Last Updated: Wednesday, 30 July 2014, 15:15 GMT

Report on the Protection of Refugee Children with Respect to Intercountry Adoption

Publisher UN High Commissioner for Refugees (UNHCR)
Publication Date 14 March 1994
Cite as UN High Commissioner for Refugees (UNHCR), Report on the Protection of Refugee Children with Respect to Intercountry Adoption, 14 March 1994, available at: http://www.refworld.org/docid/3ae6b31ca4.html [accessed 30 July 2014]

I. INTRODUCTION

1. In its Final Act on 29 May 1993, the Seventeenth Session of the Hague Conference on Private International Law, after approving the draft Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, expressed its concern that refugee children and other internationally displaced children be afforded the special consideration within the framework of the Convention that their particularly vulnerable situation may require, and called upon the Secretary General of the Hague Conference, in consultation with the United Nations High Commissioner for Refugees, to convene a working group on the potential application of the Hague Convention to such children. The present report is submitted to the working group by the United Nations High Commissioner for Refugees. It analyzes the need of refugee and other internationally displaced children for protection in connection with intercountry adoption, and presents proposals for potential courses of action by the Special Commission of the Hague Conference on behalf of these children.

2. The report is in three parts. This introduction provides a brief overview of the situation of refugee children. Section II presents an analysis of the special protection needs of refugee children in the context of intercountry adoption based on UNHCR's experience providing protection and assistance to refugees in the field. Based on this analysis, Section III sets out UNHCR's recommendations on how the Hague Convention could best be adapted to accommodate the needs of refugee children, including suggestions on the provisions of a formal declaration or protocol for this purpose.

3. A discussion of the needs of refugee and other internationally displaced children (hereafter "refugee children") for protection in respect of intercountry adoption should begin with an understanding of the phenomenon of exile as experienced by these children. The central fact of the refugee experience is forced displacement. Unlike others their age, refugee children have been uprooted from their homes and their country of origin as a result of grave human rights abuses, the threat of persecution or armed conflict. In addition, many refugee children are involuntarily separated from their parents or other relatives during flight. Thus in addition to the fact of exile and their often difficult living conditions in countries of asylum, refugee children's lives have often been profoundly affected by the brutality of war, the persecution of family or friends, the danger of flight, and in many cases forced separation from family members

4. Despite the manifold threats to the integrity of refugee families and to the security of refugee children, refugees repeatedly demonstrate the remarkable capacity of human' beings to rebuild their communities in exile and to provide nurturing homes for children even in adversity. The need of every child to grow up in a family environment can normally be met, for refugee as for other children, by their own families and communities, provided these families and communities themselves receive the protection and assistance necessary to assume their responsibilities. As the international community seeks to respond to the need of refugee children for protection and assistance, a primary objective should therefore be to maintain or restore the child's own family environment, if at all possible. Where the child is separated from his or her family, and where family reunification proves to be impossible, UNHCR's experience shows that appropriate alternative care can usually be found, and should in the first instance be sought, within the child's own community, whether in the country of asylum or elsewhere. In certain cases, however, no satisfactory alternative care can be found in that community and it is necessary to look elsewhere in order to meet the refugee child's need for care in a family environment. In deciding whether alternative care should take the form of placement with relatives in the extended family, long-term foster care, Islamic Kafala, adoption (including intercountry adoption), or some other suitable arrangement, the best interests of the refugee child must always be the paramount consideration.

II. THE SPECIAL NEEDS OF THE REFUGEE CHILD WITH RESPECT TO INTERCOUNTRY ADOPTION

A. THE RELEVANCE OF THE CONVENTION ON THE RIGHTS OF THE CHILD

5. The United Nations Convention on the Rights of the Child ( "the CRC"), adopted by the United Nations General Assembly on 20 November 1989, provides an important interpretative tool and 'guide for assessing not only the needs and rights of children generally but also the special needs of refugee children in the context of intercountry adoption. For its more than 150 States Parties, the CRC provides a basic legal framework defining their responsibilities towards all the children within their jurisdictions, including refugee children. Moreover, in view ot its wide acceptance by States it is clear that the CRC represents a broad consensus of the international community with respect to the needs of children. UNHCR's Policy on Refugee Children (1993) uses the Convention on the Rights of the Child as a normative frame of reference for UNHCR's action on behalf of refugee children. In the same spirit, the Hague Conference has taken account of the principles set forth in the Convention on the Rights of the Child in drafting the Convention on intercountry adoption, including specific reference to the CRC in the Convention's preamble and reflecting the principles of the CRC in many of the Hague Convention's provisions. Given their particular vulnerability and the special needs of refugee children, UNHCR considers that when the Hague Convention is applied to a refugee child it is essential, in order to fulfill the Convention's goal of ensuring that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, that it be interpreted and implemented in a manner consistent both with its own basic objectives and with the Convention on the Rights or the Child.

6. Three articles of the Convention on the Rights of the Child are particularly relevant to refugee children in the context of adoption:

CRC Article 20 provides that alternative care shall be ensured for a child temporarily or permanently deprived of his or her family environment. It refers to the principal forms of alternative care, including adoption, and states that ''When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background." (CRC Art. 20(3).)

CRC Article 21 governs adoption, and prescribes that the best interests of the child shall be the paramount consideration. It sets standards for the decision that a child is adoptable, including the determination by the competent authorities "that adoption is permissible in view of the child's status concerning parents, relatives and legal guardians" and that, if required, the informed consent of the persons concerned to the adoption has been obtained "on the basis of such counseling as may be necessary" It is recognized "that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin." (CRC Art. 21 (b), italics added.)

CRC Article 22 provides that refugee and asylum-seeker children shall "receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights" under the CRC or other international human rights or humanitarian instruments. It also calls for "cooperation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations ... to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.'' (CRC Art. 22 (2), emphasis added.) It provides that where no parents or other members of the family can be found the Child shall receive the same protection as any other child deprived of his or her family environment.

7. The parallel provisions of the Hague Convention are found principally in Articles 4 and 16. While these are generally consistent with the CRC, some differences should be noted in the ways in which the provisions of each Convention could affect refugee children. The Hague Convention, unlike the CRC, would only protect a refugee child if he or she were considered "habitually resident" in the Contracting State. (HC Art. 2 (1)) The Hague Convention, unlike the CRC, has no explicit reference to cooperation in international efforts to trace the family of an unaccompanied refugee child. Finally, the CRC provides for States to give priority consideration to the possibility of alternative care "in the child's country of origin'' (CRC Art 21 (b)), while Article 4(b) of the Hague Convention requires "due consideration" of possibilities for placement in the "State of origin". "The child's country of origin" as used in the CRC would normally be understood to mean the child's home country, that is, in the case of the refugee child, the country of the child's nationality, or, if the child is stateless, the country of his or her previous habitual residence. "State of origin", on the other hand, is defined in the Hague Convention, Article 9, to mean the Contracting State where the child is "habitually resident", which in the case of` a refugee child would normally mean the country of refuge rather than the child's home country. Read together, the two Conventions thus prescribe priority consideration to alternative care in the child's home country (CRC) and "due consideration" to possibilities for placement in the country of refuge (HC).

8. It may also be noted that the CRC, in Article 27(3), requires States "within their means" to take appropriate measures, including material assistance, to assist parents to meet the child's needs. This is reinforced for the refugee child by the requirement in Article 29 that States ensure appropriate protection and humanitarian assistance in the enjoyment or his or her internationally recognized rights. Cooperating with States in such measures of protection and assistance are central to UNHCR's programmes on behalf of refugees.

B. CRITICAL ASPECTS OF ADOPTION PROCEEDINGS INVOLVING REFUGEE CHILDREN

9. The experience of UNHCR in the field suggests that three components of the adoption procedure are of heightened importance and complexity where refugee children are involved. These are family tracing, the exploration of alternative care arrangements and ensuring the informed consent of parents or other relevant persons. Special efforts on the part of Governments, international organizations and non-governmental organizations are often necessary to meet the particular protection needs of refugee children in these areas.

10. Tracing the relatives of refugee children who have been separated from their families may necessitate additional efforts not required where non-refugee children are concerned. When refugee children are separated from their families, the separation often (but not always) occurs involuntarily and in circumstances such that the whereabouts and even the survival of the other family members is unknown to the child, and vice versa. Even where parents voluntarily send a child to safety, they may be unable to re-establish contact. Flight across national frontiers, continuing armed conflict and the absence of effective protection by the authorities of the country of origin serve to complicate communications and to impede the flow of information.

11. UNHCR has acquired considerable experience in tracing the families of unaccompanied children. In some situations, such as that of the Vietnamese "boat people", tracing has generally been quite straightforward and could often be done by exchange of letters with the child's family . For some children, however, visits by UNHCR or a cooperating agency to the village of origin are necessary. In situations of ongoing civil war, as prevailed in Cambodia in 1979 and the early 1980's, tracing can be extremely difficult and may require intensive efforts and considerable staff resources. It can also be very effective. Through family tracing from refugee camps in Thailand, more than 2000 unaccompanied refugee children were reunited with family members, most within Thailand, others in third countries, and more than 100 at the border with Cambodia. The impossibility, at the time, of extending the tracing programme into Cambodia nonetheless prevented many unaccompanied children from finding and being reunited with their families.1

12. In the experience of UNHCR, the period during which tracing should be continued varies depending on the nature of the particular refugee situation and the particular circumstances of the refugee child and his or her family. UNHCR has recommended that tracing normally be conducted for a minimum period of two years before a placement that could lead to a permanent severing of links with the natural family is envisaged. This recommendation must however be applied in a flexible manner, with careful consideration of the circumstances of each individual child, including the prospects for successful tracing and the availability of suitable alternative care. A much shorter period may be appropriate for an infant found in circumstances clearly indicating abandonment; a longer period - or even an indefinite continuation of provisional care arrangements - may be advisable for older children whose parents are thought to be alive in a country of origin still affected by civil war.

13. As a matter of policy, adequate tracing of absent family members should be considered essential before a refugee child is considered eligible for adoption. Although family tracing as such is not mentioned in the Hague Convention, the need for tracing could be inferred from the requirement of informed consent, provided the consent of absent parents or other close relatives is considered to be " necessary for adoption " under the law of the Contracting State. (See HC Article 4 (c)(l).) It is important in refugee situations that separation should not be considered equivalent to abandonment, even where a parent has deliberately sent a child away to safety, and that absence should not be treated as tantamount to consent.

14. Alternative care arrangements for refugee children should be pursued with due regard for the impact of flight and exile on families. Particular consideration should be given to possibilities for suitable long-term foster care and placements within the extended family or refugee community. The best interests of the refugee child may often be met through placements with a family within the refugee community itself. UNHCR experience with unaccompanied refugee children in various regions has revealed the prevalence and appropriateness of customary adoption or informal placements of unaccompanied refugee children within their extended families. The great majority of UNHCR field offices consulted have reported that with rare exceptions suitable alternative care possibilities have been found within the refugee community, both through such placements and through long-term foster care often leading to de facto or de jure adoption . The Office's experience also points to the importance of material assistance, both directly to families and through support to health and education programs, to enable refugee families to adequately provide for the material needs of refugee children.

15. Besides placement in the refugee community, the possibility of suitable care arrangements in the so home country must also be considered and, where appropriate, pursued. Voluntary repatriation, when circumstances permit, is the ideal solution to refugee problems and may also offer the best opportunity for suitable alternative care for a refugee child. However repatriation must be consistent with the principal that a refugee must not be returned to a territory where his or her security would be in jeopardy. Given the Office's mandate to seek solutions to refugee problems, inter alia through voluntary repatriation, UNHCR can appropriately assist the competent authorities to explore the possibility of caring for a refugee child in his or her home country.

16. Informed consent to the adoption of a refugee child may require special counseling as well as material assistance. When refugee parents, guardians or relatives have themselves ,undergone traumatic experiences, lack basic subsistence requirements, and are uncertain about their future, they may conclude that the only way to provide for the child's welfare is to surrender him or her for adoption. Both counseling and the humanitarian assistance envisaged in CRC Article 22 (1) are necessary in such situations to ensure that consent to adoption by parents or guardians is truly tree. In cases where a refugee parent voluntarily chooses to give up the child, it is also important to ensure that the parent understands the full legal consequences of this decision, as well as to ensure, where necessary, that the other parent and other relevant parties are duly notified and give their consent.

17. While necessary counseling and tree and informed consent are required by the Hague Convention (Art 4(c)) for the adoption of children deemed "habitually resident" in a Contracting State, further measures may be necessary to ensure application of these provisions to the adoption of refugee children, inasmuch as the legal provisions which regulate adoption and intercountry adoption in a particular country may be deemed not to apply, or may not be applied in practice, to refugee children in that country, on the grounds that the children are considered "illegal immigrants", "displaced persons" or are otherwise considered outside the protection of national laws. Whether a refugee child is protected by the provisions of the Hague Convention regarding informed consent will also depend upon how the term "habitually resident" is interpreted by the State concerned. 2

C. THE APPROPRIATE ROLE OF UNHCR IN RESPECT OF REFUGEE CHILDREN AND INTERCOUNTRY ADOPTION

18. Another critical consideration in the protection of refugee children in adoption proceedings is the extent to which national laws} as well as international agreements are actually applied and enforced on behalf of refugees in the country concerned. While the problem of poor implementation is a general one, refugees are often in a particularly vulnerable situation, especially when they are in countries that either are not parties to, or do not fully implement, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees or, with respect to refugee children, the Convention on the Rights of the Child. In such circumstances the role of UNHCR in providing international protection assumes particular importance.

19. More generally, UNHCR's mandate of providing international protection to refugees, combined with its presence and experience in the field, support the conclusion that the Office should serve as a resource to Governments and non-governmental organizations in identifying appropriate placement options for refugee children, including those who are potentially the subject of an intercountry adoption proceeding. UNHCR's facilitating role in this regard could focus on the three areas of special concern set forth in section B above, i.e. tracing, alternative care arrangements and informed consent, as well as the important additional element of access to UNHCR by interested parties to the intercountry adoption procedure.

20. UNHCR's practical role in adoption proceedings involving refugee children might most appropriately include:

a. Notice to UNHCR, and an opportunity for a UNHCR representative co be heard in the proceedings;

b. Access to UNHCR by the refugee child, parents and other interested parties;

c. Advice to the competent authorities and "Central Authorities" regarding crucial determinations within the adoption proceedings, including adoptability and the best interests of the refugee child, as well as the adequacy ot tracing efforts and the availability and suitability or various alternative care options inside the refugee community or in the child's home country; and

d. Information to interested parties on relevant guidelines and legal instruments concerning refugee children and adoption.

21. The essential role of UNHCR in its mandated function of providing international protection to refugees and seeking solutions to refugee problems should not obscure the vital roles of other United Nations, international and non-governmental organizations in providing protection and assistance to refugee children. UNICEF and the International Committee of the Red Cross, in particular, have programmes which are important to the welfare ot refugee, as well as other, children; ICRC's tracing activities are relevant to intercountry adoption. UNHCR works in partnership with numerous NGO's as well as Governments to meet the needs or refugee children for protection and assistance. The experience of the Office in family tracing as well as in procedures to determine the best interest of refugee children demonstrates the usefulness of a team or interdisciplinary approach combining the expertise of various agencies. In countries where UNHCR is not present, or for refugee groups for whom the Office does not have responsibility, it will be appropriate for other competent organizations to assume the functions proposed for UNHCR in the preceding paragraphs.

III. RECOMMENDATIONS

22. UNHCR recommends that a specific legal instrument be drafted which would apply in the context of intercountry adoptions involving refugee children. Such an instrument could take the form of a declaration to be made by States Parties upon, or following, their accession to the Hague Convention, a recommendation by the Special Commission foreseen in Article 42 of the Hague Convention, a combination ot the two, or a protocol to the Convention. In order to facilitate the drafting and adoption ot such an instrument, the Office has identified ten elements which might appropriately be included in it.

A. PRELIMINARY ISSUES

i. What would be the effect of taking no specific action to meet the special needs of refugee children with respect to intercountry adoption under the Hague Convention?

23. In the event that no new instrument were drafted on the subject of refugee children and intercountry adoption and that Governments were left to apply the Hague Convention as it stands to refugee children, an obvious consequence would be lack of coverage for many refugee children, and a generally inconsistent pattern of coverage for such children, depending on the interpretation given by ~ each Contracting Party of the term "habitually resident" with respect to refugees. Many refugee children would undoubtedly remain in the present unregulated or ill-regulated legal situation which, given numerous reports of irregular adoptions even of children who are nationals of the countries concerned, appears not to provide adequate protection to refugee children or parents. Moreover, there would remain considerable uncertainty and inconsistency concerning standards for family tracing, the exploration of placement possibilities in the refugee community and in the refugee chid's country of origin, and the application of the requirement of informed consent in the context of a potential intercountry adoption involving a refugee child. While receiving States might be uncertain whether States of origin had observed appropriate safeguards in determining the adoptability of a refugee child, under Article 24 of the Hague Convention they would nonetheless be bound, for those considered to be within the ambit ot the Convention, to recognize an adoption unless it was "manifestly contrary to its public policy".

ii. The relative merits of a declaration or a protocol on the subject of refugee children and intercountry adoption

24. On balancing the relative advantages of the two potential forms which a legal instrument in respect of refugee children and intercountry adoption might take, UNHCR believes that a declaration combined with a recommendation of the Special Commission is the most appropriate choice. While a protocol would constitute binding legal obligations, like the Hague Convention itself it would require multilateral action by states before the instrument could come into effect. A declaration, on the other hand, could be adopted by individual Contracting States to the Hague Convention on a voluntary and unilateral basis. A recommendation ot the Special Commission would signify the approval of the member States ot the Hague Conference tor the declaration made by individual Contracting States and lend it additional force. UNHCR would suggest, however, that the relative merits of each approach be discussed by the Hague Conference Working Group on the application ot the Hague Convention to refugee children.

B. SUGGESTED ELEMENTS OF A LEGAL INSTRUMENT IN RESPECT OF REFUGEE AND OTHER INTERNATIONALLY DISPLACED CHILDREN AND INTERCOUNTRY ADOPTION

1. The definition of ''refugee children":

"Refugee children" as defined in the instrument should refer to all refugee, asylum-seeking and otherwise internationally displaced children . The term " internationally displaced" may require further elaboration. The purpose would be to include children who, although not requiring international protection as refugees, do need special protection as children outside their home country who are not accompanied by, and effectively lack the protection of, a parent or guardian. " Internationally displaced children" might thus be defined as children outside the country of their nationality, or, if they have no nationality, the country of their former habitual residence, who are temporarily or permanently deprived of their family environment. (Cf. CRC Art. 20 (1).)

2. The Convention on the Rights of the Child as an interpretative instrument in the application of the Hague Convention to refugee children:

States Parties to the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption should declare that they will take full account of the provisions of the Convention on the Rights of the Child and of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in applying the Hague Convention to refugee children, in view of their special vulnerability and need for international protection. Specifically, with respect to refugee children, Articles 4 and 16 of the Hague Convention relating to the determination that a child is adoptable should be interpreted in light of Articles 20, 21 and 22 of the Convention on the Rights of the Child (which concern, respectively, protection of a child without family, adoption and refugee children). Refugee children would thus benefit, with respect to intercountry adoption, from the provisions in Articles 20-22 of the Convention on the Rights of the Child concerning the best interests of the child as the paramount consideration in adoption, the exploration of alternative care arrangements, including the possibility of suitable care in the child's country of origin, the tracing of parents or other family members of the refugee child, and according the refugee child the same protection as any other child in the same situation.

3. The "best interests of the child" standard as applied to the refugee child

In the case of a refugee child, the assessment of the best interests of the child, under Article 4 of the Hague Convention and Article 21 of the Convention on the Rights or the Child, should include consideration of the so particular circumstances as a refugee, including the need for adequate family tracing, appropriate counseling and humanitarian assistance, and consideration of alternative care arrangements permitting eventual family reunification, placement with relatives or members of the refugee community, or suitable care in the child's country of origin.

4. The interpretation of "habitually resident" and "State of origin" in the case or refugee children:

a. For purposes or` Article 9(1) of the Hague Convention, refugee and internationally displaced children will be deemed to be habitually resident in the country in which they currently reside.

b. For purposes of Article 4(b) ot the Hague Convention, "possibilities for placement of the child within the State of origin" will be deemed to encompass appropriate care arrangements for a refugee child in the State of current residence or, where voluntary repatriation is a viable alternative, in the child's country of origin.

5. Tracing requirements as applied to refugee children:

a. Given the special difficulties that may be experienced in locating the parents and relatives of refugee children, and in accordance with the provisions of Article 22 of the Convention on the Rights of the Child, States should undertake to initiate or cooperate in special efforts to trace the family members of refugee children, in cooperation with UNHCR, the International Committee of the Red Cross and other relevant international, governmental and, as appropriate, non-governmental organizations.

b. A flexible approach should be adopted regarding the required duration of tracing efforts, with two years as the normal minimum period before adoption (implying a severing of the child's links with the natural family) is authorized. The required period may be extended where appropriate in light of circumstances in the countries of asylum and origin as well as specific factors affecting the situation of the child. It may be reduced where it is clear from the circumstances~ that there is no possibility of successful tracing and where earlier adoption is necessary to ensure the best interests of the child.

6. Alternative placement possibilities for refugee children:

a. With respect to refugee children, States should declare their policy that, while giving due consideration to possibilities for placement within the State of origin as provided in Article 4(b) of the Hague Convention, the competent authorities should also, in conformity with Articles 20 and XI of the Convention on the Rights of the Child. fully explore the possibility ot suitable alternative care in the child' s country of origin before determining that an intercountry adoption is in the child's best interests.

b. Possibilities considered for placement should include reunification with parents or relatives, foster care within the child's extended family, the refugee community or other appropriate family, and suitable care in the context ot voluntary repatriation, where that is a feasible solution in light ot prevailing conditions in the country ot origin and the best interests ot the refugee child, which must remain the paramount consideration.

c. In evaluating the appropriateness of the various alternative placement possibilities, States should give due consideration to the continuity or the refugee child's upbringing and the ethnic, religious, cultural and linguistic background or the child.

d. In seeking to facilitate appropriate alternative placements, the State should endeavor to provide support to the parent, relatives or potential foster parents of the refugee child to support the establishment of a nurturing environment in which his or her basic needs will be fulfilled.

7. Informed consent by interested parties to an adoption proceeding involving a refugee child:

a. States should be invited to declare it their policy that the free and informed consent of the child's parents or guardians is a crucial element of the determination that the child is adoptable under Article 4(c) of the Hague Convention and Article 21(a) of the Convention on the Rights of the Child, and in this regard that they will ensure that the consent of the parents or legal guardians of the refugee child is sought wherever they may be, including in the child's country of origin or another country.

b. States should further recognize the availability of counselling and humanitarian assistance as necessary elements for the free and informed consent of the persons concerned to a prospective adoption of a refugee child under Article 4(c) of the Hague Convention and Articles 21 (a), 22(1), and 27(3) of the Convention on the Rights of the Child.

8. The principle of confidentiality in adoption proceedings involving refugee children:

States should recognize that the refugee children and their families may be particularly vulnerable for reasons related to their situation as refugees, particularly with reference to their situation vis-à-vis the authorities of their country of origin. Tracing, alternative placement and adoption procedures involving such children should be conducted with due regard for the need for confidentiality in view of the particular vulnerability of refugee children. It should be recognized, however, that the principle of confidentiality must be reconciled with the refugee child's right to have access later in life to information concerning the identity of his or her parents and other aspects ot his or her family background .

9. The consistency of rules in respect of intercountry adoptions whether applied to refugee children or children who are nationals of the country ot origin:

a. States should undertake to apply, to the extent possible, the same procedural requirements to refugee children in the adoption context as are applied to nationals of the State concerned.

b. States should ensure that refugee children are not deprived of essential protections in the context ot adoption proceedings because ot their irregular entry or stay in the country.

10. The appropriate role of UNHCR in intercountry adoptions involving refugee children:

a. In all cases of prospective adoptions involving refugee children, UNHCR should be given notice of the proceedings by the competent authorities.

b. States should ensure and facilitate access to UNHCR by any refugee child who is the subject of a prospective adoption and all interested parties to the proceedings.

c. UNHCR should be invited to participate in the adoption proceedings and to provide advice to the competent authorities, particularly regarding the adequacy of family tracing and efforts to identify appropriate alternative placement possibilities, the determination that a refugee child is adoptable, the adequacy of counseling and the giving of consent and the evaluation of the best interests of the refugee child.

d. UNHCR should be permitted to provide counseling to the child and interested parties, and to provide information to appropriate parties concerning principles, legal instruments and guidelines relevant to the protection of refugees and the intercountry adoption of refugee children.

IV. CONCLUSION

25. UNHCR remains at the disposition of the Working Group as well as the Special Commission of the Hague Conference for further discussions and action on the subject of the application of the Hague Convention to refugee Children. In particular, the Office would be pleased to participate in drafting or to review drafts of an instrument on the subject.

Search Refworld