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Crucial new guidance regarding Intercountry Adoption

Date:27 JUL 2018
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The Hague Conference on Private International Law has recently published extremely helpful guidance on the interpretation of habitual residence and scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (‘the Convention’).

The Convention celebrated its 25th anniversary earlier this year and there are currently 99 contracting parties to the Convention. The Convention has been instrumental in placing the best interests of children at the very heart of intercountry adoptions, safeguarding children from abduction and trafficking, promoting co-operation between States and providing for the automatic recognition of adoption decisions across Contracting States. 
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It was understood that many Contracting States were struggling to identify intercountry adoptions and instances when they should be implementing the Convention. As a consequence, the guidance, which is very practical and relies heavily on worked examples, is aimed primarily at judicial and administrative authorities in Contracting States.

The focus of the guidance is habitual residence and its interpretation. 

Although habitual residence is crucial to the Convention, as it applies when:

'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.' (Article 2(1)), 
it is not defined within the Convention.

The guidance seeks to clarify and harmonise the way habitual residence is interpreted for the application of the Convention in order to promote greater consistency between Contracting States.

The guidance is structured as follows: 
  1. An introduction to the concept of habitual residence; 
  2. Worked case examples in which difficulties have arisen in some Contracting States in determining whether the Convention applies to a particular adoption broken down into (a) straightforward cases where it should be clear whether the Convention applies and (b) cases in which it may be more challenging to determine whether the Convention applies to an adoption as the determination of the habitual residence of the prospective adoptive parents or prospective adopted child is more complex; and
  3. Guidance on how to prevent problems and, where they occur, how to address them.
The worked case examples provide crucial guidance on discerning the habitual residence of expat workers, diplomats and military personnel who are by nature mobile and can cause confusion. Although not always able to provide definitive answers (as each case would depend on its own specific facts), the guidance highlights the factors which States may consider in determining habitual residence (e.g. the ties the prospective adoptive parents or the child have to a state, the reasons for their residence, the duration of their residence, their intention to remain living in the state etc). 

Any guidance issued by the Hague Conference regarding the practical implementation of its conventions is always very welcome and the present note is particularly helpful because of its use of worked examples. 

The guidance is likely to become an extremely important point of reference for adoption practitioners and judges worldwide and it is hoped that the guidance (together with the resurrection of the Judges’ Newsletter on International Child Protection which had lain dormant for around 4 years and other initiatives implemented by the Hague Conference) will harmonise the practical application of the Convention across a myriad of different legal systems that make up the Contracting States. 

The full guidance can be found here