Posted the: 2015-08-21 Numac: 2012015164 FEDERAL PUBLIC SERVICE Foreign Affairs, trade outside and COOPERATION to development 25 August 2012. -Law concerning consent to the European Convention on the adoption of children (revised), done at Strasbourg on November 27, 2008 (1) (2) ALBERT II, King of the Belgians, to all, present and future, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
2. the European Convention on the adoption of children (revised), done at Strasbourg on 27 November 2008, will release its full and complete effect.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Split, on August 25, 2012.
ALBERT by the King: the Deputy Prime Minister and Minister of Foreign Affairs, D. REYNDERS the Minister of Justice, Ms. A. TURTELBOOM seen and sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Notes (1) Session 2011-2012.
Documents. -Bill filed 19/03/2012, no. 5 - 1542/1. -Report on behalf of the Committee, no. 5-1542/2.
Parliamentary Annals. -Discussion and vote. Meeting of 06/07/2012.
Documents. -Draft transmitted by the Senate, no. 53-2248/1. -Report on behalf of the Committee, no. 53-2248/2. -Text adopted in plenary and subject to Royal assent, session No. 53-2248/3.
Parliamentary Annals. -Discussion and vote.
Session of 05/07/2012.
(2) see Decree of the Flemish Community of March 14, 2014 (Moniteur belge of 17 April 2014 (Ed.2)), Decree of the French community of 27 February 2014 (Moniteur belge of April 25, 2014), Decree of the German-speaking community of October 14, 2013) (Moniteur belge of 6 December 2013 (Ed.2)), order of the common Community Commission of February 26, 2015 (Moniteur belge of 3 March 2015).
European Convention on the adoption of children (revised) preamble the Member States of the Council of Europe and the other signatories to this Convention, considering that the aim of the Council of Europe is to achieve a greater unity between its members in order to safeguard and promote the ideals and principles which are their common heritage;
Whereas, although the institution of adoption of children exists in the legislation of all the Member States of the Council of Europe, it is still in these countries of the divergent views on the principles that should govern the adoption, as well as differences in the procedure of adoption and the legal effects of the adoption;
Taking into account the United Nations Convention on the rights of the child of 20 November 1989, and in particular article 21 thereof;
Taking into account the Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption;
Taking note of the recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe entitled "respect for the rights of the child in international adoption" and the white paper of the Council of Europe on the principles relating to the establishment and the legal consequences of parentage;
Recognising that certain provisions of the European Convention on the adoption of 1967 children (ETS No. 58) are outdated and incompatible with the jurisprudence of the European Court of human rights;
Recognizing that the European Convention of 25 January 1996 on the exercise rights of children (ETS No. 160) and the case law of the European Court of human rights have improvements relating to the participation of the child in family proceedings affecting them;
Whereas the acceptance of common principles and revised practices with regard to adoption of children, taking into account developments in this area in recent decades, would help to overcome the difficulties caused by the differences between their internal rights and at the same time, to promote the interests of children who are adopted;
Convinced of the need for an international instrument revised on the adoption of children of the Council of Europe which would notably usefully complement the Hague Convention of 1993;
Recognizing that the best interests of the child must always take precedence over any other consideration, have agreed as follows: title I:. -Scope of the Convention and implementation of its principles Article 1 - scope of the Convention 1. This Convention concerns the adoption of a child who, at the time where the adoptive parent application to adopt, has not reached the age of eighteen, is not or was not married, doesn't have or had not contracted a registered partnership and has not reached the majority.
2. this Convention applies only to the adoption legal institutions which establish a parent-child relationship.
Article 2 - implementation of the principles of each State party shall adopt legislative or other measures which may be necessary to ensure the conformity of its legislation with the provisions of this Convention and shall notify the Secretary general of the Council of Europe measures taken for this purpose. Title II. -General principles Article 3 – validity of adoption adoption is valid only if it is pronounced by a court or an administrative authority (hereinafter ' the competent authority').
Article 4 - Delivery of adoption 1. The competent authority decision adoption only if it is satisfied that the adoption complies with the best interests of the child.
2. in each case, the competent authority attached great importance to the adoption to bring the child a stable and harmonious home.
Article 5 – Consents to adoption 1. Subject to paragraphs 2 to 5 of the present article, the adoption is not pronounced unless at least the following consents have been given and not removed: a) the consent of the mother and the father; or, if he has neither father nor mother which can consent, the consent of any person or any organization who is entitled to consent in the place of parents;
b) the consent of the child considered by law as having sufficient understanding; a child is considered as having sufficient understanding when it has reached the age laid down by law, which shall not exceed fourteen years;
(c) the consent of the spouse or partner registered the adoptive parent).
2. persons whose consent is required for the adoption must be surrounded by the necessary and duly informed advice on the implications of their consent, in particular on the maintenance or failure, due to an adoption, right links between the child and his family of origin. This consent must be given freely in the required legal form, and shall be given or recorded in writing.
3. the competent authority may dispense with the consent or overrule the refusal of consent of one people or one of the organizations referred to in paragraph 1, otherwise for exceptional reasons determined by law. However, it is permitted to dispense with the consent of a child with a disability that prevents him from expressing a valid consent.
4. If the father or mother is not the holder of parental child responsibility, or in any case the right to consent to the adoption, the legislation may provide that consent is not required.
5. the consent of the mother to the adoption of her child is valid when it is given after the birth, at the expiration of the time limit prescribed by the legislation, which must not be less than six weeks or, if it is not specified period, at a time where, in the opinion of the competent authority, the mother will have to recover sufficiently as a result of childbirth.
6. in this Convention, means 'father' and 'mother' persons who, within the meaning of the legislation, are the parents of the child.
Article 6 – Consultation of the child if, under article 5, paragraphs 1 and 3, it is not necessary to obtain the consent of the child, it is consulted as far as possible, and its opinion and wishes are taken into account with regard to maturity. It is possible to dispense with this consultation if it appears manifestly contrary to the best interests of the child.
Article 7 – Conditions for adoption 1. The legislation permits the adoption of a child: a) by two persons of different sex i) who are married or, ii) where such an institution exists, which have contracted a registered partnership;
(b) by a single person.
2. States have the possibility of extending the scope of this Convention to same-sex couples married or who have contracted a registered together partnership. They also have the possibility of extending the scope of this Convention to heterosexual and homosexual couples living together in a stable relationship.
Article 8 – Possibility of a new adoption legislation allows a new adoption of a child already adopted in one or more of the following cases: has) when it comes to an adopted child of the spouse or registered the adopter's partner;
(b) when the previous adopter has died;
(c) when the previous adoption is cancelled;
(d) when the previous adoption was terminated or ends as well;
(e) when the new adoption is justified on serious grounds and the law does not allow to stop the previous adoption.
Article 9 – Minimum Age of the adopter 1.
A child may be adopted only if the adopter has reached the minimum age prescribed by law to
this end, this minimum age being neither less than eighteen years nor more than thirty years. There must be a difference of age appropriate between the adopter and the child, having regard to the best interests of the child, this difference should preferably be at least sixteen years of age.
2. However, the law may provide for the possibility to derogate from the requirement of the minimum age or the age difference with regard to the best interests of the child: a) if the adopter is the spouse or the registered partner of the father or the mother of the child; or (b)) due to exceptional circumstances.
Article 10 – Prior investigations 1. The competent authority decision adoption only after the completion of the appropriate investigations concerning the adopter, the child and his family. During these investigations and later, data may be collected, processed and communicated in compliance with the rules relating to professional secrecy and data protection personal.
2. investigations, to the extent appropriate in each case, focus as much as possible and inter alia on the following: a) personality, health and social environment of the adopter, his family life and the installation of his home, its ability to raise the child.
b) the reasons why the adopter wishes to adopt the child;
(c) the reasons for which, when only one of the two spouses or registered partners (e) s application to adopt the child, the other only joins not scheduled;
(d) adaptation reciprocal of the child and the adopter, and the period during which the child has been entrusted to his care;
e) the personality, health and the environment social, as well as, subject to legal restrictions, the family environment and the civil status of the child;
(f) the ethnic, religious and cultural origins of the adopter and the child).
3. these investigations are entrusted to a person or a body recognized or approved for this purpose by the law or by a competent authority. They are, as far as possible, carried out by social workers trained in this area, due to their training or their experience.
4. the provisions of this article in no way affect the power or obligation that the authority competent to obtain any information or evidence, or not within the scope of these investigations, and which it considers as potentially useful.
5. the investigation of legal capacity and the ability to adopt, the situation and the motivations of the persons concerned and the appropriateness of the placement of the child is performed before latter is entrusted the adoption to the future adoptive care.
Article 11 - Effects of adoption 1.
When adopted, the child becomes a full member of the family of the adopter or adopters and has, with respect to the adopter or adopters and in respect of his or their families, the same rights and obligations as a child of the adoptive parent or the adoptive parents whose filiation is legally established.
The adoptive parent or the adoptive parents assume parental responsibility for the child. The adoption puts an end to the legal relationship between the child and his father, mother and family of origin.
2. Nevertheless, the spouse, registered partner or cohabitee of the adopting party retains its rights and obligations to the adopted child if the latter is her child, unless the legislation not to derogate from.
3. as regards the breakdown of the legal relationship between the child and his family of origin, States Parties may provide exceptions for issues such as the family name of the child, the impediments to marriage or the conclusion of a registered partnership.
4. States Parties may provide provisions relating to other forms of adoption with more limited effect than those mentioned in the preceding paragraphs of this article.
Article 12 – Nationality of the adopted child 1. The States Parties shall facilitate the acquisition of nationality by a child adopted by one of their nationals.
2. loss of nationality which might result from the adoption is subject to the possession or acquisition of another nationality.
Article 13 - Prohibition of restrictions 1. The number of children that can adopt a same-time adopter is not limited by legislation.
2. the law may forbid a person to adopt a child on the ground that it has or may have a child.
Article 14 – Revocation and annulment of an adoption 1. Adoption may be revoked or cancelled by a decision of the competent authority. The best interests of the child must always take precedence over any other consideration.
2. until the child has reached majority, the revocation of the adoption may intervene only on serious grounds provided for by law.
3. the application for annulment must be filed within a time limit fixed by the legislation.
Article 15 – Request for information from another State party when the investigation carried out pursuant to articles 4 and 10 of the present Convention refers to a person who resides or has resided in the territory of another State party, that State party shall endeavour to ensure that information which had been requested to be provided without delay. Each State shall designate a national authority to which a request for information is made.
Article 16 - Procedures for the establishment of filiation in the case where a procedure of establishment of paternity or, where it exists, a procedure for the establishment of maternity was hired by the father or biological mother suspected, the adoption procedure is, when warranted, was suspended pending the outcome of the procedure for the establishment of filiation. The competent authorities act expeditiously in the context of the procedure for the establishment of filiation.
Article 17 – Prohibition of undue material gain no person shall take unfair financial gain or other activity in relation to the adoption of a child.
Article 18 - Provisions more favourable States Parties shall retain the right to adopt provisions more favourable to the adopted child.
Article 19 - Period probationary States Parties have the discretion to require that the child is placed in the care of the adopter for a sufficiently long period before the pronouncement of the adoption so that the competent authority can reasonably assess relationships that would be between them if the adoption was pronounced. In this regard, the best interests of the child must take precedence over any other consideration.
Article 20 – Counselling and follow-up adoption Services Governments shall to the promotion and the proper functioning of services of advice and follow-up adoption, to help and guide the prospective adoptive parents, adoptive parents and adopted children.
Article 21 – Training States Parties shall ensure that social workers who deal with adoption receive appropriate training concerning the social and legal aspects of adoption.
Article 22 - Access to information and their 1 communication modalities.
Provisions may be taken before an adoption can, where appropriate, take place without disclosing the identity of the adoptive parents to the family of the child's origin.
2. arrangements are being made to require or allow the adoption procedure takes place behind closed doors.
3. the adopted child has access to information held by the competent authorities concerning its origins.
When her parents of origin have the right to not to disclose their identity, a competent authority shall have the possibility, insofar as permitted by law, to determine whether to exclude this right and provide information on the identity, in the circumstances and the respective rights of the child and its parents of origin. An adopted child has not yet reached the age of majority may receive appropriate advice.
4. the adopter and the adopted child can obtain documents containing excerpts from public records attesting the date and place of birth of the adopted child, but not specifically reveal the adoption, or the identity of his parents of origin.
States Parties may choose not to apply this provision to the other forms of adoption referred to in paragraph 4 of article 11 of this Convention.
5. with regard to the right of a person to know its identity and its origins, the relevant information relating to adoption are collected and retained for at least fifty years after it has become final.
6. public registers are required or, at the very least, their contents reproduced, so that people who do not have a legitimate interest can learn the adoption of a person or, if that is known, the identity of her parents of origin.
TITLE III. -Clauses finals Article 23 – effects of the Convention 1. This Convention replaces, for States which are Parties, the European Convention on the adoption of children, opened for signature on 24 April 1967.
2. in the relations between a party to the Convention and a party to the 1967 Convention which has not ratified this Convention, article 14 of the Convention of 1967 continues to apply.
Article 24 – Signature, ratification and entry into force 1. This Convention is open for signature by the Member States of the Council of Europe and non-Member States which have participated in its elaboration.
2. the Convention is subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which three signatories agreed expressly to be bound by the Convention in accordance with the provisions of paragraph 2 of this article.
4. for any State referred to in paragraph 1, which subsequently expressly agreed to be bound by the Convention, it shall enter into force the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of ratification, acceptance or approval.
Article 25 – accession 1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may, after consultation of the Parties, invite any State member of the Council of Europe who have not participated in its elaboration to accede to it, by a decision taken by the majority provided for in article 20.d of the Statute of the Council of Europe, and the unanimity of the representatives of the States Parties entitled to sit on the Committee of Ministers.
2. for each acceding State, the Convention will be implemented on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary general of the Council of Europe.
Article 26 – Territorial Application 1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, designate any territories to which apply this Convention.
2. a State party may subsequently, at any time, by a declaration addressed to the Secretary general of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration and that it ensures international relations or on whose behalf it is authorized to make commitments. The Convention will enter into force with respect to that territory the first day of the month following the expiration of a period of three months after the date of receipt of the declaration by the Secretary general.
3. any declaration made under the two preceding paragraphs may be withdrawn, in respect of any territory specified in the declaration, by notification addressed to the Secretary general of the Council of Europe.
The withdrawal shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary-General.
Article 27 – reservations 1.
No reservation is permitted with respect to this agreement except as regards the provisions of article 5, paragraph 1, subparagraph (b), article 7, paragraph 1, a.ii and (b), and article 22, paragraph 3.
2. any reservation made by a State under paragraph 1 shall be formulated at the time of signature or of the deposit of its instrument of ratification, acceptance, approval or accession.
3. any State may wholly or partly withdraw a reservation formulated by him in accordance with paragraph 1 by means of a declaration addressed to the Secretary general of the Council of Europe, which shall take effect on the date of its receipt.
Article 28 – Notification of the authorities competent each State party shall notify the Secretary general of the Council of Europe the name and address of the authority which may be transmitted the requests under article 15.
Article 29 - denunciation 1. Any State party may, at any time, denounce this Convention by sending a notification to the Secretary-General of the Council of Europe.
2. Such denunciation shall take effect on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary-General.
Article 30 – Notification the Secretary general of the Council of Europe shall notify the States members of the Council of Europe, the non Member States which participated in the elaboration of this Convention, any State party, and to any State invited to accede to this Convention: a) any signature;
(b) any deposit of instrument of ratification, acceptance, approval or accession;
(c) any date of entry into force of this Convention in accordance with article 24;
(d) any notification received in application of the provisions of article 2;
(e) any declaration received pursuant to the provisions of paragraph 2 of article 7 and paragraphs 2 and 3 of article 26;
(f) any reservation and withdrawal of reservation made pursuant to the provisions of article 27;
(g) any notification received in application of the provisions of article 28;
(h) any notification received in application of the provisions of article 29 and the date on which the denunciation takes effect;
(i) any other Act, notification or communication relating to this Convention.
In witness whereof the undersigned, being duly authorized thereto, have signed the present Convention.
Done at Strasbourg, November 27, 2008, in french and English, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary general of the Council of Europe in shall communicate certified copies to each of the Member States of the Council of Europe, to non-Member States which participated in the elaboration of this Convention and to any State invited to accede to this Convention.
LIST OF STATES RELATED STATES STATENSIGNATURE ONDERTEKENINGRATIFICATION BEKRACHTIGINGENTREE INTO FORCE INWERKINGTREDING GERMANY - DUITSLAND23/05/201402/03/201501/07/2015 2008-11-ARMENIE27 / / BELGIUM - DENMARK BELGIE01/12/200807/05/201501/09/2015 - DENEMARKEN27/11/200803/02/201201/06/2012 SPAIN - FINLAND SPANJE30/11 200905-08/201001/09/2011 - FINLAND27/11/200819/03/201201/07/2012 HUNGARY - HONGARIJE29/11/2010 / / ICELAND - 2008-11-IJSLAND27 / / MACEDONIA - FYR-VJR30/04/2013 / / MALTA - MALTA27/04/201527/04/201501/08/2015 2009-06-MONTENEGRO18 / / NORWAY - NOORWEGEN27/11. 200814/01/201101/09/2011 Netherlands - NEDERLAND30/11/200929/06 201201/10/2012 PORTUGAL14 12 / / 2009 / / Romania - ROEMENIE04/03/200902/01/201201/05/2012 United Kingdom - VERENIGD KONINKRIJK27/11/2008 / / Serbia - 2009-06-SERVIE18 / / UKRAINE - DECLARATIONS OEKRAINE28/04/200904/05/201101/09/2011 "pursuant to sections 15 and 28 of the Convention, the Belgium declares that requests for information will be transmitted to the next authority ": Service federal public Justice Service of the Adoption international Boulevard de Waterloo 115 1000 Bruxelles Tel: 00 32 2 542 75 72 or 32 2 542 71 61 Fax: 00 32 2 542 70 56 E-mail: email@example.com" "in accordance with articles 7, paragraph 2, and 30 of the Convention, the Belgium declares that, under article 343 of the civil Code ", the term 'adopting' covers also couples homosexueles married or having made a declaration of legal cohabitation and homosexual and heterosexual couples who live together permanently and emotional since at least three years."