Overseas Adoption (Definition) Order, 2004

L.N. 398 of 2004

CIVIL CODE

(CAP. 16)

Overseas Adoption (Definition) Order, 2004

IN exercise of the powers conferred by articles 113 (2) (d) and

130A of the Civil Code, the Deputy Prime Minister and Minister for

Justice and Home Affairs has made the following order>-

This order may be cited as the Overseas Adoption (Definition) Short title and

Order, 2004 and it shall come into force on such date as the Minister commencement.

responsible for Justice shall by order establish.

(Article 2)

CONVENTION ON PROTECTION OF CHILDREN AND

CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

(Concluded 29 May 1993)

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 20 November 1989, and the United Nations

Declaration on Social and Legal Principles relating to the Protection and Welfare of

Children, with Special Reference to Foster Placement and Adoption Nationally and

Internationally (General Assembly Resolution 41#85, of 3 December 1986),

Have agreed upon the following provisions -

CHAPTER I - 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

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, sub-

paragraph c, have not been given before the child attains the age of eighteen 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.

B

(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.

B

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,

adoptability, background, social environment, family history, medical history

including that of the child’s family, and any special needs of the child<

b) give due consideration to the child’s upbringing and to his or her 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 parents.

(3) If the transfer of the child does not take place, the reports referred to in

Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

The Central Authorities shall keep each other informed about the 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

B

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, sub-paragraph 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 2.

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.

B

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, sub-paragraphs c and d, have

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

(2) Article 23 applies to the decision converting the adoption.

CHAPTER VI - GENERAL PROVISIONS

Article 28

The Convention does not affect any law of a State of origin which requires that

the adoption of a child habitually resident within that State 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, sub-paragraphs a) to c), and Article 5, sub-paragraph a), have been met, unless the

adoption takes place within a family or unless the contact is in compliance with the

conditions established by the competent authority of the State of origin.

Article 30

(1) The competent authorities of a Contracting State shall ensure 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

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 open 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 sub-

paragraph 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 that State.

B

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 43.

(2) Thereafter the Convention shall enter into force -

a) for each State ratifying, accepting or approving it subsequently, or

acceding to it, on the first day of the month following the expiration 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 twelve months after the notification is received by the depositary. Where

a longer period for the denunciation to take effect is specified in the notification, the

denunciation takes effect upon the expiration of such longer period after the notification

is received by the depositary.

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 in

Article 43<

b)

the accessions and objections raised to accessions referred to in Article

44<

c) the date on which the Convention enters into force in accordance with

Article 46<

d)

the declarations and designations referred to in Articles 22, 23, 25 and

45<

e) the agreements referred to in Article 39<

f) the denunciations referred to in Article 47.

In witness whereof the undersigned, being duly authorized thereto, have signed

this Convention.

Done at The Hague, on the 29th day of May 1993, in the English and French

languages, both texts being equally authentic, in a single copy which shall be deposited

in the archives of the Government of the Kingdom of the Netherlands, and of which a

certified copy shall be sent, through diplomatic channels, to each of the States Members

of the Hague Conference on Private International Law at the date of its Seventeenth

Session and to each of the other States which participated in that Session.

For the purposes of article 113 (2) (d) of the Civil Code, an Definition of

‘Overseas

“Overseas Adoption” shall include an adoption, whether made in Malta Adoption’.

or in a State listed in the Second Schedule to this order, carried out in

accordance with the “Convention on Protection of Children and Co-

operation in respect of Intercountry Adoption” concluded at The Hague

on the 29th May, 1993 (hereinafter referred to as ‘the Convention’) and

included in the First Schedule to this order, whereby a child habitually

resident in one contracting State to the said Convention (hereinafter

referred to as “the State of origin”) has been, is being or is to be moved

to another contracting State (hereinafter referred to as “the receiving

State”) either after his or her adoption in his or her State of origin by

spouses or by 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, provided that all the conditions of this order have been complied

with.

(Article 2)

States party to the “Convention on Protection of Children

and Co-operation in respect of Intercountry Adoption”

concluded at The Hague on the 29th May, 1993

Mexico

Romania

Sri Lanka

Cyprus

Poland

Spain

Ecuador

Costa Rica

Burkina Faso

Philippines

Canada

Venezuela

Finland

Sweden

Denmark

Norway

Netherlands

France

Colombia

Australia

El Salvador

Israel

Brazil

Austria

Chile

Panama

Czech Republic

Albania

Slovakia

Germany

Slovenia

Bolivia

Bulgaria

Luxembourg

Latvia

Switzerland

United Kingdom

(extension to the Isle of Man)

India

Belarus

Uruguay

Portugal

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press

An adoption referred to in article 2 of this Order shall only Conditions for

qualification as an

qualify as an overseas adoption under this Order if it>

“Overseas

Adoption”.

(a)

creates a permanent parent-child relationship< and

(b) takes place in accordance with the Convention.

The Department of Family Welfare is hereby designated as Designation of

the Central Authority to discharge the duties which are imposed by the Central

for the purposes of

Convention upon such Authorities.

the Convention.