Adoption

From Max-EuP 2012

by Josep Ferrer i Riba

1. Development, functions and typology

European legal systems and international instruments conceive adoption as a formal legal act through which a parent-child relationship is formed between the adopter and the adopted person. Adoption is based neither on the existence of biological descent nor on the consent to the practice of an assisted reproduction technique, but on a voluntary undertaking. Adoption presupposes an act of will on the part of the adopter or adopters and also, depending on the personal and family circumstances leading to it, the consent of the adopted person, his or her legal parents or other persons. In spite of this voluntary basis, adoption is not a private act: it has to be granted by order of a public authority. Adoption has to be distinguished from other child protection measures, such as foster care, which may include the assuming of parental responsibility by the foster parents but not the establishment of kinship bonds with the foster child. Foster placement may be undertaken as a measure preparatory to adoption (pre-adoptive foster care), but also as a temporary protection measure if the possibility of reuniting the child with his or her birth family can be envisaged.

Adoption has fulfilled very diverse functions in different historical periods and societies. In Roman society it was undertaken as a means to perpetuate the family lineage and pass on family wealth when the head of the family lacked a successor. It has also been practised throughout history for reasons of dynastic succession and as a means of forming alliances between important families; as a way of strengthening ties within the extended family; as an instrument of economic or social policy—eg through the mass movement of orphaned or destitute children for use as a workforce; and for charitable and philanthropic motives. Modern adoption, as regulated by national legal systems throughout the 20th century, is conceived as a formal relationship established for the benefit of the adopted person. As long as this fundamental principle is respected, its practical purpose is legally irrelevant: while the stigma of illegitimacy persisted, adoption mainly permitted illegitimate children to be taken in by childless married couples; since then, its main use has been to provide a stable family environment for orphaned, abandoned or mistreated children and fulfil childless couples’ desire to be parents. Once the principle that adoption must be pursued in the interests of the adoptee was firmly established, its main focus shifted from the adoption of adults to the adoption of minors. However, some countries still allow it to be used as a legal instrument with the goal of enabling childless persons to carry on their family line, preserve their name and transfer their property.

Although all European legal systems have developed along similar lines, the diversity of cultural traditions explains the fact that adoption displays partially diverse characteristics in terms of its typology, requirements and effects. Apart from the adoption of children, some countries also permit the adoption of adults (Germany, Austria, France, Belgium and Italy). Adoptions granted past the age of majority have more limited effects than child adoptions since, unlike these, their effects are not normally extended to the adopter’s relatives nor do they extinguish the adopted person’s kinship ties with his or her birth family. In exceptional cases, however, the adoption of adults may produce the same effects as the adoption of children (§ 1772 Bürgerliches Gesetzbuch (BGB). In some countries of Romanistic tradition (France, Belgium), this duality of effects corresponds to two legal types of adoption, so-called full or plenary adoption (adoption plénière) and simple adoption (adoption simple). Simple adoption is not only appropriate for the adoption of adults but also for other cases in which maintaining personal, family or successoral ties with his or her original paternal and/or maternal family is considered beneficial for the adoptee. This may occur, for example, in adoption by relatives or step-parents. In these statistically common cases, breaking all ties with the birth family is not always advisable, and the laws generally make specific provisions to this end, even in countries which only allow the (plenary) adoption of children. From the legal typology perspective, the distinction between national and international adoption is also relevant. The small number of adoptable children in Europe has led to a large increase in the adoption of non-European children. These adoptions, which bring many problems to the field of private international law, have been the object of international treaties and conventions, among which the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993 (Hague Conference on PIL) stands out.

2. Most controversial issues

Adoption law has been influenced by developments in family relationships and the emergence of new family models (family) in European societies. It has also been affected by the deepening respect for human rights and, in particular, for the rights of children. Analysing national legal systems and adoption practices permits the identification of some particularly relevant or controversial areas in its current legal development.

a) Suitability to adopt

The requirement that adoption must respond primarily to the interests of the adoptee entails the establishment of legal requirements concerning eligibility to adopt. In this context, legal systems are impelled to consider whether individuals living with a partner but wishing to adopt as single persons and couples living in domestic partnership (cohabitation) are suitable for adoption, as well as whether sexual orientation should be relevant as a discriminatory factor in allowing or refusing eligibility to adopt. The regulation of homosexual marriage or of same-sex registered partnerships (same-sex relationships) in some European countries also raises questions about whether these couples may be eligible to adopt.

b) Adoption procedure

A fundamental concern of states, and one particularly acute in international adoptions, is ensuring that children placed for adoption are effectively adoptable and, where appropriate, that the parents of the child to be adopted have freely consented to the adoption. On the other hand, in adoption for reasons of abandonment or mistreatment, it is essential to define standards which can provide legal certainty to decide when parental consent can be dispensed with, as well as to set up procedural safeguards which must be adopted to defend the parents’ interests (child protection).

c) Effects of adoption

One issue which currently gives particular grounds for debate, and which has even led to questioning the need for or the adequacy of adoption as a legal institution, is whether breaking all bonds with his or her birth parents and family is really in the adopted child’s best interests. Given the frequency with which adopted individuals experience personal identity conflicts, adoption law has to take into consideration the right to have access to information, the possibility that contact between the adopted person and his or her family of origin may continue, and even the opportunity to maintain some legal ties with said family.

3. The legal shaping of adoption in international and European law

The variety of adoption systems existing in national laws is partly reduced by instruments of international law which have promoted a certain degree of uniformity or, at least, legal convergence. The United Nations Convention on the Rights of the Child (UNCRC) and the Hague Convention of 1993 have both contributed to this uniformization at the global level. In Europe, a harmonizing role has also been played by the European Convention on the Adoption of Children of 1967, drawn up at the instance of the Council of Europe (harmonization of private law) and ratified by 18 countries, and especially by the case law of the European Court of Human Rights (ECtHR). The case law of this court has reflected the profound social changes taking place in Europe over the last 40 years and has formulated more progressive normative criteria than those contained in the Convention of 1967. This circumstance, attested to by committees of experts (see the White Paper containing the Principles concerning the establishment and legal consequences of parentage of 2002), furthered the drafting of a new revised convention (European Convention on the Adoption of Children (Revised) of 2008), already signed by a substantial number of states.

a) Personal requirements and suitability for adopting

The fact that family structures different from the two-spouse family have become widespread throughout Europe has had direct repercussions on defining legal requirements for adoption. European legal systems are in a transitional stage with regard to this legal issue. The Convention of 1967 only permitted adoption, simultaneously or successively, by a married couple or by a single person (Art 6). This restriction has now been overtaken by events, as shown by both the gradual admission of adoption by same-sex couples, who are not allowed to marry in a significant number of countries, and the incipient trend to allow unmarried couples to adopt, irrespective of sexual orientation. Adoption within the framework of same-sex relationships may be admitted as joint adoption or as adoption by one partner of the other partner’s child (eg Germany and Denmark). In the event that joint adoption is admitted, it may be open to married couples (eg Norway), to registered partners (eg Sweden) or even to stable couples who have not formalized their relationship (eg England, Spain, Belgium and the Netherlands). Naturally, these latter countries also admit adoption by unmarried heterosexual couples. In these legal systems marriage (or some other procedure for formalizing the couple’s relationship) is not considered to be a decisive indicator of future stability in the relationship between adopters: stability may be assumed to be demonstrated by the length of time the couple has been living together, or ultimately, by the very decision to adopt a child. The Strasbourg Court appears to support this approach: in a case dealing with the adoption of an adult child by the mother’s partner under Swiss law, it considered Art 8 ECHR to be breached by the fact that this adoption involved the extinguishing of maternal ties between the child and the mother because she was not married to the adopter (ECtHR No 39051/03 – Emonet and others).

Aside from the personal requirements for adopting established by laws, the possibility of using the criterion of sexual orientation to refuse eligibility for adoption has aroused controversy in some countries. The ECtHR initially respected the national legislator’s margin of appreciation to take this factor into account (No 36515/97 – Fretté), but the same court has subsequently declared that national authorities cannot use sexual orientation as a determining criterion to reject the applicant’s suitability (No 43546/02 – E.B.).

b) Adoption procedure

Adoption procedures must respect the rights of the birth parents, on whom the primary responsibility for the child’s upbringing falls (Arts 7(1) and 18(1) UNCRC). Article 5(1) of the European Convention of 1967 required the mother’s consent and also the father’s consent if the child was born in wedlock. This rule, which belonged to a period in which extra-marital affiliation was disapproved of by society, has been overridden. The ECtHR has established that the decision to allow a child born from an extra-marital relationship to be freed for adoption without the father’s knowledge is in breach of Art 8 ECHR (No 16969/90 – Keegan). The European Convention of 2008 requires the consent of both the mother and the father, providing that parentage is legally determined, or, where appropriate, of the person or body who is entitled to consent in their place. Consent must be preceded by counselling and information as to its effects (in the same way, Art 4(c)(1) of the Hague Convention of 1993). Adoption laws also provide for exceptional cases in which obtaining the consent of parents or guardians may be dispensed with, or in which their refusal to consent does not produce any effects (non-consensual adoptions). The European Convention on the Adoption of Children of 2008 sets out that the law may provide that it will not be necessary to obtain the consent of the father or the mother if he or she is not a holder of parental responsibility in respect of the child, or at least of the right to consent to the adoption. There are cases in national legal systems in which the law does not require the parents to have been deprived of their responsibility, but only to have seriously failed in their parental duties or to have participated in conduct which would justify the discharge of parental responsibility. The ECtHR has repeatedly had to rule on whether administrative or judicial orders issued by national authorities without the consent of the birth parents, placing children in pre-adoptive foster care or freeing them for adoption (child protection) complied with Arts 6 and 8 ECHR. The court considers the placement of a child for adoption an exceptional measure and greatly limits national authorities’ margin of appreciation. In the case of third party or ‘stranger’ adoptions, the decision to free the child for adoption may only be taken if the possibility of returning the child to his or her birth family cannot be envisaged, and the separation is consequently considered irreversible (ECtHR No 17383/90 – Johansen). In step-parent adoptions, the court usually respects national authorities’ decisions to dispense with the consent of the birth parent if he or she has consistently shown a lack of interest in the child and the child has formed de facto family ties with the adopter (ECtHR No 24484/94 – Söderbäck; No 58077/00 – Chepelev). On the other hand, the fact that the consent of a parent may be dispensed with does not mean that he or she does not have the right to participate in the decision-making process: a disabled mother, for example, who does not hold parental responsibility for this reason must at least have the opportunity to be heard (ECtHR No 11223/04 – X.).

Compliance with the procedural safeguards of adoption is also one of the fundamental objectives of the Hague Convention of 1993. The Convention applies to intercountry adoptions and aims to ensure, through safeguards which can be implemented as the need arises, that these adoptions are carried out in compliance with the child’s best interests. To this end it establishes a system of cooperation between states through which the competent authorities in the child’s country of origin and the receiving country have to prove that the substantive and procedural requirements governing adoption have been fulfilled (Arts 4 and 5). Likewise, it provides for the recognition by operation of law of adoptions undertaken in accordance with the Convention between the states parties. Although the Convention is primarily an instrument of international private law, the establishing of international adoption requirements has clear repercussions on internal laws: thus, Art 4(d) establishes the need to guarantee that the child has given his or her informed, free and formal consent to the adoption, having regard to his or her age and degree of maturity. The requirement to obtain the child’s consent, which was not contemplated by the European Convention on the Adoption of Children of 1967, is consistent with the UNCRC and has been enshrined in the revised Convention of 2008 (Art 5(1)(b)).

c) Effects of adoption

Although some legal systems permit the possibility of revoking it on serious grounds, adoption creates as a matter of principle a permanent parent-child bond. In countries where the law only regulates one type of adoption, it entails the full integration of the adoptee and his or her offspring into the family of the adopter(s), and it extinguishes the child’s bonds with his or her birth parents (except in cases where one spouse or partner adopts the other’s child). Integration into the adopter’s family usually confers on the child the same status, rights and obligations as the other members of this family. In countries with dualist adoption systems the effects referred to above are attributed to full or plenary adoption, whereas simple adoption does not eliminate the child’s relationship with his or her birth parents, nor does it create a bond with the adopter’s family but only with the adoptive parents. There are few signs that legal systems will converge towards one system or the other in the near future. The Convention of 2008 mainly deals with full adoption, but it allows states to regulate forms of adoption which have more limited effects in their legal systems (Art 11(4)).

The distinction between full and simple adoption has regained interest in the context of a wider-ranging debate concerning the institutional adequacy of adoption to fully satisfy the child’s best interests, as it should do. It is apparent that the effects of full adoption are not always appropriate in adoptions by relatives or step-parents, and that redirecting these situations towards solutions closer to simple adoption or the attribution of parental responsibility without the creation of kinship ties would sometimes be preferable. The same may be said in cases of non-consensual adoption in which the child’s adoptability is not justified by ill-treatment or abandonment on the part of his or her birth parents, but by other types of problems (eg delay in recognizing paternity; mental illness). Similarly, in relation to third party or ‘stranger’ child adoptions, there is a growing body of opinion which favours so-called open or semi-open adoptions, ie adoptions in which varying degrees of contact, or at least periodic exchanges of information, can be maintained between the adopted child and his or her birth family. The legal framework within which child adoption is set up in European legal systems is still based in this respect on the model of closed or secret adoption (see Art 22(1) of the European Convention of 2008, which authorizes states to keep adopters’ identities a secret) but a certain evolution is perceived both in adoption practice as well as in legal settings. In this regard, the generalized recognition of the child’s right to obtain information about his or her origins has to be stressed: the interest of individuals in receiving ‘the information necessary to know and understand their childhood and early development’ is protected by Art 8 ECHR (ECtHR No 10454/83 – Gaskin). This right, however, may clash with the right of birth parents not to disclose their identity, which is also protected in some countries (parentage). In such cases, Art 22(3) of the European Convention of 2008 allows the competent national authorities to determine which of the two rights must be given priority, having regard to the circumstances and to the respective rights of both parties. In any event, the child’s right to have access to information imposes on the authorities intervening in the adoption the duty to collect and retain relevant information concerning his or her origins (Arts 16(2), 30 of the Hague Convention of 1993, and Art 22(3)(5) of the European Convention of 2008).

Literature

JHA van Loon, ‘International Cooperation and Protection of Children with Regard to Intercountry Adoption’ (1995) 244 (1993-VII) Collected Courses of the Hague Academy of International Law 191; Isabelle Lammerant, L’adoption et les droits de l’homme en droit comparé (2001); Christoph Neukirchen, Die rechtshistorische Entwicklung der Adoption (2005); Dagmar Winkelsträter, Anerkennung und Durchführung internationaler Adoptionen in Deutschland (unter Berücksichtigung des Haager Übereinkommens über den Schutz von Kindern und die Zusammenarbeit auf dem Gebiet der internationalen Adoption vom 29. Mai 1993) (2007); Ingeborg Schwenzer (ed), Tensions Between Legal, Biological and Social Conceptions of Parentage (2007); Rainer Frank, ‘Brauchen wir Adoption? Rechtsvergleichende Überlegungen zur Notwendigkeit oder Zweckmäßigkeit der Adoption’ (2007) 20 Zeitschrift für das gesamte Familienrecht 1693; Sylvain Vité and Hervé Boéchat, Commentary on the United Nations Convention on the Rights of the Child (Article 21: Adoption) (2008); Rosemary Horgan and Frank Martin, ‘The European Convention on Adoption 2008: Progressing the Children’s Rights Polemic’ (2008) International Family Law 155; Kerry O’Halloran, The Politics of Adoption (International Perspectives on Law, Policy & Practice) (2nd edn, 2009); Council of Europe and European Commission, Challenges in adoption procedures in Europe: Ensuring the best interests of the child (Conference proceedings) (2009).

Retrieved from Adoption – Max-EuP 2012 on 19 May 2022.

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