Appendix 2 – Opinion of the Bureau of the
European Committee on Legal Co-operation (CDCJ-BU)
1. The Bureau
of the CDCJ took note of the recommendation – which refers to
Recommendation 1443 (2000) on international adoption: respecting children’s rights
– and decided to comment in the present opinion on paragraphs 4,
7, 8.2, 8.3, 8.6, 8.7, 8.8, 9.2 and 9.4 of the recommendation.
2. The Bureau of the CDCJ welcomed the recommendation made in
paragraph 8.2 to the Committee of Ministers to invite the member
states to sign and ratify the European Convention on the Adoption
of Children (revised) (hereafter “the convention”). The Ministers’
Deputies approved the convention at their 1022nd meeting on 26 March
2008 and agreed to submit it to the Committee of Ministers for adoption
on the occasion of the 118th Ministerial Session on 7 May 2008.
It is expected that the convention will soon be opened for signature
and ratification.
3. With reference to paragraph 7 of the recommendation, the Bureau
of the CDCJ recalled that, although the convention does not formally
address international adoption, it will undoubtedly have an important
influence on international adoptions as it aims at harmonising the
substantive law of the member states by setting minimum rules on
adoption based on the core principle of the best interests of the
child. It also recalled that the convention, in its preamble, refers
to
Recommendation 1443
(2000) of the Parliamentary Assembly.
4. The Bureau of the CDCJ noted and decided to support the proposal
(in paragraph 8.3) to revise the Hague Convention on Protection
of Children and Co-operation in respect of Intercountry Adoption
which goes along the same line as the revised convention.
5. The Bureau of the CDCJ highlighted that, in connection with
paragraph 8.6 of the recommendation, the convention stresses the
importance of preliminary enquiries relating to the suitability
to adopt and the eligibility of the adopter (Article 10) and of
post-adoption services (Article 20).
6. The Bureau of the CDCJ further noted that the convention,
in relation to paragraph 8.7 of the recommendation, takes into account
the fact that in most states adoptions can be made through various
public or private agencies, and therefore considers it as essential
for the state to ensure adequate counselling and supervision (Articles
20 and 21).
7. Concerning the recommendation made in paragraph 8.8, the Bureau
of the CDCJ underlined that, while laying down the principle of
the right of the adopted child to know his or her origin, the revised
convention also establishes that this is not an absolute right and
leaves the task of striking a balance with the rights of the parents
of origin to protect their identity to a competent authority (Article
22.3). This is in line with the case law of the European Court of
Human Rights as well as with the position of the Committee of Ministers
as already expressed in its reply to
Recommendation 1443 (2000) of the Parliamentary Assembly.
8. As regards paragraph 9.4, the Bureau of the CDCJ recalled
that the mother’s consent to the adoption of her child cannot be
valid less than six weeks after the birth of the child (Article
5 of the convention). In addition, the convention lays down the
principle that the revocation and annulment of an adoption can be
pronounced only by decision of the competent authority and that
the best interests of the child shall be the paramount consideration.
However, in order to prevent the granting of an annulment under
too broad conditions, the convention lays down a strict condition
regarding the application for an annulment, which must be filed
within the time limits prescribed by law (Article 14).
9. As soon as the revised convention is adopted, the CDCJ will
encourage its wide signature and ratification by the member states
in order to ensure its rapid entry into force and effective implementation.
10. Furthermore, the Bureau of the CDCJ will bring
Recommendation 1828 (2008) to the attention of the Committee of Experts on Family
Law (CJ-FA). The organisation, in 2009, of a conference on adoption
with a view to encouraging further signatures and ratifications
of the revised convention has been proposed in the draft budget
for 2009.
11. In addition, in paragraphs 4 and 9.2 of the recommendation,
the Parliamentary Assembly refers to absence of birth registration
which facilitates the disappearance of newborn babies. According
to Article 7, paragraph 1, of the United Nations Convention on the
Rights of the Child, states parties are obliged to ensure that children
are registered immediately after birth. The Group of Specialists
on Nationality (CJ-S-NAT), under the authority of the CDCJ, will
examine,
inter alia, the effects
of the absence of birth registration on the acquisition of nationality
by children when working towards the reinforcement of the existing
instruments of the Council of Europe in the field of nationality,
namely the European Convention on Nationality (ETS No. 166) and Recommendation
No. R (99) 18 of the Committee of Ministers on the avoidance and
reduction of statelessness. The CJ-S-NAT will also examine the acquisition
of nationality by foreign children in the event of their international
adoption falling through or the adoption procedure breaking down,
in particular when there is a risk of their being stateless, as
requested by the Parliamentary Assembly in
Recommendation 1443 (2000).
