Root Searches and Child Rights

Author: Arun Dohle;

The original article was published by the swiss foster care and adoptive parents organisation “PACH” in their magazine ” Netz Spezial” Nr.3 ; 2020 . Translation from German to English partially done by an adoptee.

Root Searches and Child Rights

The current debate about international adoptions

In recent years, organizations and those who are directly affected by international adoption have been bringing to light one child trafficking scandal after another. These past scandals were known for a long time. But now the victims – that is, the adult adoptees – are demanding answers, recognition of the injustice and compensation. It also becomes clear that to this day there are no well-functioning structures that help adoptees in their root search.

Numerous European countries are now dealing with international adoptions: In the Netherlands, an investigation commission set up by the Ministry of Justice is currently examining past adoption practices and the topic of root searches. In Switzerland, too, the Federal Council and some cantons are investigating international adoption, particularly with regard to adoptions from Sri Lanka. It is to be expected that the practices of other countries of origin will also have to be examined more closely. The adoption system in Denmark is being reformed again and adoptions from Chile are under scrutiny. In Belgium, an expert panel is investigating international adoptions – in addition, adoptions from the Democratic Republic of the Congo and Guatemala are criminally assessed and prosecuted. In Sweden, the central adoption authority has received funding to start a pilot project on root searches.

Regulation of intercountry adoptions at the international level: the Convention on the Rights of the Child

International adoptions have always been controversial. One child trafficking scandal after another became public in the mid-1980s in particular. The United Nations (UN) then tried to regulate international adoptions. Ultimately, the topic has been viewed from a broader perspective and negotiations about the Convention on the Rights of the Child started. The Convention on the Rights of the Child (UNCRC) became effective in 1989. Partly because a scandal about children stolen by the regime was uncovered in Argentina and also the grandmothers of the Plaza de Mayo campaigned for the right to know the origin/descent, this demand ultimately resulted in Articles 7 and 8 of the CRC, which certify the right to the original identity.

Articles 20 and 21 deal with the subject of adoption. Since the individual articles of the UNCRC are interdependent, these articles must be viewed in the context of the broadly outlined rights of the child.

Article 20 reads:

  1. 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.2. States Parties shall in accordance with their national laws ensure alternative care for such a child.3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. 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.

Article 21b reads:

(b) Recognize 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

A common mistake when interpreting Art. 20 Paragraph 3 is that adoption is perceived as child protection measure, since adoption is listed here. However, this misses the fact that adoption is of a private or family law nature. In this understanding, adoption is not a matter of state care for a child, but private care.

Another mistake can be traced back to the fact that Art. 21b is being viewed from the micro level and therefore arguments usually refer to the individual case. Of course, almost every child adopted from abroad, especially from emerging or developing countries, ostensibly grows up under better conditions. However, social policies must first be designed from the macro level.

In a nutshell: According to the CRC, international adoption is nearly impossible, as organized childcare is basically guaranteed in every country. Even if the quality sometimes might have shortcomings, following a rights-based approach means the quality of care must be improved within the individual countries. The technical term for this is the “principle of subsidiarity”, and according to the UNCRC all local forms of childcare go before adoption. All countries except the United States of America have ratified the UNCRC, and it is therefore internationally binding law.

Hague Adoption Convention

The adoption lobby quickly realized that the UNCRC would make international adoptions impossible. This is why it started working with the Conference on Private International Law in The Hague on another convention on adoption. Although the Hague Adoption Convention is based on the UNCRC in the preamble, “Permanency” is preferred here. In short, the principle of subsidiarity under the Hague Adoption Convention is as follows:

First of all, an attempt should be made to keep the original family together (Family Preservation), i.e. to reunite the child with its family when it is in state custody. If this does not work within a certain period of time, the practice of terminating parental rights is now used in many countries. Since the Hague Adoption Convention prefers “Permanency”, children who live in state custody, foster care or residential care should be adoptable.

Adoption and international adoption are considered being state child protection measures. This lead to situations in which children who live in foster families in Romania, Bulgaria or Hungary, for example, are given for adoption abroad. Most of the children adopted in the Netherlands came from Hungary in 2019.

The “Children´s Market” and Romania’s accession process

Romania was the first country to implement the Hague Adoption Convention, which resulted in a “children´s market”. When Romania wanted to join the EU, this children’s market became the hot potato: The EU demanded  its abolition and that Romania stopped exporting children. In the old Member States this practice had stopped after the implementation of the UNCRC. In 2001, Romania temporarily stopped international adoptions under pressure from the EU. The pressure from receiving countries, agencies and adoptive parents on Romania to continue exporting children was immense.

The EU gave Romania massive support in developing the local child protection system. As the question of how to interpret the CRC, in particular the principle of subsidiarity, seemed unsolvable, the Romanian Prime Minister asked the EU Commission for help with drafting a new legislation. For this purpose, the EU Commission set up an independent committee of experts that accompanied Romania in this process for two years. The committee of experts came to the conclusion that local placement in foster families or in residential care is preferable to international adoption.

Furthermore, adoption and international adoption were not considered child protection measures, but very drastic measures, as all legal family ties with the family of origin are permanently cut and the child’s identity is changed. In 2004 Romania banned international adoptions (except for relatives). It became very clear that the Hague Adoption Convent has an effect on and undermines local child protection efforts. Since then, the adoption lobby has tried to convince Romania with many campaigns and initiatives to reinitiate international adoptions.

Countries like Guatemala, Cambodia, Vietnam and Ethiopia, have also stopped international adoptions as a result. Globally, the number of international adoptions has fallen by 80 percent. In Belgium and Denmark, the agencies can only operate with significant state subsidies. Worldwide there is still strong lobbying – also from the UN Committee on the Rights of the Child, the EU Commission and various child rights organizations – to implement the Hague Adoption Convention and maintain adoption as child protection measurement.

The adoption lobby is essentially trying to reserve the option of international adoptions with two initiatives.

1) The European adoption policy

2) The guidelines for alternative care of children

Due to lack of space, this article cannot go into details here. In short, the guidelines for the alternative placement of children prefer «Permanency» just like the Hague Adoption Convention. Few people know that these guidelines were not “adopted” by the UN General Assembly, but merely welcomed. However, the adoption lobby and child rights organizations claim that this is now the international standard.

Dutch Council for the Application of Criminal Law and the Protection of Minors (RSJ)

In 2016 the Dutch Council examined the policy of international adoptions for the Application of Criminal Law and Protection of Minors and recommended the Dutch Government to stop international adoption. The Council came to the same conclusion as the independent committee of experts of the European Union: International adoptions undermine local child protection and do not adhere to the principle of subsidiarity. Furthermore, it is not possible to check whether there are criminal practices in the country of origin under the guise of legality.

Adoption expert Prof. David Smolin from the Cumberland school of law also had to admit this year that the regulation and constant reforms of international adoptions had failed. He pleaded in his last Law-Review-Artikel(draft) for moratoria.

Unfortunately, the RSJ has not shown any interest in adoptions in past. However, in 2016/2017 the scandals surrounding Sri-lanka, Columbia, Brazil, Bangladesh and others came to the public again in the Netherlands. Adult adoptees did their own research in the field, driven by the desire to find their own first family and to share the experiences and networks that had been established with other affected people. In view of the challenge, the organizations achieved considerable results and many families could reunite.

Financial Aid for Search Of Origin

The approach taken by the authorities is currently to use the existing system under the Hague Adoption Convention also for searches of origin. The example of India makes it clear that this does not work in the interests of the searching adoptees.  Searching  adoptees can contact CARA, the central adoption agency in India. This then forwards the request to the appropriate Indian agency if it still exists. The search for origin should then be carried out by the Indian placement agency. That is a conflict of interest with all due respect. The intermediaries are not particularly interested in any grievances being uncovered. The authorities from the receiving countries are also careful to put pressure on the central adoption authority in India, because it ultimately decides whether children are allowed to be adopted abroad in a corresponding country. In the existing system of international adoption, the interests and rights of the adult adopted collide with the interests of future adoptive parents and intermediaries. Since the whole system has failed completely, the first step in a solution is to immediately stop international adoptions. The financial means and resources could then be used in a targeted manner in the interests of the adoptees, who were often victims of child trafficking. Investigative commissions such as those started in Switzerland, the Netherlands and Denmark need to be done, but they should be much broader and deeper.  The process of coming to terms with it will probably take years. However, adult adopters are running out of time because their first parents could die in the process. It is therefore necessary that governments immediately provide organizations with sufficient funds to effectively support and support adopted people in their search for their first families.  It is also conceivable that adopted persons will also receive temporary compensation for the fact that their original identity has been erased. Adopted persons can then use this compensation for their search for origin. In the countries of origin, NGOs are needed that devote themselves entirely to the interests of the adoptees and campaign for their rights in the field . It would make sense if the receiving countries and the existing organizations of the adoptees adopt common standards and develop a platform for exchange, for example in regular meetings in Europe as it would be ineffective if each recipient country were to take initiatives on its own and projects simply run in parallel instead of pooling resources, know-how and strengths. Specifically, it is necessary for the receiving countries to use diplomatic channels to ensure that the sending countries:·         archive files and adoption documents from homes, courts and authorities, keep them centrally and make them accessible, ·         start investigations of practices yourself, ·         set up local DNA- databases that are not only for adopted people and their families, but are generally aimed at missing persons/children.  Initiatives like the one in Belgium, which is now setting up its own DNA database, or ideas to create a database in Europe are doomed to fail, as there is hardly any DNA from families of origin from abroad.  With regard to DNA-based searches, the commercial American databases show the best results. It is clear that this, unfortunately, goes hand in hand with compromises in terms of data protection and the possible commercial use of data. Furthermore, it is difficult to make it understandable to a family of origin in a village the declaration of consent for a DNA test really means. It is therefore understandable that European states will hold back when it comes to funding such private projects. however, nothing speaks against the establishment of, for example, local formal structures for DNA-based searches . the organizations of adoptees  can work with these structures and, on a private level, so to speak, give families in the country of origin the opportunity to feed their DNA into the American database.

Professionalization And Cooperation In The Search For Origin

In my experience, searches for origins are an emotional rollercoaster ride for everyone involved. Especially in India, for example, where the children were given up for adoption due to the social stigma of unmarried mothers, it is essential that experienced and qualified social workers carry out the search and also accompany the reunification and aftercare can offer.  Unfortunately, due to the lack of financial resources, many organizations of adopted people consist of volunteers. This goes hand in hand with high fluctuation and sometimes little experience in this emotionally and socially difficult area. Overall, professionalization is urgently necessary. We take the position that this work is generally done by professionals is carried out by independent organizations and qualified social workers.  For India, for example, it is conceivable that employees of the women’s and child protection authorities do the main work and a locally anchored organization (e.g. Adoptee Rights Council) ensures and checks that the authority’s work is carried out in a qualitatively good manner and in the interests of all parties involved in the sense of a supervisor.  Numerous adult adopters have founded organizations and started initiatives in various European countries to represent adopted people in their rights and also to help them find their origin. various adopters have made great efforts to understand their country of origin and to move around there: they are usually better at this than people who create concepts at their desks.  Just as the adoption system has grown over the years, a rights-based system must also grow in the area of ​​origin searches. The authorities must work intensively and closely with the various organizations and develop appropriate concepts with each individual sending country.  There are still grievances such as, for example in China, since searches for origin based on a paper trail are practically impossible there. All adopted children are formally abandoned here. many cases are clear based on the information in the files. In Sri Lanka, adopters often have details about their first parents, and cases can be cleared up in a short time. However, there are also a large number of adoptees whose files have falsified the data.  A European solution is urgently needed. The European Commission had to take the problem seriously. After the experience with Romania, the European Commission actually had to develop a coherent strategy on children’s rights in the EU, which probably would have led to a general ban on international adoptions in 2010 at the very latest. The EU had also been able to define illegal adoptions in the binding directive on the prevention and fight against human trafficking >> (2011/36 / EU) according to the CRC. All adoptions from public care  violate the CRC and are therefore are  << illicit /illegal>>. This gave the EU the opportunity to provide financial support to organizations that support adopted / victims of child trafficking and, at the same time, to oblige the member states to dedicate themselves to the rights of adoptees.

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