The Hague Convention

 

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption

(The Hague Convention)

Nearly 12 years after signing it, The Hague Convention on Intercountry Adoption will finally be implemented in the United States. As soon as the end of next year or early 2008, all adoptions between nations that have joined the convention will be guided by and required to follow its regulations. The regulations were designed, through increased transparency and structure, to make the international adoption process safer for the child, birth family, and adoptive family. The United State’s implementation of The Hague Convention is a significant event and it is important for all considering international adoption to understand the implications.

What is the Hague Convention?

The Hague is an international treaty designed to govern the international adoption process and protect children being adopted across national boundaries. Representatives from more than 65 countries met in The Hague, Netherlands to develop safeguards, standards, and practices that would improve the safety of internationally adopted children. The treaty concluded in May 1993 and the since that time, the U.S. government has been passing legislation and developing regulations to implement this treaty. The Intercountry Adoption Act was passed and implementing regulations established.

To date, 70 countries have joined the Hague convention and the new Hague regulations will apply only between countries that have both ratified and implemented the Hague Convention. Unlike many other countries, the U.S. does not have a tradition of federal, centralized, government-supervised social welfare programs. Instead, international adoptions are completed through private adoption agencies, attorneys, and social workers almost exclusively under state law and the law of the foreign country. The U.S. has now established its own central authority, The Department of State, who will be responsible for creating standards to be used in international adoptions and supervising agencies and service providers.

Impact of the Hague Convention

The impact of the Hague Convention will be felt directly by agencies working in countries covered by the treaty; however there are elements that will also effect families. The principles of the Hague Convention strengthen protections for children, birthparents, and prospective adoptive parents in the adoption process. It provides a framework for Convention countries to work together to ensure that adoptions take place in the best interests of children and to prevent the abduction, sale, or trafficking of children in connection with intercountry adoption. Below are some of the highlights of the Hague Convention.

National Authority – The Hague Convention requires that each country designate a Central Authority to oversee international adoption. The U.S. Department of State has been designated as the U.S. Central Authority.

Accrediting Entity – each country must also designate entities to review and accredit service providers based upon their practices, financial stability, and expertise. The U.S. Department of State has initially selected 2 accrediting entities for this role: the Counsel on Accreditation and the Colorado Department of Human Services. The Counsel on Accreditation is an organization based in New York that partners with human service organizations worldwide to improve service delivery outcomes by developing, applying, and promoting professional standards. The Colorado Department of Human Services is a state-supervised, county-administered provider of traditional social services, including programs such as public assistance and child welfare services. The Department of State will monitor these accrediting entities to ensure that each performs its functions properly.

Accredited Agencies (or Approved Agencies and Persons) - Adoption Service Providers providing adoption services to families adopting children from other countries that have also ratified and implemented the Hague must be accredited, or approved in order to provide adoption services. The accreditation regulations were published in the Federal Register in February 2006 and are designed to ensure that U.S. Adoption agencies perform their duties in a manner that is consistent with the Convention and the Intercountry Adoption Act. Standards of practice have been established with which adoption service providers must conform and which form the basis for accreditation of agencies or approval of persons. These standards of practice are based upon several key principles: to ensure that intercountry adoptions take place in the best interests of children; and to prevent the abduction, sale, or trafficking of children in connection with intercountry adoption. The U.S. cannot ratify the Hague convention until all agencies that have applied for accreditation have been evaluated.

The Accreditation Process – The transitional application deadline (November 17, 2006) is the date by which adoption service providers in the United States need to submit an application if they wish to be accredited, temporarily accredited, or approved to handle Hague Convention adoptions when the Convention enters into force for the United States. The accrediting entities are expected to spend approximately 12 months reviewing all the applications and will accredit the service providers who meet the regulations. When that process is complete, the U.S. will be ready to ratify the Convention

Accreditation Standards - The accreditation standards are organized into nine general categories:

Licensing and Corporate Governance - These standards relate to the adoption service provider’s compliance with state licensing and similar requirements and to its corporate and internal structure and internal oversight mechanisms.

Financial and Risk Management - These budget, audit, insurance, risk assessment and compensation standards address issues such as disclosure of financial information, financial soundness, safeguards to prevent charitable donations from influencing child placement decisions, contingency planning, risk assessment, professional liability insurance, bonding of organization officials, disclosure of vendor relationships, and compensation methods and levels.

Ethical Practices and Responsibilities - These standards relate to the suitability of the organization to provide adoption services consistent with the Convention. Included are standards that address disclosure of information related to current and past practices of the organization and its individual directors, officers and employees and standards that address payments to birthparents and others in connection with adoptions.

Professional Qualifications and Training for Employees - These standards address the education, experience, and training of various personnel of the organization. The education and experience standards include standards relating to social work supervisors, certain non-supervisory social service employees, and home study and child background study preparers. The training standards for social service personnel include standards on orientation training, initial training, and continuing education.

Information Disclosure, Fee Practices, and Quality Control Practices - Standards on information disclosure primarily address disclosure to prospective clients of information such as agency policies and practices, supervised providers to be used, and the adoption services contract that the adoptive parents sign. The standards on fee policies and procedures focus on fee-related disclosures to prospective adoptive parents, including fee levels, purposes for which the fees are paid, and fee collection and refund policies and practices.

Responding to Complaints and Records and Reports Management - The standards on complaints primarily address complaint procedures and methods of improving adoption service delivery. The standards on retention, preservation, and disclosure of adoption records include standards on how adoption records are to be retained, safeguarded, accessed and, when necessary, transferred. The standards on case tracking, data management, and reporting focus on reporting of both case-specific and general information to the accrediting entity and the Department of State.

Service Planning and Delivery - These standards address the responsibilities of a primary provider, the use of U.S. and foreign supervised providers, and the use of other private foreign providers. The standards on primary providers relate primarily to the organization’s capacity to supervise.

Standards for cases in which a child is immigrating to the U.S. - These standards relate to the preparation of home studies, preparation and training of prospective adoptive parents, the provision of medical and social information, post-placement monitoring, and post-adoption services.

Standards for cases in which a child is emigrating from the U.S. - These standards relate to child background studies, birth parent consents, placement practices, preparation and transfer of the child, and post-placement duties.

Immigration Changes – Currently, the United States Citizenship and Immigration Service (USCIS) provides final permission for a child to immigrate to the U.S. both before the adoption is finalized abroad and in many cases, after the adoption is finalized abroad. Under the Hague Convention regulations, the USCIS will now review cases and provide immigration approval prior to the adoption being finalized abroad.

Currently, in order for a child to be eligible to receive approval to immigrate to the U.S. he or she must fall into several categories: 1.) both parents deceased, 2.) legally abandoned, or have a sole surviving birth parent caring for him or her. Under the Hague Convention a child with two known birthparents can be eligible for adoption as long as they are both unable to "meet his needs under standards of the child's country of origin."

Special IssuesFor purposes of international law, Guatemala has been party to the Convention since March 2003 but the country’s adoption system does not currently meet Hague Convention standards. The U.S. Department of State is encouraging Guatemala to pass implementing legislation and make changes necessary for compliance with the Hague Convention. (expected to be late 2007 or early 2008).

Regardless of Guatemala’s status at the time that the USA fully enacts the Hague and it enters into force, the new Hague regulations will not apply to any family who has applied for the application for advance processing of an orphan petition (I-600A) or filed the petition to classify an orphan as an immediate relative (I-600). These cases will be considered "grandfathered" and not subject to the new regulations.

La Vida and the Hague Convention

La Vida has been working diligently to ensure compliance with all Hague related regulations. The countries with which we work, China, Colombia, and Guatemala are Hague countries therefore we are required to be accredited under the Hague Convention. Our application was filed on time and we are preparing for the review and approval process which will take place in 2007.

For more information about the Hague Convention please visit the U.S. Department of State’s web site at: http://www.travel.state.gov/family/adoption/convention/convention_462.html