Intercountry Adoption Act

Link to law: http://nslegislature.ca/legc/statutes/intadopt.htm
Published: 2016-01-05

Intercountry Adoption Act

CHAPTER 15 OF THE ACTS OF 1998

An Act to Implement the Hague Convention
on Protection of Children and Co-operation
in Respect of Intercountry Adoption

Short title
1 This Act may be cited as the Intercountry Adoption Act. 1998, c. 15,s. 1.

Interpretation
2 (1) In this Act,

(a) "Convention" means the Convention on Protection ofChildren and Co-operation in Respect of IntercountryAdoption set out in the Schedule to this Act;

(b) "Minister" means the Minister of Community Services.

(2) Words and expressions used in this Act have the same meaning asin the Convention. 1998, c. 15, s. 2.

Declaration
3 The Minister shall request the Government of Canada to declare, inaccordance with Article 45 of the Convention, that the Conventionextends to the Province. 1998, c. 15, s. 3.

Consequences of extension of Convention to Province
4 (1) On and after the date the Convention enters into force withrespect to the Province, as determined by the Convention, the Conventionis in force in the Province and the provisions of the Convention are law inthe Province.

(2) The law of the Province applies, subject to the regulations, to anadoption to which the Convention applies but, where there is a conflictbetween the law of the Province and the Convention, the Conventionprevails. 1998, c. 15, s. 4.

Minister as Central Authority
5 The Minister is the Central Authority for the Province for thepurpose of the Convention. 1998, c. 15, s. 5.

Performance of functions of Central Authority
6 (1) Where the Minister so authorizes, the functions of a CentralAuthority under Chapter IV of the Convention may, to the extentdetermined by the Minister, be performed by public authorities or bybodies accredited under Chapter III of the Convention.

(2) Where the Minister so authorizes, the functions of a CentralAuthority under Articles 15 to 21 of the Convention may, to the extentdetermined by the Minister, be performed by a person or body who meetsthe requirements of Article 22, sub-paragraphs 2a and b, of the Convention. 1998, c. 15, s. 6.

Accredited body
7 Where the Minister so authorizes, a body accredited in aContracting State may act in the Province. 1998, c. 15, s. 7.

Action in Contracting State
8 The Minister may authorize a body accredited in the Province toact in a Contracting State. 1998, c. 15, s. 8.

Right of child to information
9 Subject to the regulations, a child adopted in accordance with theConvention has, to the extent permitted by this or any other Act, a rightof access to information concerning the child's origin that is held in theProvince. 1998, c. 15, s. 9.

Publication of date of coming into force
10 The Minister shall publish in the Royal Gazette the date theConvention comes into force in the Province. 1998, c. 15, s. 10.

Regulations
11 (1) The Governor in Council may make regulations

(a) limiting or varying the application of the law of theProvince to an adoption in the Province to which theConvention applies;

(b) designating the competent authority for any provisionof the Convention;

(c) respecting the release of information concerning theorigin of a child who is adopted pursuant to this Act;

(d) respecting forms to be used for the purpose of thisAct;

(e) defining any word or expression used but not definedin this Act;

(f) respecting any matter deemed necessary or advisableto carry out effectively the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority containedin subsection (1) is regulations within the meaning of the Regulations Act. 1998, c. 15, s. 11.

Proclamation
12 This Act comes into force on such day as the Governor in Councilorders and declares by proclamation. 1998, c. 15, s. 12.

Proclaimed - October 19, 1999
In force - October 1, 1999

SCHEDULE

CONVENTION ON PROTECTION OF CHILDREN AND
CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

The States signatory to the present Convention,

Recognizing that the child, for the full and harmonious development of his or herpersonality, should grow up in a family environment, in an atmosphere of happiness,love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures toenable the child to remain in the care of his or her family of origin,

Recognizing that intercountry adoption may offer the advantage of a permanent familyto a child for whom a suitable family cannot be found in his or State of origin,

Convinced of the necessity to take measures to ensure that intercountry adoptions aremade in the best interests of the child and with respect for his or her fundamentalrights, and to prevent the abduction, the sale of, or traffic in children,

Desiring to establish common provisions to this effect, taking into account theprinciples set forth in international instruments, in particular the United NationsConvention on the Rights of the Child, of 20 November 1989, and the United NationsDeclaration on Social and Legal Principles relating to the Protection and Welfare ofChildren, with Special Reference to Foster Placement and Adoption Nationally andInternationally (General Assembly Resolution 41/85, of 3 December 1986),

Have agreed upon the following provisions -

CHAPTER I - SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are -

a to establish safeguards to ensure that intercountry adoptions take place in thebest interests of the child and with respect for his or her fundamental rights asrecognized in international law;

b to establish a system of co-operation amongst Contracting States to ensure thatthose safeguards are respected and thereby prevent the abduction, the sale of, or trafficin children;

c to secure the recognition in Contracting States of adoptions made inaccordance with the Convention.

Article 2

1 The Convention shall apply where a child habitually resident in oneContracting State ("the State of origin") has been, is being, or is to be moved toanother Contracting State ("the receiving State") either after his or her adoption in theState of origin by spouses or a person habitually resident in the receiving State, or forthe purposes of such an adoption in the receiving State or in the State of origin.

2 The Convention covers only adoptions which create a permanent parent-childrelationship.

Article 3

The Convention ceases to apply if the agreements mentioned in Article 17, sub-paragraph c, have not been given before the child attains the age of eighteen years.

CHAPTER II - REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competentauthorities of the State of origin -

a have established that the child is adoptable;

b have determined, after possibilities for placement of the child within the Stateof origin have been given due consideration, that an intercountry adoption is in thechild's best interests;

c have ensured that

(1) the persons, institutions and authorities whose consent is necessary foradoption, have been counselled as may be necessary and duly informed of theeffects of their consent, in particular whether or not an adoption will result inthe termination of the legal relationship between the child and his or herfamily of origin,

(2) such persons, institutions and authorities have given their consent freely, in therequired legal form, and expressed or evidenced in writing,

(3) the consents have not been induced by payment or compensation of any kindand have not been withdrawn, and

(4) the consent of the mother, where required, has been given only after the birthof the child; and

d have ensured, having regard to the age and degree of maturity of the child, that

(1) he or she has been counselled and duly informed of the effects of the adoptionand of his or her consent to the adoption, where such consent is required,

(2) consideration has been given to the child's wishes and opinions,

(3) the child's consent to the adoption, where such consent is required, has beengiven freely, in the required legal form, and expressed or evidenced in writing,and

(4) such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the Convention shall take place only if the competentauthorities of the receiving State -

a have determined that the prospective adoptive parents are eligible and suited toadopt;

b have ensured that the prospective adoptive parents have been counselled asmay be necessary; and

c have determined that the child is or will be authorized to enter and residepermanently in that State.

CHAPTER III - CENTRAL AUTHORITIES AND ACCREDITED BODIES

Article 6

1 A Contracting State shall designate a Central Authority to discharge the dutieswhich are imposed by the Convention upon such authorities.

2 Federal States, States with more than one system of law or States havingautonomous territorial units shall be free to appoint more than one Central Authorityand to specify the territorial or personal extent of their functions. Where a State hasappointed more than one Central Authority, it shall designate the Central Authority towhich any communication may be addressed for transmission to the appropriate Central Authority within that State.

Article 7

1 Central Authorities shall co-operate with each other and promote co-operationamongst the competent authorities in their States to protect children and to achieve theother objects of the Convention.

2 They shall take directly all appropriate measures to -

a provide information as to the laws of their States concerning adoption andother general information, such as statistics and standard forms;

b keep one another informed about the operation of the Convention and, as far aspossible, eliminate any obstacles to its application.

Article 8

Central Authorities shall take, directly or through public authorities, all appropriatemeasures to prevent improper financial or other gain in connection with an adoptionand to deter all practices contrary to the objects of the Convention.

Article 9

Central Authorities shall take, directly or through public authorities or other bodiesduly accredited in their State, all appropriate measures, in particular to -

a collect, preserve and exchange information about the situation of the child andthe prospective adoptive parents, so far as is necessary to complete the adoption;

b facilitate, follow and expedite proceedings with a view to obtaining theadoption;

c promote the development of adoption counselling and post-adoption services intheir States;

d provide each other with general evaluation reports about experience withintercountry adoption;

e reply, in so far as is permitted by the law of their State, to justified requestsfrom other Central Authorities or public authorities for information about a particularadoption situation.

Article 10

Accreditation shall only be granted to and maintained by bodies demonstrating theircompetence to carry out properly the tasks with which they may be entrusted.

Article 11

An accredited body shall -

a pursue only non-profit objectives according to such conditions and within suchlimits as may be established by the competent authorities of the State of accreditation;

b be directed and staffed by persons qualified by their ethical standards and bytraining or experience to work in the field of intercountry adoption; and

c be subject to supervision by competent authorities of that State as to itscomposition, operation and financial situation.

Article 12

A body accredited in one Contracting State may act in another Contracting State onlyif the competent authorities of both States have authorized it to do so.

Article 13

The designation of the Central Authorities and, where appropriate, the extent of theirfunctions, as well as the names and addresses of the accredited bodies shall becommunicated by each Contracting State to the Permanent Bureau of the HagueConference on Private International Law.

CHAPTER IV - PROCEDURAL REQUIREMENTS IN INTERCOUNTRYADOPTION

Article 14

Persons habitually resident in a Contracting State, who wish to adopt a childhabitually resident in another Contracting State, shall apply to the Central Authorityin the State of their habitual residence.

Article 15

1 If the Central Authority of the receiving State is satisfied that the applicants areeligible and suited to adopt, it shall prepare a report including information about theiridentity, eligibility and suitability to adopt, background, family and medical history,social environment, reasons for adoption, ability to undertake an intercountryadoption, as well as the characteristics of the children for whom they would bequalified to care.

2 It shall transmit the report to the Central Authority of the State of origin.

Article 16

1 If the Central Authority of the State of origin is satisfied that the child isadoptable, it shall -

a prepare a report including information about his or her identity, adoptability,background, social environment, family history, medical history including that of thechild's family, and any special needs of the child;

b give due consideration to the child's upbringing and to his or her ethnic,religious and cultural background;

c ensure that consents have been obtained in accordance with Article 4; and

d determine, on the basis in particular of the reports relating to the child and theprospective adoptive parents, whether the envisaged placement is in the best interestsof the child.

2 It shall transmit to the Central Authority of the receiving State its report on thechild, proof that the necessary consents have been obtained and the reasons for itsdetermination on the placement, taking care not to reveal the identity of the motherand the father if, in the State of origin these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospectiveadoptive parents may only be made if -

a the Central Authority of that State has ensured that the prospective adoptiveparents agree;

b the Central Authority of the receiving State has approved such decision, wheresuch approval is required by the law of that State or by the Central Authority of theState of origin;

c the Central Authorities of both States have agreed that the adoption mayproceed; and

d it has been determined, in accordance with Article 5, that the prospectiveadoptive parents are eligible and suited to adopt and that the child is or will beauthorized to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtainpermission for the child to leave the State of origin and to enter and residepermanently in the receiving State.

Article 19

1 The transfer of the child to the receiving State may only be carried out if therequirements of Article 17 have been satisfied.

2 The Central Authorities of both States shall ensure that this transfer takes placein secure and appropriate circumstances and, if possible, in the company of theadoptive or prospective adoptive parents.

3 If the transfer of the child does not take place, the reports referred to in Articles15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

The Central Authorities shall keep each other informed about the adoption process andthe measures taken to complete it, as well as about the progress of the placement if aprobationary period is required.

Article 21

1 Where the adoption is to take place after the transfer of the child to thereceiving State and it appears to the Central Authority of that State that the continuedplacement of the child with the prospective adoptive parents is not in the child's bestinterests, such Central Authority shall take the measures necessary to protect the child,in particular -

a to cause the child to be withdrawn from the prospective adoptive parents and toarrange temporary care;

b in consultation with the Central Authority of the State of origin, to arrangewithout delay a new placement of the child with a view to adoption or, if this is notappropriate, to arrange alternative long-term care; an adoption shall not take placeuntil the Central Authority of the State of origin has been duly informed concerningthe new prospective adoptive parents;

c as a last resort, to arrange the return of the child, if his or her interests sorequire.

2 Having regard in particular to the age and degree of maturity of the child, he orshe shall be consulted and, where appropriate, his or her consent obtained in relationto measures to be taken under this Article.

Article 22

1 The functions of a Central Authority under this Chapter may be performed bypublic authorities or by bodies accredited under Chapter III, to the extent permitted bythe law of its State.

2 Any Contracting State may declare to the depositary of the Convention that thefunctions of the Central Authority under Articles 15 to 21 may be performed in thatState, to the extent permitted by the law and subject to the supervision of thecompetent authorities of that State, also by bodies or persons who -

a meet the requirements of integrity, professional competence, experience andaccountability of that State; and

b are qualified by their ethical standards and by training or experience to work inthe field of intercountry adoption.

3 A Contracting State which makes the declaration provided for in paragraph 2shall keep the Permanent Bureau of the Hague Conference on Private InternationalLaw informed of the names and addresses of these bodies and persons.

4 Any Contracting State may declare to the depositary of the Convention thatadoptions of children habitually resident in its territory may only take place if thefunctions of the Central Authorities are performed in accordance with paragraph 1.

5 Notwithstanding any declaration made under paragraph 2, the reports providedfor in Articles 15 and 16 shall, in every case, be prepared under the responsibility ofthe Central Authority or other authorities or bodies in accordance with paragraph 1.

CHAPTER V - RECOGNITION AND EFFECTS OF THE ADOPTION

Article 23

1 An adoption certified by the competent authority of the State of the adoption ashaving been made in accordance with the Convention shall be recognized by operationof law in the other Contracting States. The certificate shall specify when and bywhom the agreements under Article 17, sub-paragraph c, were given.

2 Each Contracting State shall, at the time of signature, ratification, acceptance,approval or accession, notify the depositary of the Convention of the identity and thefunctions of the authority or the authorities which, in that State, are competent tomake the certification. It shall also notify the depositary of any modification in thedesignation of these authorities.

Article 24

The recognition of an adoption may be refused in a Contracting State only if theadoption is manifestly contrary to its public policy, taking into account the bestinterests of the child.

Article 25

Any Contracting State may declare to the depositary of the Convention that it will notbe bound under this Convention to recognize adoptions made in accordance with anagreement concluded by application of Article 39, paragraph 2.

Article 26

1 The recognition of an adoption includes recognition of

a the legal parent-child relationship between the child and his or her adoptiveparents;

b parental responsibility of the adoptive parents for the child;

c the termination of a pre-existing legal relationship between the child and his orher mother and father, if the adoption has this effect in the Contracting State where itwas made.

2 In the case of an adoption having the effect of terminating a pre-existing legalparent-child relationship, the child shall enjoy in the receiving State, and in any otherContracting State where the adoption is recognized, rights equivalent to thoseresulting from adoptions having this effect in each such State.

3 The preceding paragraphs shall not prejudice the application of any provisionmore favourable for the child, in force in the Contracting State which recognizes theadoption.

Article 27

1 Where an adoption granted in the State of origin does not have the effect ofterminating a pre-existing legal parent-child relationship, it may, in the receivingState which recognizes the adoption under the Convention, be converted into anadoption having such an effect -

a if the law of the receiving State so permits; and

b if the consents referred to Article 4, sub-paragraphs c and d, have been or aregiven for the purpose of such an adoption.

2 Article 23 applies to the decision converting the adoption.

CHAPTER VI - GENERAL PROVISIONS

Article 28

The Convention does not affect any law of a State of origin which requires that theadoption of a child habitually resident within that State take place in that State orwhich prohibits the child's placement in, or transfer to, the receiving State prior toadoption.

Article 29

There shall be no contact between the prospective adoptive parents and the child'sparents or any other person who has care of the child until the requirements of Article4, sub-paragraphs a to c, and Article 5, sub-paragraph a, have been met, unless theadoption takes place within a family or unless the contact is in compliance with theconditions established by the competent authority of the State of origin.

Article 30

1 The competent authorities of a Contracting State shall ensure that informationheld by them concerning the child's origin, in particular information concerning theidentity of his or her parents, as well as the medical history, is preserved.

2 They shall ensure that the child or his or her representative has access to suchinformation, under appropriate guidance, in so far as is permitted by the law of thatState.

Article 31

Without prejudice to Article 30, personal data gathered or transmitted under theConvention, especially data referred to in Articles 15 and 16, shall be used only for thepurposes for which they were gathered or transmitted.

Article 32

1 No one shall derive improper financial or other gain from an activity related toan intercountry adoption.

2 Only costs and expenses, including reasonable professional fees of personsinvolved in the adoption, may be charged or paid.

3 The directors, administrators and employees of bodies involved in an adoptionshall not receive remuneration which is unreasonably high in relation to servicesrendered.

Article 33

A competent authority which finds that any provision of the Convention has not beenrespected or that there is a serious risk that it may not be respected, shall immediatelyinform the Central Authority of its State. This Central Authority shall be responsiblefor ensuring that appropriate measures are taken.

Article 34

If the competent authority of the State of destination of a document so requests, atranslation certified as being in conformity with the original must be furnished. Unless otherwise provided, the costs of such translation are to be borne by theprospective adoptive parents.

Article 35

The competent authorities of the Contracting States shall act expeditiously in theprocess of adoption.

Article 36

In relation to a State which has two or more systems of law with regard to adoptionapplicable in different territorial units -

a any reference to habitual residence in that State shall be construed as referringto habitual residence in a territorial unit of that State;

b any reference to the law of that State shall be construed as referring to the lawin force in the relevant territorial unit;

c any reference to the competent authorities or to the public authorities of thatState shall be construed as referring to those authorized to act in the relevant territorialunit;

d any reference to the accredited bodies of that State shall be construed asreferring to bodies accredited in the relevant territorial unit.

Article 37

In relation to a State which with regard to adoption has two or more systems of lawapplicable to different categories of persons, any reference to the law of that State shallbe construed as referring to the legal system specified by the law of that State.

Article 38

A State within which different territorial units have their own rules of law in respect ofadoption shall not be bound to apply the Convention where a State with a unifiedsystem of law would not be bound to do so.

Article 39

1 The Convention does not affect any international instrument to whichContracting States are Parties and which contains provisions on matters governed bythe Convention, unless a contrary declaration is made by the States Parties to suchinstrument.

2 Any Contracting State may enter into agreements with one or more of theContracting States, with a view to improving the application of the Convention intheir mutual relations. These agreements may derogate only from the provision ofArticles 14 to 16 and 18 to 21. The States which have concluded such an agreementshall transmit a copy to the depositary of the Convention.

Article 40

No reservation to the Convention shall be permitted.

Article 41

The Convention shall apply in every case where an application pursuant to Article 14has been received after the Convention has entered into force in the receiving Stateand the State of origin.

Article 42

The Secretary General of the Hague Conference on Private International Law shall atregular intervals convene a Special Commission in order to review the practicaloperation of the Convention.

CHAPTER VII - FINAL CLAUSES

Article 43

1 The Convention shall be open for signature by the States which were Membersof the Hague Conference on Private International Law at the time of its SeventeenthSession and by the other States which participated in that Session.

2 It shall be ratified, accepted or approved and the instruments of ratification,acceptance or approval shall be deposited with the Ministry of Foreign Affairs of theKingdom of the Netherlands, depositary of the Convention.

Article 44

1 Any other State may accede to the Convention after it has entered into force inaccordance with Article 46, paragraph 1.

2 The instrument of accession shall be deposited with the depositary.

3 Such succession shall have effect only as regards the relations between theacceding State and those Contracting States which have not raised an objection to itsaccession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 48. Such an objection may also be raised by States at the timewhen they ratify, accept or approve the Convention after an accession. Any suchobjection shall be notified to the depositary.

Article 45

1 If a State has two or more territorial units in which different systems of law areapplicable in relation to matters dealt with in the Convention, it may at the time ofsignature, ratification, acceptance, approval or accession declare that this Conventionshall extend to all its territorial units or only to one or more of them and may modifythis declaration by submitting another declaration at any time.

2 Any such declaration shall be notified to the depositary and shall stateexpressly the territorial units to which the Convention applies.

3 If a State makes no declaration under this Article, the Convention is to extendto all territorial units of that State.

Article 46

1 The Convention shall enter into force on the first day of the month followingthe expiration of three months after the deposit of the third instrument of ratification,acceptance or approval referred to in Article 43.

2 Thereafter the Convention shall enter into force -

a for each State ratifying, accepting or approving it subsequently, or acceding toit, on the first day of the month following the expiration of three months after thedeposit of its instrument of ratification, acceptance, approval or accession;

b for a territorial unit to which the Convention has been extended in conformitywith Article 45, on the first day of the month following the expiration of three monthsafter the notification referred to in that Article.

Article 47

1 A State Party to the Convention may denounce it by a notification in writingaddressed to the depositary.

2 The denunciation takes effect on the first day of the month following theexpiration of twelve months after the notification is received by the depositary. Wherea longer period for the denunciation to take effect is specified in the notification, thedenunciation takes effect upon the expiration of such longer period after thenotification is received by the depositary.

Article 48

The depositary shall notify the States Members of the Hague Conference on PrivateInternational Law, the other States which participated in the Seventeenth Session andthe States which have acceded in accordance with Article 44, of the following -

a the signatures, ratifications, acceptances and approvals referred to Article 43;

b the accessions and objections raised to accessions referred to in Article 44;

c the date on which the Convention enters into force in accordance with Article46;

d the declarations and designations referred to in Articles 22, 23, 25 and 45;

e the agreements referred to Article 39;

f the denunciations referred to in Article 47.

In witness whereof the undersigned, being duly authorized thereto, have signed thisConvention.

Done at The Hague, on the .......... day of ............................. 19......., in the Englishand French languages, both texts being equally authentic, in a single copy which shallbe deposited in the archives of the Government of the Kingdom of the Netherlands,and of which a certified copy shall be sent, through diplomatic channels, to each of theStates Members of the Hague Conference on Private International Law at the date ofits Seventeenth Session and to each of the other States which participated in thatSession.
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