Conference on Private
International Law.
page 28
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
CHAPTER IV -- PROCEDURAL REQUIREMENTS IN
INTERCOUNTRY ADOPTION
Article 14
Persons habitually resident in a Contracting State, who wish to adopt a
5 child habitually resident in another Contracting State, shall apply to the
Central Authority in the State of their habitual residence.
Article 15
1 If the Central Authority of the receiving State is satisfied that the
applicants are eligible and suited to adopt, it shall prepare a report
10 including information about their identity, eligibility and suitability to
adopt, background, family and medical history, social environment,
reasons for adoption, ability to undertake an intercountry adoption, as
well as the characteristics of the children for whom they would be
qualified to care.
15 2 It shall transmit the report to the Central Authority of the State
of origin.
Article 16
1 If the Central Authority of the State of origin is satisfied that the
child is adoptable, it shall --
20 a prepare a report including information about his or her identity,
adoptability, background, social environment, family history, medical
history including that of the child's family, and any special needs of the
child;
b give due consideration to the child's upbringing and to his or her
25 ethnic, religious and cultural background;
c ensure that consents have been obtained in accordance with
Article 4; and
page 29
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
d determine, on the basis in particular of the reports relating to the
child and the prospective adoptive parents, whether the envisaged
placement is in the best interests of the child.
2 It shall transmit to the Central Authority of the receiving State
5 its report on the child, proof that the necessary consents have been
obtained and the reasons for its determination on the placement, taking
care not to reveal the identity of the mother and the father if, in the
State of origin, these identities may not be disclosed.
Article 17
10 Any decision in the State of origin that a child should be entrusted to
prospective adoptive parents may only be made if --
a the Central Authority of that State has ensured that the
prospective adoptive parents agree;
b the Central Authority of the receiving State has approved such
15 decision, where such approval is required by the law of that State or by
the Central Authority of the State of origin;
c the Central Authorities of both States have agreed that the
adoption may proceed; and
d it has been determined, in accordance with Article 5, that the
20 prospective adoptive parents are eligible and suited to adopt and that
the child is or will be authorised to enter and reside permanently in the
receiving State.
Article 18
The Central Authorities of both States shall take all necessary steps to
25 obtain permission for the child to leave the State of origin and to enter
and reside permanently in the receiving State.
Article 19
1 The transfer of the child to the receiving State may only be
carried out if the requirements of Article 17 have been satisfied.
page 30
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
2 The Central Authorities of both States shall ensure that this
transfer takes place in secure and appropriate circumstances and, if
possible, in the company of the adoptive or prospective adoptive
parents.
5 3 If the transfer of the child does not take place, the reports
referred to in Articles 15 and 16 are to be sent back to the authorities
who forwarded them.
Article 20
The Central Authorities shall keep each other informed about the
10 adoption process and the measures taken to complete it, as well as
about the progress of the placement if a probationary period is
required.
Article 21
1 Where the adoption is to take place after the transfer of the child
15 to the receiving State and it appears to the Central Authority of that
State that the continued placement of the child with the prospective
adoptive parents is not in the child's best interests, such Central
Authority shall take the measures necessary to protect the child, in
particular --
20 a to cause the child to be withdrawn from the prospective adoptive
parents and to arrange temporary care;
b in consultation with the Central Authority of the State of origin,
to arrange without delay a new placement of the child with a view to
adoption or, if this is not appropriate, to arrange alternative long-term
25 care; an adoption shall not take place until the Central Authority of the
State of origin has been duly informed concerning the new prospective
adoptive parents;
c as a last resort, to arrange the return of the child, if his or her
interests so require.
page 31
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
2 Having regard in particular to the age and degree of maturity of
the child, he or she shall be consulted and, where appropriate, his or her
consent obtained in relation to measures to be taken under this Article.
Article 22
5 1 The functions of a Central Authority under this Chapter may be
performed by public authorities or by bodies accredited under Chapter
III, to the extent permitted by the law of its State.
2 Any Contracting State may declare to the depositary of the
Convention that the functions of the Central Authority under Articles
10 15 to 21 may be performed in that State, to the extent permitted by the
law and subject to the supervision of the competent authorities of that
State, also by bodies or person who --
a meet the requirements of integrity, professional competence,
experience and accountability of that State; and
15 b are qualified by their ethical standards and by training or
experience to work in the field of intercountry adoption.
3 A Contracting State which makes the declaration provided for in
paragraph 2 shall keep the Permanent Bureau of the Hague Conference
on Private International Law informed of the names and addresses of
20 these bodies and persons.
4 Any Contracting State may declare to the depositary of the
Convention that adoptions of children habitually resident in its territory
may only take place if the functions of the Central Authorities are
performed in accordance with paragraph 1.
25 5 Notwithstanding any declaration made under paragraph 2, the
reports provide for in Articles 15 and 16 shall, in every case, be
prepared under the responsibility of the Central Authority or other
authorities or bodies in accordance with paragraph 1.
page 32
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
CHAPTER V -- RECOGNITION AND EFFECTS OF THE
ADOPTION
Article 23
1 An adoption certified by the competent authority of the State of
5 the adoption as having been made in accordance with the Convention
shall be recognised by operation of law in the other Contracting States.
The certificate shall specify when and by whom the agreements under
Article 17, sub-paragraph c, were given.
2 Each Contracting State shall, at the time of signature,
10 ratification, acceptance, approval or accession, notify the depositary of
the Convention of the identity and the functions of the authority or the
authorities which, in that State, are competent to make the certification.
It shall also notify the depositary of any modification in the designation
of these authorities.
15 Article 24
The recognition of an adoption may be refused in a Contracting State
only if the adoption is manifestly contrary to its public policy, taking
into account the best interests of the child.
Article 25
20 Any Contracting State may declare to the depositary of the Convention
that it will not be bound under this Convention to recognise adoptions
made in accordance with an agreement concluded by application of
Article 39, paragraph 2.
Article 26
25 1 The recognition of an adoption includes recognition of
a the legal parent-child relationship between the child and his or
her adoptive parents;
b parental responsibility of the adoptive parents for the child;
page 33
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
c the termination of a pre-existing legal relationship between the
child and his or her mother and father, if the adoption has this effect in
the Contracting State where it was made.
2 In the case of an adoption having the effect of terminating a
5 pre-existing legal parent-child relationship, the child shall enjoy in the
receiving State, and in any other Contracting State where the adoption
is recognised, rights equivalent to those resulting from adoptions having
this effect in each such State.
3 The preceeding paragraphs shall not prejudice the application of
10 any provision more favourable for the child, in force in the Contracting
State which recognises the adoption.
Article 27
1 Where an adoption granted in the State of origin does not have
the effect of terminating a pre-existing legal parent-child relationship, it
15 may, in the receiving State which recognises the adoption under the
Convention, be converted into an adoption having such an effect --
a if the law of the receiving State so permits; and
b if the consent referred to in Article 4, sub-paragraphs c and d,
have been or are given for the purpose of such an adoption.
20 2 Article 23 applies to the decision converting the adoption.
CHAPTER VI -- GENERAL PROVISIONS
Article 28
The Convention does not affect any law of a State of origin which
requires that the adoption of a child habitually resident within that State
25 take place in that State or which prohibits the child's placement in, or
transfer to, the receiving State prior to adoption.
page 34
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
Article 29
There shall be no contact between the prospective adoptive parents and
the child's parents or any other person who has care of the child until
the requirements of Article 4, sub-paragraphs a to c, and Article 5,
5 sub-paragraph a, have been met, unless the adoption takes place within
a family or unless the contact is in compliance with the conditions
established by the competent authority of the State of origin.
Article 30
1 The competent Authorities of a Contracting State shall ensure
10 that information held by them concerning the child's origin, in
particular information concerning the identity of his or her parents, as
well as the medical history, is preserved.
2 They shall ensure that the child or his or her representative has
access to such information, under appropriate guidance, in so far as is
15 permitted by the law of that State.
Article 31
Without prejudice to Article 30, personal data gathered or transmitted
under the Convention, especially data referred to in Articles 15 and 16,
shall be used only for the purposes for which they were gathered or
20 transmitted.
Article 32
1 No one shall derive improper financial or other gain from an
activity related to an intercountry adoption.
2 Only costs and expenses, including reasonable professional fees
25 of person involved in the adoption, may be charged or paid.
3 The directors, administrators and employees of bodies involved
in an adoption shall not receive remuneration which is unreasonably
high in relation to services rendered.
page 35
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
Article 33
A competent authority which finds that any provision of the Convention
has not been respected or that there is a serious risk that it may not be
respected, shall immediately inform the Central Authority of its State.
5 This Central Authority shall be responsible for ensuring that
appropriate measures are taken.
Article 34
If the competent authority of the State of destination of a document so
requests, a translation certified as being in conformity with the original
10 must be furnished. Unless otherwise provided, the costs of such
translation are to be borne by the prospective adoptive parents.
Article 35
The competent authorities of the Contracting States shall act
expeditiously in the process of adoption.
15 Article 36
In relation to a State which has two or more systems of law with regard
to adoption applicable in different territorial units --
a any reference to habitual residence in that State shall be
construed as referring to habitual residence in a territorial unit of that
20 State;
b any reference to the law of that State shall be construed as
referring to the law in force in the relevant territorial unit;
c any reference to the competent authorities or to be public
authorities of that State shall be construed as referring to those
25 authorised to act in the relevant territorial unit;
d any reference to the accredited bodies of that State shall be
construed as referring to bodies accredited in the relevant territorial
unit.
page 36
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
Article 37
In relation to a State which with regard to adoption has two or more
systems of law applicable to different categories of person, any
reference to the law of that State shall be construed as referring to the
5 legal system specified by the law of that State.
Article 38
A State within which different territorial units have their own rules of
law in respect of adoption shall not be bound to apply the Convention
where a State with a unified system of law would not be bound to do
10 so.
Article 39
1 The Convention does not affect any international instrument to
which Contracting States are Parties and which contains provisions on
matters governed by the Convention, unless a contrary declaration is
15 made by the States Parties to such instrument.
2 Any Contracting State may enter into agreements with one or
more other Contracting States, with a view to improving the application
of the Convention in their mutual relations. These agreements may
derogate only from the provisions of Articles 14 to 16 and 18 to 21.
20 The States which have concluded such an agreement shall transmit a
copy to the depositary of the Convention.
Article 40
No reservation to the Convention shall be permitted.
Article 41
25 The convention shall apply in every case where an application pursuant
to Article 14 has been received after the Convention has entered into
force in the receiving State and the State of origin.
page 37
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
Article 42
The Secretary General of the Hague Conference on Private
International Law shall at regular intervals convene a Special
Commission in order to review the practical operation of the
5 Convention.
CHAPTER VII -- FINAL CLAUSES
Article 43
1 The Convention shall be open for signature by the States which
were Members of the Hague Conference on Private International Law
10 at the time of its Seventeenth Session and by the other States which
participated in that Session.
2 It shall be ratified, accepted or approved and the instruments of
ratification, acceptance or approval shall be deposited with the
Ministry of Foreign Affairs of the Kingdom of the Netherlands,
15 depositary of the Convention.
Article 44
1 Any other State may accede to the Convention after it has
entered into force in accordance with Article 46, paragraph 1.
2 The instrument of accession shall be deposited with the
20 depositary.
3 Such accession shall have effect only as regards the relations
between the acceding State and those Contracting States which have
not raised an objection to its accession in the six months after the
receipt of the notification referred to in sub-paragraph b of Article 48.
25 Such an objection may also be raised by States at the time when they
ratify, accept or approve the Convention after an accession. Any such
objection shall be notified to the depositary.
page 38
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
Article 45
1 If a State has two or more territorial units in which different
systems of law are applicable in relation to matter dealt with in the
Convention, it may at the time of signature, ratification, acceptance,
5 approval or accession declare that this Convention shall extend to all its
territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time.
2 Any such declaration shall be notified to the depositary and shall
state expressly the territorial units to which the Convention applies.
10 3 If a State makes no declaration under this Article, the
Convention is to extend to all territorial units of that State.
Article 46
1 The Convention shall enter into force on the first day of the
month following the expiration of three months after the deposit of the
15 third instrument of ratification, acceptance or approval referred to in
Article 43.
2 Thereafter the Convention shall enter into force --
a for each State ratifying, accepting or approving it subsequently,
or acceding to it, on the first day of the month following the expiration
20 of three months after the deposit of its instrument of ratification,
acceptance, approval or accession;
b for a territorial unit to which the Convention has been extended
in conformity with Article 45, on the first day of the month following
the expiration of three months after the notification referred to in that
25 Article.
page 39
Adoption Amendment Bill 1998
Part 3 Hague Convention
s. 19
Article 47
1 A State Party to the Convention may denounce it by a
notification in writing addressed to the depositary.
2 The denunciation takes effect on the first day of the month
5 following the expiration of twelve months after the notification is
received by the depositary. Where a longer period for the denunciation
to take effect is specified in the notification, the denunciation takes
effect upon the expiration of such longer period after the notification is
received by the depositary.
10 Article 48
The depositary shall notify the States Members of the Hague
Conference on Private International Law, the other States which
participated in the Seventeenth Session and the States which have
acceded in accordance with Article 44, of the following --
15 a the signatures, ratifications, acceptances and approvals referred
to in Article 43;
b the accessions and objections raised to accessions referred to in
Article 44;
c the date on which the Convention enters into force in accordance
20 with Article 46;
d the declarations and designations referred to in Articles 22, 23,
25 and 45;
e the agreements referred to in Article 39;
f the denunciations referred to in Article 47.
25 In whereof the undersigned, being duly authorised thereto, have signed
this Convention.
page 40
Adoption Amendment Bill 1998
Hague Convention Part 3
s. 19
Done at The Hague, on the twenty-ninth day of May 1993 in the
English and French languages, both texts being equally authentic, in a
single copy which shall be deposited in the archives of the Government
of the Kingdom of the Netherlands, and of which a certified copy shall
5 be sent, through diplomatic channels, to each of the States Members of
the Hague Conference on Private International Law at the date of its
Seventeenth Session and to each of the other States which participated
in that Session.
".
page 41
[Index] [Search] [Download] [Related Items] [Help]