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Report No. 153

4.7. The draft report of February 1992 was considered by the Hague Conference on Private International Law in its Seventeenth Session and adopted as Final Act on 29th May, 1993. It may be mentioned that India is a signatory to the Final Act as a non-member country of the Hague Conference.

The Preamble of the Final Act takes into account the principles set forth in the UN Conventions on the Rights of the Child of 20th November, 1989 and the UN Declaration on Social and Legal Principles relating to the Protection and Welfare of children, with special reference to Foster Placement and Adoption Nationally and Internationally1 Secondly, it has recognised that inter-country adoption offers the advantage of permanent family to a child who cannot in any suitable manner be cared for in his country of origin.

Thirdly, it expresses concern about the necessity to take measures to ensure that inter-country adoptions are made in the best interests of the child and with respect of the child and with respect for his fundamental rights and to prevent the abduction, the sale of or traffic in children. It has sought to establish a system of co-operation amongst contracting States to ensure that the safeguards provided therein are respected and inter-country adoptions are made in accordance with the Convention.

1. General Assembly Resolution 41/185 of 3rd December, 1986.

4.8. Article 4 of the Final Act lays down the specific mandatory safe guards as under-

(1) The child is to be adoptable;

(2) Placement of the child within the state of origin have to be given due consideration;

(3) An inter-country adoption is in the best interest of the child;

(4) The persons, institutions and authorities whose consent is necessary for adoption have been duly counselled and duly informed of the effects of their consent and of the adoption;

(5) Their consent is given free and unconditional in the required form and in writing;

(6) Their consent have not been induced by payment or compensation;

(7) Their consent is irrecovable;

(8) The consent of mother, where required, has been given only after the birth of the child;

(9) The consents have been given in full knowledge of the effects of the adoption in the receiving state.

4.9. Article 4 provides some optional safeguards depending upon the age and degree of maturity of the child. These optional safeguards are as under-

(1) The child is counselled and duly informed of the effects of the adoption;

(2) The child's consent, if required, is obtained;

(3) Consideration is given to the child's wishes and opinions;

(4) The child's consent, if required, has been given freely and unconditionally in the required legal form and in writing;

(5) The child's consent is not induced by payment or compensation of any kind.

With regard to adoptive parents, convention has laid down that the competent authorities, of the receiving state must determine that,-

(1) the prospective adoptive parents are eligible and suited to adopt, and

(2) the child is or will be authorised to enter and reside permanently in the receiving state.

4.10. As regards the transfer of the child to the receiving state, it is declared that the child would be transferred out only if the competent authorities of both states have verified that no bar exists to the adoption under the laws of their states and have agreed that the child should be entrusted to the prospective adoptive parents.

4.11. It has also provided for Central Authorities and accredited bodies to discharge duties and to take appropriate measures to provide information, satisfies and standard forms and eliminate any obstacles for inter-country adoption. The Central Authority can grant accreditation to such voluntary body which are professionally competent to undertake administrative and social task entrusted to them. An accredited body must pursue only non-profit objectives and staffed by persons specially qualified by their ethical standards and by training or experience to work in the field of inter-country adoption and will be subject to supervision by competent authority of state as to their composition, operation and financial situation.

4.12. Concerning procedure, it lays down that person wishing to adopt a child should apply to the Central Authority in the state of his habitual residence. The Central Authority on satisfaction that the applicant is eligible and suited to adopt shall prepare a Home Study Report which shall also include the characteristics of the child for whom they would be fit to adopt. The report prepared shall then be transferred to the Central Authority of the state of origin of the child.

4.13. The Central Authority of the State of origin if satisfied that the child is adoptable then it shall prepare a Child Study Report and obtain consent of the persons, institutional and authorities whose consent is necessary and determine whether the envisaged placement is in the best interest of the child. The report prepared by the Central Authority of the State of origin shall then be transmitted to the Central Authority of the state of the applicant. The functions of a Central Authority for the aforesaid purposes may be performed by public authorities or bodies to the extent permitted by the law of its state.

4.14. Other relevant provisions contained in the Final Act have laid down mat the Central Authorities of both states shall take necessary steps to obtain permission for the child to leave the state of origin and to enter and reside permanently in the receiving state and transfer takes place in secure circumstances and they shall keep each other informed about the adoption process and progress of the placement if a probationary period is required.

4.15. A provision for recognition of adoption made and certified by the competent authority of the State of adoption by the state of origin permits the refusal of recognition if adoption is manifestly contrary to its public policy and to the best interest of the child. It has also dealt with costs and expenses.

4.16. It is emphasised that improper financial and other gain from an activity related to an inter-country adoption shall not be desired by any person and only direct and indirect costs and expenses, including reasonable professional fees of persons interested in the adoption, may he charged and paid. It also prohibits directors, administrators and employees of bodies involved in adoption from receiving unreasonably high remuneration in relation to services rendered.

4.17. International conventions do not operate as law unless the legislature enacts law incorporating the principles laid down therein. Since India is a signatory to the final Act, it is under an international obligation to enact law with respect to inter-country adoption to give effect to the international conventions. Apart from the principles laid down by the international conventions, our courts have also laid down certain guidelines regulating inter-country adoption. Any legislative exercise should consider both these set of principles.

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