Towards a European adoption procedure

Key points

·         Despite the massive body of legal rules on national and international adoption, these rules do not always take into consideration the best interests of the child. And yet they are used time and again to decide the future of thousands of orphans, abandoned children and children in need of a loving home.

·         Many provisions of the 1967 Council of Europe Convention on the adoption of children are now outdated. In 2002, the decision was taken that this Convention needed to be brought up to date. The revised Convention was opened for signature on 27 November 2008. To date, it has been signed by 11 countries.

·         The Council of Europe supports the need to create an adoption procedure common to all European States and encourages international adoption where there is no national solution.

Summary

The aim of the revised Council of Europe Convention on the adoption of children is to harmonise the substantive law of the member states by setting minimum rules on adoption. The standards laid down in the revised Convention would go further than those contained in the 1967 Convention; they would meet modern requirements and be in line with the case-law of the European Court of Human Rights.

The innovative provisions begin with the fact that the revised Convention requires the consent of the child’s father in all cases, with the possibility of a dispensation only in exceptional circumstances. The 1967 Convention limited this consent to married fathers.

In the revised Convention the consent of the child is now necessary if the child has sufficient understanding. If the consent is dispensed with, for the reasons stipulated in the revised Convention, the child shall, as far as possible, be consulted and his or her views and wishes be taken into account.

The revised Convention also seeks to strike a better balance between the rights of the adopted child to know his or her own identity and the rights of the biological parents to protect their identity (see the ECHR case Odièvre v. France).

Most significantly, the principle of the best interests of the child is of paramount importance and the revised Convention tries to take this into consideration.

By making national adoption procedures better, more efficient and transparent, the revised Council of Europe Convention on adoption will also improve international adoption.

Questions and Answers

Why was it necessary to revise the existing Convention?

The social background relating to adoption is in a state of continuous and rapid development. In the current social climate many provisions of the 1967 European Convention on the adoption of children are now outdated and at odds with social and legal developments.

Many aspects of this Convention were contrary to the recent case-law of the European Court of Human Rights. For instance, whereas the existing Convention requires the consent of the father of the child to an adoption only if the child is born in wedlock, the case law of the European Court of Human Rights (in particular the case Keegan v. Ireland), holds that the placing for adoption by a mother of a child born out of wedlock without consulting the father was in breach of Article 8 of the European Convention of Human Rights.

The revised Convention does not deal with inter-country adoption and is therefore a useful complement to the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.

The Convention takes account of the 1989 United Nations Convention on the Rights of the Child and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption as well as the provisions of the 1996 European Convention on the Rights of the Child.

The revised Convention reiterates the provision of the 1967 Convention by which one person may adopt and this in light of recent judgments of the ECHR (Wagner v. Luxembourg, E.B. v. France).

What are the main changes?

The innovative provisions begin with the fact that the revised Convention requires the consent of the child’s father in all cases, with the possibility of a dispensation only in exceptional circumstances. This was not the case in the 1967 Convention which limited this requirement to married fathers.

The 1967 Convention did not take a strong position on the child’s consent to an adoption. However, today more emphasis is being placed on the importance of giving the child an opportunity to be heard in proceedings affecting him or her and the legal status of the child is growing stronger. In the revised Convention the consent of the child is now necessary if the child has sufficient understanding, bringing it into line with other international legal instruments. If the consent is dispensed with, for the reasons stipulated in the revised Convention, the child shall, as far as possible, be consulted and his or her views and wishes taken into account.

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. It also enables those States which wish to do so, to extend the revised Convention to cover adoptions by same-sex couples who are married or registered partners as well to different or same-sex couples who live together in a stable relationship.

Finally, the revised Convention 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. 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 biological parents to remain anonymous.

Moreover, in line with current international tendencies the minimum age to adopt has been lowered to 30 years.

Contact

Estelle Steiner, Press officer

Tel. +33 (0)3 88 41 33 35

Mobile +33 (0)6 08 46 01 57

Email [email protected]

Updated: August 2009