Recommendation Concerning the Application to Refugee Children and Other Internationally Displaced Children of the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption

Pursuant to the Decision of the Seventeenth Session of the Hague Conference on Private International Law, held at The Hague from 10 to 29 May 1993, to convene a Special Commission to study the specific questions concerning the application to refugee children and other internationally displaced children of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption,

The Special Commission gathering at The Hague from 17 to 21 October 1994, in consultation with the Office of the United Nations High Commissioner for Refugees,

Adopts the following Recommendation

RECOMMENDATION

Whereas the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption was concluded at The Hague on 29 May 1993,

Considering that in the application of the Convention to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced, account should be taken of their particularly vulnerable situation,

Recalling that according to the Preamble of the Convention 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, and 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,

The Hague Conference on Private International Law recommends to the States which are, or become, Parties to the Convention that they take into consideration the following principles in applying the Convention with respect to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced.

1. For the application of Article 2, paragraph 1, of the Convention, a State shall not discriminate in any way in respect of these children in determining whether they are habitually resident in that State.

With respect to these children, the State of origin referred to in Article 2, paragraph 1, of the Convention, is the State where the child is residing after being displaced.

2. The competent authorities of the State to which the child has been displaced shall take particular care to ensure that -

a) before any intercountry adoption procedure is initiated,

- all reasonable measures have been taken in order to trace and reunite the child with his or her parents or family members where the child is separated from them; and

- the repatriation of the child to his or her country, for purposes of such reunion, would not be feasible or desirable, because of the fact that the child cannot receive appropriate care, or benefit from satisfactory protection, in that country;

b) an intercountry adoption only takes place if

- the consents referred to in Article 4 c of the Convention have been obtained; and

- the information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, the child's upbringing, his or her ethnic, religious and cultural origins, and any special needs of the child, has been collected in so far as is possible under the circumstances.

In carrying out the requirements of sub-paragraphs a and b, these authorities will seek information from the international and national bodies, in particular the Office of the United Nations High Commissioner for Refugees, and will request their co-operation as needed.

3. The competent authorities shall take particular care not to harm the well-being of persons still within the child's country, especially the child's family members, in obtaining and preserving the information collected in connection with paragraph 2, as well as to preserve the confidentiality of that information according to the Convention.

4. The States shall facilitate the fulfilment, in respect to children referred to in this Recommendation, of the protection mandate of the United Nations High Commissioner for Refugees.

The Hague Conference also recommends that each State take these principles and those of the Convention into account for adoptions creating a permanent parent-child relationship between, on the one hand, spouses or a person habitually resident in that State and, on the other hand, a refugee or internationally displaced child in the same State.

Explanatory Note on the Recommendation
Preamble

Vulnerability of Refugee Children

Considering that in the application of the Convention to refugee children and to children who are, as a result of disturbances in their countries, internationally displaced, account should be taken of their particularly vulnerable situation,...

1. The needs of refugee and other internationally displaced children (hereafter "refugee children") for protection in respect of intercountry adoption is best understood in light 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 often have, 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.

2. The experience of UNHCR in the field suggests that the following three components of the adoption procedure are of heightened importance and complexity where refugee children are involved:

a. family tracing;

b. the exploration of alternative care arrangements; and

c. ensuring the informed consent of parents or other relevant persons.

3. 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.

Family Unity and Alternative Care

Recalling that according to the Preamble of the Convention 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, and 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,

4. The need of every child to grow up in a family environment can normally be met 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.

5. 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.

Paragraph 1

Non-discrimination

For the application of Article 2, paragraph 1 of the Convention, a State shall not discriminate in any way in respect of these children in determining whether they are habitually resident in that State.

6. The Hague Convention, unlike the CRC, only protects a refugee child if he or she is considered "habitually resident" in the Contracting State (Article 2 (1)). The mere fact that a child is a refugee child should not be a relevant factor for determining whether that child is "habitually resident" in that State in the sense of Article 2 (1). In other words, Contracting States should not, when applying the safeguards and procedures and the co-operative framework of the Hague Convention to children habitually resident on their territories, discriminate between refugee children and other children.

Terminology - "the State of origin"

With respect to these children, the State of origin referred to in Article 2, paragraph 1 of the Convention, is the State where the child is residing after being displaced.

7. This is to clarify terminology. The Hague Convention uses the terminology "State of origin" to mean the state in which the child is "habitually resident", which in the case of a refugee child would normally be the country of refuge rather than the child0s home country. However, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and common UNHCR terminology refer to the "country of origin" as the State from which the child has fled, which is normally the child's home country.

Paragraph 2 a
Tracing/Family Reunification and Repatriation

The competent authorities of the State to which the child has been displaced shall take particular care to ensure that-

a. before any intercountry adoption procedure is initiated,

- all reasonable measures have been taken in order to trace and reunite the child with his or her parents or family members where the child is separated from them; and

- the repatriation of the child to his or her country, for purposes of such reunion, would not be feasible or desirable, because of the fact that the child cannot receive appropriate care, or benefit from satisfactory protection, in that country;

8. 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. It is important is refugee situations that separation should not be considered equivalent to abandonment, even where a parent has deliberately sent a child away to safety. Flight across national frontiers, continuing armed conflict and the absence of effective protection by the authorities of the country of origin complicate communications and impede the fallow of information.

9. In UNHCR's experience, the period during which tracing should be continued varies depending on the nature of the 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. A flexible approach should be adopted. 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 in the best interests of the child.

10. 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-terms 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. With the refugee community, both through such placement 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 of health and education programmes, to enable refuge families to adequately provide for the material needs of refugee children.

11. Besides placement in the refugee community, the possibility of suitable care arrangements in the child's 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 principle of non-refoulement. 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.

Paragraph 2 b
Consents and Collection of Information

The competent authorities of the State to which the child has been displaced shall take particular care to ensure that–

b. an intercountry adoption only takes place if

- the consents referred to in Article 4 c of the Convention have been obtained; and

- the information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, the child's upbringing, his or her ethnic, religious and cultural origins, and any special needs of the child, has been collection in so far as is possible under the circumstances.

In carrying out the requirements of sub-paragraphs a and b, these authorities will seek information from the international and national bodies, in particular the Office of the United nations High Commissioner for Refugees, and will request their co-operation as needed.

12. Informed consent to the adoption of a refugee child may require special counselling as well as material assistance. When refugee parents, guardians or relatives who 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. 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 CRC.

13. Both counselling and the humanitarian assistance envisaged in CRC Article 22 (1) may be necessary in such situation s to ensure that consent to adoption by parents or guardians is truly free. 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, were necessary, that the other parent and other relevant parties are duly notifies and give their consent. It is important in refugee situations that absence of parents, guardians or relatives should not be treated as tantamount to consent.

Paragraph 3
Confidentiality

The competent authorities shall take particular care not to harm the well-being of persons still within the child's country, especially the child's country, especially the child's family members, in obtaining and preserving the information collected in connection with paragraph 2, as well as to preserve the confidentiality of that information according to the Convention.

14. States should recognize that refugee children and their families may be particularly vulnerable for reasons related to their situation as refugees, particularly with reference to their situation vis-a-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 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 of his or her family background (CRC Article 7 and 8).

Paragraph 4
Facilitation of UNHCR's Protection Mandate

The States shall facilitate the fulfillment, in respect to children referred to in this Recommendation, of the protection mandate of the United Nations High Commissioner for Refugees.

15. UNHCR has a crucial role to play in intercountry adoptions involving refugee children. The Special Commission of the Hague Conference acknowledged that to the extent compatible with character of the adoption proceedings:

a. In all cases of prospective adoptions involving refuge 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 offamily tracing and efforts to identify appropriate alternative placement possibilities, the determination that a refugee child is adoptable, the adequacy if counselling and the giving if consent and the evaluation if the best interests of the refugee child;

d. UNHCR should be permitted to provide counselling 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.

16. The essential role of UNHCR in 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 ICRC, in particular, have programmes which are important to the welfare of refugee, as well as other, children; ICRC's tracing activities may be relevant to intercountry adoption. UNHCR works in partnership with numerous NGOs as well as Governments to meet the needs of refugee children for protection and assistance. The experience of the Office in family tracing as well as in procedure to determine the best interest of refugee children demonstrates the usefulness of a team or interdisciplinary approach combining the expertise of various agencies.

Closing Paragraph
Broader Scope of the Recommendation

The Hague Conference also recommends that each State take these principles and those of the Convention into account for adoptions creating a permanent parent-child relationship between, on the one hand, spouses or a person habitually resident in that State and, on the other hand, a refugee or internationally displaced child in the same State.

17. The Hague Convention only applies to situations where adoptions take place from one country to another country. The final paragraph recommends that each State take the principles of the Recommendation and those of the Hague Convention into account for adoptions occurring within the State territory, that is, adoptions of refugee children which take place in the country of asylum or in the country of origin following repatriation. This is of particular importance to refugee children, given that the most common form of adoption of a refugee child will normally occur in these contexts.