CM(2008)13 addendum 28 March 20081
118th Session of the Committee of Ministers
(Strasbourg, 7 May 2008)
Explanatory report to the European Convention on the adoption of children (revised)
I. The European Convention on the Adoption of Children (revised) was prepared, within the framework of the Council of Europe, by a Working Party of the Committee of Experts on Family Law (hereinafter the “CJ-FA”), under the authority of the European Committee on Legal Cooperation (hereinafter the “CDCJ”). After examination and adoption by the Committee of Ministers of the Council of Europe, the convention was opened for signature on …2008.
II. The text of the explanatory report does not constitute an instrument providing an authoritative interpretation of the text of the convention, although it might be of such a nature as to facilitate the application of the provisions therein contained.
The 1967 convention
1. The 1967 European Convention on the Adoption of Children was prepared within the framework of the Council of Europe in reply to a request made by the Social Committee, taking into consideration Recommendation 292 (1961) of the Consultative Assembly.
2. The convention was opened to signature by member states of the Council of Europe on 24 April 1967. It entered into force on 26 April 1968 and today has been ratified by 18 states and signed by 3.
3. However, due to the social and legal changes which have occurred in Europe since the late 1960s, many member states of the Council of Europe revised their laws on adoption with the consequence that certain provisions of the convention became outdated over the years.
4. The first proposals for updating the European Convention on the Adoption of Children were made already in 1977, during the First European Conference on Family Law in Vienna. Then, in 1988, the CJ-FA included questions on the adoption of children in its agenda, but decided to wait for the outcome of the work of the Hague Conference on Private International Law on the matter, which resulted in the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption of 1993 (hereinafter the “1993 Hague Convention”).
5. While the 1967 convention is the main instrument of the Council of Europe in the field of adoption, there is a more recent, although legally non-binding instrument, which is the Parliamentary Assembly Recommendation 1443 (2000) on international adoption: respecting children’s rights. Also relevant, to a certain extent, are the non-binding suggestions made in the White Paper on principles concerning the establishment and legal consequences of parentage (hereinafter the “White Paper”). The Recommendation draws the attention of member states to the need to respect children’s rights in the context of an international adoption. The White Paper draws attention to the fact that member states had revised their laws since the 1960s.
6. Albeit not as recent as the above, the European Convention on the Legal Status of Children born out of Wedlock (1975, ETS No. 85), which aims to assimilate the legal status of children born out of wedlock with that of children born in wedlock, contributed to updating the 1967 convention. This was done by using that convention to support the view that, in cases of adoption, it was important that the consent of the father, as well as that of the mother of the child, to an adoption, be sought regardless of whether the child was born in or out of wedlock.
7. Furthermore, it was also important to reconsider the standards of the 1967 convention in order to complement usefully the Hague Convention of 1993. The latter establishes safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for the child’s fundamental rights as recognised in international law. It also establishes a system of co-operation amongst States Parties to ensure that those safeguards are respected and thereby prevent the abduction or the sale of, or traffic in, children and finally to secure the recognition in Contracting States of adoptions made in accordance with the convention. However, an adoption will only come within the scope of the convention where a child who is habitually resident in one of the Contracting States (the “state of origin”) has been, is being or is about to be moved to another Contracting State (“the receiving state”), following adoption in the state of origin or for the purposes of adoption in the receiving state. The Hague Convention of 1993 therefore only deals with international adoptions, leaving aside the substantive adoption law of the States Parties.
The revised convention
8. All of the above led the CDCJ, at its 77th meeting in May 2002, to entrust the CJ-FA with the task of examining the 1967 European Convention on the Adoption of Children, taking into account the European Convention on the Legal Status of Children born out of Wedlock and the White Paper, with a view to ascertaining the feasibility of reviewing it and bringing it up to date and reporting back to the CDCJ in 2004.
9. In order to achieve this task, the Working Party on Adoption (the CJ-FA-GT1, hereinafter the “Working Party”) was set up in early 2003 with the task of drafting a report containing detailed proposals on the feasibility of reviewing the 1967 European Convention on the Adoption of Children.
10. The Working Party completed in March 2004, for the attention of the CDCJ, a final report on proposals for the revision of the 1967 convention. It based its proposals and conclusions primarily on the replies received to a questionnaire. 24 replies to the questionnaire were received: 23 replies from states and one from the International Social Service (ISS). Of the 23 states replying, 11 had ratified the 1967 European Convention on the Adoption of Children and 3 had signed it. The 9 other states that replied had neither signed nor ratified the 1967 convention.
11. The CDCJ, at its 79th meeting in May 2004, approved the project to draft a revised convention. The Committee of Ministers approved the new terms of reference of the CJ-FA at its 890th meeting on 30 June 2004, in which it is instructed to prepare, for the attention of the CDCJ, a new convention on the adoption of children, taking into account the final report containing detailed proposals for the revision of the 1967 European Convention on the Adoption of Children [ETS No. 58] and the submissions made by the member states.
12. The draft of the revised convention and its explanatory report were prepared by the Working Party on Adoption, during two meetings in April and July 2006. They were amended and approved by the CJ-FA during its 36th meeting on 17 November 2006 and by the CDCJ during its 82nd meeting on 1 March 2007.
13. The draft revised convention was submitted by the CDCJ to the Committee of Ministers which adopted the text and decided to open it for signature on…2008.
14. In a sense, there is only one principle essential to good adoption practice, namely that adoption should be in the best interests of the child as stated in Article 4, paragraph 1, of the convention. This principle is indispensable but if taken by itself it might not be totally effective. For this reason the convention develops this principle so as to give it precision and define its scope. This principle is also specifically mentioned in the context of a revocation or an annulment of an adoption (Article 14, paragraph 1).
15. When drafting the 1967 convention, it was decided to select as many of the more important features as were both suitable for inclusion in a legal instrument and likely to gain wide enough acceptance by governments of the member states of the Council of Europe. These features had been included in Part II (“Essential provisions”) of the 1967 convention.
16. But there were certain other features of good adoption practice which were not suitable for inclusion in a legal instrument on an obligatory basis. They had been inserted into Part III (“Supplementary provisions”) and States Parties were free to give effect to them on a voluntary basis (see Article 2 of the convention of 1967: “to give consideration to…”).
17. The replies received to the Working Party’s questionnaire indicated that a majority of states were in favour of moving the content of Article 20, paragraphs 2 and 3, of the 1967 convention from Part III to Part II because the provisions concerning access to information about the adopted child’s identity should be obligatory. Therefore, when drafting the revised convention the previous structure was abandoned.
18. Furthermore, any difference of treatment between children born in and children born out of wedlock has been eliminated throughout the whole revised convention (see Articles 5, 10 and 12 of the 1967 convention). Any legal solution which makes a discriminatory distinction in relation to the rights of children born to married and non-married parents is henceforth contrary to numerous international instruments and the case-law of the European Court of Human Rights.
19. While international adoption is covered formally only by Articles 12 and 15, clearly the convention as a whole will exert an important influence on international adoptions. It will provide an effective complement to the Hague Convention of 1993, notably by ensuring that adoptions which are not covered by the Hague Convention of 1993 are regulated in such a manner as to comply with the underlying aims of any adoption, which must be child-centred, in the child’s best interests and should provide him or her with a harmonious home.
Commentary on the articles of the convention
Article 1 – Scope of the convention
20. Paragraph 1 limits the scope of the convention to the adoption of persons under the age of 18 excluding those who are married, have entered into a registered partnership or have reached majority. The age of 18 years has been identified in the convention as it is the usual age of majority in the Council of Europe member states. This is consistent with the United Nations Convention on the Rights of the Child.
21. Paragraph 2 recalls that the establishment of a permanent parent-child relationship is an essential element of the legal institution of adoption, as mentioned in Article 2 of the Hague Convention of 1993.
Article 2 – Application of principles
22. The measures referred to in this article will usually take the form of legislative or administrative texts. A State Party will, however, be considered to have brought its law into line with the provisions of the convention if a firm and constant practice implementing those provisions exists. This is made clear by the term “legislative or other measures", to mean legal rules of general application, including a firm and constant practice.
Article 3 – Validity of an adoption
23. The object of this article is to prevent a child from being adopted by private contract without any intervention by a state authority, with a view to ensuring that the adoption is in conformity with the best interests of the child. The competent authority has the task of verifying that all the necessary conditions have been fulfilled. In order to make it clear that the competent authority has the power to permit or refuse adoption, the term “granted” has been used.
24. Administrative authorities have been included, as the powers which belong to courts are also, in some states, exercised by administrative authorities.
25. Article 3 does not prevent there being two competent authorities, one of which would examine conditions of substance, and the other, conditions of form, of adoption.
Article 4 – Granting of an adoption
26. In the English text the word “interests” (intérêt) has been used rather than “welfare“ (bien) to avoid any misunderstanding. The same meaning should be attributed to the words "best interests" in the English text and the words "intérêt supérieur” in the French text of the revised convention.
Article 5 – Consents to an adoption
27. Paragraph 1 of this article specifies the persons whose consent must be obtained. The words “at least” in this provision are intended to indicate that a State Party may insist on the consent of other persons as well.
28. Paragraph 1 also states that the consents must be valid at the time the adoption is granted by the competent authority and that they must relate to a specific adoption, but the identity of the adopter may be concealed from the parents of origin (see Article 22, paragraph 1). The question of the withdrawal of consents is left by the convention to be determined by the States Parties.
29. The 1967 convention, under Article 5, paragraph 1, sub-paragraph (a), requires only the consent of the father of a child born in wedlock (“where the child is legitimate”) while the consent of the father of a child born out of wedlock is not at all necessary. This is contrary to the case-law of the European Court of Human Rights, which clearly necessitates the consent of the unmarried father of a child where family ties have been established (see inter alia Keegan v. Ireland, Judgment of 26 May 1994; Kroon v. the Netherlands, Judgment of 27 October 1994). Therefore the revised convention requires the consent of the child’s father in all cases, with the possibility of a dispensation according to paragraphs 3 and 4.
30. The 1967 convention did not take a strong position on the child’s consent to an adoption (see Articles 5 and 9, paragraph 2, sub-paragraph (f) of the 1967 convention). Taking into account the strengthening of the legal status of the child by the United Nations Convention on the Rights of the Child (Article 12), the European Convention on the Exercise of Children’s Rights (1996, ETS No. 160) and the Hague Convention of 1993, the consent of the child is now necessary according to paragraph 1, sub-paragraph (b), if the child has sufficient understanding. It is up to the national law to fix the age when a child must give his or her consent to his or her adoption, provided always that consent must be obtained from children having reached the age of 14. Exceptions to the required consent are foreseen in Article 5, paragraph 3. Furthermore Council Regulation (EC) 2201/2003 (Article 11 (2)) now supplements the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children and places emphasis on the importance of giving the child an opportunity to be heard in proceedings affecting him or her unless this hearing is inappropriate having regard to the age or degree of maturity of the child (see also paragraphs 40 and 42 hereinafter).
31. Paragraph 1, sub-paragraph (c) also takes into account the situation when the child is adopted by one of two registered partners. This reflects the fact that since 1967 many states have introduced into their legislation the concept of registered partnership which often has effects similar to those of marriage. Requiring the consent of the registered partner in such a situation does not oblige states that do not provide for the institution of registered partnership to introduce it into their domestic law.
32. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing.
33. Paragraph 3 stipulates that in every case national law should provide for grounds on which the competent authority could, in exceptional cases, dispense with the consent or overrule the refusal to consent. Clearly this provision leaves the way open for the exclusion of any exception.
34. The exceptional grounds foreseen in paragraph 3 are for example:
a. one in which persons whose consent is required cannot be traced or are incapable of giving their consent;
b. one in which the persons concerned refuse their consent for reasons which may be regarded as a misuse of their right to do so.
The fact that the person’s consent is dispensed with does not mean that he or she should not be informed of the adoption proceedings.
35. Furthermore, dispensing with the child’s consent may be provided for where the child cannot give a valid consent because of his or her disability. Even in such a situation the child must, as far as possible, be consulted (Article 6). The consent of a child having sufficient understanding (Article 5, paragraph 1, sub-paragraph (b)) who is not suffering from a disability can only be dispensed with on exceptional grounds provided by law. By this provision the legal position of the child is considerably improved: an adoption against his or her will cannot take place.
36. Paragraph 4 enables the States Parties to specify that the consents of fathers and mothers who are not holders of parental responsibility shall not be required. The wording of this paragraph allows for the case where the law makes it possible to deprive the parents of origin of certain parental responsibilities while leaving them the right to consent to adoption. Additionally, the term “parental rights” is replaced by “parental responsibility” which reflects the evolution in family law as regards the role of parents (see in particular Recommendation No. R (84) 4 of the Committee of Ministers to the member states of the Council of Europe on parental responsibilities). This does not mean that such a parent should not be informed, as far as possible, of the adoption proceedings.
37. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child’s birth.
38. Paragraph 6 contains a definition of the terms "father" and "mother". Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.
Article 6 – Consultation of the child
39. If the child’s consent is not necessary according to Article 5, paragraph 1, sub-paragraph (b) or if the consent may be dispensed with (see Article 5, paragraph 3), the child shall, as far as possible, be consulted and his or her views and wishes shall be taken into account. Such a consultation is not necessary if it would be manifestly contrary to the child’s best interests.
40. Article 5, paragraph 1, sub-paragraph (b) and Article 6 improve the legal position of the child. As already mentioned, the European Convention on the Exercise of Children’s Rights (ETS No. 160, hereinafter the “1996 convention”) specifically provides procedural rights for children under the age of 18, so that they can avail themselves of the rights afforded under the United Nations Convention on the Rights of the Child. Article 1 of the 1996 convention acknowledges a child’s right to be informed and participate in proceedings affecting him or her before a judicial authority. Article 2, sub-paragraph (d), of the 1996 convention provides that the term “relevant information” means information which is appropriate to the age and understanding of the child, and which will be given to enable the child to exercise his or her rights fully unless the provision of such information were contrary to the welfare of the child. It is also noteworthy that the text of the new European Union Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, emphasises the importance of hearing the voice of the child in matters relating to parental responsibility over him or her in accordance with his or her age and maturity.
41. Furthermore the case-law of the European Court of Human Rights on the issue of the involvement of children in court proceedings affecting them is used as an important guideline for the improvement of this involvement (see Sahin v. Germany, Judgment of 8 July 2003; Sommerfeld v. Germany, Judgment of 8 July 2003; Elsholz v. Germany, Judgment of 13 July 2000; Kutzner v. Germany, Judgment of 26 February 2002 and Hoffmann v. Germany, Judgment of 11 October 2001.
Article 7 – Conditions for adoption
42. This article provides for adoption either by a couple or by one person.
43. While the scope of the 1967 convention is restricted to heterosexual married couples, the scope of the revised convention is extended to heterosexual unmarried couples who have entered into a registered partnership in states which recognise that institution. By such a regulation the trend in many states is taken into account.
44. An adoption by a married couple or by a registered couple (in states where the institution of registered partnership for partners of different sex exists) can take place simultaneously or successively. States are free to decide whether to allow either simultaneous or successive adoption in these cases. In states where adoption may be undertaken successively, paragraph 1 excludes the possibility of a second adoption by a person who is not the spouse or the registered partner of the first adopter.
45. Concerning paragraph 2 it was noted that certain State Parties (Sweden in 2002 and the United Kingdom in 2005) denounced the 1967 convention on the ground that same-sex registered partners under their domestic law may apply jointly to become adoptive parents and that this was not in line with the convention. Similar situations in other states could also lead to the denunciation of the 1967 convention. However, it was also noted that the right of same-sex registered partners to adopt jointly a child was not a solution that a large number of States Parties were willing to accept at the present time.
46. In these circumstances, paragraph 2 shall enable those states which wished to do so, to extend the revised convention to cover adoptions by same-sex couples who are married or registered partners. In this respect, it is not unusual for Council of Europe instruments to introduce innovative provisions, but to leave it to States Parties to decide whether or not to extend their application to them (see Article 5, paragraph 2, of the 2003 Convention on Contact concerning Children, ETS No. 192).
47. States are also free to extend the scope of the convention to different- or same-sex couples who are living together in a stable relationship. It is up to the States Parties to specify the criteria for assessing the stability of such a relationship.
48. If a State Party has extended the scope of the convention its provisions have to be applied mutatis mutandis.
Article 8 – Possibility of a subsequent adoption
49. The object of this article is to specify the conditions in which it is possible to adopt a child who has already been adopted. The principle is that an adopted child can belong only to one adoptive family. Five situations are mentioned. Sub-paragraph (e) allows a subsequent adoption if there are serious grounds and if the first adoption cannot in law be brought to an end (for example if the child is once again abandoned or is ill-treated). In all cases, parental responsibility can only be exercised by one adoptive family.
Article 9 – Minimum age of the adopter
50. This article does not prevent national law from prescribing a higher minimum age for the adopter than 18. However, the upper minimum age must be in keeping with the principle of adoption as conceived by the convention, and this age may not therefore exceed 30. Article 7, paragraph 1 of the 1967 convention had fixed the upper minimum age at 35 years. This age was felt to be too high; it is now fixed at 30 years which is more in line with the majority of national laws. The convention does not lay down a maximum age for the adopter.
51. Following the tendency in national laws to fix an age difference between the adopter and the child, an addition to paragraph 1 was made. In the best interests of the child in view of the situation generally obtaining in the families of origin, the age difference should preferably be at least 16 years.
52. The requirements of minimum age or age difference should only be waived on the ground of exceptional circumstances when this is in the best interests of the child. An example of such exceptional circumstances is when younger siblings have already been adopted by the family and the age-difference requirement for adopting the older sibling is not met.
Article 10 – Preliminary enquiries
53. This article deals with the different enquiries to be carried out by the competent authorities in the context of adoption, namely enquiries before the actual grant of the adoption and, if appropriate, enquiries before the child is entrusted to the care of the prospective adopter.
54. Under paragraph 1, the enquiries to be carried out before granting an adoption shall be "appropriate", which means that they should be adapted to suit each individual case. For example, when adoption takes place within a family (an uncle adopts his orphaned nephews), there is generally no need for such extensive enquiries as in the case of adoption by persons who have never had any link with the children.
55. Paragraph 1 refers to the need to observe the rules on professional confidentiality and personal data protection because the data collected include data relating to the health of individuals, their ethnic origins and their religious beliefs. The sensitive nature of these data and the special guarantees which should apply to their treatment and their communication, need to be recalled, notably having regard to the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108).
56. Paragraph 2 contains a list of factors which the competent authority must take into consideration before concluding that the proposed adoption will be in the best interests of the child, as laid down in Article 4, paragraph 1. The words "inter alia" are inserted to show that the list in paragraph 2 is not exhaustive. The factors first listed are the personality, health and social environment of the adopter, particulars of his or her home and household and his or her ability to bring up the child, since the most important consideration is the family life which will be offered to the adopted child. However, all the factors listed in sub-paragraphs (a) to (f) are equally vital, since this paragraph sets out to cover the gamut of concrete hypotheses, and an error or serious omission in respect of any one of these matters may jeopardise the success of an adoption. The phrase “as far as possible” has been inserted to indicate that the list in paragraph 2 of this article is not obligatory. Indeed, it would seem inappropriate to examine all these factors in the context of certain adoptions, for example when the child is already living with the prospective adopter.
57. Sub-paragraph (d) may be related to Article 19 which concerns a probationary period. The latter provision gives the possibility to States Parties not to require a probationary period, although social experts attach great importance to it.
58. Sub-paragraph (e) provides a limitation on enquiries into the child’s former background and civil status. In a few member states of the Council of Europe, the law forbids the disclosure of certain information in this respect.
59. Sub-paragraph (f) is based on the wording of the Hague Convention of 1993; the terms “ethnic and cultural background” have been added because this information is also important.
60. Paragraph 3 emphasises the fact that the enquiries must be conducted by persons or bodies competent in matters of adoption.
61. Paragraph 4 authorises the competent authority to make further enquiries, at least on certain points, if it thinks fit, either on its own or through channels other than the standard social enquiry.
62. Paragraph 5 clearly indicates that enquiries relating to the suitability to adopt and the eligibility of the adopter should, except where the child is already living with the adopter, be made before a child is entrusted to the care of the prospective adopter, not merely before an adoption is granted. If such enquiries are not made, an adoption may not be granted. This matter indeed gives rise to discussions on the advantages and disadvantages of independent adoptions (i.e. private adoptions) and adoptions through intermediaries (e.g. state agencies). Many states are in favour of promoting adoption through intermediaries, indicating however that in some situations independent adoptions should not be forbidden, e.g. where the adoption is taking place within a family (blood relations). However, it would not be realistic to limit adoptions solely to intermediary adoptions and to forbid independent adoptions (although practice shows that most abuses are associated with independent adoptions). The compromise is to underline the importance of making the enquiries before a child is entrusted to the care of the prospective adopter(s).
Article 11 – Effects of an adoption
63. The revised convention mainly deals with “full” adoption (which is an adoption that severs all ties with the family of origin) without preventing those states that have “simple” adoption (which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family) from continuing to use this form of adoption.
64. The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that, in principle, all ties with the child’s family of origin should be severed.
65. According to paragraph 1 the child shall be fully integrated into the family of the adopter(s) (“full” adoption). This means that the adopted child has the same rights and obligations as a child of the adopter(s). These rights and obligations are not confined to a single category, such as personal, as opposed to economic, rights and obligations. Although the notion “rights and obligations” includes the parental responsibility of the adopter(s) for the child, it is expressly mentioned in paragraph 1 because of its great importance.
66. According to paragraph 2, the parent whose child is adopted by his or her spouse or partner, whether registered or not, retains his or her rights and obligations in respect of the child, unless the law otherwise provides.
67. Paragraph 3 enables States Parties to provide certain exceptions to the principle that the legal relationship between the adopted child and his or her family of origin is terminated. Two specific matters are mentioned in the text as examples:
a. the automatic acquisition of the adopter’s surname is not an absolute rule. States may provide other solutions, for example the child could keep his or her name of origin. In some countries the competent authority may, on special grounds, permit the child to take a name other than that of the adopter; in others, the adopter is allowed to choose the child’s surname. In some countries, a child adopted by a woman does not necessarily acquire her name;
b. the blood relationship between the adopted child and certain categories of members of the family of origin may continue to be an impediment to marriage or the conclusion of a registered partnership.
68. Paragraph 4 enables States Parties to provide for other forms of adoption (“simple” adoptions). The legal consequences of such other forms of adoption may differ considerably from State to State. Therefore paragraph 4 does not give examples but only indicates that the effects of the adoption are more limited than those of a “full” adoption mentioned in paragraphs 1 to 3.
Article 12 – Nationality of the adopted child
69. The provision of paragraph 1 is not contrary to any national laws which provide for automatic acquisition of nationality but does not oblige every State Party to recognise this principle. The scope of this paragraph is not limited to adoptions taking place in the country of which the adopter is a national. The provision is consistent with Article 6, paragraph 4, of the European Convention on Nationality (1997, ETS No. 166).
70. Paragraph 2 takes account of the general rule that statelessness is to be avoided wherever possible and also of the fact that it is clearly in the best interests of the child that he or she should not become a stateless person.
Article 13 – Prohibition of restrictions
71. The aim of this article is to remove the two most frequently encountered obstacles to adoption:
(a) restrictions on the number of children who may be adopted by the same adopter;
(b) prohibition of a person from adopting a child on the ground that he or she has, or is able to have, his or her own children.
Article 14 – Revocation and annulment of an adoption
72. Paragraph 1 lays down the principle that the revocation and annulment of an adoption can be pronounced only by decision of the competent authority and that the best interests of the child shall be the paramount consideration.
73. Paragraph 2 deals with revocation during the minority of the child. It goes without saying that this paragraph in no way obliges a State Party to make provision for revocation in its domestic law. Such revocation is a serious step and must therefore be surrounded by very explicit guarantees in law and in its implementation.
74. Paragraph 3 deals with annulment of an adoption, on which the 1967 convention was rather vague (see Article 13, paragraph 2, sub-paragraph (a)). It was felt necessary to deal with annulment in a more detailed manner in the revised convention. In order to prevent the granting of an annulment under too broad conditions, the convention lays down a strict condition regarding the application for an annulment, which must be filed within the time-limits prescribed by law. States Parties must therefore determine these time-limits and are free to add further conditions.
Article 15 – Request for information from another State Party
75. This provision, which is drafted in general terms, marks the need for genuine co-operation between the competent authorities of different States Parties whenever it is necessary to obtain information in connection with an adoption. Under Article 28 States Parties must notify the Secretary General of the Council of Europe of the authority competent for this purpose.
Article 16 – Proceedings to establish parentage
76. This provision applies to situations in which a putative biological father or mother institutes judicial proceedings to have his or her parentage link to the child established. In such a case the adoption proceedings must, if such a course is appropriate having regard to the child’s best interests, be suspended pending the outcome of the proceedings to establish parentage. This mechanism may allow biological parents to consent to the adoption of their child if their parentage is established (see Article 5, paragraph 1, sub-paragraph (a)). Nevertheless, this does not oblige States Parties which do not know the procedure for establishing maternity to introduce it in their legal system; however, if such a procedure does exist, the father and mother must be placed on an equal footing.
Article 17 – Prohibition of improper gain
77. This article stresses that any improper gain arising out of an adoption must be prohibited by law. It prohibits only improper financial or other sorts of gain. All proper gain is therefore not prohibited: the reimbursement of direct and indirect costs and expenses of an adoption and the payment of reasonable remuneration in relation to services rendered are allowed.
Article 18 – More favourable conditions
78. This article gives an interpretation of the convention: the latter sets minimum standards but does not prevent a State Party from going beyond the requirements set out in its articles.
Article 19 – Probationary period
79. States Parties are not prevented from providing that an adoption may not be granted until the child has been in the care of the adopters for a period which is not specified except that it should be long enough to enable the competent authority to arrive at a reasonable assessment of their future relations if the adoption were granted. This solution takes into account that some member states of the Council of Europe make provision for an obligatory probationary period before an adoption is granted.
Article 20 – Counselling and post-adoption services
80. This article takes account of the fact that in most states adoptions can generally be effected only through agencies, various public or private institutions, social services, etc. It is essential that such persons or bodies should be both well-informed, encouraged and supervised. As in the Hague Convention of 1993, not only adoption counselling should be provided, but also adequate post-adoption services (e.g. appropriate assistance by social services or psychologists to support the family when needed).
Article 21 – Training
81. This article should be read in conjunction with Article 10, paragraph 3, on preliminary enquiries.
82. States are free to delegate the training obligation to an appropriate body or organisation which has the role of accrediting or supervising social workers.
Article 22 – Access to and disclosure of information
83. The purpose of paragraphs 1, 2, 4 and 6 is to avoid difficulties which may arise:
84. Paragraph 3 underlines the right of the adopted child to know his or her origins especially in the light of Article 7 of the United Nations Convention on the Rights of the Child and also taking into account Principle 28 of the White Paper. But this is not an absolute right: a balance must be struck between the right of the child to know his or her origins and the right of the parent of origin to remain anonymous. The task of dealing with this sensitive question shall be entrusted to a competent authority (see Odièvre v. France, Judgment of 13 February 2003 of the European Court of Human Rights).
85. The first sentence of paragraph 4 enables the adopter and the adopted child to obtain extracts from public records which do not reveal the fact of adoption or the identity of the child’s parents of origin. However, this does not affect the right of the persons concerned to obtain full copies of the birth records which may reveal the adoption and eventually the identity of the parents of origin.
86. To guarantee the effectiveness of this right, paragraph 5 provides that the information has to be kept for a minimum period of 50 years, as people often start searching for this type of information in their 40s, after having had children themselves or after the adopters have died.
Article 23 – Effects of the convention
87. This provision clarifies the relationship between the 1967 convention and the revised convention. If a State Party to the 1967 convention ratifies the revised convention this State has to adopt the necessary measures (see Article 2) to implement the additional provisions of the revised convention going beyond the scope of the 1967 convention. By this system States Parties are obliged to improve their national laws. The 1967 convention remains in force for the States Parties thereto pending ratification of the present convention. For those States Parties which ratify the present convention, this new treaty will apply in their mutual relationship. In the relationship between a State Party to this convention (which is also a Party to the 1967 convention) and a State Party to the 1967 convention, which has not ratified the revised convention, Article 14 of the 1967 convention continues to apply.
88. States which are Parties to the 1967 convention are encouraged to ratify the revised convention. The revised convention contains different rules which are more in line with present-day practices.
Articles 24, 25 and 26 – Signature, ratification and entry into force; accession; territorial application
89. Due to the importance of allowing a large number of states to become Parties, the convention is also open to accession by non-member states, after its entry into force, in accordance with the procedure laid down in Article 25.
90. The convention is also open to signature by non-member states of the Council of Europe which have participated in its elaboration. These states are Canada and the Holy See.
Article 27 – Reservations
91. With a limited number of exceptions, reservations are not permissible in respect of the convention. Reservations are admissible with regard to Article 5, paragraph 1, sub-paragraph (b), Article 7, paragraph 1, sub-paragraphs (a) (ii) and (b) and Article 22, paragraph 3 only.
92. As regards any reservation which they make, States Parties are furthermore invited to notify the Secretary General of the Council of Europe of the relevant contents of their internal law or of any other relevant information.
Articles 28, 29 and 30 – Notification of competent authorities; denunciation; notifications
93. Article 28 refers to enquiries under Articles 4 and 10 involving the participation of another State Party. To facilitate the application of Article 15, States Parties shall provide the name and address of the competent authority to which another State Party may address a request for information.
94. Article 29 enables a state which is a Party to the convention to denounce it.
95. Information concerning steps taken by states in relation to the convention will be sent by the Secretary General of the Council of Europe, depositary of the convention, to other states in compliance with Article 30.
This document has been classified restricted at the date of issue. It will be
declassified at the 118th Session of the Committee of Ministers (7 May 2008).