Ontario Bill 72 (36th Parliament, 2nd Session)

Bill 72, 36-2

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Bill 72, Intercountry Adoption Act, 1998

Ecker, Hon. Janet Minister of Community and Social Services

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[36] Bill 72 Original (PDF)

B072_E

EXPLANATORY NOTE

The Bill establishes a framework to govern intercountry adoptions and

provides for the implementation of the 1993 Hague Convention on Protection of

Children and Co-operation in respect of Intercountry Adoption.

Bill 72 1998

An Act to govern intercountry adoptions and to implement the Convention on

Protection of Children and Co-operation in respect of Intercountry Adoption

in order to further the best interests of children

Interpretation

Interprétation

Definitions

Définitions

Implementation of Convention

Mise en uvre de la Convention

Request for Convention

Convention is law

Central Authority

Demande en vue de l'application de la Convention

La Convention a force de loi

Autorité centrale

Intercountry Adoption Requirements

Exigences relatives à l'adoption internationale

Application, homestudy and approval

required

Review of proposed adoption at request of foreign authority

Sharing information

Demande, étude du milieu fmilial et approbation exigées

Examen d'une adoption projetée à la demande d'une autorité

étrangère

Échange de renseignements

Licensing and Hearings

Délivrance des permis et audiences

Licence required to facilitate intercountry

adoptions

Refusal to issue licence

Refusal to renew, revocation

Right to hearing

Board review of licence conditions

Extension of time

Provisional suspension of licence

Hearings

Appeal

Powers of inspection

Delivery of licence and records

Permis requis pour faciliter les adoptions internationales

Refus de délivrer un permis

Non-renouvellement ou révocation du permis

Droit à une audience

Réexamen des conditions du permis par la Commission

Prorogation du délai

Suspension provisoire du permis

Audiences

Appel

Pouvoirs d'inspection

Remise du permis et des dossiers

Offences

Infractions

No payments for intercountry adoption

Offences, penalties

Paiements interdits à l'égard d'une adoption internationale

Infractions, peines

General

Dispositions générales

Non-application of FIPPA and MFIPPA

Child and Family Services Act , ss. 165, 170

Conflict

Non-application de la

Loi sur l'accès à l'information et la

protection de la vie privée et de la

Loi sur l'accès

à l'information municipale et la protection de la vie

privée

Loi sur les services à l'enfance et à la famille, art.

165 et 170

Incompatibilité

Regulations

Règlements

Regulations

Règlements

Transition, Commencement and

Short Title

Dispositions transitoires, entrée en vigueur et

titre

abrégé

Transition

Commencement

Short title

Dispositions transitoires

Entrée en vigueur

Titre abrégé

Schedule (Text of Convention)

______________

Annexe (Texte de la Convention)

______________

Her Majesty, by and with the advice and consent of the Legislative

Assembly of the Province of Ontario, enacts as follows:

Interpretation

Definitions

(1) In this Act,

Board" means the Child and Family Services Review Board;

("Commission")

child" means a person under the age of 18 years; ("enfant")

Convention" means the Convention on Protection of Children and

Co-operation in respect of Intercountry Adoption set out in the Schedule;

("Convention")

Director" means a person or member of a class of persons designated by the

regulations; ("directeur")

intercountry adoption" means,

(

a) an adoption to which the Convention applies, or

(

b) any other adoption of a child who is habitually resident outside

Canada, by an Ontario resident,

(

i) that is intended to create a permanent parent-child relationship,

and

(ii) that is finalized in the child's country of origin; ("adoption

internationale") "

licence" means a licence to facilitate intercountry adoptions issued under

section 8, and "licensee" and "licensed" have corresponding meanings;

("permis", "titulaire de permis", "autorisé en vertu d'un permis")

Minister" means the Minister of Community and Social Services;

("ministre")

regulations" means the regulations made under this Act.

("règlements")

Words and expressions in Convention

(2) Words and expressions used in this Act have the same meaning as the

corresponding words and expressions in the Convention.

Implementation of CONVENTION

Request for Convention

(1) The Minister shall request that the Government of

Canada declare, in accordance with

Article 45 of the Convention, that the

Convention extends to Ontario.

Publication

(2) The Minister shall publish in The Ontario Gazette notice of

the date the Convention enters into force in Ontario.

Convention is law

(1) On and after the date the Convention enters into

force in respect of Ontario, as determined by

Article 46 of the Convention,

it has the force of law in Ontario.

Conflict

(2) The law of Ontario also applies to adoptions to which the Convention

applies, but if there is a conflict between the law of Ontario and the

Convention, the Convention prevails.

Central Authority

4. For the purposes of the Convention's application in

Ontario, the Central Authority is the person designated by the

regulations.

INTERCOUNTRY ADOPTION REQUIREMENTS

Application, homestudy and approval required

(1) No person who is habitually resident in Ontario

shall leave Ontario for the purpose of an intercountry adoption or finalize

an intercountry adoption without first,

(

a) making an application to a licensee;

(

b) obtaining an adoption homestudy to assess the person's eligibility and

suitability to adopt, and submitting a report of the adoption homestudy to a

Director; and

(

c) obtaining the Director's approval, on the basis of the adoption

homestudy.

Director

(2) The application may be made to a Director rather than to a licensee,

in which case the report of the adoption homestudy shall be submitted to the

same Director.

Who may make adoption homestudy

(3) The report of the adoption homestudy shall be prepared by a person

who, in the Director's opinion, is qualified to make an adoption

homestudy.

Review by Director

(4) The Director shall review the report of the adoption homestudy

promptly and,

(

a) approve the person unconditionally;

(

b) approve the person subject to any conditions the Director considers

appropriate; or

(

c) refuse to approve the person.

Notice

(5) The Director shall promptly give notice of the approval, the approval

subject to conditions or the refusal, as the case may be,

(

a) to the person who is the subject of the adoption homestudy;

(

b) to the licensee, if any; and

(

c) to the authority responsible for adoption matters in the child's

country of origin.

Right to hearing

(6) When a Director gives notice of a refusal or of an approval subject to

conditions, the person is entitled to a hearing before the Board, and

sections 11, 13, 15 and 16 (hearing, appeal) apply with necessary

modifications.

Request of foreign authority

(1) When an intercountry adoption by an Ontario

resident is proposed, the authority responsible for adoption matters in the

child's country of origin may request that a Director review the proposed

adoption.

Review by Director

(2) The Director shall promptly review the proposed adoption and,

(

a) approve it unconditionally;

(

b) approve it subject to any conditions the Director considers

appropriate; or

(

c) refuse to approve it.

Notice

(3) The Director shall promptly give notice of the approval, the approval

subject to conditions or the refusal, as the case may be,

(

a) to the Ontario resident;

(

b) to the licensee, if any; and

(

c) to the foreign authority.

Right to hearing

(4) When a Director gives notice of a refusal or of an approval subject to

conditions, the Ontario resident is entitled to a hearing before the Board,

and sections 11, 13, 15 and 16 (hearing, appeal) apply with necessary

modifications.

Sharing information

7. If a Director is aware of an application under

section

5, has reviewed the report of an adoption homestudy under

section 5 or a

proposed adoption under

section 6, or is otherwise aware that an Ontario

resident is pursuing an intercountry adoption, the Director may share

relevant information with,

(

a) the authorities responsible for adoption matters, child welfare, the

administration of justice and law enforcement in the child's country of

origin;

(

c) the governments of other provinces and territories of Canada and their

agencies; and

(

d) a prescribed person or body.

LICENSING AND HEARINGS

Only Directors and licensees may facilitate intercountry adoptions

(1) No person except a Director or a licensee shall

facilitate an intercountry adoption.

Issuing licence

(2) Subject to subsection (4), a person who applies for a licence in

accordance with the regulations and pays the prescribed fee is entitled to be

issued a licence by a Director, subject to any conditions imposed by the

Director.

Renewal

(3) Subject to subsection (4), a licensee who applies for renewal of the

licence in accordance with the regulations and pays the prescribed fee is

entitled to have the licence renewed by a Director, subject to any conditions

imposed by the Director.

Provisional licence or renewal

(4) If an applicant for a licence or renewal does not meet all the

requirements for the issuing or renewal of the licence and requires time to

meet them, a Director may issue a provisional licence for the period the

Director considers necessary to give the applicant time to meet the

requirements, and may impose conditions on the provisional licence.

Non-transferable

(5) A licence is not transferable.

Refusal to issue licence

9. A Director may refuse to issue a licence if, in his or

her opinion,

(

a) the applicant, an employee of the applicant or, if the applicant is a

corporation, an officer or director of the applicant is not competent to

facilitate intercountry adoptions in a responsible manner in accordance with

this Act and the regulations; or

(

b) the past conduct of the applicant, an employee of the applicant or, if

the applicant is a corporation, an officer or director of the applicant

affords reasonable grounds for belief that intercountry adoptions will not be

facilitated in a responsible manner in accordance with this Act and the

regulations.

Refusal to renew, revocation

10. A Director may refuse to renew or may revoke a

licence if, in his or her opinion,

(

a) the licensee, an employee of the licensee or, if the licensee is a

corporation, an officer or director of the licensee has contravened or has

knowingly permitted a person under his or her control or direction or

associated with him or her to contravene,

(

i) this Act or the regulations,

(ii) another Act, or the regulations made under another Act, that applies

to adoptions, or

(iii) a condition of the licence;

(

b) intercountry adoptions are being facilitated in a manner that is

prejudicial to the health, safety or welfare of children;

(

c) a person has made a false statement in the application for the licence

or for its renewal, or in a report or document required to be furnished by

this Act or the regulations, or by another Act or the regulations made under

another Act that applies to adoptions; or

(

d) a change has occurred in the employees, officers or directors of the

applicant that would, if the applicant were applying for the licence in the

first instance, afford grounds for refusal under clause 9 (b).

Notice of proposal

(1) If a Director proposes to refuse to issue a

licence under

section 9 or to revoke or refuse to renew a licence under

section 10, he or she shall cause notice of the proposal, together with

written reasons, to be served on the applicant or licensee.

Right to hearing

(2) The applicant or licensee is entitled to a hearing by the Board if the

applicant or licensee mails or delivers to the Director and to the Board,

within 10 days after the notice is served, a written request for a hearing,

and the notice shall so inform the applicant or licensee.

Carrying out proposal if no hearing required

(3) If no hearing is requested, the Director may carry out the

proposal.

Powers of Board if hearing required

(4) If a hearing is requested, the Board shall set a time for and hold a

hearing and may, on hearing the matter,

(

a) order the Director to carry out the proposal; or

(

b) order the Director to take any other action that the Board considers

appropriate, in accordance with this Act and the regulations.

Same

(5) The Board may substitute its opinion for that of the Director.

Board review of licence conditions

(1) A licensee who is dissatisfied with a condition

imposed by a Director under subsection 8 (2), (3) or (4) is entitled to a

hearing by the Board if the licensee mails or delivers to the Director and to

the Board, within 15 days after receiving the licence, a written request for

a hearing.

Powers of Board

(2) If a hearing is requested, the Board shall set a time for and hold a

hearing and may, on hearing the matter,

(

a) confirm any or all of the conditions;

(

b) strike out any or all of the conditions; or

(

c) impose any other conditions that the Board considers appropriate.

Time of receipt

(3) For the purposes of subsection (1), a licensee shall be deemed to

receive the licence on the 10th day after the day it is mailed, unless it is

established that the licensee did not receive it or did not, through absence,

accident, illness or another cause beyond the licensee's control, acting in

good faith, receive the licence until a later date.

Extension of time

(1) The Board may extend the time fixed for

requesting a hearing under subsection 11 (2) or 12 (1), either before or

after its expiration, if,

(

a) it appears to the Board that there are reasonable grounds for granting

relief to the applicant or licensee; and

(

b) the Board is satisfied that the applicant or licensee has reasonable

grounds to seek an extension.

Directions

(2) The Board may give such directions as it considers proper in

connection with an extension.

Continuation of licence pending renewal

(3) Subject to

section 14, if a licensee has applied for renewal of the

licence and paid the prescribed fee within the prescribed time or, if no time

is prescribed, before the licence expires, the licence is deemed to

continue,

(

a) until the renewal is granted; or

(

b) if the licensee is served with notice that the Director proposes to

refuse to grant the renewal, until the time for requesting a hearing has

expired and, if a hearing is requested, until the Board has made its

decision.

Provisional suspension of licence

(1) A Director may, by causing notice to be served on

a licensee, suspend the licence provisionally and without a hearing, if in

his or her opinion the manner in which intercountry adoptions are being

facilitated is an immediate threat to the health, safety or welfare of

children.

Contents of notice

(2) The notice shall contain a statement of the grounds for

suspension.

When suspension takes effect

(3) The provisional suspension takes effect on the day the licensee

receives the notice.

Application of s. 11 (2-5)

(4) Subsections 11 (2), (3), (4) and (5) apply, with necessary

modifications.

Parties

(1) The Director, the applicant or licensee who

requests the hearing and any other persons that the Board specifies are

parties to the proceeding.

Prior involvement

(2) A member of the Board who has taken part before a hearing in any

investigation or consideration of its subject matter shall not take

part in

the hearing.

Discussion of subject matter of hearing

(3) A member of the Board who takes

part in a hearing shall not

communicate about the subject matter of the hearing with any person (except

another member, a lawyer who does not represent any party, or an employee of

the Board) unless all parties are notified and given an opportunity to

participate.

Independent legal advice

(4) The Board may seek independent legal advice about the subject matter

of a hearing and, if it does so, shall disclose the nature of the advice to

the parties to enable them to respond.

Examination of documentary evidence and reports

(5) Every party shall be given an opportunity, before the hearing, to

examine any documentary evidence that will be produced and any report whose

contents will be given in evidence at the hearing.

Recording of evidence

(6) The evidence taken before the Board at a hearing shall be

recorded.

Only members present throughout hearing to participate in decision

(7) No member of the Board shall participate in a decision of the Board

unless he or she was present throughout the hearing and heard the evidence

and argument of the parties.

All members present at hearing to participate in decision

(8) Unless the parties consent, the Board shall not make a decision unless

all the members who were present at the hearing participate in the

decision.

Time for final decision

(9) Despite

section 21 of the Statutory Powers Procedure Act

(adjournments), the Board shall make a final decision and notify the parties

of it within 90 days after the day the Board receives the request for a

hearing.

Appeal

(1) An appeal lies to the Divisional Court from the

Board's decision.

Record to be filed

(2) When notice of an appeal is filed, the Board shall promptly file with

the court the record of the proceeding in which the decision appealed from

was made.

Minister

(3) The Minister is entitled to be heard, by counsel or otherwise, on the

argument of the appeal.

Powers of inspection

(1) For the purpose of ensuring compliance with this

Act, the regulations and any conditions imposed on licences, a Director or a

person who has a Director's written authorization may, at all reasonable

times, upon producing proper identification,

(

a) enter the premises of a licensee;

(

b) inspect the premises and any financial or other records there dealing

with activities in connection with intercountry adoptions; and

(

c) make copies of the records or remove them from the premises to copy

them as may be reasonably required.

Offence

(2) No person shall,

(

a) hinder, obstruct or attempt to hinder or obstruct a Director or other

person in the exercise of the power conferred by subsection (1);

(

b) knowingly give false information about a licensee's activities in

connection with intercountry adoptions; or

(

c) refuse to give a Director or other person access to the records

referred to in clause (1) (

b) or refuse to give him or her information about

the premises or about the licensee's activities in connection with

intercountry adoptions that the Director or other person reasonably

requires.

Regulations

(3) The power conferred by subsection (1) shall be exercised in accordance

with the regulations.

Delivery of licence and records

18. A licensee whose licence is revoked or who ceases to

facilitate intercountry adoptions shall deliver up to a Director or to the

Minister the licence and all the records in the licensee's possession or

control that relate to intercountry adoptions.

OFFENCES

No payments for intercountry adoption

19. No person shall give, receive or agree to give or

receive a payment or reward of any kind in connection with an intercountry

adoption or proposed intercountry adoption, except for,

(

a) the expenses of a licensee that belong to a prescribed class, or such

other expenses as are approved by a Director;

(

b) the expenses of a person referred to in subsection 5 (3) that belong

to a prescribed class;

(

c) the expenses of a Director that belong to a prescribed class; and

(

d) proper legal fees and disbursements.

Offence, penalty

(1) A person who contravenes subsection 5 (1)

(application, homestudy and approval required) is guilty of an offence and on

conviction is liable to a fine of not more than $2,000 or to imprisonment for

not more than two years, or to both.

Same

(2) A person who contravenes subsection 8 (1) (facilitating intercountry

adoptions without licence), and a director, officer or employee of a

corporation who authorizes, permits or concurs in such a contravention by the

corporation, is guilty of an offence and on conviction is liable to a fine of

not more than $1,000 for each day on which the offence continues or to

imprisonment for not more than one year, or to both.

Same

(3) Every person who knowingly furnishes false information in an

application under subsection 8 (2) or (3) (licence, renewal) or in a

statement, report or return required to be furnished under the regulations,

and a director, officer or employee of a corporation who authorizes, permits

or concurs in such a contravention by the corporation, is guilty of an

offence and on conviction is liable to a fine of not more than $2,000.

Same

(4) Every person who knowingly contravenes subsection 17 (2)

(obstruction), and a director, officer or employee of a corporation who

authorizes, permits or concurs in such a contravention by the corporation, is

guilty of an offence and on conviction is liable to a fine of not more than

$2,000.

Same

(5) A person who contravenes

section 19, and a director, officer or

employee of a corporation who authorizes, permits or concurs in such a

contravention by the corporation, is guilty of an offence and on conviction

is liable to a fine of not more than $25,000 or to imprisonment for not more

than three years, or to both.

Limitation

(6) A proceeding under subsection (1), (2) or (5) shall not be commenced

more than two years after the date on which the offence is alleged to have

been committed.

GENERAL

Non-application of FIPPA and MFIPPA

21. The Freedom of Information and Protection of

Privacy Act and the Municipal Freedom of Information and Protection

of Privacy Act do not apply to information that relates to an

intercountry adoption or proposed intercountry adoption.

Child and Family Services Act , ss. 165, 170

22. Directors and licensees under this Act are deemed to

be licensees for the purposes of sections 165 and 170 of the Child and

Family Services Act (confidentiality of adoption records, persons

adopted outside Ontario).

Conflict

23. If there is a conflict between this Act and any other

Act, this Act prevails.

REGULATIONS

Regulations

24. The Lieutenant Governor in Council may make

regulations,

(

a) designating the Central Authority in accordance with

Article 6 of the

Convention;

(

b) assigning functions of the Central Authority to public authorities,

accredited bodies or other bodies or persons in accordance with

Article 22 of

the Convention;

(

c) defining words and expressions used but not defined in the

Convention;

(

d) further defining "intercountry adoption" for the purpose of this

Act;

(

e) exempting from this Act, a provision of this Act, the regulations or a

provision of the regulations,

(

i) a class or classes of intercountry adoptions, or

(ii) a class or classes of persons;

(

f) prescribing persons and classes of persons and bodies and classes of

bodies for the purpose of clause 7 (d);

(

g) defining "facilitate" for the purpose of subsection 8 (1);

(

h) governing the issuing, renewal and expiry of licences and prescribing

fees payable by an applicant for a licence or its renewal;

(

i) prescribing the records to be kept by licensees;

(

j) requiring licensees to provide the prescribed information and reports

and prescribing the information and reports;

(

k) requiring applications, reports and other documents to be prepared in

a form approved or provided by the Minister;

(

l) governing the qualifications of persons or classes of persons employed

by licensees;

(

m) governing the exercise of the power of entry set out in subsection 17

(1);

(

n) designating persons or classes of persons as Directors for the

purposes of this Act;

(

o) prescribing classes of expenses for the purposes of clauses 19 (a),

(

b) and (

c) and prescribing the conditions under which such classes of

expenses may be charged.

Transition, Commencement and

Short Title

Transition

(1) This Act does not apply to an intercountry

adoption if,

(

a) before the effective date,

(

i) an application to adopt the child has been made to an authority

responsible for adoption matters in the child's country of origin, or has

been received by the Ministry of Community and Social Services or the

National Adoption Desk of Human Resources Development (Canada),

(ii) the child has been placed with the proposed adoptive parent, or

(iii) the consents and approvals necessary for the adoption have been

given; and

(

b) the adoption is finalized within 24 months after the effective

date.

Same

(2) A report of an adoption homestudy that was prepared before the

effective date may be used for the purposes of subsection 5 (1) if the person

who prepared it is a person referred to in subsection 5 (3).

Definition

(3) In subsections (1) and (2), "

effective date" means the day on which subsection 5 (1) comes into

force.

Commencement

26. This Act comes into force on a day to be named by proclamation

of the Lieutenant Governor.

Short title

27. The

short title of this Act is the Intercountry Adoption

Act, 1998 .

SCHEDULE

CONVENTION ON PROTECTION OF CHILDREN

AND CO-OPERATION IN RESPECT OF

INTERCOUNTRY ADOPTION

The States signatory to the present Convention,

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 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

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 Nations Convention on the Rights of the Child , of

November 20, 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),

Have agreed upon the following provisions,

CHAPTER 1 - SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are,

(

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 co-operation amongst Contracting States to

ensure that those safeguards are respected and thereby prevent the 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

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.

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,

subparagraph (c), have not been given before the child attains the age of 18

years.

CHAPTER II - REQUIREMENTS FOR

INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if

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 in the child's best interests;

(

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 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 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,

(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,

(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 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 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 authorized to enter and

reside permanently in that State.

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 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 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.

Article 7

1. Central Authorities shall co-operate with each other and promote

co-operation amongst the competent authorities in their States to protect

children and to achieve the other objects of the Convention.

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 and,

as far as possible, eliminate any obstacles to its 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

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,

(

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;

(

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;

(

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

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,

(

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 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 Contracting

State only if the competent authorities of both States have authorized 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

accredited bodies shall be communicated by each Contracting State to the

Permanent Bureau of the Hague Conference on Private International Law.

CHAPTER IV - PROCEDURAL

REQUIREMENTS IN INTERCOUNTRY

ADOPTION

Article 14

Persons habitually resident in a Contracting State, who wish to adopt a

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

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.

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,

(

a) prepare a report including information about his or her identity,

adoptablity, 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

ethnic, religious and cultural background;

(

c) ensure that consents have been obtained in accordance with

Article 4;

and

(

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 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

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

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

prospective adoptive parents are eligible and suited to adopt and that the

child is or will be authorized to enter and reside permanently in the

receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to

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.

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 parent.

3. If the transfer of the child does not take place, the report 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 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 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,

(

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 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.

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

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 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

persons who,

(

a) meet the requirements of integrity, professional competence,

experience and accountability of that State; and

(

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 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.

5. Notwithstanding any declaration made under paragraph 2, the reports

provided 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.

CHAPTER V - RECOGNITION AND

EFFECTS OF THE ADOPTION

Article 23

1. An adoption certified by the competent authority of the State of the

adoption as having been made in accordance with the Convention shall be

recognized by operation of law in the other Contracting States. The

certificate shall specify when and by whom the agreements under

Article 17,

subparagraph (c), were given.

2. Each Contracting State shall, at the time of signature, 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.

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

Any Contracting State may declare to the depositary of the Convention that

it will not be bound under this Convention to recognize adoptions made in

accordance with an agreement concluded by application of

Article 39,

paragraph

Article 26

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;

(

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

pre-existing legal parent-child relationship, the child shall enjoy in the

receiving State, and in any other Contracting State where the adoption is

recognized, rights equivalent to those resulting from adoptions having this

effect in each such State.

3. The preceding paragraphs shall not prejudice the application of any

provision more favourable for the child, in force in the Contracting State

which recognizes 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 may,

in the receiving State which recognizes 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 consents referred to in

Article 4, subparagraphs (

c) and (d),

have been or are given for the purpose of such an adoption.

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 take place

in that State or which prohibits the child's placement in, or transfer to,

the receiving State prior to adoption.

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, subparagraphs (

a) to (c), and

Article 5,

subparagraph (a), have been met, unless the adoption takes place within the

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 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

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

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 of

persons 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.

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. 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

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.

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 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 the public

authorities of that State shall be construed as referring to those authorized

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.

Article 37

In relation to a State which with regard to adoption has two or more

systems of law applicable to different categories of persons, any reference

to the law of that State shall be construed as referring to the 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 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 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. 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

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.

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 Convention.

CHAPTER VII - FINAL CLAUSES

Article 43

1. The Convention shall be opened for signature by the States which were

Members of the Hague Conference on Private International Law 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, 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 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 subparagraph (

b) of

Article 48. 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.

Article 45

1. If a State has two or more territorial units in which different systems

of law are applicable in relation to matters dealt with in the Convention, it

may at the time of signature, ratification, acceptance, 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.

3. If a State makes no declaration under this Article, the Convention is

to extend to all territorial units of the 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 third

instrument of ratification, acceptance or approval referred to in

Article

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 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

Article.

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 following

the expiration of 12 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.

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,

(

a) the signatures, ratifications, acceptances and approvals referred to

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 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 denunciation referred to in

Article 47.

SCHEDULE

CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF