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Section 4. Family law
Bisha Eugena, European University of Tirana, PhD candidate in law, the Faculty of law E-mail: [email protected]
The 2008 European Convention on children adoption; the changes it brought different from the 1967 Convention
Abstract: The first European Convention on adoption was signed on April 24, 1967 from 16 countries of the European Union and determined the basic principles in children adoption within the country and abroad, which would become part of the internal law of these countries. As a fundamental principle of this convention we can mention the legal status that it gives to the adopted child, by making him/her equal to the other children of the adopting family. This convention has been signed by 47 states of the European Council. This council has been working for more than 40 years to find balance in between policies, adoption standards and common practices within its member states regarding the filed related to family [1,11].
Keywords: European Convention on adoption, children, best interes of the child.
The social and legal changes that have hap- which was approved by the Council of Ministers in
pened in Europe in the last decades, brought the need for many member states of the EU to come up with continuous changes in the national law of adoption. The first proposals for the update of the 1967 Convention were given in the First European Conference on Family Law held in Vienna in 1977. The General Directorate gives each year an explanatory report that provides all the data and the new legislation that was achieved by every member state [2, 495]. In the report of the 7 March 2008, according to the committee of the family law, the update of the convention was expected to after The Hague Convention of 1993, which was finalized in 2008. The highlighted issues from the jurisprudence of the European Court of Human Rights, some provisions of the 1967 European Convention on Children Adoption which contradicted the international bodies, the changes in the European Convention of the 25 January 1996 on "Implementing Children Rights" in relation to the inclusion of children in family issues that have to do with them, set into motion the European Council to create a group of experts to revise and update the 1967 Convention,
2008. This council has given e firm contribution in strengthening the protection of the Family Law, especially by protecting the children interest and by particularly urging the creation of e big number of international instruments (Conventions and Recommendations) in this field [3, 11]. The 1967 Convention updated from the 2008 one, is the main tool of the European Council in the field of adoption. It is the main pillar where the legislations of the member states on this field are held. The best interest of the child became the essence of the revised convention [4, 9].
According to article 1 the aim of this Convention is:
1. This convention is applied for the adoption of a child who by the time the adoptive parents apply for his/her adoption has not become 18 years old yet, has not been married, has not been in a recorded cohabitation and has not reached adulthood yet.
2. This Convention covers only the legal institutions of adoption which create permanent parent-child relationship.
This convention conditions the states that ratify it as in their national law of adoption they must allow the adoption of a child from two people of different genders married or in a legally registered cohabitation, as well as single people.
Furthermore, the aim of this convention is to consider the social and legal developments by being held in the European Convention on Human Rights and to keep the best interests for the children as the main priority above all the others [5].Its target is to harmonize the law of the member states by imposing minimal rules for the adoption process, to establish the main principals like the best interest of the children, the child's approval of the adoption and the right of the child adopted to know his/her origin. These principles were innovative in the revised Convention. The best interest for the child is the most important point it highlights, as it is also mentioned in article 4 paragraph 1. In its preamble, it is displayed the importance of such a revised international instrument, to complement the 1993 Convention of Hague on "Protecting the children and collaborating for the cross country adoption". These two conventions, adjust and cover only legal adoption institutions that create permanent parent-child relationship [6].
The 2008 Convention came up with several changes and new provisions:
— the consent of the child is very necessary if the child can understand the concept of it
— the consent of the mother and father is required in giving the consent for the child adaption
— this convention applies for the heterosexuals couples who are not married but in a legal cohabitation [7].
— the convention gives freedom of action to the states for the case of homosexual couples or couples of the same gender who have a steady relationship
— it sets a balance between the right of the child to know his/her identity and the right of the biological parents to stay anonymous
— the minimal age of the adopter must be 18 to 30 years old and the age difference between the adopter and the child being adopted is preferred to be at least 16 years
— every difference has been eliminated in the revised Convention about whether the child was in or out of the wedlock [8].
While the 1967 Convention has special provisions in relation to the rights of ownership that are in the 2008 one. States are free to widen its purpose and to allow in their legislation the permission of adoption from couples who are married, cohabitate or have stable relationship. The revised Convention significantly improves the procedures of child adoption.
Giving the consent of adoption
Based on the International Law, the child has the right to participate in the decisions that are made for him/her. In the life of a child (being an orphan or abandoned) decisions related to the place where he/she lives and the people he/she/lives with are very important. Therefore, it is important to take into consideration the consent of the child in case of decisions that directly affect his/her life. Considering the enforcement of the legal status of the child from the European Union Convention on Children Rights, the 1996 European Convention on Implementing Children Rights and the 1993 Hague Convention, the consent of the child is now very important if the completely understands it [2, 5].
The convention gives freedom to the states to define in their legislation the age when a child is considered to be able to understand the importance of adoption and for his opinion to be taken into consideration. However, in paragraph b of article 5, the Convention highlights that the age of the child to be able to understand the process of adoption mustn't be over 14. Furthermore, it is important to give the child the possibility to express his/her opinion for issues that have to do with his/her life despite the age (if he/she has reached the age assigned by law). By giving the child the opportunity to express his/her idea about the adoption, it is more likely for him/her to accept his/her adopting parents sooner. However, children are not the decision makers in the adoption process, but they are part of the decision making process by considering their opinions besides of those of the experts [9, 15]. In any case, the child must be informed and aware (as much as his/her age allows it) about the effects of adoption and the adoptive parents. The attitude of the biological parents towards the child that is about to be adopted, is one of the main and most controversial issues of the adoption process [10].
According to the article 5 of the 1967 Convention, it is required the consent of the father of the child born in wedlock, but the consent of the father of a child born out of wedlock is not important. There mustn't be any kind of discrimination towards the father of a child born out ofwedlock if the father has declared to be the biological father of the child. In the case of Keegan against Ireland on 26 May 1994 and Kroon against Netherland on 27 October 1194, the European Court of Human Rights clearly emphasized the importance of having the consent of the father who has declared himself as the biological father of the child.
"The fact that the Irish legislation allowed the decision over adoption to be made in secret, without letting the child know anything about it, without the consent of the applier (father), by allowing a creation ofa bond in between the child and the proposed adoptive parents, aiming in this way the adoption of the child, it reached the point when it violated the right of the applicant in respecting family life." (Keegan against Ireland, 1996) Considering this case, the European Court of Human Rights emphasizes the fact that giving a child for adoption (from the mother) after a very short time of being born, not only damages the relation of the child with his father, but also poses disadvantages in his struggle to gain the child custody against the proposed adoptive parents. The judge is less influenced by the social, emotional and biological factors than the legal one, when it comes to decide if the relationship is "family life" or not [11]. However, even if it was only the legal connection, it is enough to create family life defined by article 8. In the case of Pini against Rumania, the European Court of Human Rights defines the relationship created between the adoptive parent/parents and the child as reaching the target ofarticle 8 even ifthis relationship has been yet legally finalized in a cohabitation and there is no emotional bond in between them.
The 2008 Convention requires the father consent in any case. Point c, paragraph 1 of article 5 of the Convention, it is required the consent of the partner of the adoptive parent if they are in a legal relationship. This does not oblige the states to impose in their national legislation the legally registered cohabitation, but it is directed towards those states that already have this in their legislation. The person
who gives the consent must be well-informed about the effect of his/her consent and that he can express his/her opinion freely, in a written legal form of writing. It could be possible not to consider the consent of one of the parents if he/she does not want parental responsibilities on the child. However, this does not exclude the possibility for this parent to be informed about the adoption of the child. According to paragraph 5 of the article 5 of the Convention, the consent from the mother to give her baby for adoption I valid if it is given 6 weeks after the baby has been born, or if the national legislation does not define the period of the time, the competent authorities must take into consideration the fact that the mother needs a specific period of time to recover physically and psychologically after giving birth. In contrast to the general opinion in specific circumstances, every European country has a mechanism to allow the adoption without the consent from the parents [12, 17].
The legal status according to the Convention
The basic effect of adoption is given in article 11 paragraph 1 of the Convention:
"After the adoption the child must be a complete member of the adoptive family and must have the same rights and responsibilities as all the over biological kids in relation to the adoptive parent/parents or family, whose parenthood has been assigned in accordance to the law. The adoptive parent/parents have responsibilities over the child. Being adopted means ending the legal relationship of the child with his/her biological father/mother or family'.'
In almost all the states that have a functional adoptive institution, the effects of a complete adoption are the ones mention above in article 11. This article aims at substituting article 10 of the 1967 Convention and so he can ensure a modern attitude towards the effects of adoption [13]. In my point ofview, inserting modern elements in the 2008 Convention is to be appreciated. The 2008 Convention mainly deals with the complete adoption by highlighting the importance of ending the relationship of the child with the biological family and that the child is to be treated like a biological child from the adoptive parent/parents. Paragraph 4 of article 11 paved the way for the states to include in their legislation other forms of adoption, besides the complete one, and with more limited effects than the
complete one. Our law of adoption does not predict other forms of adoption besides the classic one, or otherwise known in the other states as "the complete adoption". By other forms of adoption, we understand and mention "the simple adoption" that is exercised in many countries like Italy and France.
By "rights and responsibilities" we understand those with a personal and economic object in between the adopted child and the adoptive parent/parents, and also including the parenthood responsibilities. It is also intended that regarding wealth, food, insurance, maintenance an adoptive child must be treated equal to any other child born in the adoptive family [13, 6].
The 1967 Convention foresees that the adoptive child automatically receives the surname ofthe adop-
tive family. In contrast to the 1967 Convention, the 2008 one gives to the states the freedom to specify in their legislation the possibility to automatically give the surname to the child or not. As it is also mentioned in the Explanatory Report of the 2008 Convention "... acquisition of the surname from the adoptive child in not an absolute law". States are free to decide that in certain circumstances, the competent authorities can allow the child not to change the surname or take the one of the adoptive family.
Adoption can be revoked or annulled from the competent authorities. The best interest for the child must always be the highest priority (K. E.B,2008; article 14 paragr.1). The Convention gives freedom to the states to determine cases of revoking the adoption and the procedures to be followed.
References:
1. Council of Europe Achievement in the field of Law, Family Law and the Protection of Children, Secretariat of the Directorate of Human Rights and Legal Affairs (DG-HL), Strasburg, August 2008.
2. Council of Europe-Explanatory Report to the Draft European Convention on the Adoption.
3. Council of Europe Achievement in the field of Law, Family Law and the Protection of Children, Secretariat of the Directorate of Human Rights and Legal Affairs (DG-HL), Strasburg, August 2008.
4. Challenges in adoption procedures in Europe: Ensuring the best interests of the child, Joint Council of Europe and European Commission Conference, brochure conference proceedings, 2009, Strasbourg.
5. URL: http://www.coe.int/en/web/conventions/full-list/-7conventions/treaty/202
6. Note article 2 paragraph 2 of the 2008 European Convention on Adoption and article 2 of the 1993 Hague Convention.
7. Note article 7 of the 2008 European Convention on Adoption.
8. Note articles 5, 10, 12 of the 1967 Convention) URL: http://eudo-citizenship.eu/InternationalDB /docs/Explanatory%20report%20CETS%20202.pdf
9. Dambach Mia, "The child's consultation and consent in adoption" Challenges in adoption procedures in Europe: Ensuring the best interests of the child, Joint Council of Europe and European Commission Conference, brochure conference proceedings, 2009, Strasbourg.
10. Brian Sloan, The consent of the birth parents to the adoption, Challenges in adoption procedures in Europe: Ensuring the best interests of the child, Joint Council of Europe and European Commission Conference, brochure conference proceedings, 2009, Strasbourg.
11. URL: http://echr-online.info/right-to-family-life
12. Claire Fenton Glynn, "Adoption without consent", Directorate General for Internal Policies, Policy Department C: Citizens' rights and Constitutional Affairs, Brussels 2015.
13. Lowe N. V., Challenges in Adoption Procedures in Europe, Ensuring the best interests of the child, "The child's legal status in adoption" 30 November 2009.
