Synthesis Report

DEMOLIN BRULARD BARTHELEMY
SYNTHESIS REPORT
COMPARATIVE STUDY RELATING TO THE PROCEDURES OF ADOPTION AMONG

THE MEMBER STATES OF THE EUROPEAN UNION, ABOUT PRACTICAL
DIFFICULTIES ENCOUNTERED IN THIS FIELD BY THE EUROPEAN CITIZENS WITHIN
THE FRAMEWORK OF THE EUROPEAN SPACE OF JUSTICE AND CIVIL MATTERS
AND THE POSSIBILITIES OF SOLVING THESE PROBLEMS AND TO PROTECT THE
CHILDREN’S RIGHTS
JLS/2007/C4/017-30-CE-0157325/00-64
Yves BRULARD, Létitia DUMONT
Tutor scientific direction: Thierry MOREAU
This study was commissioned by the European Commission's Directorate-General

Justice, Freedom and Security. The opinions expressed in this document are the sole
responsibility of the authors and do not necessarily represent the official position of
the European Commission.
1
SUMMARY
1. COMPARATIVE TABLES (LEGAL OPTIONS) .................................................................................... 4
2. COMPARATIVE TABLES (EMPIRICAL STUDY) .............................................................................. 26

2.1. AUSTRIA ....................................................................................................................................... 26
2.2. BELGIUM ...................................................................................................................................... 28
2.3. BULGARIA ..................................................................................................................................... 30
2.4. CYPRUS ....................................................................................................................................... 32
2.5. CZECH REPUBLIC ........................................................................................................................ 34
2.6. DENMARK ................................................................................................................................. 36
2.7. ESTONIA ....................................................................................................................................... 38
2.8. FINLAND ....................................................................................................................................... 40
2.9. FRANCE ........................................................................................................................................ 42
2.10. GERMANY ................................................................................................................................. 43
2.11. GREECE ....................................................................................................................................... 45
2.12. HUNGARY ..................................................................................................................................... 47
2.13. IRELAND.................................................................................................................................... 49
2.14. ITALY .......................................................................................................................................... 51
2.15. LATVIA .......................................................................................................................................... 53
2.16. LITHUANIA .................................................................................................................................... 55
2.17. LUXEMBOURG .............................................................................................................................. 57
2.18. MALTA .......................................................................................................................................... 59
2.19. THE NEDERLANDS ....................................................................................................................... 61
2.20. POLAND ........................................................................................................................................ 63
2.21. PORTUGAL ................................................................................................................................... 64
2.22. ROMANIA ...................................................................................................................................... 66
2.23. SLOVAKIA ..................................................................................................................................... 68
3.24. SLOVENIA ..................................................................................................................................... 70
3.25. SPAIN ........................................................................................................................................... 72
3.26. SWEDEN ....................................................................................................................................... 74
3.27. UNITED KINGDOM ......................................................................................................................... 76
3. SYNTHESIS .............................................................................................................................................. 78
3.1. AUSTRIA ....................................................................................................................................... 78
3.2. BELGIUM ...................................................................................................................................... 83
3.3. BULGARIA ..................................................................................................................................... 88
3.4. CHYPRUS ..................................................................................................................................... 93
3.5. CZECH REPUBLIC ........................................................................................................................ 98
3.6. DENMARK ................................................................................................................................... 104
3.7. ESTONIA ..................................................................................................................................... 109
3.8. FINLAND ..................................................................................................................................... 113
3.9. FRANCE ...................................................................................................................................... 117
3.10. GERMANY................................................................................................................................... 121
3.11. GREECE ..................................................................................................................................... 126
2
3.12. HUNGARY ................................................................................................................................... 132
3.13. IRELAND ..................................................................................................................................... 135
3.14. ITALY .......................................................................................................................................... 139
3.15. LATVIA ........................................................................................................................................ 143
3.16. LITHUANIA .................................................................................................................................. 147
3.17. LUXEMBOURG ............................................................................................................................ 151
3.18. MALTA ........................................................................................................................................ 154
3.19. NETHERLANDS ........................................................................................................................... 157
3.20. POLAND ...................................................................................................................................... 160
3.21. PORTUGAL ................................................................................................................................. 163
3.22. ROMANIA .................................................................................................................................... 167
3.23. SLOVAKIA ................................................................................................................................... 170
3.24. SLOVENIA ................................................................................................................................... 173
3.25. SPAIN ......................................................................................................................................... 176
3.26. SWEDEN ..................................................................................................................................... 182
3.27. UNITED KINGDOM ...................................................................................................................... 186
4. CONCLUSIONS...................................................................................................................................... 189
4.1. BULGARIA ................................................................................................................................... 189
4.2. ROMANIA .................................................................................................................................... 191
4.3. SUMMARY................................................................................................................................... 199
5. POLYCY OPTION .................................................................................................................................. 204
3
1. COMPARATIVE TABLES (LEGAL OPTIONS)
1. Minors Adoptions Mayors Adoptions
Germany Yes. Yes. The German law also permits

the adoption of adults. The adoption
of an adult requires moral reasons as
justification, such as that the parent-
child relationship is already
established between the adoptive
parents and the child, section 1767
of the Civil Code.
Austria Yes. Yes. Though, The adoptee must
consent in the adoption, if he/she is
over 18 years.
Belgium Yes. No. In a line of principle Article 1231-
6 does not include it. Otherwise, the
court of first instance may admit a
social enquiry on this project.
Bulgaria Yes. No. According to the Bulgarian

Family Law, adoptee can only be a
person who, at the time of filing the
application for adoption, is not
eighteen years old. The adoption of
adult is not permitted under the
Bulgarian legislation because the
adoption has as its main purpose the
breeding and the education of the
child.
Cypus Yes. According to the national Yes, the Law 19(I) of 1995, “adopted
adoption law, the Law 19(I) of 1995, child” includes a person of over
“adopted child” includes a minor. eighteen years of age, where this
person is a natural child of one of the
adopters.
Denmark Yes. An adoption decree may be Yes by analogy though not explicitly
granted only to persons who have expressed in the Danish Civil Code.
attained the age of 25. However,
where warranted by special reasons a
decree may be granted to a person
having attained the age of 18. Where
the child to be adopted is under the
age of 18, adoption is subject to the
applicant having been approved as
adopter, cf. sections 25(a) and 25(b)
of this Act. Yet the age difference
between the applicant and the child
not be more than 40 years.
4
Spain Yes, not emancipated Yes, if a common life initiated before
the adopted 14 years old.
Estonia Yes Not
Finland Yes Yes, the adoption of an adult, while
still a minor, the adoptee was taken
care of and brought up by the
adopter
France Yes Not
Greece Yes, Yes, only when the adoptee is parent
up to the blood or alliance fourth
degree with the adopter.
Hungary Yes Not
Ireland Yes under 7 years old. Not
Italy Yes Yes
Latvia Yes Not
Lithuanie Yes Not
Luxembourg Yes Not
Malta Yes Not
Netherland Yes Not
Poland Yes Not
Portugal Yes Not
Czech Yes, younger than 18 unmarried Not
Republique
Romania Yes Not
United Yes, under 18 years old Not
Kingdom
Slovakia Yes Not
Slovenia Yes Not
Sweden Yes Yes, sometimes older than 18.
2. Existence of representing association for the Obligation to pass

parents by an association
representant the
parents.
Germany Yes. The Youth Welfare Services (Jugendamt) , the Yes
Recognised Adoption agencies (anerkannte
Adoptionsvermittlungsstellen) and the Foreign
Adoption Agencies (Auslandsvermittlungstellen)
Austria The Youth Welfare (Jugendamt) Yes
Belgium Yes. Three competent communities. One for each Yes
linguistic minority composing Belgium.
Bulgaria Yes. The Intercountry Adoptions Council Yes
Cyprus Yes Not
Denmark Yes the Danish Department of Family Affairs Yes
Spain Yes, the associations of adoptive parents do Not
organise formation for the parents who want to
initiate a procedure of adoption. (not obligatory)
Estonia Not, there’s not legal authorized associations. Not
However, there’s private associations to get
information/advice concerning adoption, but they
have no legal right to represent the parents.
Finlande Yes, besides the organs and services like as Not, only adoption
adoption counseling and inter-country adoption counseling and inter-
5
services, there are plenty of other actors in the field, country adoption
mainly associations, representing and supporting the services are deemed
adoptive parents. as obligatory in the
adoption process
France Yes Yes
Greece Not there’re not specific associations for families Not
wishing to adopt.
Hungary Not, the parents in Hungary can establish Not
associations according to the right of public meeting,
which provide some kind of representation of interest
in the connection of the adopted persons. Such
associations can not take part in the process of the
adoption, it can/could have a benefit just after the
adoption.
Ireland Not, although there are support groups in Ireland Not.
representing adoptive parents and natural parents,
there are no formal services available.
Italy Yes. Accredited Bodies established by Act 476 of 31 Yes
December 1998
Latvia Not Not
Lithuania Not, There is no registered association or other non- Not
governmental body representing adoptive parents.
Luxembourg Yes Not
Malta Not, there’s not this kind of assotiations in Malte. Not.
Netherlands Not, In case of national adoption there is no Not.
association representing the parents.
Poland Yes, The special association dealing with the Yes.
problems of adoption is integrated into Polish legal
system.
Portugal The existing associations do not represent Not
exclusively the parents and do not have part in an
adoption procedure.
Nonetheless, there is a non profitable association
(Bem Me Queres) that is still waiting to be accredited
by the Portuguese Central Authority.
Czech Not, but there are many others authorized assotiation Not
Republic generally competent for the family and child care
Romania Yes, The National Authority for the Protection of Yes
Children’s Rights (ANPDC) has created a Centre of
counseling and support for parents and children
called CCS, that is a day service that supports and
assists the parents to face the psychosocial
difficulties that affects the family relationships.
United Yes, there are some voluntary organisation having Not
Kingdom parental responsibility for care the childrens
Slovakia Not, there is no special association representing the Not.
parents.
Slovenia Not, there’re not Not
Sweden Yes, voluntary organizations Authorized and Not
supervised by the Swedish Intercountry Adoptions
Authority
3. Parents previous training post-adoption follows up

Germany Yes. The child has to be looked after Not. The guideline set by the
6
for a certain period before the explanations of the government in
adoption. The duration is not fixed by the Draft of the Law on the
law. The common practice is that the Procuration of Adoption (RegE zum
time depends on the age of the child. AdoptVermG 19761) makes very
clear that the selection of the right
adoptive parents has to take place
before the probation period and not
afterwards.
Austria Not Yes. After the adoption is legally
effective the local authorities still
supervise the relationship between
adoptive parents and child and file
so-called “post-placement reports”, in
order to help the parents in case of
problems with the integration of the
adoptive child into their family.
Belgium Yes any potential adopter/adoptee Yes. There is the possibility of a post-
needs to follow a course organised by adoption course.
the competent community.
Bulgaria No No.
Cyprus Yes Not after the decision is taken.
Though, a court may postpone by six
months its decision for a decree of
adoption if the probatory period has
not satisfied all the required
conditions.
Denmark Yes No
Spain Not, there is only a meeting between Yes
the parents and a psychologist in the
process to obtain the certificate of
suitability but it is not really a
formation. The lack of training of the
parents is an important aproach that
is done since the ECAI and also since
associations of adopting parents who
organize formations for the people
who wish to initiate a procedure of
adoption.
Estonie Yes (voluntary) Not
Finlande Yes, Adoption counseling is given by Yes, the same Adoption counseling
the social workers of the municipal is given by the social workers of the
welfare body and the Save the municipal welfare body.
Children association. It’s obligatory
and free of charge.
France Not Yes
Greece Not Yes, After the final decision of
adoption, the sevice or social
organism,which contributed to it
execution, it is obliged to continue its
collaboration with the adoptive family
during three years with at least one
1
BT-Drucks 7/3421,21
7
visit a year.
Hungary Yes, aptitude test, participate in Not, Obligatory follow-up doesn't
preparative training course and exist at the moment. The legal
consulting over the child protection institution of fallow-up exists only in
special services the case of the adoption of a foreign
child in Hungary and in the case of
the adoption of a Hungarian child by
a foreigner.
Ireland Yes, they have to keep the children Yes, Once an adoption order is made
for one year before the application and the child becomes a member of
submit the adoptive family, normal health
and social services are available, as
they are for all children and parents
in Ireland.
Italy Yes. Called the pre-adoptive Not
confidence Articles 22 to 24 of the Act
184/1983
Latvia Not, but six month family adopter Yes, Orphan’s court of the place of
investigation. residence of the adopter shall on a
regular basis evaluate the care and
supervision of the child in the family
within two years after approval of
adoption.
Lithuania Yes, the certified social worker Yes, A Report on the child’s
organize the training for prospective adaptation in his/her adoptive family
adoptive parents. Training cannot be (only in case of international
mandatory for a prospective adoptive adoption) is envisaged in Lithuanian
parent who wishes to adopt his/her law. The report shall be provided as
spouse’s child. The maximum follows: every six months during the
duration of training of prospective first two years following the adoption;
adoptive parents is two months. once a year for the following two
years; and after four years of
adoption if requested by the State
Child Rights Protection and Adoption
Service under the Ministry of Social
Security and Labour (hereinafter –
State Adoption Agency).
Luxembourg Yes, A cycle of preparation to the It’s different depending to the child
adoption organized by the Center of country’s origin.
Resources in adoption matters
Malta Yes, preparatory classes consisting of Yes, the Post-adoption assessments
six to seven (6 to 7) group sessions were carried out by a social worker
organized and conducted by two from the Adoption Unit
social workers from the Adoption Unit.
Netherlands A previous taking care of a child for Yes, There is care after the adoption
one year in couple cases and a and several legal consequences.
previous time care of the child for
three years before the request for a
single person
Poland Yes, a preliminary meeting in the Yes, the adoption-guardianship
adoption centre and the registration of centre remains in contact with the
the persons willing to adopt a child, adoptive family and provide
after the community interview the assistance in solving the reported
candidates participate in meetings, problems.
8
workshops and discussions on
adoption issues.
Portugal Yes, The preparation of the parents is Not; Specific post-adoption services
done during the selection period such as: Counselling; Groups of
through out the informative interviews mutual aid; Psychotherapy;
with social security services, with the Scholastic support; Family mediation;
Social Assistant and the psychologist. do not exist in Portugal, as well as
Afterwards the Social Security’s there is no rule that imposes the
Adoption Services have a 6 months elaboration of any kind of reports on
period to study and evaluate the this phase.
candidateship.
Czech Yes, the child must have been in the Yes, the Regional Authority provides
Republic care of the future adoptive parents at assistance related to the adoption,
their own expense for at least three particularly in the matter of nurturing.
months before the court adoption
decision. the Regional Authority
provides training of natural persons
suitable for the adoption process for
entrusting a child to the family
Romania 90 days entrusted child in the adopted Yes, The Department from the child’s
family before the court decision. residence will draft quarterly reports
about the evolution of the child, for 2
years after the adoption was
consented.
United The child must live with its adopters Not obligatory
Kingdom for a probationary period.
Slovakia Yes, to turn to a District office of In field of national adoption there is
Labor, social affairs and family, where no legal regulation regarding post-
the persons interested in the adoption adoption control.
will undergo a consultation In intercountry adoptions: In
concerning their decision and will be compliance with the Convention on
instructed about further steps. adoptions, the Centre for
Either, Before the court's decision on international legal protection of
adoption of the child, the infant child children in cooperation with the
has to be entrusted into the care of repective body of the receiving state
the future adoptive parent, this is monitors after the leave of child to
concerned as a pre-adoptive custody, the receiving state of the future
for at least nine months and shall parents the incorporation of the child
precede the court's decision on into the new family environment
adoption. through the social reports.
Slovenia Not, there is no training provided for Not, there is no follow-up post
adopting parents in Slovenija. adoption provided for under
Slovenian legislation.
Sweden Not, but there’s a previous Not
investigation about the family placed
in a final report carried by a
professional social worker.
4. Le The mother The father consentment When the biological

consentment is it is it necessary ? parents consentment
necessary? is needed ; at which
time?
Germany Yes Yes The newborn needs to
be at least 8 weeks
9
old.
Austria Yes Occasionally The newborn needs to
be at least 8 weeks
old.
Belgium Yes Yes The newborn needs to
be at least 8 weeks
old.
Bulgaria Yes Occasionally The newborn needs to
be at least 2 weeks
old. Yet extended by
law to 30 days.
Cyprus Yes Yes The newborn needs to
be at least three moths
old.
Denmark Not Not Yes. In the case where
a prospective adopter
wishes to adopt the
child or adoptive child
of the spouse of the
adopter, or in cases,
as set out by the
Minister of Family and
Consumer Affairs,
where the adopter is
closely related to or
has other special ties
to the child or its
parents.
Spain Yes, exception given by Yes, exception given by Mother, 30 days after
the judge the judge the birth date.
Estonia Yes, exception given by Yes, exception given by Since the child birth
deprived of parental deprived of parental rights date.
rights
Finland Yes, if it is deemed that Yes(exceptions) Yes, after eigth weeks
the adoption obviously since the date of the
and definitely is in the birth.
best interests of the
child and that the
refusal or withdrawal of
consent by the
parent(s) is not
sufficiently justified. And
if a parent cannot
validly express his/her
will due to an illness or
handicap or if the
whereabouts of the
parent are unknown
France Yes Yes 2 years
Greece Yes, exception given by Yes, exception given by 3 months after the
the Court decision. the Court decision child birth date.
Hungary Yes, excepted Yes, excepted It’s possible to consent
guardianship authority . guardianship authority. even before the birth
10
And such assent shall Such assent shall not be child date. This
not be required if the required if the person decision being able
person intending to intending to adopt a child revoked until 6 weeks
adopt a child has been has been raising the child after.
raising the child at his at his own household for
own household for more than one year
more than one year
Ireland Yes in domestic Non in domestic adoption After six month.
adoption type, type. Non in non-domestic
exception de type
guardianship; non in
non domestic adoption
type.
Italy The law only demands Yes, occasionally Not
the state of
abandonment of the
child to be proved by all
means included the
statement of the
biological mother
Latvia Yes (exceptions Yes (exceptions admitted)
Yes, six weeks after
admitted) the child birth date.
Lithuania Yes Yes The child must not be
younger than 3 month.
Luxembourg Yes Yes Yes, since the date of
the birth but the child
must not be younger
than 3 month to be
adopted.
Malta Yes, unless not attained Yes, unless not attained After 6 weeks
eighteen years of age eighteen years of age
Netherlands Yes Yes Yes after the date of
the birth.
Poland Yes Yes Yes, 42 days after the
date of birth
Portugal Yes Yes Yes, 6 weeks after the
birth.
Czech Yes Yes Yes, within six weeks
Republic
Romania Yes Yes Yes, 60 days after the
birth of the child.
United Yes Yes, the birth father where Yes, after 6 weeks
Kingdom he’s married to the child’s from the child birth
mother at the time of the date.
child’s birth or if he
subsequently marries the
mother, or an unmarried
father if: he becomes
registered as the child’s
father; he makes a
parental responsibility
agreement with the child’s
mother; he is granted a
parental responsibility
11
order by the court.
Slovakia Yes Yes immediately after the
childbirth, but also
before it, if the mother
before a childbirth
asks for a
confidentiality
regarding the
childbirth.
Slovenia Not Not any time after the
childbirth
Sweden Yes Yes Not specified
5. Is the adopotee In such case how old must be the adoptee?

consentment
necessary?
Germany The child must Before 14 years old a legal representative must
consent to the intervene. Over 14 years old the adoptee may
adoption revoke its consent until the adoption is adjudicated
Austria Yes Whether he or she is over 18 years old. Under this
age the legal representative’s endorsement is
required
Belgium Yes At 12 years old his or her approval is requested
Bulgaria Yes but conditioned At 14 years old his or her approval is required.
Between 10 and 14 years old he or she needs just
to be heard by the court.
Cyprus It depends The consent of the adopted person is required only
when the identity of the applicant is known to the
adopted person
Denmark Yes 12 years old
Spain Yes 12 years old
Estonia Yes 10 years old and younger depending of the level of
the child.
Finland Yes 12 years old
France Yes 13 years old
Greece Yes 12 years old
Hungary Yes 14 years old
Ireland Yes, Over the 7 years old, the Adoption Board/Authority
are required, pursuant to the Adoption Act 1952 to
give due consideration to the wishes of the child,
having regard to his/her age and understanding.
Italy Yes Up to 12/14 years old in some cases (ability to
discernment) established by the public prosecutor.
Over 14 years old it is compulsory.
Latvia Yes Yes, over 12 years old
Lithuania Yes 10 years old
Luxembourg Yes 15 years old
Malta Yes 14 years old
Netherlands Yes 12 years old.
Poland Yes 13 years old
Portugal Yes 12 years old
Czech Yes, if the child is able Not, there is no specific age, but the Act of social
Republic to understand and legal protection of children states in s. 8/2.
should to agree. according to the judicature the child´s consent is
12
required by courts is the age of 13.
Romania Yes 10 years old
United Not specified Not specified
Kingdom
Slovakia Yes If the infant child is able to condemn the impact of
the adoption, also his consent is required
Slovenia Yes 10 years old
Sweden Yes 12 years old but not under 16 years old if it would be
her or his detriment to be asked a in case of mantal
diturbance
6. Age
Age difference Adopting parents : a Exceptions

needed between age needed.
adoptanting and
adoptee
Germany Not, There does not Yes. According to Yes. If one parent adopts
exist a requirement for section 1743 Civil Code the child of his spouse,
a minimum time interval the person accepting he should be at least 21
between the age of the the child as his own years old. Thus, the
accepting persons and must be at least 25 year barriers are lower as the
the child. Neither does old. German law-maker
there exist a considers such
requirement for a adoptions to be generally
maximum time interval. favourable for the child.
If a married couple
adopts a child one of the
accepting parents must
be 25 years old, the
other one 21 years old.
Austria Yes. A minimum age Yes. Though the Yes. The age difference
difference between adopter father has to be may be undercut if a
adoptee and the at least 30 years old relationship similar to a
respective adopter of and the adopter mother biological one exists
18 years. at least 28 years old between adoptee and
adoptive parents.
Belgium Yes. He or she needs . Yes. Whether the
to have at least Yes. The adopter needs adoptee is a spouse’
15 years more than the to be at least 25 years child the adoptive must
adoptee. old. be at least 18 years old
and at least 10 years
older than the adoptee.
Bulgaria Not. Age difference is Not. The Law has not Yes. The minor person
not required when a settled a minimum age married could adopt and
spouse adopts the child for the adoption to be this is an important
of his or her spouse. permissible. exception from the
When the adoption is above rule. The logic is
effected simultaneously that a person capable of
or consecutively by the having its own family
two spouses and the shall be admitted as an
age difference is adopter as well.
present with one of
them such difference is
13
not required for the
other person.
Cyprus Yes. Yes. At least one of the Yes. The restrictions in
applicants has relation to the difference
completed the twenty- of age between the
fifth year of his age and adopter and the adopted
the Court thinks that, shall not apply where an
after taking into adoption of the
consideration the ages applicant’s child or of the
of the adopter and the child of the wife of the
adopted respectively, applicant is concerned;
the adoption does not or one of the applicants
entail any risk for the has completed the
adopted and is twenty-first year of his
generally for the interest age and is a relative of
of the adopted. the adopted.
However, the
restrictions in relation to
the difference of age
between the adopter
and the adopted shall
not apply where an
adoption of the
applicant’s child or of
the child of the wife of
the applicant is
concerned; or one of the
applicants has
completed the twenty-
first year of his age and
is a relative of the
adopted.
Denmark Yes. The age difference Yes. An adoption Yes. Where warranted
between the applicant decree may be granted by special reasons a
and the child should not only to persons who decree may be granted
be more than 40 years. have attained the age of to a person having
25. attained the age of 18.
Spain Yes,14 years Yes, 25 years old Not specified
Estonia Not provided by Yes, 25 years old Yes, younger by Court
Estonian law. decision.
Finland No provisions in the law Yes, 25 years old Yes, 18 years old by the
of the minimum age Court decision, if the
difference between the adoptee is either a child
adopter and the of his/her spouse or
adoptee. his/her own child who
has previously been
adopted by someone
else and other
exceptional grounds for
the adoption.
France Yes, 45 years Yes, 28 years old Yes, younger in an
maximum conjoint’child adoption
case.
14
Greece Yes, between 18 et 50 Yes, between 30 and 60 Not specified
years years old
Hungary Not specified Not specified. But they Not specified
should have legal
capacity
Ireland Not. Yes, 21 Yes, when married
couple and relative of the
child, only one of both
parents must be 21
years old.
Italy The age of the adopters At least 18 years old Yes. By the Juvenile
must exceed at least plus a day Court under special
eighteen years and not circumstances
more than forty-five
years the age of the
adopting child
Latvia Yes, eigthteen years Yes, 25 years old Yes, The conditions
regarding the eighteen-
year difference may be
disregarded if several
children are being
adopted (brothers and
sisters)
And the conditions
regarding the minimum
age of the adopter and
the eighteen-year
difference may be
disregarded if ones own
spouse’s children are
being adopted; in such
case the adopter must
be at least twenty-one
years of age, but the age
difference between the
adopter and the child
may not be less than
sixteen years.
Lithuania Yes, eigtheen years Adults of either sex who In exceptional cases, the
older. are under fifty years of court may allow an older
age. person to adopt.
The age difference, may
be reduced by court up
to fifteen years only in
cases when the children
or adopted children of
the spouse are to be
adopted.
Luxembourg Yes, 15 years 25 years old yes, the adoption
required by two
husbands, one must be
25 years old, the other at
least 21 years, but no
condition of age is
necessary when the
15
adoption by one of the
husbands of the
legitimate, natural or
adoptive child of the
conjoint. The difference
in age required is only
ten years in the adoption
conjoint cases. the court
can pronounce the
adoption when the
difference in age is lower
than required.
Malta Yes, between 21 and Yes, 28 years old. Yes, applicant who is the
45 years older mother or father being
able to adopt their
natural child. And, under
the Court special
circumstances decision.
Netherlands the age difference must Yes, older than 18. The Not specified
be older than 18 and possible minor mother
may not be more than of the child has at least
40 years. reached the age of 16
on the day of the
request
Poland Being an appropriate 25-40 years old. Having Not specified.
age. a full capacity to enter
legal transactions; being
physically and mentally
fit Being an appropriate
age
Portugal not be over 50 years, older than 25 years Single person should be
(except if the adoptee is older than 30 years or
the spouse’s child) older than 25 if the child
is the spouse’s child;
The adopting parent
could not be over 60,
except if it is the
spouse’s child
Czech There must be an Between 21 and 35 16 years old, up to the
Republic adequate age years old. Court decision. In cases
difference between the of difference, it is up to
adopted person and the the court to decide
adoptive parent. the whether the requirement
court shall consider in of an adequate age
each particular case difference is fulfilled or
whether the age not
difference is adequate
or not.
Romania Yes, at least 18 years Older than 18 years old. The Court of law may
old. approve the adoption
even if the age
difference is less than 18
years, but not less than
15 years.
16
United Not specified Over 21 years of age Not specified
Kingdom
Slovakia there shall be an the legal capacity in full Not specified
appropriate age extent.
difference.
Slovenia 18 years older A mature person In exceptional cases, a
centre for social work,
having studied all the
circumstances of the
case and convinced
themselves that such an
adoption would be in the
adoptee's interests, may
allow adoption also to an
adopter who is not
eighteen years older
than the adoptee
Sweden Not specified 25 years old – 18 years Not specified.
old in special
circonstances
7. Is this country Does this country authorize its citizens to adopt

a Hague abroad?
Convention If yes, under which conditions?
signer ?
Germany Yes It depends if the adoptive parents come from a country
which signed the The Hague Convention or not.
Austria Yes It depends if the adoptive parents come from a country
Belgium Yes Yes. No definition contained into Article 360 §1 and 2 of
the Civil Code
Bulgaria Yes It depends if the adoptive parents come from a country
Cyprus Yes It depends if the adoptive parents come from a country
Denmark Yes Yes. The basic principle to be respected is that the
adoption must be in the best interest of the child.
Spain Yes Yes, under convention law
Estonia Yes Yes, with the minster of social affairs permission. When
there are not adoptive parents or guardian to the child.
Finland Yes Yes, under convention law
France Yes Yes, under international law
Greece Not There’s not specific legislation on this subject.
Hungary Yes Yes, Adoption to abroad shall be permitted only if: the child
has been raised in foster home or in care by the state and
has been declared suitable for adoption, and if the child
has not been adopted at home since there has been no
such attempt for adoption or the efforts with the aim to
adopt that child have failed.
Ireland Yes Yes, The Adoption Acts do not require that applicants have
either Irish nationality or an Irish domicile. the applicant(s)
must be of good moral character, have sufficient means to
17
support the child and are suitable person(s) to have
parental rights and duties in respect of the child.
Italy Yes Yes. The basic principle to be respected is that the
adoption must be in the best interest of the child.
Latvia Yes Yes, under the Orphan’s court supervision, care and
decision.
Lithuania Yes Yes, under the haye convention
Luxembourg Yes Yes, under the haye convention procedure and in an other
special procedure in the non conventional countries cases.
Malta Yes Yes, making difference about the haye convention’s
countries and the any other International Treaty to which
Malta is a party.
Netherlands Yes Yes, International adoption is only allowed with principle
permission requested by the “Stichting
Adoptievoorzieningen” and addressed to the minister of
justice. In practice the possibilities of adopting a child that
was born in The Netherlands are limited.
Pologne Yes Yes, adoption which brings about a change of the domicile
of a child adopted in the territory of the Republic of Poland
to a domicile within the territory of a different state can be
ruled if it is the only way to ensure an appropriate
substitute family environment for the adopted child.
Portugal Yes The Portuguese Central Authority: Social Security
Executive Department is the authority charged to develop
the mission designed by the Hague Convention for the
Central Authority: it centralizes the information and
process of international adoptions. Is responsible for
receiving the applications for international adoption coming
from candidates resident in other countries.
Czech Yes To stay of foreigners in the territory of the Czech Republic
Republic or being registered for stay in the territory of the Czech
Republic for at least 90 days. Sometimes under others
delays of time.
Romania Yes Yes, The adopted person can leave Romania and go to
the residence country of the adopting candidate or of the
adopting family only when the court order consenting the
adoption is irrevocable.
Royaume Yes Under the Hague Convention. The UK Government says
Uni that for humanitarian reasons it allows inter-country
adoptions to proceed where: The child cannot be cared for
in any suitable manner in his or her own country; The
adoption would be in the best interests of the child and
with respect for his or her fundamental rights as
recognised in international law; and The adopter has been
assessed as eligible and suitable to adopt from overseas
by an adoption agency.
Slovakia Yes Somebody wishing to adopt a child from Slovakia shall
refer to the central authority in state of his stay. If authority
of the receiving state will come to a conclusion, that the
applicant is suitable and capable to adopt a child, it will
execute a complex social study for the international
adoption. This study shall be sent to the central authority of
SR, which will appraise it and send back a report about the
child.
18
Slovenia Yes Although it is theoretically possible that a Slovenian child is
adopted by foreigner, this never happens in real life since
there are too many Slovenian parents who would like to
adopt a child.
Sweden Yes In the best intrest of th child
19
8. Who can adopt ?
A single Two Two Two Two

person ? heterosexual homosexuals heterosexuals homosexuals
s married married unmarried married
persons ? persons ? persons ? persons ?
Germany Yes Yes Not Not Not

Austria Yes Yes Not Yes Not
Belgium Yes Yes Yes Yes Yes
Bulgaria Not Yes Not Under Not
discussion in
Parliament
Cyprus Yes Yes Not Not Not
Denmark Yes Yes Not Yes Not
Spain Yes Yes Yes Yes Yes
Estonia Yes Yes Not, Yes Not together,
homosexual but yes by one
marriage does of both.
not exist.
Finland Yes Yes Not Not Not
France Yes Yes Not existence Yes Yes
Greece Yes Yes Not Yes Not
Hungary Yes Yes Not Not Not
Ireland Yes Yes Not Not Not.

Italy Not Yes Not Not Not
Latvia Not Yes Not specified Not Not
Lithuania Non, Yes Not Not Not
(Court
desicions,
excep-
tions
admitted)
Luxembou Yes Yes Not specified Not specified Not specified
rg
Malta Yes, Yes, five years Not Not Not
applicant of marriage.
who is the
mother or
father
adopting
their
natural
child
Netherland Yes Yes Not Yes, previous Not
s having lived at
least three
consecutive
years together
Poland Yes Yes Not Not Not
20
Portugal Yes Yes, living Not Yes, living Not
together for together for
more than 4 more than 4
years and not years and not
judicially judicially
separated separated
Czech Yes, Yes Not Not Not
Republic (restricted
to two
cases)
Romania Not Yes Not Not specified Not
United Yes Yes Not Yes Not
Kingdom
Slovakia Yes, Yes Not Not Not
exception
ally.
Slovenia Yes, only Yes Not Not Not
adopting
the child
of the
other
spouse.
Sweden Yes Yes Yes Yes Yes, if
registrered
partners
21
9. Does auhorise this country the Does this country authorise its
adoption of its citizens by another citizens to adopt in a country not
country non signer to the Hague signer at the Hague Convention?
Convention? If yes, under which conditions ?
Germany Not Not
Austria Not Not
Belgium Not Not
Bulgaria Not Not
Cyprus Not Not
Denmark Yes under condition of reciprocity. Yes under condition of the best interest
of the child.
Spain Yes, with obligation to respect of the Yes, under civil register inscription with
Spanish rules of international public a previous recognition by the magistrate
order. As in Spain the adoption of a in charge. Previous foreign control
child originating from a country non- authority.
member of the Convention of The
Hague is possible, the rule of the
reciprocity will thus be observed. Thus
the possibility exists, but it is
nevertheless very theoretical, and in any
case this adoption will have to respect
the Spanish law.
Estonia Yes, under others conventions. The Yes, under others conventions. The
United Nations Convention on the United Nations Convention on the
Rights of the Child of 20th November Rights of the Child of 20th November
1989 (ratified by Estonia on 20th 1989 (ratified by Estonia on 20th
November 1991) November 1991)
The European Convention for the The European Convention for the
Protection of Human Rights and Protection of Human Rights and
Fundamental Freedoms, dated in Rome Fundamental Freedoms, dated in Rome
4th November 1950 (ratified by Estonia 4th November 1950 (ratified by Estonia
on 16th April 1996); on 16th April 1996);
The United Nations Optional Protocol to The United Nations Optional Protocol to
the Convention on the Rights of the the Convention on the Rights of the
Child on the sale of children, child Child on the sale of children, child
prostitution and child pornography, prostitution and child pornography,
dated 24th September 2003 (ratified by dated 24th September 2003 (ratified by
Estonia on 3rd September 2004). Estonia on 3rd September 2004).
Estonia has not ratified the European Estonia has not ratified the European
Convention on the Adoption of Children, Convention on the Adoption of Children,
dated 24th April 1967. dated 24th April 1967
Finland Yes, under UN convention. Yes, under UN convention
France Yes Yes
Greece This country is not a signer convention. Yes, Les enfants d’étrangers qui ont été
abandonnés en Grèce et pour lesquels
personne n’a manifesté, au moins
pendant six mois, d’intérêt pour leur
procurer de la protection, sont adoptés
conformément au droit hellénique de
fonds.
Hungary Yes, Yes, the guardianship authority shall
proceed as follows: shall examine the
22
conditions for adoption as per the child’s
personal rights; obtains approvals from
the competent foreign authorities on
adoption; at the time of placing the child
out into care it contacts and makes the
Hungarian child protection special
service prepare an expertise.
In addition, the administrative decision
confirming adoption of child with foreign
nationality shall specify the specify
nationalities of both the adoptive parent
and the adoptive child as well and the
authority responsible for birth registries
shall be contacted to arrange for
domestic birth registration of the child.
Ireland Yes, adoption effected in a place where Yes, requirements apply pursuant to
the adopters’ are habitually or ordinarily section 5 of the 1991 Act. The Adoption
resident will be recognised, unless Board/Authority must certify: That the
recognition would be contrary to public adopters are eligible to adopt under
policy. section 1 of the 1991 Act, as amended
by section 10 of the 1998 Act and as
discussed above; the adopters must be
ordinarily resident in Ireland on the date
of the adoption.
Italy Not Not
Latvia Yes, under conditions: A child may be Yes. Under conditions : adoption of a
adopted pursuant to a request from an child to foreign countries shall be
foreigner who does not have a allowed if it is impossible to ensure the
permanent residence permit in Latvia or upbringing and care of the child in a
a person residing abroad, with the family in Latvia and the orphans court,
permission of the Minister for Children by the decision of which the child has
and Family Affairs and only in the event been placed in the upbringing
it is not possible to provide for the institution, has passed the respective
raising of the child in a family and his or decision thereof.
her appropriate care in Latvia.
Lithuania Yes, under the condition that the legal Yes, Nationals permanently residing in
procedure of adoption in the foreign Lithuania and seeking to adopt children
country meets the requirements fixed by from a country not signatory of the
the Hague Convention. Hague convention should apply
Children’s Rights Protection Service of
their Municipality. The social workers
attested by the State Adoption Service
shall find out whether or not there are
obstacles for adoption by prospective
adoptive parents.
Luxembourg Not specified Yes, under the adoptee law and
following the aceptation of the internal
proceeding.
Malta Yes, in Malta, in respect of a child not Yes, in Malta in favour of any person not
habitually resident in Malta. habitually resident in Malta.
Netherlands Yes, there is a law that recognize the Yes, there has to be an authorization to
adoption of our nationals by a country temporary stay because the child will
not signatory of the convention of The enter The Netherlands as a foreigner
23
Hague (Wet conflictenrecht Adoptie). and the child has to be registered by the
chief of police within three days after
arrival;
at the same time a request for a
residence permit needs to be filed with
the mayor of the municipal where the
adoptive parents reside. The residence
permit will at first be issued only for one
year. After that year the stay in The
Netherlands will be allowed for an
indefinite period
Poland Yes, Only one centre, namely the Public Yes, Article 114 of KRO implies that the
Adoption Centre, is authorized to qualify foreign adoption, which entails the
children for foreign adoption. Such adoption of the Polish child by the
qualification can only take place if the citizens of another country, is ruled by
attempt to find a Polish family for the the principle ultima ratio. The court may
child has failed for at least 6 months. adjudge a foreign adoption only after it
has established that the domestic
adoption cannot be performed. the
general rules of international law are
applied. As a secondary source, the
bilateral conventions between those
states may be taken into account.
Portugal Yes, Portugal authorizes the adoption of Yes, Portugal authorizes its nationals to
its nationals by a country not signatory adopt a child from a country not
of the convention of The Hague. signatory of the convention of the
Hague. The conditions are the same as
for an adoption of a child from a country
signatory of the Hague convention with
the following particularities: -The
adoption is decreed in the state of origin
of the child and the accordance
certificate is emitted; -The foreign
decision of adoption is validated.
Except if there is a judiciary agreement
between the two countries;
Since 2003 it is possible to admit an
adoption already decreed by the country
of origin of the child, so the Portuguese
Central Authority should require (if the
candidates didn’t do it in a 3 months
period) in the competent Court (2nd
instance Court) the revision of the
decision that pronounced the adoption. -
The child’s Civil Register is altered.
Czech Yes, but under some conditions. Ex. Yes, The Office for International Legal
Republic The foreigner is reported to stay in the Protection of Children provides foreign
territory of the Czech Republic for at adoptions of children from the Czech
least 365 days pursuant to a special Republic or adoptions of foreign children
legal directive related to the stay of into the Czech Republic. the adoption
foreigners in the territory of the Czech process is governed by the law of the
Republic, who are interested in adopting country of which the adoptive parent is a
a child. citizen. In case of husband and wife who
are citizens of different countries, the
24
condition of legal systems of both
countries must be satisfied
Romania Not, It is not relevant the fact that he is a Not, because the adoption decision
citizen of a country that has not signed taken in the country abroad will not be
(ratified) the Hague convention, being a recognised and approved by the
foreign citizen, he cannot adopt a child Romanian law, in the order that it does
having the residence in Romania not belong to the Hague convention.
because here, it does not exist yet the
possibility of the international adoption.
United Yes, England Wales does authorize the Yes, Certain adoptions made in
Kingdom adoption of its nationals by a country, countries outside the UK can be
who is not a signatory to the Hague registered in the Adopted Children
Convention. Register. The types of adoption which
The High Court may, on an application can be registered are those made in
by persons who the court is satisfied Designated Countries and those made
intends to adopt a child under the law of in Hague Convention Countries under
a country or territory outside the British the provisions of the Hague Convention.
Isles, make an order giving parental This is because the effect of an adoption
responsibility for the child to them. order made in these countries is
A child who is a Commonwealth citizen recognised in the UK.
or who is habitually resident in the UK
must not be removed from the UK
unless: The prospective adopters have
parental responsibility by virtue of an
order under Adoption & Children Act
2002, section 84 or
The child is removed under the authority
of an order under Adoption (Scotland)
Act 1978, s.49 or Adoption (North
Ireland) Order 1987, Art 57.
Slovakia Not specified, but it seems being as well Yes, a citizen of Slovakia can adopt a
as the case concerning a citizen of child from other state, if such a
Slovakia can adopt a child from other possibility does not exist in Slovakia.
state, if such a possibility does not exist
in Slovakia.
Slovenia Although it is theoretically possible that Yes, Slovenian parents tend to adopt
a Slovenian child is adopted by foreign children quite often as the
foreigner, this never happens in real life waiting list for Slovenian children is too
since there are too many Slovenian long.
parents who would like to adopt a child.
Sweden Not specified, but apparently yes. Yes, If the adoption is completed in the
child’s country of origin, the adoptive
parents must apply to MIA in order to
have the adoption order declared valid
in Sweden. However, an adoption in
accordance with the Hague Convention
is automatically valid in Sweden.
25
2. COMPARATIVE TABLES (EMPIRICAL STUDY)
2.1. AUSTRIA
Knowledge of the existing procedure in the country by category of questioned people:
Parents Children Ministry Judges Lawyers Associations

Very good
Good x x x x
Average x
Bad
The number of adoptions in 2005 (to put a figure):
Country Domestic adoptions European adoptions International

adoptions
Austria 478 11 86

adoptions
Austria 550 11 59
Country Average duration of the Average duration Average duration

procedure of national of the procedure of of the procedure of
adoption European adoption international
adoption
Austria 2 years and a half Not recorded data 3 years and a half
Problems encountered in %
Country Austria
Linguistic there has been only a case
problems
Problems to There has been only a case which posed difficulties to locate the child
locate the child
Problems No problem.
related to the
children traffic
Do the interviewed people think that the procedure of adoption is justified and adequate?
26
Country Domestic adoption European adoption International
adoption
Austria Yes for the totality of Yes for the totality of Yes for the totality of
those who have those who have those who have
answered. However, answered answered
some reserves by
those who answered
on the adoption of
majors
Is the procedure of adoption adapted to the child interests?

adoption
Austria Yes. Though a voice
speaks about the
problems linked to Yes Yes
the adoption of
‘anonymous born
children’
Do the interviewed people consider the selection criteria for the adoptive parents adequate? (Yes
or not plus percentage)
Country Yes or not in percentage

Austria 80% of the interviewed answered positively
Do the interviewed people consider that the criteria of children selection deem adequate? (Yes or
not plus percentage)

Austria Yes for the 80% of the interviewed.
However, the difference of age and the child
point of view during the process of adoption
are questions debated by the other 20% of
the interviewed
27
2.2. BELGIUM
Knowledge of the existing procedure in the country by category of questioned people (questions A
1 to 12) yes or not and in which percentage:

Very good x
Good x x x x
Average x
Bad

adoptions
Belgium 171 No data 42
The number of adoptions in 2006:

adoptions
Belgium 83 No data 463

adoption
Belgium 1 year and a half Not recorded data 3 years
Country Percentage of abandoned adoptions

Belgium Between 2005 and 2008 only 20 files have
been refused according to the interviewed
sources. The percentage of abandoned
adoptions deems very feeble
Country Belgium
Linguistic In percentage there have been problems only in the Brussels area and
problems in the German speaking one
Problems to None of the interviewed people has found problems
locate the child
Incomplete 50% of the interviewed met some difficulties especially after the entering
information into force of the September 1, 2005 Act
Legal 40% of the interviewed found problems with the concept of ‘usual
competence residence’. The others did not encounter problems or not took position.
Resistance of 80% of the interviewed raised the question of sort of resistance of the
28
the holder of the holder of the parental authority
parental
authority
Problems 60% of the interviewed encountered no problem. 40% expressed the
related to the difficulties related to the control in the countries of child origin
children traffic

adoption
Belgium Yes for the totality of Yes for the totality of
those who have No data those who have
answered. answered.

adoption
Belgium Yes No data Yes
Do the interviewed people consider the selection criteria for the adoptive parents adequate?

Belgium Quite all the interviewed answered
positively. The aptitude to adopt and the age
difference are the only loopholes.
Do the interviewed people consider that the criteria of children selection deem adequate?

Belgium Yes for the 80% of the interviewed.
29
2.3. BULGARIA
Knowledge of the existing procedure in its country by category of people questioned (question A 1
to 12):
Parents Children Ministry Judges lawyers Associations

Very good x x
Good x x x
Average
Bad
Problem encountered in %
Country Bulgaria
Linguistic 30% yes; 10% non; 60% no data
problem
Problem to 10% yes; 90% no data
locate the child
Incomplete 20% yes, 5% non, 75% no data
information
Legal 25% yes, 5% no ; 70% no data
competence
Resistance of 25% yes; 75% no data
the holder of the
parental
authority
Problem of 5% no; 95% no data
traffic of children
A number of adoptions in 2005:
Country National adoption European adoption International

adoption
Bulgaria 4 2 (Italy, Germany) 2 (USA) ; 101 cases
Country National adoption International adoption

Bulgaria 3 98 cases
Country Average duration of the Average duration of the procedure of

procedure of national international adoption
adoption
Bulgaria 6 months 10.3 months

Bulgaria 10% on international cases
Do the people interviewed think that the procedure of adoption is justified and adequate?
30
adoption
Bulgaria 5 yes; 12 no data; 3 yes
The interviews do they think the criteria of selection of the adoptive parents is adequate?
Country Yes or not in %

Bulgaria 5 yes, 2 non ; 13 non data
Do the interviews think that the criteria of selection of children is adequate? (yes or not + %)

Bulgaria 4 yes, 2 non, 13 no data
Is the procedure of adoption adapted to the interest of the child?
Country National Adoption European Adoption International

Adoption
Bulgaria 1 non; 15 non data 1 non ; 3 yes
31
2.4. CYPRUS
to 12):

Very good x
Good x
Average x
Bad
Country Cyprus
Linguistic 100% no
problem
Problem to 85.7 yes; 14.3 % no data
locate the child
Incomplete 57.2% yes ; 23,8 non; 19% no data
information
Legal 19% yes; 47,6% no; 33% no data
competence
Resistance of 38% Yes; 47.7% not; 14.3 %no data
the holder of the
parental
authority
Problem of 19% Yes; 19% non; 9.5% no answer; 54% no data
traffic of children

Cyprus 100 15 (74 pending)

Cyprus 115 10 (64 pending)
Percentage of adoption obtained with difficulty in 2005:
Country Adopted national International adoptions

Cyprus 9 a few; 4 a lot; 8 16 yes 70%,18f
non data

Cyprus 9- a few; 4-a lot; 8 2 yes (70%)
non data;
32
adoption
Cyprus 16-21m; 5-no data 15-29m; 6-no data

Cyprus National 10% international 40%

Cyprus 20 yes; 1 non No data

Cyprus 16 Yes; 5 non

Cyprus 21 yes (100%)
Country National Adoption International Adoption

Cyprus 21 yes No specific data
33
2.5. CZECH REPUBLIC
to 12):

Very good
Good x x
Average x x
Bad x
Country Czech Republic

Linguistic 1 yes
problem
Problem to 1 yes
locate the child
Incomplete 50% not; 50% yes
information
Legal 30% yes; 50% not, 20% no answer
competence
Resistance of 1 not
the holder of the
parental
authority
Problem of 30% yes; 20% not; 50% no data
traffic of children

adoption
Czech Republic 25 x year 32 x year
Country Adopted national

Czech Republic 1 not: 1 non data

Czech Republic 1-a few
34
Country Average duration of the procedure of national adoption
Czech Republic 5-32m; 1 not data

Czech Republic 3yes but not data
Country National adoption

Czech Republic 3 yes ;2 not; 1 not data

Czech Republic 5 yes, 15 no data

Czech Republic 5 not answer, 15 no data
Country National Adoption

Czech Republic 3 yes; 3 not, 14 no data
35
2.6. DENMARK
Knowledge of the existing procedure in the country by category of questioned people:

Very good
Good
Average x
Bad
Country Domestic adoptions

Denmark 593

Denmark 467
Percentage of adoptions obtained with difficulty in 2005:

adoptions
Denmark 0 0 0

adoptions
Denmark 14 Not relevant data Not relevant data

adoption
Denmark 272 days 267 days

Denmark In 2005 were abandoned 8% of the whole
adoptions; in 2006 it raised to 11%

adoption
Denmark Yes Yes Yes
36

adoption
Denmark Yes Yes Yes

Denmark Yes for all who answered

Denmark Yes for all who answered
37
2.7. ESTONIA
to 12):

Very good
Good x x x
Average
Bad x
Country Estonia
Linguistic 62 % not; 38% no data
problem
Problem to 38% Yes; 5% not; 57% no data
locate the child
Incomplete 52%Yes; 19% not; 28% no data
information
Legal 48% Yes; 38% not; 14% no data
competence
Resistance of 19% Yes; 52% not; 29% no data
the holder of the
parental
authority
Problem of 5% Yes; 62% not; 33% no data
traffic of children

Estonia 136 16

Estonia 138 20

Estonia No data

Estonia 9 yes; 5 not; 7 no data

38
adoption
Estonia 14-14m; 7 no data 2-24m; 19 no data

Estonia 7 yes; 14 no answer no data

Estonia 3 Yes; 14 not; 4 non Yes; not; non data
data

Estonia 11 Yes; 6 not; 4 non data

Estonia 9 Yes; 5 not; 7 non data

Estonia 7 Yes; 8 not; 6 no Yes; not; non data
data
39
2.8. FINLAND
1 to 12):

Very good
Good x x
Average x
Bad x

Finland 275

Finland 404

Finland 4

adoptions
Austria Not relevant data Not relevant data Not relevant data
Finland 10

adoption
Finland 8 months 3 years and a half
Country Finland
Linguistic No data available
problems
Problems to No data available
locate the child
Incomplete No data available
information
Legal No data available
competence
Resistance of No data available
40
the holder of the
parental
authority
Problems No data available
related to the
children traffic
41
2.9. FRANCE
1 to 12):

Very good x x
Good x
Average x
Bad

adoptions
France No difficulties No difficulties No difficulties
detected detected detected

adoptions
France No difficulties No difficulties No difficulties
detected detected detected

adoption
France Not recorded data Not recorded data 2 years and a half
Country Domestic adoption

France In a general fashion the interviewed have expressed the desire that
the whole process of adoption might be simplified

France Yes. Even though 30% of the interviewed
are for not trespassing a certain threshold
between the adoptee and the adopters and
are against same sex adopting couples

France Yes for all who answered
42
2.10. GERMANY
1 to 12):

Very good
Good x x x x
Average x
Bad

adoptions
Germany 1269 Data not 4762
transmitted

adoptions
Germany 1040 Data not transmitted 4748

adoption
Germany 9 months Not recorded data Not recorded data

adoption
Germany Yes There are no
statistical data Yes
available

adoption
Germany Yes No data available Yes

Germany Yes for all who answered
43

Germany Yes for all who answered
44
2.11. GREECE

Very good x x x x
Good x
Average
Bad

adoptions
Greece 400

adoptions
Greece 350

adoptions
Greece A non detected Ibidem as in the case A non detected
percentage was detected with the percentage was
based on the domestic adoptions based on the fact
absence of the that the biological
biological parents for parents are difficult
giving their assent to be located
because their
unknown residence

adoptions
Greece A non detected Ibidem as in the case A non detected
percentage was detected with the percentage was
based on the domestic adoptions based on the fact
absence of the that the biological
biological parents for parents are difficult
giving their assent to be located
because their
unknown residence
45
adoption
Greece 10 months 1 year and a half 4 years and a half
Country Greece
Resistance of 80% of the interviewed faced difficulties towards the resistance of the
the holder of the holder of the parental authority
parental
authority
Problems 60% of the interviewed admitted the existence of a parallel traffic of
related to the children especially from Rumania or Bulgaria.
children traffic

Greece In a general fashion yes. Though, 20% of the interviewed expressed
the desire to reduce the age limit from 60 to 50 years and the
difference of age between the adoptee and adopter should not be
beyond 40 years

Greece Yes for all who answered
46
2.12. HUNGARY
to 12):

Very good x
Good x
Average
Bad
Country Hungary
Linguistic 4% yes; 92% not; 4% no data
problem
Problem to 20% yes 68% not; 12% no data (Not)
locate the child
Incomplete 12% yes; 88% not
information
Legal 4% yes; 88% not ; 8%no data
competence
Resistance of 36% yes; 64% not
the holder of the
parental
authority
Problem of 100% not
traffic of children

Hungary 773 98

Hungary 738 138
Country Adopted national European adoptions International

adoptions
Hungary 17 yes; 6 not; 3 no No data 1 yes; 24 no data
data
47
Country Adopted national European adoptions International

adoptions
Hungary 16 yes; 6 not; 3 no 24 no data; 1yes
data

adoption
Hungary 12=30 months; 13 no 1- 30 months; 24
data no data

Hungary 8 yes; 8 not; 9 no data
2005-25 of 2369 (less than 1%) / 2006-12 of
1337 (less than 1%)

Hungary 25 yes 25 yes



Hungary 22 yes, 2 not; 1 no 2 not; 23 no data
data
48
2.13. IRELAND

Very good x x x
Good
Average
Bad
Country Domestic adoptions International adoptions

Ireland 253 347

adoptions
Ireland 222 43 363

adoption
Ireland 15 months 2 years and a half
Country Ireland
Incomplete 20% of the interviewed encountered these problems
information
Legal 10% of the interviewed encountered these problems
competence
Problems No for 90% of the interviewed
related to the
children traffic
Country Domestic adoption European adoption

International
adoption
Ireland Yes for 70% of the Yes for 40% of the No for 100% of the
interviewed interviewed interviewed because
Ireland has not
implemented the The
Hague Convention
49

Ireland Yes for 60% of the interviewed

Ireland Yes in 40% of the cases

Ireland Yes for 60% of the people interviewed
50
2.14. ITALY

Very good x x x x
Good
Average
Bad

Italy 2874
Country Total adoptions

Italy 3188

adoptions
Italy Nevertheless, 50% Nevertheless, 50% Nevertheless, 50%
of the adopting of the adopting of the adopting
parent who parent who parent who
answered answered answered
encountered some encountered some encountered some
difficulties difficulties difficulties

adoptions
Italy Nevertheless, 50% Nevertheless, 50% Nevertheless, 50%
of the adopting of the adopting of the adopting
parent who parent who parent who
answered answered answered
encountered some encountered some encountered some
difficulties difficulties difficulties

adoption
Italy 2 years 3 years
51
Italy Almost 30% of the cases
Country Italy
Linguistic 90% of those who answered did not encounter problems
problems
Problems to 70% of those who answered did not encounter problems
locate the child
Incomplete 60% of those who answered did encounter problems
information
Problems 60% of those who answered find the domestic law 184/1983 adequate
related to the
children traffic
Country Domestic adoption International adoption

Italy Yes Yes

Italy Yes. Though, four voices speak in favour of an improving of the
existent law

Italy Yes in 100% of the people interviewed.
Do the interviewed people consider that the criteria of children selection deem adequate? (Yes or
not plus percentage)

Italy Yes for 80% of the people interviewed
52
2.15. LATVIA
to 12):

Very good x x x
Good x
Average
Bad
Country Latvia
Linguistic 28%Yes; 43% not; 29% no data
problem
Problem to 29% Yes; 71% no data
locate the child
Incomplete 29% not; 71% no data
information
competence
Resistance of 29% not; 71% no data
the holder of the
parental
authority
Problem of 29% not; 71% no data
traffic of children

Latvia 60 111

adoption
Latvia 88 (124 of 147) 147

Latvia 2yes 18 no data No data

Latvia 2 yes, 18 no data
53
adoption
Latvia 15months 48months

Latvia 2, No data

Latvia 4 yes, 16 no data 2 yes

Latvia 2 Yes, 18 no data

Latvia 2 Yes, 18 no data

Latvia 3 Yes, 17 no data 2 yes; 18 no data
54
2.16. LITHUANIA
to 12):.

Very good x
Good x x x
Average
Bad
Problem encountered in % (1 table by country)
Country Lithuania
Linguistic 0%
problem
Problem to Yes 0.3%
locate the child
Incomplete Yes 18%
information
Legal 0%
competence
Resistance of 6.75%
the holder of the
parental
authority
Problem of Yes
traffic of children

Lithuania 88 76

Lithuania 99 88

Lithuania Yes Yes

Lithuania Yes Yes
55
adoption
Lithuania 9months 33months 33months

Lithuania 28%

adoption
Lithuania Not Not Not

Lithuania Not

Lithuania Yes

Adoption
Lithuania Not Not Not
56
2.17. LUXEMBOURG
Knowledge of the existing procedure in the country by category of questioned people

(questions A 1 to 12) yes or not and in which percentage:

Very good x
Good x x x
Average x
Bad

Luxembourg 44
The number of adoptions in 2006 :

Luxembourg : 48
Country Average duration of Average duration Average duration

the procedure of of the procedure of the procedure
national adoption of European of international
adoption adoption
Luxembourg 3 years 3 years 3 years

Luxembourg In about only 10% of the cases
Country Luxembourg
Linguistic For 90% of the interviewed linguistic problems may emerge just in
problems Ukraine
Problems to For 90% of the interviewed there are no problems. Yet for 10% of
locate the child them some problems are encountered in Ukraine
Incomplete For 80% of the interviewed there are no problems. Though, 20%
information encountered problems either in Russia or in Ukraine
Legal All the interviewed have not encountered problems related to the
competence legal competence
Resistance of No problems reported by all the interviewed
the holder of the
parental
authority
Problems No problems auditioned with the children traffic
related to the
children traffic
57
Do the interviewed people think that the procedure of adoption is justified and
adequate?
Country Domestic adoption International adoption

Luxembourg Yes Yes when tracked down by the Hague
Convention. No with States who do not
have implemented the Hague Convention

adoption
Luxembourg Yes Yes Yes
Do the interviewed people consider the selection criteria for the adoptive parents
adequate?

Luxembourg Yes in 90% of the people interviewed
Do the interviewed people consider that the criteria of children selection deem
adequate?

Luxembourg Yes for 90 % of the interviewed
58
2.18. MALTA
Knowledge of the existing procedure in its country by category of people questioned

(question A 1 to 12):

Very good
Good x x x x x
Average x
Bad
Country Malta
Linguistic 30% yes, 50%not, 20% no data
problem
Problem to 70% not, 15% yes, 15% no data
locate the child
Incomplete 45% yes, 40% not, 15% No data
information
Legal 65% not, 5% yes, 30% no data
competence
Resistance of 45% yes, 35% not, 20% no data
the holder of the
parental
authority
Problem of 10% yes, 15% not, 5%no answer, 75% no data
traffic of children

adoption
Malta 23 1 39

adoption
Malta 17 4 60
Country Adopted national European International

adoptions adoptions
Malta No data 1 yes, 19 no data
59

Malta 1 not, 1 yes, 18 no data
Country Average duration of Average duration of the procedure of

the procedure of international adoption
national adoption
Malta 11,5 months 16months

Malta 2.11%
Do the people interviewed think that the procedure of adoption is justified and
adequate?

adoption
Malta 8 yes, 6 not, 6 no 2 not, 1 no data 8 yes, 5 not, 7 not
data data
The interviews do they think the criteria of selection of the adoptive parents is
adequate?

Malta 13 yes, 6 not, 1 no data
Do the interviews think that the criteria of selection of children is adequate? (yes or not
+ %)

Malta 13 yes, 4 not, 17 no data

Adoption
Malta 13 yes, 2 not, 5 no 2 yes 12 yes, 3 not
data
60
2.19. THE NEDERLANDS

(questions A 1 to 12):

Very good
Good x x x
x x x
Average
Bad
Country Domestic adoptions European International

adoptions adoptions
The Netherlands 54 41 1420

adoptions adoptions
The Netherlands 42 25 927

national adoption
The Netherlands 9 months 3 years and a half

The Netherlands In 2005 and 2006 were respectively
withdrawn 1218 and 1230 procedures of
adoption
Country The Netherlands

Linguistic For 80% of the interviewed there are not linguistic problems. For
problems 20% there are ‘always’ linguistic problems; which are in any case
solved
Problems to All the interviewed are unanimous in answering that problems are
locate the child encountered in States which are not Member of the Hague Adoption
Convention
Incomplete No statistical data reported
information
Legal All the interviewed have not encountered problems related to the
competence legal competence for domestic adoptions. An unknown percentage
encountered problems dealing with international adoption
Resistance of 80% of the interviewed did not encounter problems. 20%
the holder of the encountered ones
parental
authority
61
Problems 40% of the interviewed faced problems. 30% did not encountered
related to the problems because the increase of the The Hague Adoption
children traffic Convention
adequate?

adoption
The Netherlands Yes Data not available Yes

adoption
The Netherlands Yes No data available No
adequate?

The Netherlands 60% of the interviewed answered
positively
adequate?

The Netherlands Yes for 80% of the people interviewed
62
2.20. POLAND


Very good x x
Good x x
Average
Bad
Country Poland
Linguistic problem 33%Yes; 67% not
Problem to locate the child 67% not; 33% no data
Incomplete information 77% not; 23% no data
Legal competence 55% Yes; 45% not
Resistance of the holder of the parental authority 55%Yes; 45% not
Problem of traffic of children 100% no data

Poland 2 466
The number of doptions in 2006:

Poland 2 752
Country Average duration of the Average duration of Average duration of

procedure of national the procedure of the procedure of
adoption European adoption international adoption
Poland 3 or four months 4 to 8 weeks 4 to 8 weeks
Country Poland
Linguistic problems For all of the interviewed there are not linguistic problems
Incomplete information For all of the interviewed there are no problems
adequate?
Country Domestic adoption European International
adoption adoption
Poland Yes, except the duration, the problems with Yes Yes
biological parents and the difference of
interpretation by different judges
adequate?
Poland Yes in 100% of the people interviewed
63
2.21. PORTUGAL


Very good x x x x
Good x
Average
Bad

Portugal 775

Portugal 780

Portugal 8

Portugal 16

adoption adoption
Portugal 3 years and a half 3 years and a half 4 years and a half

Portugal 8% of the whole adoptions
Country Portugal
Linguistic For all of the interviewed there are not linguistic problems
problems
Incomplete For 70% of the interviewed they occur either when Portugal is the
information origin country or when it is the receiving one
64
adequate?

adoption
Portugal Yes Yes Yes

adoption
Portugal Yes Yes Yes
adequate?

Portugal Yes in 70% of the people interviewed
adequate?

Portugal Yes for 70% of the people interviewed
65
2.22. ROMANIA


Very good x
Good
Average x x
Bad
Country Romania
Linguistic Yes
problem
Problem to Not
locate the child
Incomplete Not
information
Legal Yes
competence
Resistance of Yes
the holder of the
parental
authority
Problem of Not
traffic of children

Romania 1136 2

Country National adoption
Romania 1386

adoptions adoptions
Romania No data No data No data

adoptions adoptions
Romania No data No data No data
66
national adoption
Romania 16 months No data

Romania Few cases
adequate?

Romania Yes Yes
adequate?

Romania Yes
Do the interviews think that the criteria of selection of children is adequate?

Romania Yes

Romania Yes Yes
67
2.23. SLOVAKIA

Very good
Good x
Average x x x x
Bad
Country Slovakia
Linguistic 20% Yes; 60% not; 20% no data
problem
locate the child
Incomplete 40% Yes; 44% not; 16% no data
information
competence
Resistance of 32% Yes; 48% not; 20% no data
the holder of the
parental
authority
Problem of 12% Yes; 48% not;
traffic of children 40% no data
A number of adoptions in 2005 :

Slovakia 296 66

Slovakia 324 57

Slovakia 7 yes 6 no 12 no 1 yes 5 no 19 no data
data

Slovakia 7 yes 6 no 12 no 1 yes 5 no 19 no data
data
national adoption
68
Slovakia 23.3 months 61.5 months ;
(5 no data) (23 no data)

Slovakia 9.75%, (17 no data)
adequate?

Slovakia 16 yes 5 no 4 no 8 yes 17 no data
data
adequate?

Slovakia 14 yes 7 no 4 no data

Slovakia 16 yes 4 no 5 no data

Slovakia 13 yes, 7no 5 no 5 yes 20 no data
data
69
3.24.SLOVENIA


Very good x
Good
Average x x
Bad
Country Slovenia
Linguistic Yes
problem
Problem to Yes
locate the child
Incomplete Yes
information
Legal Non data
competence
Resistance of Non data
the holder of the
parental
authority
Problem of Yes but non data
traffic of children
Slovenia 31 No data

Slovenia 38 No data

adoptions adoptions
Slovenia No data No data No data

adoptions adoptions
Slovenia No data No data No data
70
national adoption
Slovenia 72 months No data

Slovenia Few cases
adequate?

Slovenia Not Not
adequate?

Slovenia Not

Slovenia Not

Slovenia Not Not
71
3.25. SPAIN


Very good
Good x x x
Average x
Bad x
Country Spain
Linguistic 17% Yes; 33% not; 50% no data
problem
locate the child
Incomplete 17% Yes; 28% not; 55% no data
information
Legal 88% not; 12% no data
competence
Resistance of 33%Yes; 27% not; 50% no data
the holder of the
parental
authority
Problem of 17% Yes; 28% not; 55% no data
traffic of children

Spain 691 5423

Spain 916 4472

Spain 2 yes, 8 not, 10 not 2 yes, 8 not, 10 not data
data

adoptions adoptions
Spain 2yes 7 not, 11 no No data 2 yes, 7 not, 11 not
data data
72
adoption adoption
Spain 18 months , 19 no data 15 months, 19 no 23 months 10 no
data data

Spain 3.5% 16 no data
adequate?

adoption
Spain 3 yes, 6 Not; 11 no No data 4 yes; 4 not, 12 no
data data
adequate?

Spain 11 yes; 2 not; 7 not data

Spain 7 yes; 2 not; 11 no data

Adoption
Spain 3 yes; 6 not; 11 no 3 yes 6 yes; 3 not, 11 no
data data
73
3.26. SWEDEN


Very good
Good x x x
Average
Bad

adoptions adoptions
Sweden 6 110 973
The number of adoptions in 200):

adoptions adoptions
Sweden 11 103 776

adoption adoption
Sweden 4 months and a half 6 months 4 years

Sweden In about 10% of the cases
Country Sweden
Linguistic All of those who answered did not report any problems
problems
Problems to All of those who answered did not report any problems
locate the child
Resistance of 90% of those who answered did not report any resistance
the holder of the
parental
authority
adequate?

adoption
Sweden Yes Yes Yes
74

adoption
Sweden Yes Yes Yes
adequate?

Sweden Yes for all who answered
adequate?

Sweden Yes for all who answered
75
3.27. UNITED KINGDOM

(question A 1 to 12)

Very good x
Good
Average
Bad
Country United kingdom

Linguistic Not
problem
Problem to Yes
locate the child
Incomplete Not
information
Legal Yes
competence
Resistance of Not
the holder of the
parental
authority
Problem of Not
traffic of children
Country Total adoption

United Kingdom 5565
Country Total adoption

United Kingdom 4980

adoptions adoptions
United Kingdom 21% (582 of 2692)2 No data No data

United Kingdom 33%
2
Not type of proceeding specification.
76
adequate?

United Kingdom yes Yes
adequate?

United Kingdom Yes

United Kingdom Yes

United Kingdom Yes Yes
77
3. SYNTHESIS
3.1. AUSTRIA
Introduction
Legal base
• The Austrian International Private law Act..
• European Convention on the Adoption of Children, Council of Europe. signed by

Austria on july the 5th 1979 and ratified on may the 5th 1980. This was the first
international compulsory document about international adoption for this country.
This convention was signed within the framework of the Council of Europe.
The Convention ensures that national law on the protection of children applies either
for adoptions of children among the member states, or for inter-country adoption
where one of the party’s citizenship was not from a signer State. The first essential
premises on adoption practice, obliging the states parties to incorporate these within
its legislation. Secondly, others principles that parties are not obliged to integrate
directly within theirs national legislations, having the option about the
accomplishment or not.
• UN Convention on the Rights of the Child, UN OHCHR - Committee on the Rights of
the Child1. Everything relating to children’s right is provided in this text. However
within national legislation, Austria has the possibility to adopt adult people, clearly
under particular conditions.
Austria was since august the 6th 1992 obliged by this international legislation and it
ought to respect the principles and maintain under its national adoption system the
inter-countries adoptions. On this way the article 20 prepare the field to get within
the international adoption, explaining all the different possibilities that the member
state have, in the cases of orphan or other kind of deprived family’s children,
foresees the adoption of these children cases.
It is within the article 21 that Austria is obliged to the international adoption principles
and proceedings. This Convention is obviously one of the international law sources
of The Hague’s Convention about international law, signed in 1993 and that is
concerned by “The Hague programme” of the European Union.
In the Austria case The Youth Welfare and the court have to granting the adoption
have to act in his/her interests. The person who drafts the adoption legal document
is acting on behalf of both – the adopting and the adoptee – parts. The alleged
adoptive parents may be advised by an attorney at law, whereas this is not required.
• The Hague Convention of 29 May 1993, The Hague Conference on Private law.The
Convention ensures the adoptions preventing the abduction, sale and trafficking of
children in the cases of the inter-country adoptions; envisaging the co-operation
between states and ensuring the authorisation of competent authorities.
On this sense the main pillar on which the convention lays exposes fourth principles
as to know: the best interest of the child; the safeguard of the child against
abduction, sale or trafficking; the establishment of a framework of cooperation
between authorities and the establishment of a framework of authorisation of
competent authorities to approve inter-country adoptions. The adoption law
78
institution must be understood as a social and legal measure for the protection of
children under the responsibility of the authorities states involved.
A-Concept of protection and emancipation in the Austrian law
It reaffirms the fact that children, because of their vulnerability, need special care and
protection, and it places special emphasis on the primary caring and protective
responsibility of the family. It also reaffirms the need for legal and other protection of
the child before and after birth, the importance of respect for the cultural values of the
child's community, and the vital role of international cooperation in securing children's
rights.
1-The protection
In the way regarding the protection provided by the Austrian law, the legal system is
based on the following principles that are present in all of the international documents
and are compulsory for Austria:
- Best interests of the child: All actions concerning the child shall take full account
of his or her best interests. The State shall provide the child with adequate care
when parents, or others charged with that responsibility, fail to do so;
- Non-discrimination: All rights apply to all children without exception. It is the

Austria State's obligation to protect children from any form of discrimination and
to take positive action to promote their rights.
Parental guidance and the child's evolving capacities: the State must respect the rights
and responsibilities of parents and the extended family to provide guidance for the child
which is appropriate to her or his evolving capacities.
Adoption must be granted by a judicial or administrative authority. The existence of the

competent central authority, the Youth Welfare, which is a federal authority of the
Republic of Austria has the responsibility to carry on this task; taking the adoption
proceeding as a way to take care about children. This authority cares to exclude
children’s sales.
On the way of the protection of the children culture, being Austria a signatory country of
the United Nations convention the subsidiarity Principe applies within its national
legislation at the time to grant an adoption. On this sense the priority is always the
protection of the child culture; that’s means the local authority has to look for a foster
family in Austria, to conserve the environment where the child was born. If at the end it
is not possible Austria, belonging to the Hague Convention of 1993 has the possibility
to give the adoption to a foreign family. Here, the best interest of the child is the priority
and obviously keeping him/her within his/her culture is preferable.
On the last case the authorities may require, in the way to protect the children some
obligatory courses or lessons to be passed by their adopted parents to get knowledge
about the culture of the child’s country, to give him/her a better care. The same youth
welfare prepare, besides, detailed reports about the adoptive child and the adoptive
parents to provide a more deep information about their personal profiles.
Within the scope of the child protection any contact between the child and their
adopted parents may take place before the final and definitive agreement.
In some cases post placement reports are required by the home country of the adoptee
(e.g. India, Russia, Macedonia and Thailand). These reports shall inform the home
country about the familiarization and the development of the child.
79
2-The emancipation
In Austria is possible to adopt a major and the purpose is always the well-being of the
child and the prevention of the abusive quasi-adoption.
In the way to legally protect the children in Austria the adoption agreement must be
approved by the Court to be legally effective.
In the cases where the adoption concerns a child whose original country is not part of
the Hague Convention, the proceeding, always having the intention to protect the best
interest of the child is followed within the child’s country and within his/her internal
proceeding. Once the adoption act is granted the child may come to Austria.
In case of a national adoption, after the adoption has been approved by court, no post
adoption follow-ups are made by the Youth Welfare or other authorities.
Finally Austria is part of the Hague convention and on this sense the proceeding
described within this text is compulsory for Austria, therefore in cases where an
Austrian Child is not able to find an adopting family within his/her own country, the
Youth welfare should to look for a foreign family. This last one will be, at the beginning,
selected within another signatory country. On this case both local authorities have the
obligation to exchange the information about the child and the potential adopting
parents.
3- Conclusions
Austria is obliged to provide special protection for a child deprived of the family
environment and to ensure that appropriate alternative family care or institutional
placement is available in such cases.
B- Rights of the child to be adopted and right of the parents to the adoption in
the Austrian legislation
1-Right of the children to be adopted
The authorities are obliged to evaluate the children will have a good home. Within this
concept we have to interpret the children have the right to be cared, to be loved, to
have a good education, to have a good level of healthy protection, to be well nourished.
At first the new civil rights and obligations of the adopted child towards their new
parents are the same as those natural children born in lawful matrimony; the child shall
be able to acquire the surname of the adopter parent; and the acquisition of parent’s
nationality by the child must be facilitated.
The child has the right to conserve his name at birth but he is going to take the new
family name. The child also has the right to acquire the new parents nationality and, as
far as Austria has the obligation to protect the name, nationality and family ties.
2-Right of the parents to the adoption
The biological parents conserve the right to give their accent to the adoption.
The post placement reports, in order to help the parents in the case of the problem of
the child integration, is given by the Austrian authorities.
The decision authorising the adoption must be freely accepted by the parents.
80
Austria respects the rights and responsibilities of parents and the extended family to
provide guidance for the child which is appropriate to her or his evolving capacities.
Parents have joint primary responsibility for raising the child, and Austria must to
support them in this. Austria shall provide appropriate assistance to parents in child-
raising.
A homosexual couple is able to adopt only if one of them adopt, that gives the
possibility to these kinds of people to build a family at the same time the children enjoy
about more possibilities to find a family.
3-Conclusions
The rights of parents and children are the same as any other right recognised by the
family law for the natural or biological ties. Besides the rights on these kind of families
are more protected and supervised.
C-Right to the heritage and right to a family in the Austrian legislation
1-Right to the heritage
In the cases of in succession’s matters, an adopted child is treated as if he\she were a

child of the adopter born in lawful wedlock, The new rights and obligations between
each member of the new concerned family including the obligation to maintain, family
name, nationality, property and succession. the inheritance rights are the same in any
case of children’s origin, either a natural or adopted.
Since the adoption imitates a blood bound between parents and child, they are also
treated in the same way as biological relatives, who are also not controlled.
2-Right to a family
The adoption must be in the interest of the child, giving the child a stable and
harmonious home. In Austria the Subsidiarity principle is respected, this one implies
that efforts should be made to assist families in remaining intact or in being reunited, or
to ensure that a child has the opportunity to be adopted or cared for nationally’s
families. The protection to the child’s right to have a family has the priority and
respecting the best interest of the child; this one must remain on his/her own culture
and preserve his/her own language. The adoption authority has to recognise that a
child should be raised by his or her birth family or extended family whenever possible.
If that is not possible or practicable, they must looking for him/her the best permanent
family life. Other forms of permanent family care in the country of origin should be
considered. After a due consideration, inter-country adoption is considered, being this
the last resort.
Due to only one person is allowed to adopt in Austria, that means the process do not
oblige to be married; children have more options to find somebody to care them but at
the same time the concept of family became having just one parent.
3-Conclusions
In the way of the right to have a family and the heritance rights the adopted children in
Austria being originals from this country or another one, enjoy the same level of rights
and obviously obligations. This mean all the family obligation as maintenance, cares,
pensions, etc. On the same way considering the successions rights.
81
D-The troubles foundes by Austria
In the way of the explanation given by the Austria national expert on adoption law the
main problems and difficulties found within the adoption system were:
- Very complicated adoptions from countries which are no member of the “Hague
Convention”. These adoptions are private adoptions. Cambodia. India.
- The lack of information about specials documents and international proceeding

about the other country involving within the adoption case.
82
3.2. BELGIUM
Introduction
The adoption under Belgium Law might look complex, whether compared to the
multitude of Acts ruled by the European Community. Adoption under Belgium Law can
appear complex having regard with its broad legal framework and the multiplicity of the
applicable texts, domestic and internationals. In order to understand well the principles
of this matter under Belgium Law, it is necessary to sum up the applicable texts:
- The Hague Convention of May 29, 1993 on protection of the children and the
international co-operation. This convention was signed by Belgium on January 27,
1999 and it was approved successively by the Parliament of any federate entity.
-Code of Private International Right (PIR) of July 16, 2004: within the framework of this
study, the Belgian legal provisions will be developed, independently of the rules of the
(PIR) applicable to the matter. It is not the object of the study, certain regard is still
required.
- The Federal Law: Law of April 24, 2003 reforming the adoption3 it modified the title
VIII of the Civil Code by replacing articles 343 to 370 by the new provisions resulting
from the reform. In addition it reformed the whole body of the procedure for the internal
and international adoption, by introducing into the Code of Civil Procedure the new
articles 1231.1 to 1231.56. Finally, it gave other minor legislative modifications on the
law on the protection of the youth of April 8, 1965 like for example on the penal Code.
- The EC legislation: the installation of the guarantees required by the Convention of

The Hague in order to ensure the respect of the interest and the basic rights of the
child, implies in Belgium, the organization of federal and EC mechanisms.
Consequently, any community, see itself allotted a certain number of prerogatives in
the process of adoption, which matter is regulated in decrees.
-At the end, on December 12, 2005 it was concluded one cooperation agreement
relating to the implementation of the law of 24 April 2003 reforming the adoption
between the federal State and the communities to ensure a harmonious
implementation of competences of each one; to clarify certain procedures of application
of the law of April 24, 2003, in the higher interest of the child, and to ensure the
dialogue between different powers.
A- The concepts of protection and emancipation in the Belgian Law
1. The protection
The adoption is, on one side, an institution constituting filiations, which does not
concern a contract matter, on the other side, a measure of protection for the child,
which does not concerns the State’s responsibility4. This perception leads to a
fundamental point, which makes of the adoption the result either of a court order or of a
contract approved by the Court.
The Belgian law is innovating. It is a very complete and modern legislation.

3
M.B., May 16, 2003.
4
I. LAMMERANT, “adoption and human rights in compared right”, Brussels, Bruylant, 2001, p.211.
83
There are specifics conditions for adoption of Belgian Children abroad. Conditions
relate primarily to the respect of the interest of the child and his/her rights, on the
principle of subsidiarity of the international adoption, on the unconditioned and free
character of the agreement required, on the sufficient information given by the child in
consideration with his/her wishes. Finally, it is checked the absence of any economic
arrangement.
2. The emancipation
It is a completely exceptional situation because of the social and economic condition of

Belgium which is not destined to be the original country of a child requested for
adoption.
In effect, there are in general sufficient the adoptive candidates residing in Belgium
likely to adopt a child residing on the Belgian territory. The international adoption being
subsidiary to the internal adoption (according to the general principles of the The
Hague convention), the interest of the child will be almost always to be adopted in
Belgium.
The predictable hypothesis that will appear relate to some cases of intrafamily adoption
or by some relatives children residing abroad, or of adoptions of children with special
needs.
Summarily, the procedure is as follows:
- It begins with the constitution of a file of the child: when the foreign
central Authority contacts it, the federal central Authority transmits the
file to the competent Community central Authority, which will collect the
information concerning the child5.
- At the request of the federal central Authority, the Public Prosecutor

states the Young Court in accordance with article 1231.34 of the Code of
Civil Procedure. And an ad hoc tutor appointed by the Court represents
the child.
- The court gives an interlocutory judgment ordering a social

investigation6.
- Within three days from the the social investigation report submission, the
child legal representator is juridiciary convoqued in order to take note of
the report and to appear in person to the Court.
- The court comes to a conclusion about the international adoptability of

the child by checking if the conditions of article 362.2 of the Civil Code
are met.
These conditions relate primarily to the respect of the interest of the child and his/her
rights, on the principle of subsidiarity of the international adoption, on the unconditioned
and free character of the agreement required, on the sufficient information given by the
child in consideration with his/her wishes. Finally, it is checked the absence of any
economic arrangement.
5
Article 362.1 of the Civil Code and 1231.34 of the Code of Civil Procedure.
6
Article 1231.35 of the Code of Civil Procedure.
84
In addition, article 362.4 of the Civil Code states about the protection measures for the
deplacement of the child, and in particular about the control of the aptitude to adopt by
the adoptive candidates and the authorization for the child to remain in a permanent
way in the foster country7.
3. Conclusions
The Belgian law is very protective of the children. The principle of subsidiary is
respected and the conditions to let adopt a child abroad are adequate.
B- The child’s rights to be adopted and the parents’ rights to the adoption in the
Belgian Law
1. Child’s right to be adopted
It is after the deposit of the report of the Public Prosecutor and of the social
investigation, that the Court proceeds to the hearing of the adoptee, among different
other hearings in the council room.
Indeed, the adoptee of more than 12 years old must agree to his/her
adoption and he/she need to be heard by the Court.
To the contrary, the child of less than 12 years old will not be heard by the
Court unless he/she appears. It happens thanks to the throughout study
ordered by the Juvenile Court and carried out by the qualified social
service, that he/she has the necessary understanding8.
If the study shows the absence of understanding, the child has 15 working days, from
the notice of the study by the Public king Prosecutor, to ask in writing to the Juvenile
Court to appreciate itself the understanding.
If the Juvenile Court finds itself competent, the Juvenile Court hears the child. The
appreciation by the Juvenile Court of the capacity of the child deserves no appeal9.
At the time of his/her appearance, the child, who is more or less than 12
years old, can renounce being heard.
If he/she is heard, it will be alone, except by the presence of the clerk and
of an expert or interprets. This hearing tends to know his/her opinion on the
adoption, but also on its effects like the creation of a family tie, the rupture
with the family of origin, the renaming and the first name, etc…10.
His/her opinion is taken into account in accordance with his/her age and maturity. The
hearing does not confer to him/her the quality of part to the procedure, but the adoptee
older than 12 years can always intervene11.
7
N.GALLUS, “The new law on the adoption”, in “Right of the families”, Liege, 2007, vol.92, p. 152.153.
8
9
I. LAMMERANT, A. OTTEVAERE and Misters. VERWILGHEN, “ New federal right of the adoption ”, R.T.D.F., 2006,
p. 99.
10
Doc. parl., CH., n° 50-1366/001, page 84).
11
Articles 1231.10, 1231.16 and 1231.17 of the Code of Civil Procedure.
85
A report of the hearing (and not an official report for the reasons explained under
question I) is joined to the file of the procedure12.
2. Parents’ right to the adoption
The adoptive candidates are defined by the article 343§1 of the Civil Code. He/she can
be:
- A person alone;
- A married couple;
- Cohabitation, two people having made a statement of legal cohabitation or
two people living together in a permanent way since at least 3 years at the
time of the introduction of the demand for adoption, in so far as they are not
linked by an alliance or family bound involving a prohibition of marriage of
which they cannot be exempted by the King. When a single person adopts
and he/she is married or in cohabitation, the agreement of the partner will
be necessary13.
When the adoption is carried out by a couple, any attached privilege to the marriage
disappears, as supplemented by the suppression to any monopoly reserved for the
only couple heterosexual as stated by the Law of May 18th, 200614.
The idea is to ensure the integration of the child in a family, which will take care of
his/her protection, and this, whatever the particular legal structure of common life
chosen by the adoptive candidates15.
Furthermore, the conditions of age which must be filled at the day of the request’s
application to adopt are identical to those of the old law: the adopting candidates must
be at least 25 years old and at least being 15 years older than the adoptee. If the
adoptee is a child of the spouse or the cohabitation’s person of the adoptive candidate,
it is necessary that the adoptive candidate were 18 years old and 10 years older than
the adoptee16.
3. Conclusions
It seems that the balance between the right of a child to be adopted and the right of the
parents to adopt is well-respected.
c- The right to a heritage and the right to a family in the Belgian Law
1. The right to a heritage
There are two types of adoptions envisaged by the Belgium Law:
plenary adoption, which is reserved only to the minors and integrates

completely the child within the adoptive candidates family. This adoption
breaks all the bonds with the family of origin. This adoption form is
irrevocable.
12
13
Article 348-2 of the Civil Code.
14 th
Law of May 18 , 2006, M.B., June 20, 2006.
15
See Y.H. LELEU, “ Right of the people and the family” S, conference Faculty of Law of ULG, Brussels, LARCIER,
2005, page 537.
16
Article 345 of the Civil Code.
86
 simple adoption, which concerns either minors, or the major ones and creates
family ties only between the adoptee and the adoptive candidates but not
between the adoptee and the family of the adoptive candidates. On the other
hand, it creates such bonds between the adoptive candidates and the
descendants of the adoptee. It is revocable only in the very serious reasons.
2. The right to a family
By the way of the plenary adoption or by the simple adoption or by the way of the
international adoption, the Belgian law offer a very good legislation to find a family to a
child.
3. Conclusions
The balance between the right to a heritage and that to a family is respected under the
plenary adoption, but if the adoptee is a major person, or in case of simple adoption,
that is not the case.
87
3.3. BULGARIA
Introduction
The legal base
• The study given by the Bulgaria specify that the application law in the field of
adoption are: “The Hague convention on protection of children and co-operation in
respect of intercountry adoption”, ratified by the Bulgarian Parliament, in force for
Republic of Bulgaria as of 1.09.2002; “ the BULGARIAN CODE OF THE
INTERNATIONAL CIVIL LAW” in force from 1.03.2008/.; the “BULGARIAN FAMILY
CODE” , last amend. 20.07.2007 г., in force from 1.03.2008/; “the ORDINANCE NO
3 LAYING DOWN THE CONDITIONS AND PROCEDURE FOR GIVING CONSENT
FOR THE ADOPTION OF A PERSON OF BULGARIAN NATIONALITY BY A
FOREIGNER” /Issued by the Minister of Justice, published, SG, issue 82 of 16
September 2003, in force after amendment from 20.01.2006/; “the ordinance no 4
concerning th condtions and procedures for keeping of the register of children for full
adoption” /Issued by the Ministry of the labour and social politics on 9.09.2003/;
“THE UN CONVENTION ON THE RIGHTS OF THE CHILD 20 NOVEMBER 1989”
ratified by the Bulgarian Parliament on 11.04.1991, in force for Republic of Bulgaria
from 03.07.1991; “the REGULATION (CE) 2201/2003 OF THE COUNCIL OF 27
NOVEMBER 2003” concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and the matters of parental responsibility; “the
CHILD PROTECTION ACT”, promulgated in State Gazette No 48 on 13.06.2000, in
force as per 24 Jul 2007; “the REGULATION FOR APPLICATION OF THE CHILD
PROTECTION ACT, adopted on 14.07.2003, promulgated in SG No. 66 of
25.07.2003, in force since 25.07.2003; “the ORDINANCE FOR CRITERIA AND
STANDARDS FOR SOCIAL SERVICES FOR CHILDREN”, adopted on 7.11.2003,
promulgated in the State Gazette No 102 of 21.11.2003, in force after amended on
27.03.2007; “the ORDINANCE ON THE CONDITIONS AND ORDER FOR
APPLYING MEASURES FOR PREVENTION OF LEAVING OF CHILDREN AND
THEIR ACCOMMODATION IN INSTITUTIONS, AS WELL AS THEIR
REINTEGRATION, adopted on 11.08.2003, promulgated in State Gazette No 74 of
22.08.2003, in force since 22.08.2003.
A-Concept of protection and emancipation in BULGARIAN law.
It is important to stress about Bulgarian law that being a country of origin, which means
there are more children to be adopted than families to adopt children; this country has
a vast experience on this field. In the way of the international adoption, this country
respects the statements and proceedings put in order by the Hague Convention of 29
may 1993 have entered into force in 2002.
1-Protection
Since Bulgaria is part of the Hague Convention of 1993 on Protection of Children and
co-operation in respect of the Intercourty adoption, the central authority is the ministry
of justice which is the mediator of the international procedure.
The full adoption is granted by a total process divided in two phases; the first one is the
administrative process and the second one is the court proceeding. There is a waiting
list of persons having the prior consent of the directorate; the national body, called
Directorate social assistance, inspects and allows the candidates to be listed.
88
The second part of the process starts under the DISTRICT Court’s jurisdiction, where
the child’s file is registered.
The full adoption is obligatory when the children have unknown parents, have been left
by their natural parents in a specialized institution with the consent to be adopted or
they did not be requested within six months.
The adoption is only granted and admissible between registered adoptee and adopted.
There’re 28 regional organs (directorate) in Bulgaria having in charge the children
protection. None Bulgarian child may be adopted abroad without the previously
registration within the Bulgarian Minister of Justice.
The children being older than one year and younger than 18 are able to be adopted
abroad.
The families having adopted a Bulgarian child have to provide the four reports of follow-
up during the two years following the adoption.
The choice of the family is done on the profile of the adoptable children, which is really
little. On the same sense the Bulgarian authority intention is to give priority to the
national adoption and this is in the context of the respect of the best interest of the
child, preserving on this sense his/her own culture, language, history roots, kind of
alimentation, etc.
Since the Hague convention in force it is not more possible to ask a lawyer for an
adoption, the central authority foreseen by the convention that is compulsory
implemented by the signatory country became the only competent on this situation.
The decision is pronounced by the Sofia tribunal.
The possibility for a child under his/her emancipated age to donate or surrender, rights
is forbidden in any case and this is in the way to protect the best interest of the child.
2-Emancipation.
The Bulgarian law provides an incomplete adoption, only for the national adoptions
cases.
In the cases where the children are not search for more than six month or their parents
are unknown diseased or deprived from their parental rights, the administrative body
called Regional director for social assistance have the competence to give the assent
to the adoption.
Once again, the Bulgarian legislation considers the subsidiary principle providing that in
cases the specified standards have not got the Counsel for International Adoptions
under Ministry of justice should be informed to define the foreign parents. On these
sense for the Bulgarian legislation there’s almost not difference between the foreign
countries signatory the Convention on protection of children and cooperation in respect
of inter-country Adoptions; the only consideration is that either the adopter or the
adoptee do not have Bulgarian citizenship to be in such case.
The last explanation implies the Bulgarian law is more open at the time of the
international instruments consideration because the Bulgarian law does not enclose the
international adoption to the countries signatory of the mentioned instruments but it
consider all of the worldwide citizenship as a potential family for the adopters or
adoptees.
89
In Bulgaria any kind of couple is consider capable to adopt children; on this sense,
married couple with or without children and single persons are also enable.
In the Bulgarian legislations there’s not a restriction regarding the difference age
between adopting parents and the adoptee.
After six month of waiting, if the child did not find a Bulgarian family or if the child was
refused for more than three Bulgarian families the child data is transmits on the basis of
the subsidiarity principle to the International adoption Council of the minister of justice
where a foreign family should be seek for him/her.
3-Conclusions
The protection is considered on the field of the international adoption proceedings that
respects the statements given by the international Convention compulsory to the
signatory countries. On the other side the national adoption proceeding contains more
emancipated statements because it allows the incomplete adoption which is a kind of
“simple adoption” existing in other European countries. This proceeding requires fewer
obligations and obviously provides fewer rights.
Following these premises, children up to 1 year old are protected by the law to be
adopted within the country for national adoption. Children from 1 to 16 years old are
available for international adoption. However, healthy infants are usually adopted by
local families. The adoption system in Bulgaria provides that is open to any kind of
couple and there not difference age limit to be an adopter parent.
B-The rights of the child to be adopted and the right of the parents to the
adoption in Bulgarian legislation.
There is a child protection act giving the children to be adopted the right to be heard if
they are older than 10 years and obviously if their personnel maturity allows it.
Following the same rights, children older than 14 have the right to consent their
adoption, they cans ask the judge about the adoption decision and others question
regarding their prospective parents.
Bulgarian children may be adopted either having important diseases. The most of the
children being in the adoption list presents important pathologies and these have the
priority to be adopted. On the same sense the request regarding the aged children and
children having other particularities have priority.
Where siblings are available, the right to be adopted together should be respected
because this is in the way of the best interest of the child to keep their blood bond.
The adoptee has the right to ask about his/her origin to the district court having
pronounced the adoption decision.
The children have the right to be cared by their adoptive parents and to be prepared for
a community work. The care the children have right concerns his/her personality, life,
health, physical immunity.
90
The children have the right to conserve their real estate and movable property, unless
the expropriation had been allowed by the regional Court decision and it decision was
taken in the respect of the best interest of the child.
The Adoption Committee is very strict in keeping the principle that it must find proper
parents for a child in need and not a proper child for parents wishing to adopt in
Bulgaria.
2 The right of the parents to adopt
Priority is given to adoptive parents willing to adopt a handicapped child. The

international adoption from Bulgaria can be accomplished in one trip, as escorts for the
children back to the parents country are permitted and court hearings can be handled
without the adoptive parents’ attendance.
Any and all trips to Bulgaria for adoption can be relatively short in length. The country
provides a good alternative to the family who does not want to worry about staying in a
foreign country for an extended period.
Bulgarian adoption will require a minimum of in-country travel. Most of the activities
relating to the adoption would occur in one city – Sofia.
The adoptive parents may request about the information of the adoptee’s origin to the
district court that has pronounced the adoption.
Every parent is a holder of parental rights and obligations and shall exercise them, and
the children have the obligation to help and respect their parents.
3-Conclusions
The rights of the parents and the children are protected in the way of the internationals
conventions and otherwise the best interest of the child remains the fundamental right
over any other interest. Obviously the main principle is to build and to conserve a family
that will be rich full for both adopters and adoptee.
C-The right to the heritage and the right to a family in the Bulgarian legislation.
Once the adoption granted the rights and obligations that used to have the child with
their original biological family are finish, the bond between the biological parents and
his/her child disappeared. Therefore a new family bond is established between the
adopting parents and the adoptee. Legal results are in force for all possible legal
relationship, hereditary, public law.
In the cases of an incomplete adoption that usually is a national adoption, the bond
between the descending relatives and their relatives by origin remain in force.
Within the Bulgarian family law the articles 68 and 70 foresee the obligations between
second parents and children and these and grandparents.
The parental rights are not viewed as a transfer of parental rights, there is no room for
succession.
91
2 The Right to have a family.
The adoption legislation is provided by the Family code that means the adoption is an
institution belonging to the family law. A new birth act for the child adopted is created
within the adopter parents address jurisdiction; this new act replaces the initial one.
The measures provided by the Bulgarian law foresee to give again a right to a family to
the children. On this sense the proceeding has been simplify.
In Bulgaria, the legislation put in order the measures of children’s protection always
tenting to reinsert the children to a family, therefore the legislation provides to help the
biological family, the foster family placement, to give to the abandoned children a
normal life.
The decision given by the Bulgarian law has the effect of cut the original family ties and
it creates a filiations’ bond between the child and his new family.
3-Conclusions
Either having not exactly information about the differences between incomplete
adoption reserved to the incomplete adoption and the full adoption using within the
international system. It is possible to determinate the full adoption proceeding gives to
the new constituted family the same rights such a biological filiations’ bond. The
heritage rights on this case are the same considers in the case of a biological family.
To better understand this it will be necessary to develop the Bulgarian heritance law.
92
3.4. CHYPRUS
Introduction
Legal base
• The Hage convention on protection of children and co-operation in prespect of

intercountry adoption” which has been ratified in Cyprus on February 20th 1995 by
the Law 26(III) of 1994.
• Convention on the Civil Aspects of International Child Abduction (Hague XXVIII) The
Hague, 25 October 1980 Cyprus accession: 4 November 1994, Law No.
11(III)/1994.
• Convention on the Rights of the Child New York, 20 November 1989, Cyprus
ratification: 7 February 1991, Law No. 243/1990.
• Amendment to article 43(2) of the Convention on the Rights of the Child New York,
12 December 1995. Cyprus acceptance: 20 September 2001. Law No. 5(III)/2000.
• Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography, New York, 25 May 2000, Cyprus
ratification: 6 April 2006 Law No. 6(III)/2006.
• Convention (No. 182) concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour, Geneva, 17 June 1999, Cyprus
ratification: 27 November 2000. Law No. 31(III)/2000.
• The adoption law act 1995.
• The Cypriot law is based on the English law. It is necessary to expose that Cyprus is
not a country of origin considering the adoption institutions, in the opposite it is a
country of reception.
A-Concept of protection and emancipation in Cyprus law
1-Protection
A child in need of care can be placed in this following order, following the Cyprus
legislation: a Foster Family for children between 0 and 12 years old, a Relative family
for children after 12 years old and in a Children’s Homes for children between 12 and
18, either the best interest of the child will be always to get a family.
In case it is established that a child is not adoptable in his/her country of origin, then
the child is taken under the Director´s care and the Social Welfare Services undertake
the responsibility for the child to be repatriated to the Country of origin.
Some procedures are foreseen to establish if the child is adoptable. A child is

adoptable if either biological parents or the living parent have given their consent. The
93
consent may not be given unless at least three months have elapsed since the birth of
the child.
In cases of intercountry adoption we receive information about the child proposed for
adoption together with the confirmation by the Central Authority of the Country of origin
that the child is adoptable.
Another procedure is provided in the case of the consent; the person whose consent is
necessary for adoption is counselled by the Social Worker, of the termination of the
legal relationship with the child and of the irreversibility of the procedure. The consent
is given in legal form three months after the birth of the child so that the biological
parent can freely decide.
According to the Cyprus Adoption Law prospective adoptive parents are obliged to
inform the Social Welfare Services of their intention.
The Welfare Officer is obliged to visit the premises where the minor to be adopted is
going to live in. The Welfare Officer has interviews with the prospective adopters
separately and together. Matters concerning the age of the couple, civil status of the
couple, personal history, their income, their personalities, the duration of marriage,
state of health, presence of other biological or adopted children and their previous
experience with children are evaluated. After having investigate the eligibility of the
prospective adopters parents a report in written, within 6 months after the receipt of the
application is granted to the District Welfare office that will decide.
Also, Post placement reports are sent at six months´ interval for a period of two years
after the adoption and are forwarded to the Central Authorities of the Country of origin.
All documents filed in Court shall be confidential and the adoption application is heard
and tried in private.
The Cypriot law foreseen that at least one of the person having the intention to adopt
should be 25 years old. The adoption is not allow for homosexuals and single people.
2-Emancipation
The Court may, while an application for adoption is pending, postpone its final decision
upon the application and issue an interim order for adoption giving the custody of the
minor to the applicant for a probationary period of not exceeding six months and upon
such terms as the Court thinks necessary with regard to the maintenance, education
and generally the welfare of the minor.
Having taken into consideration the age and degree of maturity of the child, the Central
authority of the receiving State shall consult the child and, where appropriate, it may
obtain his/her consent to the adoption or other kind of situation about the adoption. In
others words the Cyprus adoption proceeding foresees to have a hearing or more than
one with the child in case, at any time that his/her maturity age allow this situation, in
the way to get his/her approbation about their adoptive parents, the possibility to leave
their own country, to change their language, culture etc.
The only reason to refuse an adoption decision is that is manifestly contrary to the
public policy.
94
The Cypriot Adoption Law of 1995 provides that the application for adoption shall be
submitted by a person or persons, residing in the Republic of Cyprus, but they are not
oblige to be Cypriot citizens.
The adoption national law in Cyprus foresee also the possibility to adopt again a
person that was already adopted in the following cases and under the supervision of
the Courts: a minor who has already been adopted by the spouse of the adopter; the
previous adopter has died; the first adoption has been terminated.
The parent’s consent to adoption may be given without the identity of the applicant to
be known to that parent giving it. The blank consent is allowed and in some
circumstances the Court may dispense the consent required.
3-Conclusion
After reading the protection of the rights considers within the Cypriot legislation, it is
possible to determine that this legislation is quite balanced in the way to the protection
of the rights. This law is more protective in the way it determines a basic age to be
eligible to adoption.
B-The rights of the child to be adopted and the right of the parents to the
adoption in Cyprus legislation
1-Rights of parents
Welfare Officers provide counselling and preparation of applicants to adopt. These

services are secured within the framework of a Welfare Officer’s obligation both
according to the Adoption Law of Cyprus and the Convention.
After the prospective adoptive couple informs the Social Welfare its intention to adopt,
the parents have the right to discuss matters relevant to the adoption with the Welfare
Officer in the frame of some interviews, the discussion concerns the information that
the parents need to adopt a child as follows: telling the child the truth, helping the child
to obtain information regarding his biological parents, maintaining non-critical attitude
towards the biological parents and answers to questions and enquiries that the couple
has.
The prospective parents have the right to refer to the welfare officer of the district in
which they reside to require the preparation of a report in which it shall be mentioned
whether or not they are suitable persons for adoption purposes. The welfare officer
must, within six months from the receipt of the notice, serve the applicants with a copy
of a reasoned report.
The parents have the right to ask to the welfare officers, where appropriate, their
services and assistance after the issuance of the adoption order.
2-Right of the children
If the child involved is mature enough for his/her age has the right to be informed of the
effects of the adoption. The thought and the wishes of the children having a mature age
will be respected by the courts.
95
The Cypriot legislation takes into account the refugees, therefore, the Social Welfare
Services can implement the Recommendations concerning the application to refugee
children and other displaced children of the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption although no such case
has been handled, until the time. This is really interesting because it implies the
combination of two different international conventions that are provided by the Cypriot
national law.
Cyprus being a receiving country find on inter-country adoption proceedings greater

difficulties exist as origin countries create special policies aiming to locate the child in
families residing in their state and perceive the inter-country type of adoption as a last
solution. Those special policies, following the application of the subsidiarity principle,
protect the rights of the children to remain within his own culture and closer his
biological parents; either they take into account the respect of the fundamental rights of
the children as for example their right to speak their own language, their rights to keep
their own education and to be raised within his original country.
Cyprus has endorsed the Convention on Protection of Children and all contracting
states, in cases of inter-country adoptions, co-operate and follow procedures which aim
to the best interest of the child. Therefore, children have the right to know (in the
appropriate age) that they are adopted. The adoptive parents inform the child about the
adoption.
Within the Cypriot legislation, the rights of the children are protected by the social
welfare officers who aim to safeguard the best interests and rights of children, before,
during and after the adoption procedure. On this sense some of their responsibilities
are: to investigate whether an individual or a family are eligible to become adoptive
parents; to safeguard the best interests of children as soon as the application for
adoption is submitted to the Court; to submit to the Court a report indicating whether
the adoption is in the best interest s of a child; to act as a temporary guardian to a child
and to submit to the Court the report in order to issue the adoption order; to counsel
and provide assistance, if required, after the adoption takes place.
3-Conclusion
It is possible to determinate that the best interest of the child is being protected in a
right way by the Cypriot legislation and juridical procedure. The welfare officers keep
the competence to respect of this rights. On this sense they are responsible to give a
green light to the eligible parents and to supervise the children’s fundamental rights
were well protected.
C-The right to the heritage and the right to a family in the Cypriot legislation.
The legal relationship resulting between the new parents and children within the
Cypriot law confers the effect for the adoptee becoming the legal heir of the adopter
and terminates any legal rights then in existence with the biological parents. The
heritance rights are similar to those found within a biological family.
96
2-The right to a family:
The new family is protected by the law and acquires all the same rights as a biological
law. The parents always try their outmost to raise their children according to the
universal values and principles of love, provision and solidarity, responsibility and hard-
work, respect and valuation.
Additionally, they make sure to provide their children with academic education, financial
support and independence. However, the modern
Cypriot family is “diminishing” on a daily basis in a continuous fight of survival and

acquisition of material goods, where over consumption has replaced the traditional
values this is one of the reasons for the adoptions.
To help the child to obtain information regarding his biological parents is a right that
adopted children keep as well.
In the way that only a married and homosexual couple is eligible to adopt in Cyprus,
the concept of the traditional institution of the family is only foreseen. On the same
sense the children may could be more protected but they have less possibilities to find
a family.
3-Conclusion
The right to a family and the heritance rights in Cyprus adoption system are balanced
and they have assimilation to the rights exerted by the biological families. Maybe
because of the family situation in Cyprus lost a little bite their traditional values; the
national legislation has decided that adoption could be only attained by a traditional
heterosexual and married couple being at least one of them older than 25.
Troubles found by Cyprus

- Difficulty in obtaining the adoption in the reasons of the long delays in the
procedure, some of legal troubles, some social and psychological reasons were
also stressed as difficulties in the way to grant an adoption.
- Difficulties to find a child because of the application by the foreign countries of the
principle of subsidiarity.
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3.5. CZECH REPUBLIC
Introduction
Legal base
• European Convention on the Adoption of Children, Council of Europe.

the Child.
• The Hague Convention of 29 May 1993, The Hague Conference on Private law.
• Universal Declaration of Human Right, UN - United Nations.
• Act №. 94/1963 Coll., Family Code.
A-Concept of protection and emancipation in the Czech adoption legislation
1-Protection
Within the Czech Republic adoption legislation all appropriate measures shall be
provided by the local Authorities for the socio-legal protection of children. Following the
compulsory mandate given by The Hague Convention, the Czech Central Authority has
two lawyers who are responsible for matters concerning intercountry adoption. The
protection and assistance of the child requires that his/her basic life needs are provided
for, including accommodation, health care from a health facility and psychological and
similar care needed; all those needs are supervising by the responsibles.
Another characteristic of the protection established within the Czech adoption law is
confirmed by the way that a child may be adopted only by individuals whose way of life
guarantees that the adoption shall be to the benefit of child and society. This is
investigating by the Central authority before to determinate that the prospective parents
are eligible.
It became obvious that a child can not be adopted by a person who has not capacity to
legal acts and the adoption requires consent of the legal representative of the child,
whoever it was. Thus, an adoption of a child requires consent of a parent even if he or
she is minor, unless the exceptions given by the law that are similar in the most of the
cases to the others countries. An adoption of a child to a foreign country requires
consent of the Office for International Protection of Children.
The Czech law foresees there must be an adequate difference between the age of
adoptive parent and the age of the adopted child but it does not establish a fix age. It is
only allowed that a child were jointly adopted by spouses and Only a minor child may
be adopted if it leads to his or her benefit. A nasciturus, conceived but still undelivered
child, may not be adopted.
In the way to the protection to the next new family, the court must ascertain the
adoptive parents' health condition, their personal qualities and motivation to the
adoption and consider whether they are not at variance with the purpose of adoption;
the court must let the adoptive parent and the adopted child's legal representative
know about the results of the adoption.
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The Czech Republic adoption legislation foresees two different kind of adoptions that
are granted under different law and fact conditions. In the case of the international
adoption only the irrevocable adoption is allow to protect the children about the
continuity of his/her new lifestyle and culture. This kind of adoption may be done also in
the manner that upon the adoptive parent's petition, the court decides that the adopted
parent shall be written in the register instead of the adopted child's parents. In this way,
the child may be exceptionally adopted also by a lonely person provided that this
adoption shall fulfil its social task. In such case, the court shall also decide that the data
about the child's other parent shall be deleted from the register. This adoption can not
be cancelled and concern only a minor older than one year.
The Czech Republic criminal law is really strong in the way of the protection of
children’s traffic. There is a criminal sanction for trafficking in children that is part of
Criminal Code and the criminal courts are deciding in criminal procedure.
There just one entity responsibly about the decision of the placement of the child in
international adoption; there is the Czech Central Authority. Under the Convention, the
Czech Central Authority is a state body, a public body and employees are public
servants, there are responsible on the supervision of the illegal money traffic about
children adoption. Any illegal money profit for the public servants can be subject to the
criminal law as when the bribe receiving.
The central authority from Czech Republic in the way of the protection of the best
interest of the child should expose the following exigencies to the central authorities
having headquarters in the countries abroad: 9 reports during the first three years
distributed as follows: 1, 3, 6, 9, 12, 18, 24 and 36 months and the last one after 48
months.
Another measure of protection is given by the level of the professional intervening in

the procedure. Certainly, the social-legal protection can be provided directly by persons
who have obtained the necessary professional qualifications. These people have to
have an ordinary university degrees in the fields of pedagogical and social sciences
specialized in social care, social politics, pedagogy, law, psychology, tutorship or
nursing, and in the field of medicine with specialization in general and child medicine:
An ordinary education programs run by colleges in the fields of social work, pedagogy,
charity and social care, charity and social activities, social-legal activities, two-subject
study of pedagogy and theology, or an ordinary nursing diploma or ordinary high-
school graduation in these fields of study; An education within the scope necessary to
obtain a special professional qualification certificate in the field of social-legal
protection, graduation from education programs in the field of family and child care.
2-Emancipation.
The Czech adoption law foresees the revocable adoption that provides lighter rights
and obligations between the parties. This kind of adoption is only foreseen for national
adoptions and is usually known as foster care. The difference with the adoption is that
fostering does not create a relationship between the child and the foster parent
identical to that of the child and its parents, and in particular, the relations of the child to
the original family are not interrupted. The foster parent may, contrary to the rights of
the parents, execute rights and obligations over the child, thus the foster parent must
take care of the child personally. The right to represent and administer the child's
matters applies to common matters only. For example, the foster parent does not have
the right to administer the child's estate. Foster care has been used particularly for
older or handicapped children.
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On this sense this kind of adoption foresees that the adopted child can be repeatedly
adopted only if he or she is adopted by the adoptive parent's spouse or of the adoptive
parent died or if the previous adoption was cancelled.
In the Czech adoption legislation the requirement to be eligible as a prospective parent

are really light, for example: There are not fixed age obliged and there are not a
minimal duration of marriage. Besides a single person is eligible to adopt and at the
same time the difference between the age of the adoptee and the adoptive parents is
not fixed. This gives to the children more possibilities to find a family. In the same
sense, the homosexuals living in a couple are able to adopt by the way of the single
person.
On the same way the Czech authorities has announced there are more families
wanting to adopt than children available to adopt in Czech Republic that converts
automatically the country in a receiving country because those families are going to
seek for a child overseas.
Unless the child’s consent was necessary his/her presence is not required at all during
the adoption proceeding.
3-Conclusions
Within the Czech adoption legislation it is possible to find a balance giving the
possibility to local children to be cared by the local families. It is acceptable the
contains of the different kinds of institutions is not exactly the same giving the
irrevocable adoption more security and a complete care. However the needs of the
children are covered since they are received within a foster family and they are creating
feeling’s bonds with the family members.
On the sense of the international adoption the Czech Republic provide a very
interesting system of protection. Otherwise this country has illustrated the institution
with the case stated by the International Court of Human rights called Walla vs. Czech
republic.
B-Right of the child to be adopted and right of the parents to the adoption in the
Czech adoption legislation
1-Right of the children to be adopted.
One of the rights recognised to the children are as it follows: if the child is able to
consider the consequences of the adoption, his/her consent is necessary except for
cases when it would frustrate the purpose of adoption. In the cases where the minor is
unconscious child, he/she has the right to a legal representative to agree to the
adoption.
The children have the right to be adopted without the consent of their biological parents
in some cases if the child's parents are legal representatives of the child. Those cases
are: they have not manifested a proper interest in the child permanently for at least six
months, they manifested no interest in the child for at least two months after the child's
birth even if no impediment prevented them from manifesting the interest, the parents
agree to the adoption in advance.
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On the respect of the principle of subsidiarity, only may profit the right to the
international adoption the minors who could not find of family of reception in the Czech
Republic
Once the court decision about the adoption, the child has the right to receive from their
adopting parents care responsibility. The adopted child has the right to have the
adoptive parent's surname. The adopted child has the right to ask the cancellation of
the adoption by the court only founded on the important reasons.
In the respect of the principle of the best interest of the child, the child has the right the
Court previously investigate the lifestyle of the prospective parents, to give him/her a
guarantee about the positive effect of the adoption for the adopted person and society.
The principle is also contained in the section 65/2 FA of the Czech legislation.
Besides, always respecting the same international principle, the Court must examine
whether there is an emotional relationship between the adopted person and the
adoptive parent, equal to a child and a parent, and whether the adoptive parent will
properly conform to the obligations towards the child resulting from parental
responsibility.
On this sense the Czech law consider the child's right to favourable development and
proper education, the protection of legitimate interests of the child including protection
of his/her estate, and measures towards the restoration of damaged family functions.
The interests of the child may never be subordinated to other interests, e.g. those of
the parents or other persons or the state (meaning of best interest of the child).
2-Right of the parents to the adoption.
In the Czech Republic legislation it is possible to find the following types of care and
protection adoption, foster care, guardianship, institutional care. Even if a person is not
eligible for the adoption institution; she may be eligible to care a child under one of the
others kinds of legal institutions.
The adoptive parents have the right to submit the petition of the adoption to the Court
that will decide.
The parents have the right to be a previous foster family, between three to six month
pre-adoption cares, passed before issuance of the court's decision on adoption was
taken.
Before deciding about the adoption, the adoptive parents have the right to be instructed
by the Court about the purpose, content and consequences of adoption. There many
professionals within the Czech adoption authorities that are instructed and should help
the prospective parents in the way to create a very well bond between them and the
adoptee.
The Authorities for the socio-legal protection of children are according to our legislation
charged to provide for the counselling of prospective of prospective adopters. The
Municipal authority with extended competences shall assist the parent.
The adoption act can be cancelled only by the court upon petition of the adoptive
parent for important reasons.
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3-Conclusions
The rights of adopting parents and adoptee children are very well protected within the
Czech Republic adoption system. certainly, this country has put in order a very
important whole of entities supervising and advising about the rights of the persons
involved within the adoption legislation.
C- Right to the heritage and right to a family in the Czech adoption legislation.
1-Right to the heritage.
Unless the type of family’s care were un adoption, the children won’t enjoy the full
heritance rights.
The Adoption can be understood as creating a relationship between the adoptive

parent and the adopted child which is equal to that of a child and its natural parents,
and hence, a non-own minor child is considered as ones own, and a family like
relationship is created between the adopted person and the adoptive parent’s relatives.
Therefore the heritance rights are similar to those.
Fully adoption replaces the biological and consanguineous relationship between the
parent and the child, thus adoption exceeds the term of alternate family care. In the
cases of a foster care this relationship does not grant the heritance rights in the same
way as the adoption. Certainly the foster parents do not have the right to administer the
child's estate.
Otherwise in an opposite way where is the child having got real estate, the Court will
decide the adoption within the protection of this rights to forbid the prospective parents
could take advantage of the economic child’s situation.
2-Right to a family
A family is irreplaceable in terms of the care it provides for a child.
Adoption establishes between the adoptive parent and the adopted child the same
relationship as is the relationship between biological parents and children, and a close
relationship between the adopted child and the adoptive parent's relatives. The
adoptive parents have a parental responsibility in upbringing of children. All of the
rights and obligation regarding the family law apply.
Adoption leads to extinction of mutual rights and duties between the adopted child and
his or her original family. The same rule shall apply to rights and duties of a curator or
guardian appointed in order to exercise these rights and duties for the parents. (2) If
the adoptive parent is a spouse of one of the adopted child's parents, the adoption
shall not affect relationships between the adopted child and this parent and his or her
relatives.
The legal relationships with the original parents are terminated, and are instead created
between the adoptive parents and their relatives. In the case of irrevocable adoption,
the court will decide on registering the adoptive parents in place of the adopted
person's parents in the birth register
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Unless the adoption were irrevocable, the cancellation of the adoption leads to rise of
mutual rights and duties between the adopted child and his or her original family. The
adopted child shall have his or her original surname and will recuperate his/her original
bonds.
3-Conclusions
The right to have a family and its consequential hesitance’s rights are in Czech
Republic similar to the rest of the countries. Netherless the country provides at least
two different cases, considering the irrevocable adoption and the other kind of family’
cares similar to the adoption institution.
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3.6. DENMARK
Introduction
Within the domestic legislation ruling the adoption not all the 27 EU countries have a
common background.
More in detail, on one hand, some countries are oriented towards a full integration of
the adopted person in the adoptive family letting the former absorbing the benefices of
the new family not just in terms of material and economic advantages during the
parents’ life but also in terms of inheritance. On the other hand some countries are less
eager to fully compare the rights of the adopted persons with those of the non-adopted
ones. This phenomenon is remarkably seen i.e. about inheritance, where the adopted
persons are not granted with the same rights then the non-adopted persons.
From this very brief foreword an analysis of any single EU Member State deems
necessary taking into account that the common framework is the best interest of the
child.
Nonetheless, besides the intervention of the domestic law-maker, the rights and
conditions of the adopted persons are covered by some international conventions as
well.
Thus, this ‘best interest’ might be evaluated through different legal instruments: the
domestic and the trans-national ones.
Probably in Denmark the most relevant of these legal instruments for the protection of
the rights of the child, are The Hague Convention on Protection of Children and Co-
operation in relations to Inter-Country Adoptions (ratified by Denmark in 1997) and the
1956 Danish Act on Adoption (May 25, 1956 n°140).
However this trans-national instrument, as well as the domestic ones do not emphasise
all the aspects of the adoption integrally. Keeping in mind the best interest of the child
some quasi-philosophical questions might be posed, like the protection of the child
versus his/her emancipation, the adoption at the child’s interest versus the adoption for
the parents’ needs and the inheritance of the adopted versus the capital protection of
the natural children.
This study will focus on the dichotomy between these complementary but parallel
exigencies.
Furthermore, it deems important to stress the relationship between the symbolism and
the pragmatism dictated by the single exigencies when dealing with the world of
adoption.
A-The concepts of protection and emancipation in the Danish Law
1. The protection
It has to be stressed before all that in the whole body of the Danish Law regarding
adoption the best interest of the child is a basic principle.
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However, the protection of the adopted person becomes a delicate balance between
his/her own interests and those of the adoptive family. This delicate balance may be
detected on one side by the fact that under Danish Law on adoption any prospective
adoptive parents must be subjected to several examinations prior to accede to the
adoption. This examination becomes even more compulsory when adopting a child
from abroad.
It implies that parents’ capacities are filtered in advance especially when the persons to
be adopted come from different cultural, economic and political environments than
those where they will be leaving.
Whether it has been stated in the provisions of the 1993 The Hague Convention on
Protection of Children and Co-operation in Respect of Inter-country Adoption that a
Danish couple may adopt someone by the requisite of an adoption decree, nationals of
a foreign country may adopt Danish citizens only subject to specific conditions set out
in a Treaty or upon a bilateral agreement with that foreign country, in the domestic
adoption Act it is reported that nationals of a foreign country may adopt a Danish
person only when one of the applicants is a Danish national.
The consequence is that there should be an objective impossibility to adopt in the

country of residence and that the Danish adoption decree shall be valid in the country
of the applicants’ residence.
On the other way around even the adoption of persons not born in the Danish soil is
regulated in the same manner. A couple may adopt a child from any third country when
‘at least one of the spouses is a Danish national’. Obviously, in order to avoid any
inequality of treatment all the foreigners legally admitted residents of Denmark may
adopt at the same conditions as Danish adopters.
In this way the adopted persons will be gradually accompanied from a linguistic and
cultural heritage towards a new familiar contest which from an embryonic phase will
become the new and only “Danish horizon” of the adopted’ interests. However, under
Danish Law for children less than 12 years of age it is not compulsory that they need to
prove any skills in the Danish language.
2. The emancipation
Whether the protection of the adopted person should be safeguarded under Danish
Law, on the other hand the emancipation of the same adopted person passes
necessarily through the new environment. In fact, under Danish Law adoption is
granted by an administrative decree, which becomes effective when the child from a
foreign country arrives on Danish soil.
It might be argued that for the Danish law-maker the strength of the symbolism lays on
the fact that the beginning of the process of integration-emancipation of the adopted
persons is focused on the arrival in Denmark.
Some other aspects of the adopted person’s protection may be detected in the Danish
legislation. For instance, it is compulsory the consent of the child to be adopted when
he/she has obtained the age of twelve years old. In fact, the Danish law-maker has
retained that at this quasi teen-ager stage the person has its point of view; which
deems important to establish a dialogue between the adopted and the new parents. In
other words this participation in the decision making deems relevant for the protection
and the emancipation of the adopted person either.
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In addition the Danish Department for Adoption arranges the pre-adoption courses for
any parents willing to adopt. These courses carry the evocative name of “Danish rules
on approving prospective parents”. One time more, through the rules of the Danish
culture the prospective parents are ‘educated’ on the fundamentals of the adoption.
3. Conclusions
This dialogue may be imagined as a bilateral form of protection of the child’s interests
and the same protection of the family’s interests who know how to react to the child’s
degree of consent.
Danish Law
In this game between the person to be adopted and the family, the Government plays a
fundamental role. In fact, the natural parents (legal guardian) may consent to the child
being adopted by a person selected by an authority or institution authorised to act as
intermediary in the adoption of children. In other words, under Danish Law, the Minister
of Family and Consumer Affairs may decide that consent given before an authority or
institution abroad shall have the same legal effect as consent given before a Danish
authority or institution.
In this triangle the State acting throughout an authority or an institution becomes the
interlocutor between the child’s interests and the family’s ones. The lack of direct
empathy by the authority permits to balance the child’s interest along with the parents’
needs.
In order to avoid any kind of misconduct and to endorse the child welfare in Denmark
the responsibility for safeguarding the rights and interests of children and young people
in general is not left with one but several ministries according to their respective area of
competence.
In fact, following the decree of adoption the adopted person is pampered by the
services of the Ministry of Social Affairs, which has the main responsibility for the day
care facilities, the Ministry of Education, which is responsible for the optional
kindergarten classes, education of school-age children and after-school day-care
arrangements, to conclude with the Ministry of Health, which looks after health related
issues, the Ministry of Labour, which is responsible for maternal and paternal leave and
the Ministry of Justice, which is responsible for the legal status of the children.
Obviously, the degree of importance attributed to the children by all these Ministries is
even to those adopted and to those not-adopted. The integration of the adopted
children into the Danish life passes also through this reliable inter-governmental
organization.
As above stressed, under Danish Law, even the parents’ right to the adoption is
pampered. The well-efficient Danish adoption agencies along with the National
Adoption Board are instruments to help parents in their procedure. The parents right to
the adoption is only limited by their nationality or by their permit of stay, by the same
sex couple or by their age. These are the most serious formal impediments for a
decree of adoption not being released. Yet, other substantial impediments may be
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detected. For instance, the above stated decree of adoption may be revoked whether
the adopter is held guilty of serious misconduct towards the child.
It might, thus, be imagined that these serious misconducts rely to the education sphere
of the adopted person and the education has to be seen in its broader meaning like the
access to cultural activities, sport activities and to all the aspects of the human
relationships that are so fundamental for the good development of the adopted person.
3. Conclusions
This equilibrium of opposed interests is well condensate in the free of charge steps
towards adoption. Under Danish Law an adoption decree shall not be issued if any of
the parties required to consent to the adoption are to give or receive any kind
whatsoever of payments.
The gratuity of the action should stimulate the act of adoption as an altruistic and
compassionate one. In this manner, the interests of the parents are genuine and this
altruistic action is reflected on the child welfare.
C- The right to a heritage and the right to a family in the Danish Law
In Danish Law the adoption does not confer upon the adopted child a right of
succession to entail estates of whatsoever nature, except where this is specifically
provided by legislation. Two things might be argued analyzing this assumption. The
first is that a right of succession of a sum of money or other goods towards an adopted
child deems admissible. The second is that there should be some exceptions to this
basic rule of no inheritance to entail estates to adopted persons if it might be
specifically provided by the legislation.
Section 13 (2) of the Danish Act of Adoption, which took effect on January 1, 1957,
explicitly says that any adopted child shall maintain the rights to succeed to the
property of its original family, were the right of inheritance prior to the entering into
force of this Act.
There is obviously a great discrepancy between the ruling dictated by the pre-Danish
Act of Adoption phase and what asserted by the post adoption phase.
Nevertheless, it might be drawn the conclusion that a certain balance between the
inheritance of the adopted person and the capital protection of the natural children is
kept when the exceptions provided by the legislation are taken into account.
Moreover, the limit of a full inheritance by the adopted persons in Denmark, as above
stressed, seems to concern only real estate goods. It implies that because any other
assets are freely transmissible, the inheritance of the adopted is at least partially
safeguarded.
The situation of the Danish adopted children is comparatively to other European

realities high. Basically, with the adoption certificate the adoption is finalized and
pursuant to Danish Law, the adopted child has the same rights as a biological child.
Even by international standards the standard of living in Denmark is high, and the
difference between the poor and the rich deems smaller than in many of the countries
107
with which Denmark is compared. At this proposal the difference between rich and poor
deems not so evident like in other developing countries where the adopted children are
coming from.
This social equality reflects necessarily a high welfare standard for the newcomers,
which may enjoy of the Danish system along with the new adoptive family.
3. Conclusions
Eventually, it might be concluded saying that by this analysis if not a complete

economic protection, the Danish Law in the matter of succession, nevertheless, takes
into consideration some of the socio-economical interests of the adopted.
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3.7. ESTONIA
Introduction
Legal base
• The United Nations Convention on the Rights of the Child of 20 November 1989
(ratified by Estonia on 20 November 1991);
• The Hague Convention of 29 May 1993 on Protection of Children and Co-operation

in respect of Intercountry Adoption (Estonia has joined with this convention on 07
November 2001);
• The Regulation (EC) of the Council of the European Union no 2201/2003, dated 27
November 2003;
• The European Convention for the Protection of Human Rights and Fundamental
Freedoms, dated in Rome 04 November 1950 (ratified by Estonia on 16 April 1996);
• The United Nations Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution and child pornography, dated 24 September
2003 (ratified by Estonia on 03 September 2004).
• Family Law Act (chapter 10, Adoption);
• Code of Civil Procedure;
• Republic of Estonia Child Protection Act.
A-Concept of protection and emancipation in the Estonian adoption legislation.
1-Protection.
The principle of subsidiary is present in Estonia; According Child Protection Act it is

allowed to consider the intercountry adoption placement only, when there is no
adoptive, foster or guardians family in Estonia or some other family similar placement
(for example SOS Children Village) in Estonia.
Estonia is a state of origin instead of being a receiving state. Being a very small
country, Estonia does not need more than one civil servant for intercountry adoption
because of the lack of adoptable children. The number of adoption is really small.
As State of origin Estonia ask to prove with documents, the adopted child will be taken
live in a well lifestyle having all theirs needs protected. The Estonian central authority
also check the status of prospective adoptive family if they have right to live in Estonia
the adopted child will have the same right.
The Ministry of social affairs (MSA) as the Central Authority did not delegate any of the
functions to accredited bodies or to other authorities; all functions are covered by MSA.
However there are some authorities accepted by Minister of Social Affairs over
concluded agreements.
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Estonia allows child to receiving State only after adoption has been decided and court
decision has been came into force. Within the Estonian practice there’re been two
breakdowns, in one case child was adopted to another family and in the other case
child (14 years old) came back to State of origin.
According to the Estonian legislation on this field, Adoption can not be connected with
any conditions (Family Law Act); selling or buying a child is not allowed by the Penal
Code.
Either if within the national legislation others kind of family cares are allow; only the
adoption institution is allow in the case of the inter-country adoption.
Only after the positive opinion of child protection specialist, the person wishing to adopt
shall be registered to conforming register in County Government. No registered people
are allowed to adopt.
A court decides an adoption only on the basis of the application and after child and
adoptive parent has met each other.
The persons who deal with adoption, must have higher education (preferably in field of
social work or psychology). On this sense the employees of Children´s Homes must
generally have vocational secondary or higher education in the field of pedagogy or
social work and generally they also must have undergone additional training in social
work and pedagogy.
Within the Estonian legislation the consent of the biological father of the chills is also
needed to give the child to adoption.
2-Emancipation
One of the particularities regarding the emancipation of the system is that Estonian
Family Law Act says that Estonian citizen can be adopted with the consent of Social
Minister. There is not said that child should be habitual resident of Estonia, that’s
means that every child that is found within the Estonian territory are eligible to be
adopted. Therefore, the situation is Estonia has a large number of not citizen children
who are legally free for adoption.
According the legislation this is not correct to adopt them to abroad, but from the other
hand child should get possibility to live in framework of a family if we do not have family
in Estonia child should get possibility to be placed into family in some other country.
Estonia has four types of care available for children in need of care: institutional, foster
family, guardian’s family and adoptive family. The institutional care and the foster family
are social services regulated by Social Welfare Act, while the guardian’s family and the
adoption are regulated by Family Law Act. Those types of needs, not being the same
as an adoption, because of the absence of the real family bonds provide children in
need the possibility to be cared as they should based in the principle of the best
interest of the child.
An other characteristic of this country legislation is that Estonian authorities allow the
payment of reasonable charges and fees, that are not covered by the government as
for example: translation costs, state taxes for court, new birth certificate, travel
document (passport), etc. following the same way some of Estonian orphanages
practice voluntary support (donation) from adoptive parents to make better the
110
environment for other children (play yard, garden, …). But the sum has been told to the
adoptive parents by competent authority in receiving State.
On the way of the level of the age on which the Estonian court shall hear a child, this
one could be at least seven years of age in the part pertaining to the adoption and the
possible change of name if the child's wishes.
Current legislation of Estonia does not regulate the question at which moment after
childbirth the mother is authorized to give her consent to adoption, but the law explains
that child must be at least 30 days old. Estonian law does not stipulate no limits to age
differences between adopting parent and adopted child and there is no restrictions for
two homosexual married people to adopt. However the couple must be married.
3-Conclusions
Either if Estonian adoption system appears to be no to much strong being a small

country the necessities experimented by the adoption institution and the children’s care
appears to be covered. The principles recognised within the international conventions
are respected as the best interest of the child and the subsidiarity. Still it is possible to
considerate that the Estonian legislation is opened and larger in the cases of the
prospective parents eligibility, certainly in Estonian adoption legislation homosexual
married may be adopting parents.
Estonian adoption legislation.
There is in Estonian legislation the right for most children having special needs to be
adopted from abroad. The intercountry adoption itself is activity to provide family for the
children with special needs.
A child who is at least ten years of age has the right to express his/her consent to be
adopted by his/her prospective parents.
The wishes of a child younger than ten years of age shall also be considered if the
development level of the child permits it.
The principle of subsidiarity applying in Estonian legislation, means international

adoption will come into consideration only after it has been confirmed, that it is not
possible to find to the child adoptive parents or a guardian in Estonia.
For the rest the main principles established by law apply.
2-Right of the parents to the adoption.
Since 2002 all adoptive parents have the right in Estonia to a training concerning
Parent Resources for Information, Development, and Education, providing them
knowledge about the adoption process and the duties the new family relationship will
present to them. At the same time they are able to expose all theirs doubts and to be
advising on this way. The specialist will discuss with adoptive parent, about the child
they are seeking (age etc) to adopt.
111
Also there is an organization formed from adoptive parents that is voluntary and no
official but serve as a forum to discuss preoccupations.
All social welfare services for families with children are open also to adoptive families.
Estonia does not permit any individual contacts between the Estonian adoptive children
and the prospective adoptive parents.
The parents have the right to submit the application directly to the court and to have
met the child before the adoption were decided by the court.
3-Conclusions
The rights exerted by the prospective parents and those exerted by the children are
almost the same that every country exposes. However, the children are considered to
give their consent to the adoption being younger than in the most of the rest of the
countries.
C-Right to the heritage and right to a family in the Estonian adoption legislation
The national report provided by the national Estonian adoption lawyer does not explain
this part of the legislation. In the spirit of the respect of his work and understanding the
national family law may contains different shades about the heritage rights it will be
better to live this part free of opinions.
2-Right to a family.
The Estonian adoption legislation foresees biological parents has no right to get
contact with adoptive parents and adoptive parents has no right to get contact with
biological parents, as well as they has no right to get personal data about each other.
There could be relation between biological parents or relatives and adoptive parents
after the adoption comes into force if both parties agree. Contacts are allowed also
when the adoption took place inside the family.
To have the right to constitute an adoptive family in Estonia, A person have to have at
least twenty-five years of age.
3-Conclusions
It is not possible to get a conclusion from the explanation found within the national
Estonian report. The information regarding the family and the heritance law is not
enough to give a conclusion. The family law must be studied to find this kind of
information.
112
3.8. FINLAND
Introduction
common background.
necessary taking into account that the common framework is the best interest of the
child.
well.
Probably in Finland the most relevant of these legal instruments for the protection of
the rights of the child, are The Hague Convention on Protection of Children and Co-
operation in relations to Inter-Country Adoptions and the 1980 Adoption Act (lately
reformed on June 1, 1997). Finland is also a Party to the United Nations Convention on
the Rights of the Child.
However this trans-national instrument, as well as the domestic ones do not emphasise
all the aspects of the adoption integrally. Keeping in mind the best interest of the child
some quasi-philosophical questions might be posed, like the protection of the child
versus his/her emancipation, the adoption at the child’s interest versus the adoption for
the parents’ needs and the inheritance of the adopted versus the capital protection of
the natural children.
exigencies.
adoption.
A- The concepts of protection and emancipation in the Finnish Law
1. The protection
The child’s interests in the whole adoption process are strongly emphasized.
These interests are monitored by the Finnish Adoption Board constantly. Besides,
Finnish Law foresees provisions which may be applicable to specific circumstances.
113
For instance Section 2 of the Child Maintenance Act states that the parents of the child
shall have the obligation to maintain the child in accordance to one’s stability.
This obligation must be interpreted as a very peculiar one. In fact, affirming that the
parents’ financial stability is in direct proportion to the adopted economic steadiness is
to render explicit, yet compulsory, something that should be considered as logic.
In other words, no matter if the child is adopted or not, his/her wealth has to be
proportional to that of the family. In this way, there is not the risk to create
discrepancies of treatment.
A second example of the adopted protection is to consider his/her religion of origin.

Under Finnish Law no adoption may be granted or refused on the religion basis. Yet,
the adopted and the adoptive parents choose together which religious status following.
By this assumption it might be evident that parents “impose” their religious credo to the
adopted person. Yet, the importance not just to take into consideration the religious
background of the child but also to let him/her freely expressing an opinion becomes a
prerogative when the adopted person is between 12 and 15 years old where he/she
may join or resign a religious community, which is not necessarily that of the adoptive
parents.
2. The emancipation
The emancipation of the adopted persons is focused under Finnish Law through the
lens of the adopted citizenship.
Curiously the Finnish citizenship does not come automatically by the simple declaration
of adoption. Even though the adoption process is concluded when the child acquires
the citizenship. Similarly to that expressed for the religious status when the adopted is
more that 12 years old he or she may have a double nationality by a written
declaration.
More curiously, when the adopted is more than 15 years old and there has been the
refusal is his/her objection to grant the Finnish nationality does not by a written
declaration to take the.
3. Conclusions
This dialogue may be imagined as a bilateral form of protection of the child’s interests
and the same protection of the family’s interests who know how to react to the child’s
degree of consent.
Finnish Law
Despite the fact that Finland is not a part of the 1968 European Convention on the
Adoption of Children, its role in providing a high-standard degree of protection in any
adoption step is out of doubt.
In fact Finnish Law stresses particularly the fact that special attention should be paid to
the ascertainment of whether there can be created between the adoptee and the
adopter a lasting parent-child relationship, which deems positive to the child.
114
At this proposal are consecrated two entire sections of the 1980 Finnish Adoption Act.
In effect, it is when is ascertained the positive attitude of the child to the adoption along
with his/her stability and permanence to the opinions assessed that the parent-child
relationship is recognized as being built.
As seen for other Scandinavian countries the Government plays a fundamental role.
The Ministry of Health and Welfare is entitled to monitor the whole procedure of
adoption. It means that the public power determines the private steps of its citizens.
No matter if it is a domestic adoption or an inter-country adoption, the child’s right to be

adopted is granted the moment the candidate lays in the eligible conditions of
necessity.
As elsewhere reported a series of parameters are detected to render the procedure as

smooth and quick as possible. Furthermore, the characters are not only the elected
parents and the person to be adopted but also the government authorities who fill the
gap between the parents’ desires, the child’s needs and the consent of the child’s
natural parents or that of the foreign Government where the child comes from.
Placing the child with the adopter during the adoption’s phases, despite the fact that
the final adoption may be refused, is considered as a clear sign of protection of the
parents’ rights.
By this procedure is to detect the adopter’s attitude to take the steps necessary to have
the adoption granted, while having the potential person to be adopted already inserted
in the familiar nest.
3. Conclusions
Whether in case of international adoption the child is often placed in the potentially
forthcoming family of adoption, in case of domestic adoption the child remains in
special institutes waiting to be transferred. This may create a discrepancy of treatment
and a different analysis in term of integration of the candidate to the adoption.
Probably, the Finnish law maker has considered that in domestic circumstances the
candidate to the adoption is already living in a Finnish environment and he/she not
deserves to be eradicated, even temporarily by the institute where he/she lays to be
transferred to the family of adoption till the procedure is not completed.
C- The right to a heritage and the right to a family in the Finnish Law
The right to a heritage under Finnish Law is discussed by Section 12 (1) and Section
57 (1) of the Adoption Act. These two sections speak about strong or soft adoption
according to the extension of the inheritance to the adopter’s family or only by the
adopters but not the rest of the adopter’s family.
The application of the so-called strong adoption, which give to the adopted persons all
the rights that would be given to the non-adopted ones is an automatically applicable
concept for any adoption granted after January, 1, 1980.
115
Yet, for the cases prior to that date the possibility of a reduction of the inheritance’s
extension stays real.
Nevertheless, this might be seen as a sign of discrimination. The ratio is that the
complete reversible effects of this amendment in the Adoption Act would have created
several problems with the whole body of the inheritances, being them closed or still
running.
It should also be noted that under Finnish Law before granting the adoption the legal
effects on adoption are not existent and the child, for example, is not entitled to
inheritance.
The right to a family is in Finland a quite broad concept, which eventually becomes the
right to have a Finnish family. The spirit of integration may be resumed in the fact that
the adoption is granted in the child’s country of origin after a certain period having
placed the child with adopters in Finland.
In other words, it is interesting to remark that despite the country where the adopted
persons is coming from the decision of granting the adoption is made in the child’s
country of origin when the adopted is already acquainted to its final environment.
3. Conclusions
This synergy of different prerogatives may be detected, for instance, in the fact that
according to Finnish Law there are no provisions of the minimum age between the
adopted and the adoptee. Neither there are provisions on the maximum age of the
adopter.
This lack of limitations grandly extends the possibilities to adopt or being adopted.
116
3.9. FRANCE
Introduction
The adoption under French Law:
The convention of the United Nations on the rights of the child of November
20th, 1989 It is not only focused on the adoption but it has also a more
general scope. Concerning the children who have lost their familiar
environment, this Convention obliges Member States to set up replacement
measures. In addition, adoption is considered by the Convention like an
alternative solution, yet not being imposed. Thus, the Member States do
not have the obligation to envisage a system of adoption.
The Hague Convention of May 29th, 1993 on the children protection and on
the co-operation on international adoption applying in France since October
1st, 1998, whose ratification by France was authorized by the law n° 98-147
of March 9th, 1998 (Official Journal March 10th, 1998).
Civil Code, Articles 343 to 359
A- The concepts of protection and emancipation in the French Law
3. The protection
It is to be noted that the in force legislation concerning the adoption in France made the
object of a parliamentary report ordered by the president of the Republic on March 19th,
2008.
This report notes a fall down of 24% of the international adoptions in France since
2005. The parliamentary report underlines the weak mobilization of the diplomatic
network and the absence of co-operation funds, which could support a humanitarian
action parallel to the adoption requests. According to this report, these gaps would
penalize France.
The report recommends a two years governmental action plan concerning:
The introduction of a maximum variation of 45 years between the age of the

child and the age of the youngest adopting person. This rule finds
inspiration in the specifications of several original countries.
The experimentation of a new certification. This one would be made up of

four collective preparation sessions for the candidate families before their
evaluation.
The installation of a central authority in charge of coordinating the action of

the French Agency of adoption (AFA), the organizations authorized for
adoption (OAA) and the co-operation management funds with an aim of
supporting the requests coming from the original countries.
117
4. The emancipation
Article 370-3 of the Civil Code, introduced by the law n° 2001.111 of February 6th,
2001, specifies the conditions and effects of an action brought to the French
jurisdiction.
Article 370-3 of the Civil Code provides that the conditions of the international adoption
are subjected to the law of the adoptive candidates: “They are under the adoptive
candidate’s national law or, in the event of adoption by two spouses, by the law which
governs the effects of their union. The adoption cannot, however, be pronounced
whether the national law of one or the other spouse prohibits it”.
Consequently, the applicable law is the law that applies to the effects of the marriage.
The law does not envisage anything on this point, which it was eventually fixed by the
Supreme Court of Appeal in a decision of February 19th, 1963. This one affirmed the
law applicable to the effects of the marriage (and thus to the international adoption) is
the common national law, or, failing this, that of the common residence of the spouses,
or the forum law (Case. 1st civil, February 19th, 1963, JCP 1963, II, 13112).
Article 370-3 of the Civil Code provides in addition that “the adoption cannot, however,
be evoked if the national law of one or the other of the spouses prohibits it». Thus,
pursuant to Article 370-3 of the Civil Code, two spouses whose common national law
prohibits the adoption, for example two Algerian spouses cannot adopt in France.
It was above seen that in the absence of common nationality, the law of the residence
applies. However, this one is isolated when the national law of each spouse prohibits
the adoption. Such is the case in the presence of a couple formed by an Algerian and a
Moroccan woman.
In the opposite, when the only one spouse’s national law prohibits the adoption, the law
of the residence is then retained and allows the adoption by the two spouses of
different nationality.
Besides, Article 370-3 of the Civil Code declares in subparagraph 2: “[a]doption of a

foreign minor may not be invoked whether his/her domestic law prohibits this institution,
except if the minor was born and resides in France”. Consequently, the adoption of a
child is prohibited when his/her domestic law prohibits it.
At this case, the national law of the child must simply be consulted in order to
determine if it does not prohibit the adoption. The child is, thus, adoptable even if
his/her national law is unaware of the adoption but does not prohibit it.
3. Conclusions
The French law is very protective of the children. The principle of subsidiary is
respected and the conditions to let adopt a child abroad are adequate.
French Law
a) In the event of international adoption
118
If subparagraph 1 of Article 370-3 provides that the conditions of the adoption are
subjected to the law of the adoptive candidates, subparagraph 2 of the aforesaid Article
gives a principle according to which the adoption of a foreign minor cannot be affirmed
if his/her domestic law prohibits this institution but if the minor were born and still
resides in France.
Such is in particular the case for the Algerian and Moroccan law.
Moreover, subparagraph 3 of Article 370-3 of the Civil Code recalls that despite the
applicable law, the agreement of the child legal representative deems necessary.
The juridical case law declared that the applicable law to the consent of the child is that
of his/her country of origin. When the adoptive candidate is French, the conditions
holding with the adoptee will be those of the French law (see below).
b) In the event of national adoption
Article 345 of the Civil Code provides only the children younger than fifteen years old
can be the subjects of a plenary adoption. Article 360 of the aforesaid Code establishes
the rule does not apply for a simple adoption, which is thus possible when the adoptee
is a minor.
In addition, Article 345 provides that the child must have been accommodated with the
adoptive family candidates for at least six months. The categories of children being
able to be adopted are the same ones for the simple adoption and for the plenary
adoption:
the children for whom the father and mother or the family board validly
granted the adoption;
orphans;
children declared abandoned under the conditions envisaged by Article

350;
Article 11 of the Civil Code affirms:
“The foreigner will enjoy in France the same civil rights which are or will be granted to
the French citizen by the treaties of the nation to which this foreigner belongs.”
The Supreme High Court (Cour de Cassation) judged on this subject on February 25th,
1981 affirming that the foreigners enjoy in France all the private rights, which are not
refused to them by a provision expressed by law. Thus, when the adoptive candidates
are foreigners, the adoption pronounced in France becomes international.
It does not seem there are particular provisions concerning other citizens of the
European Union on this point. Consequently, these have identical rights to those of the
nationals of third countries wishing to adopt in France. The adoption in France of a
child by a citizen of a European Union country will thus be regarded as an international
adoption.
119
3. Conclusions
It seems that the balance between the right of a child to be adopted and the right of the
parents to adopt is well-respected.
c- The right to a heritage and the right to a family in the French Law
There are two types of adoption in France: On one hand, the Civil Code presents
plenary adoption like the adoption of common law (Civil Code, Articles 343 to 359).
This type of adoption seems to correspond to the adoptive expectancies since it is
practiced the most.
The plenary adoption is reserved to children younger than fifteen years old and it
expects that the adoptee will be compared to a legitimate child once adopted. On the
other hand, it ceases any link of the child to his/her original family. Thus, the plenary
adoption institutes an exclusive link of the child to his/her adoptive family.
Otherwise, some articles of the Civil Code (articles 360 to 370-2) are devoted to the
simple adoption, little used compared to the plenary adoption. This type of adoption
concerns minors or majors who remain in their family of origin and preserve all their
rights (article 364 of the Civil Code). The parental authority is practiced by the adoptive
candidates, exclusively or jointly if this last is the father or the mother of the adoptee
(article 365 of the Civil Code).
However, the adoptive bond establishes only one filiation, which is added to the first
one already established. Moreover the filiations established by the simple adoption can
be revoked in the event of “serious reasons” at the request of the adoptive candidates,
the adoptee or when this last is a minor.
By the way of the plenary adoption or by the simple adoption or by the way of the
international adoption, the French law offer a very good legislation to find a family to a
child.
3. Conclusions
plenary adoption, but if the adoptee is a major person, or in case of simple adoption,
that is not the case.
120
3.10.GERMANY
Introduction
Legal base:
• European Convention on the Adoption of Children, Council of Europe UN

Convention on the Rights of the Child, UN OHCHR - Committee on the Rights of the
Child.
• The Hague Convention of 29 May 1993, The Hague Conference on Private law.
enacted in Germany on March 1, 2002.
• Universal Declaration of Human Rights, UN - United Nations.
• The German Civil Code. The section 1741 (1. 1 Civil Code).
A-Concept of protection and emancipation in the German adoption legislation
1-Protection.
The well-being of the child is the guideline for adoptions within the german legislation.
On this sense the judge has to evaluate in each case whether this criteria is met. The
evaluation shall also include psychological aspects.
On the sense of the protection about the adoption law, the german law provides
expressly the question regarding the children trade making more difficult for a person
involved in the trading of the child to adopt him/her once “delivered” to Germany; if
someone has participated at an unlawful or immoral trading or disposal of a child with
the purpose of making the adoption possible or, if someone has instructed a third
person herewith or has paid any remuneration in this respect, it shall only be entitled to
adopt a child if this is necessary for the benefit of the child. The respect of the best
interest of the child is always a priority.
Another type of protection provided by the German legislation is the previous period
where the future child is placed within the prospective parents as a foster family.
Certainly, a further requirement is that the child has been looked after for a certain time
period before the adoption. The duration is not fixed by law. The common practice is
that the time depends on the age of the child. A general rule is that is easier for a
younger child to become familiar with the new environment than for an older child. The
recommendation of the youth welfare offices is at least a time period of one year.
The question where the prospective parents and the child have not the same
nationality is supervision by the guardianship court; the adoption requires also the
consent of the guardianship court, unless the acceptance of the child is subject to
German law.
Following the same question of the consent, in cases where the biological parent’s
consent were necessary, it will be declared if the child is at least 8 weeks old, it is not
possible to provide the consent before the child was born or before the age established
by the law.
121
Otherwise, within the german law the declaration of the consent needs to be notarised.
The consent may not be limited in time or be conditional but it looses its validity if the
child is not adopted within a three year period, after this period the consent must be
asked again.
Since 2002 Germany is part of the Hague Convention of 29 mai 1993, The central
authorities according to art. 6 of the Convention are divided between two different
bodies. On one hand the general attorney at the German Federal Court as the Federal
Central Authority is the national responsible about intercountry adoptions and on the
other hand the central adoption authorities of the Regional Youth Welfare Service. No
international adoption is decided without before passing for the central authority
acceptation. The Central Adoption Agencies is responsible for adoption mediation and
have to register prospective parents’ wishing to adopt and to send the required
paperwork to the Central Authority of the country of origin of the child because
Germany is a receiving country.
Besides in the measure to protect the system and the principle of the best interest of
the child, employees of the federal central authority working in the higher service are
qualified to hold the office of judge; the clerks are former judicial officers. Netherless,
no special training has taken place in the area of international adoption. Otherwise,
before a person is allowed to work independently at a Central Adoption Agency, they
must have completed the required 3-year training/education and have been working for
two years in the area of adoption mediation.
Another kind of protection taken by the Adoption Agency in the way the competence
has been delegated; this Agency has reassured itself that the applicant is qualified for
the adoption then they will send the necessary application documents including a
report according to art. 15 of the Convention to the central authority of the State of
origin. The repost has to contain the lifestyle of the parents, their health, economic
situation, etc.
The decision as to the suitability of the prospective adoptive parents is always subject
to a case-by-case examination.
The Bundesarbeitsgemeinschaft der Landesjugendämter (Federal Association of Youth

Offices) published recommendations on adoption mediation, which contain guidelines
on assessing determining factors as required by the Convention. These
recommendations are not binding but however, provide valuable aid.
2-Emancipation
In the way of the emancipation of the law, either if a married couple may only adopt a
child together, within the German law a person who is not married may only adopt a
child by his own, that means the children have more possibility to find a family or that it
is important a family care. In other words single people may adopt. This open even the
way to the homosexuals to build a family because one of them may adopt as a single
person.
A requirement for a minimum difference age of the prospective adopting parents and
the adoptee does not exist within the german adoption legislation. Netherless, the
different will be determined by the court considering the best interest of the child just in
case. On this sense, the children will have a very interesting spectrum to be chosen
and to find a family.
122
Within the german adoption law the cancelation of the adoption is possible but always
justified by severe grounds for the benefit of the well being of the child. In those cases
where the child was adopted by a married couple, it is also possible to cancel the
adoption of one of the adoptive parents and to keep the other one valid. This gives to
the children the possibility to conserve his/her family at the same time that the family
institution is being protected.
Another open expression of the german adoption law is the possibility to adopt adults.
This always considering within the national law because the international Hague
convention provides legislations regarding intercountry adoption of children. The adult
adoption requires to be founded on the moral reasons; otherwise the regulation
concerning the provisions on the adoption of children are applicable by analogy if there
are no rules in respect to the adoption of adults, which have priority.
On the same sense, under national adoption law of a Contracting State, it is

permissible for the biological parents to select adoptive parents.
On another sense of the emancipation, within the german adoption regulation under
the Adoption Mediation Act, NGOs can obtain accreditation to mediate international
adoptions. These accredited organizations must report annually to the Federal Central
Authority on the extent, progress and results of their work in the area of international
adoption mediation.
Finally if the child is between three or four years old the german judges considers they
are able to communicate his/her own ideas and to express what will be the best for his
future. It is possible to considerate that only Germany states that children at that age
are able to be heard.
3-Conclusions
It is possible to determinate regarding the German adoption law, that being a receiving
country, Germany take into account the regulations exposed within the international
convention. The particularity is showed by the decentralisation and the delegation of
the power granted to the competent central authority that concern several different
bodies accredited over the Federal central authority. Finally within the national adoption
system the possibility to adopt an adult is really remarkable.
b-Right of the child to be adopted and right of the parents to the adoption in the
German adoption legislation
Within the german adoption legislations it is not expressly delineated the children
rights, however the expression about the expression given by the german civil code
define at the beginning and in a clear way the “the best interest of the child are
considered with priority. On this sense it is possible to find within the common practice
of judges, they also hear the child’s opinion; having a tendency to discuss the adoption
with the child alone, under exclusion of the prospective parents, if the child is at least
three or four years old; the judges states from that age a child is able to communicate
his own ideas and to express what will be the best for his future.
According to the german law the child not only has the right, the child must consent to
the adoption. For a child which is less than 14 years old or which is hindered to give
his/her consent due to a legal incapacity only his/her legal representative may act.
123
Otherwise, the child may only consent by its own, though the legal representative’s
agreement is in addition required.
Following the same sense if children have the right to consent their adoption over 14
years old, they may revoke his/her consent until the adoption is adjudicated.
Within the german legislation it is also possible to adopt whether the applicants are in a
position to adopt children with special needs. This is the case with many families. For
this reason, every year, a series of children with special needs are adopted from a
foreign country by applicants in Germany.
Regarding the rights of the parents, in the german law the adoption is adjudicated by a
decision of the guardianship court on request of the adopting parents. The application
must be notarised.
In the cases of international adoption proceedings, the recognised Adoption Agencies

have the duty to give advice to the applicants’ prospective parents and also to inform
them on the data protection in the country of origin. Therefore, the prospective parents
have the right to be respected about their rights and personal data.
Otherwise the Foreign Adoption Agency shall advise the applicant on the acceptance
of the adoption.
The counselling of prospective adoptive parents is conducted by adoption agency staff,

which should be very well educated people. At the same time, the prospective parents
have the right to be supported and helped by the agency staff about the knowledge of
the original country of the adoptee to get a better housing.
The people helping and advising prospective parents are trained social workers, having
at least 3 year of training, either they should have been worked for at least two years in
the area of adoption mediation.
In Germany there is a Federation of foster and adoptive parents, which is a self-help

organization and do not have an official status. This association organises regional
meetings and a forum of the exchange of experiences for adoptive parents and
children. Similar programs are offered by accredited adoption mediation agencies, and
the people whishing to adopt are able to go to those places to look for advice and
information.
The prospective parents have also the rights to get information in the cities and districts
they are living, in Germany it is possible to find have special counselling centres for
cases, in which difficulties have arisen between adoptive parents and children. These
kind of centres provide adopting parents and children a social support during even after
the adoption decision and thy may frequent it during all theirs lives.
3-Conclusions
It is possible to find that german adoption institution provide an interest framework of

people’s rights intervening in adoption’s decisions. On this sense the parents’ rights are
respected always after those concerning the children. Being Germany a receiving
country the principle of subsidiarity contained within The Hague convention applies.
124
C-Right to the heritage and right to a family in the German adoption legislation
The heritage right is not exposed by the german report but we can understand that the
family law should to respect the principle of the “best interest of the child. Therefore if
the adopting children won’t be able to enjoy the same rights as a natural child born
within a biological marriage, the central authority of the original country should not
allow this adoption, because of the violation of the principle of non discrimination.
2-Right to a family
Regarding the right to a family both adopting and adoptees have the right to that.
However only a person older than 25 years may accept the child as his/her own.
The german adoption law foresees the obligation to pay alimonies is on hold after the
declaration of the consent. The biological parents are no longer entitled to contact the
child and the youth welfare office becomes the legal guardian of the child.
With the adoption decision granted all legal ties to the existing relatives expire. The
effect of the adoption is that the child will be considered from a legal standpoint as one
of the adoptive parents. With the adoption the child obtains as birth name the name of
the adoptive parents.
However, in the cases of the adoption of adults a connection between the relatives of
the adoptive parents and the person to be adopted is not created. Family ties are
limited to parents and adoptee.
3-Conclusions
The most interesting conclusion to drop out from the family and heritance rights are
that those enjoyed by the adult people are different at those concerned for children.
125
3.11.GREECE
Introduction
Legal base
• European Convention on the Adoption of Children, Council of Europe.

the Child.
• Universal Declaration of Human Rights, UN - United Nations.
• New law 2447/1996 (Adoption, Supervision and Sponsorship of minor, legal

supervision, legal authority etc FEK17 278/1996) 2447/278/30.12.1996.
• Greek civil code.
• The decree of Law 226/1999 (FEK A' 190/1999) about international adoptions.
• Remarque: this is the only country not member of the Hague convention of 29 mai
1993.
A-Concept of protection and emancipation in the Greece adoption legislation.
1-Protection.
Since the new legislation entering into force in 1996, the interest of the child to adopt
became the central point, all the conditions and the purpose of the forecasts of the new
Hellenic legislation are the adoption decision is allowed only in the interest of the child.
The parent’s candidates must provide to the judge having jurisdiction to pronounce the
decision: criminal records, proof of no debts, proof of significance and enough
economic resources, the medical certificates, Act of Marital status of the child to be
adopted, the deposited request to one of the centres or approved organizations, the
written agreement of the biological parents of the child. This is really interesting to
stress within the Greek law there is a previous agreement between the prospective
parents and the biological that is possible to get privately and this is one of the reasons
the Hellenic legislation requires capacity to contract for people wishing to adopt. It is
possible to say it is a contract.
The adoption Hellenic legislation protect that the judge before granting the adoption
decision regard the conditions of the law, the age limits of the candidates adoptive
parents between 30 and 60 years old, and regarding the adoptee between 18 and 50
years. The biological parents or the legal representative must to consent the adoption
in front of the Court, and there’s a prohibition to give the assent before 3 months
starting from the birth of the child.
17
FEK: Official Gazette of the Government where are published the laws, decrees, ministerial
decisions.
126
In the cases concerning the international adoptions, either if the Hellenic Republic is
not part of the Hague international convention of 29 mai 1993, this country belong and
remains attached to others compulsory international legislation on the field. Therefore
the legislation and principles provided by those, have been transposed within the new
Hellenic adoption law shortly in four articles. The legal conditions, always founded in
the principle of the best interest of the child, provides the following protection: foreign
children who were abandoned in Greece and for whom nobody expressed, at least for
six months, interest to get protection to them, are adopted in accordance with the
Hellenic law. The question is to take in charge the responsibility and the guardianship
of the children that are abandoned. Secondly, in cases where one of the parties to the
adoption has its residence abroad, a report from the competent social service is
required for the adoption procedure, wherever it will be carried on. This report must be
written by the qualified Hellenic social service or the social organization recognized like
specializing in the transnational adoptions in collaboration with the qualified foreign
social service in case.
Thirsty: All the necessary agreements for the execution of the adoption are given, if the
obliged has its usual residence in Greece, in front of the qualified Hellenic Court
carrying out the adoption, however when one of those has its usual residence abroad,
the declaration of the agreement must be done in front of the proper Hellenic consular
authority or the proper authority of the place of its usual residence.
Fourthly: by president decree, the services and accredited organisations having the
responsibility to care and operate in the adoptions national and international
proceedings have been created.
Another question regarding the protection provided by the Hellenic system is that the
accredited bodies are formed by welfare officers with a recognized higher diploma of a
University School of Social Work and the licence of exercise of employment, by
pedagogues, psychologists and child psychiatrists or psychiatrists.
In the cases where the departure abroad of the child must be done, this one is
protected by a Hellenic social service, that is not allowed before the edition of the
relative legal decision given by the competent judge.
Otherwise the general international agreements, Greece keeps bilateral relationship on

the field with several others countries. On this sense, the requirements regarding each
bilateral agreement are deployed in any of the conventions.
2-Emancipation.
The Hellenic legislation does not make truly distinction between the national adoptions
and the international adoptions and the same concerning the adoptions being able to
be entitled “Community one”; for this country the adoption institution is just one and
within the national legislations some regulations regarding the conflict of law and the
international situations are foreseen.
However the Greek adoption system make a difference between the adoptions entitled
“private” that’s means those which are done by the direct contact of the interested
people without the intermediary of an official service or social welfare; and adoptions
known as “public” granted by the way of the social institutions or approved
organizations where are placed children “being free to be adopt”; meaning the parents
granted the consent their child will be adopted whereas it is placed in a centre for
children.
127
In the cases of the “private” adoptions, the prospective adopting parents are carried out
without the intermediary of the approved organizations by the State. Certainly the
seeking of the child is carried out by the future adoptive relative; they present their
adoption request in front of the qualified service of the country in order to carry out the
social research required, after having received the agreement of the biological parents
of the child. In practice, the private adoptions are made by the lawyer representation
(situations that became impossible within the Hague convention regulation; the “central
authority” remaining the exclusive competence). This professional is often the
intermediary putting in contact the prospective adoptive parents with the couple
whishing to give his/her child in adoption. It became clear the reasons giving place to
think that the intermediary of lawyers can give place to economics exchanges and in
this sense, these kinds of adoptions often contribute to be presented like “gifts” for the
biological family, that finally became a trade of a child. All this without considering the
residual promotion that this comportment allows by the existence of this institution.
The greek adoption legislation allow the major’s adoptions, in this cases neither
maximum age limit for adopting parents, nor difference in age maximum between the
adoptee and adopting are foreseen. The only restriction given on this field is that the
major married cannot be adopted without the assent of her conjoint, which must be
given by personal declaration to the court.
The adopting parents do not need to be married but it is important to know if it is a man
or a woman.
3-Conclusions
It is really amazing to know that within a European country it is possible to find a

country that allows the private adoption. It is possible to explain that in this kind of
proceedings there aren’t public’s authority controls involved in the seeking child
procedure. The seeking of the child is done in a private way and there are nobody
controlling this. It is possible to determinate this kind of practice contributes to the traffic
of children and the trade of them, even if the amount involved is a little one.
Some people in Greece, not having academic and professional faculties, have the
opinion the international Greek adoption system remains with an illegal window while
the Hague convention is not ratified. Netherless, since the moment all the requirements
protecting the best interest of the child, the correct proceeding and the compulsory
interface of the national competent authorities are foreseen; the question to be a
signatory part of the Convention is not important in the sense of the children’s rights
protection. Certainly having prevention or simply repealing the private adoption
institution, the situations of the “economic gift” would disappear. On the same sense,
for example some other European member states, either being part of the Hague
Convention, consider the crime of children’s trade within their national penal legislation.
Moreover these kinds of crimes are strongly known within international law and strongly
protected.
The situation belongs to the reason of keeping a balance between the rights protection
within the internal legislations more than to be part to a convention. In others words, to
harmonise the different legal requirements, protections and obligations. However, it
may happen when all the requirements stated by the international legal text are
attained by the country. On the basic knowledge being possible to recuperate from the
legal report provided by the national experts, the Hellenic Republic has put in order
some steps envisaging to get the Hague convention requirements; may be soon this
country will sign its the ratification. Otherwise, it has been foreseen for 2009.
128
Greece adoption legislation.
The children or any other person have the right to attack the adoption decision founded
on the influence of an error relating to the identity of the person of the adoptive relative
or the adoptive child, relative error on essential cases or under the illegal or illicit threat.
The child has the right to be heard by the judge in charge with the adoption, according
to his/her maturity and age of 12 years old. It will be necessary also his opinion upon
the relative report.
As in the Hellenic legislation the condition of the nationality of parties regulate the
applying law; in the cases where the adoptive child is from a foreign nationality or its
residence is out of Greece, it is the Court of his national country which pronounces the
judgement granting the adoption and in Greece the only procedure which is carried out
is the exequatur.
The adoption of minor is kept secret; the secrecy is valid also towards the biological
parents.
The adoptive child has, after his majority, the right to be fully informed by his adoptive
parents and any proper authority of the details of his biological parents.
The children adopted under Hellenic law have the right the follow-up service offer them,
when they are interested, its contribution for the search of roots under the conditions
permitted by the law.
Either if the adoptee takes the name of their adopting parent, he has however the right
when he becomes major to add his name before the adoption.
Within the national adoption law the prospective parents go to one approved
organizations under the supervision of the Ministry for Health and Social Solidarity, by
depositing a request of adoption in front of the first instance Court of the district of their
residence or the residence of the child.
The prospective parents have the right to attack the adoption decision founded on the
influence of an error relating to the identity of the person of the adoptive relative or the
adoptive child, relative error on essential cases or under the illegal or illicit threat.
The prospective parents have the right to be protected after the final decision
envisaging the adoption, by the service or social welfare collaboration during three
years, visiting them for at least once a year, aiming to follow the adaptation of the child
to his new entourage and to counsel the relative parents.
A person wishing to adopt has the right to adopt several minors by separate act or
successively.
When adopting has already children, they have the right to be heard about their opinion
by the court, according to their degree of maturity.
129
A person has the right to adopt being single but being married she needs his conjoint
consent.
3-Conclusions
In the way of the respect of the rights within the Hellenic law, there is a legal mandate
saying that should be kept secret. On this sense, it is to be stressed that many
difficulties of finding people willing to answer the questions and giving their opinion
were found by the Greek national experts. Even the authorities showed a certain
reserve to answer and emit an opinion on the subject. This can be explained by the
decency existing in the Mediterranean countries and also by the fact the new law is
more rigorous putting in center the interest of the child. Consequently, the adoption
remains a subject taboo in Greece. This observation of reserve to answer questions
should be the subject of another distinct study probably explaining the subject and the
matter of the adoption instead of being harmonized, often remain complicated. Some
adoptive parents answered the questions asking their anonymity would be preserved.
C-Right to the heritage and right to a family in the Greece adoption legislation
Based on the national report given by the national expert in adoption law it is not
possible to length determinate the scope of the right to the heritage conceived within
the Hellenic legislation.
Netherless, it is possible to determinate that biological and adoptive children enjoy the
similar rights. Certainly, as the minor has all the rights and obligations of a child born
within the marriage. In the case of a simultaneous or successive adoption of several, is
formed between them a family ties identical as exists between brothers and sisters.
The minor’s rights to the heritage about his new family are the same as those enjoyed
by a biological child.
2-Right to a family
The question regarding the right to a family is better exposed within the national report
given by the Hellenic expert. Certainly, by the adoption, any bond of the minor with his
biological family is cut except the exception of the provisions relating to the preventions
of marriage. The minor is fully insert in his adoptive family. The minor has all the rights
and obligations of a child born within the marriage. In the case of a simultaneous or
successive adoption of several, is formed between them a family ties identical as exists
between brothers and sisters.
It is possible to determinate the adoption is a legal act by which the adoptive child
benefits from all the advantages and of the rights of a biological child and the family
has the same obligations towards him as if he were his biological child. The adoptee
takes the name of the adoptive relative parent.
On this sense the result of the adoption is on one hand a total insertion of the adoptive
child in the family of the adoptive relative creating a family tie with all the consequences
resulting from this between the adoptee (and his descendants) and the adopting
relative like with all the parents of this last one; on the other hand a total cut with the
130
biological family except for disabilities of marriage which remain in force. On the same
way, the parental authority of the biological parents or the supervision under which was
eventually subjected the adoptive child, are automatically replaced by the parental
authority of the adoptive parents. The biological parents do not have any right of
communication with the adoptive child.
In the cases of the adoptee were a major child, this one is not completely insert in the
adoptive family, in the sense that a family bond is not created between the adoptee and
the biological parents (grandparents) of the adopting parents. The family bond created
is limited between the adoptee (and of his descendants, which will be born after the
adoption) and the adopting parents.
The adoption does not stop the family bond with the other biological relative in cases
where that is the husband of the adopting, the same with his biological parents.
The adoption of major is decided by the court after the common request of the adopting
and the adoptee. If the adoptee is unable to contract, the relative request is subjected
by its legal representative.
3-Conclusions.
The right to a family is largely considered by the Hellenic law on this sense it is
possible to determinate that all the requirements regarding each of the institutions are
considered within the Hellenic law. Either if Greece is not a member state of the Hague
international convention of 29 mai 1993, this country present a legislation protecting the
best interest of the child and some cases the principle of subsidiarity. The family and
heritance right seem to be well protected.
131
3.12.HUNGARY
Introduction
common background.
necessary taking into account that the common framework is focused on the best
Hungary bases adoption on the 1952 Family Act (Act IV) and on Government Decrees
no. 127/2002 (V.21) and no.331/2006 (XII 23).
The best interests of the person to be adopted are contained largely into these two
Decrees.
In order to provide wider horizons for trans-national adoption through the lens of the
child’s best interest Hungary ratified in 2005 the The Hague Convention on Protection
of the Children.
Thus, this ‘best interest’ might be evaluated through a fully domestic- trans-national
approach, which deems although very detailed and sensitive to the adoption universe.
exigencies.
adoption.
A- The concepts of protection and emancipation in the Hungarian Law
The approach to adoption under domestic Hungarian Law deems univocal and not
ubiquitous.
All the Hungarian domestic jurisdiction is, in fact, founded on the act of marriage, family
and in a wide way guardianship be it for biological or adopted children.
1. The protection
Despite the straightforward centrality of the traditional family, the Hungarian law does
not develop which are the goals of the child protection and the extent of the services to
be adopted.
132
It might be argued, however, that these are in lines with all the standards of the child’s
interests.
The Hungarian Central Authority for the Adoption is a rigid guardian of these standards
of protection. This assumption because since January, 1, 2009 the Hungarian
authorities do not accept files that concern children to be adopted of less than 8 years
old. The ratio of this amendment is to equal the average age of domestic adoptions
with that of trans-national ones.
2. The emancipation
Hungary permits adoption of its citizen either by foreigners regularly living in Hungary
or by foreigners not regularly residing in the territory.
The differences are slights. In the second hypothesis everything depends if those
foreigners come from countries who have adopted or not the The Hague Convention
on the Child’ Protection. In the second hypothesis, the burden of proof of the physical
and economical health of the adopters is bigger that for those who belong to a State of
the European Union or from a State having adopted the above reported Convention.
Of course, for the principle of reciprocity, it is even admitted under Hungarian Law the
hypothesis of prospective adoptive parents wishing to adopt a child abroad.
3. Conclusions
The Hungarian procedures of adoption, are full of administrative decisions. Whether

these decisions may employ great energies and a certain dose of patience, they assure
the full legitimacy of all the steps accompanying a procedure of adoption.
Yet, if this compulsory limit of age levels domestic and international adoptions in terms
of age, it might create some long waiting procedures for those who are ready to be
adopted even if there are not 8 years old aged.
Hungarian Law
Under Hungarian law the training for prospective adoptive parents is compulsory. It
means an attentive analysis of the risks and perils bound to adoption. Of interesting
report is the fact that one of the topics treated during the training is the understanding
of the child’s feelings and behaviour.
Under Hungarian law, as above expressed many different governmental organs are
concerned. The Labour Ministry, the Ministry of the Social Affairs and that of the State
Department for the Child Protection work altogether.
The strict physical and mental health of the prospective parents along with their
economical status and background to be checked during the adoption phases have to
be seen as the mirror of the child’s interests to be respected.
Under Hungarian law the adoption is open to mono-parental families but a real priority
is accorded to married couples.
133
It means that despite the liberty of a discipline to be chosen, the priority is explicitly
accorded to the conformism of the Christian Catholic tradition.
Moreover, the Hungarian Law foresees a maximum age of 45 years old for the
adopters to be respected.
It is interesting to stress the fact that the body of law does not specify if this threshold is
applicable to any adopters or just to Hungarians. It could be inferred that it would be
applicable to anybody.
3. Conclusions
Any Hungarian child looses its primitive nationality unless its is kept in consequence of
an express request. It is written anywhere that a detailed importance is attached to the
file that is submitted to the authorities.
It might be inferred that this double choice reflects the spirit of Hungarian Law towards
adoption.
C- The right to a heritage and the right to a family in the Hungarian Law
In Hungary the adopted child is integrated fully into the adopter’s family, which means
that (almost) all ties should be cut between the child and his/her biological family.
Almost all ties are cut because Hungarian law establishes that during the period of
adoption the adoptee is entitled to double inheritance.
By what above asserted, it means that the adoptee inherits as a blood child of the
adopter and, on the other hand, he/she is also entitled to the lawful right of inheritance
after his/her blood relatives.
To, the contrary, after the adoption, the adopted child acquires inheritance rights
relating to the adopters and the extended adopted family, but he/she looses his/her
rights to inherit from his/her biological family.
Finally, Article 14 of the 1949 Hungarian Constitution is clear on the point when it is
affirmed that : “The Constitution guarantees the right of inheritance”.
This endorsement by the Constitution strengthen the right to a heritage.
By this wording it might be inferred that the legal status of an adopted person becomes
exactly the same than that of a biological child. This assumption is very clear and does
not leave room for argumentations over the aspects of the heritage to be parted
between legitimate and quasi legitimate heirs in case of adopted ones.
3. Conclusions
The balance between the right to a heritage and that to a family is respected under
Hungarian law.
134
3.13.IRELAND
Introduction
common background.
well.
The Irish Constitution (Articles 41 and 42) is unique in comparison to most other
European Constitutions in providing the family unit with autonomy over and above that
of the individual members of the family.
This assumption may be interpreted as the ‘loss’ of the individual rights of the members
of the family to became the collective right of the family seen as a entity in itself.
However, this trans-national instrument, as well as the domestic ones do not

emphasise all the aspects of the adoption integrally. Keeping in mind the best interest
of the child some quasi-philosophical questions might be posed, like the protection of
the child versus his/her emancipation, the adoption at the child’s interest versus the
adoption for the parents’ needs and the inheritance of the adopted versus the capital
protection of the biological children.
exigencies.
adoption.
A- The concepts of protection and emancipation in the Irish Law
These concepts are solidly contained in the 1988 Adoption Act amended by the 1991
Adoption Act (these two amendments are the consequence of the 1952 original
Adoption Act). The respect of the child stays predominant.
135
1. The protection
Irish Law does not prescribe upper age limits for applicants, however, age is a
significant factor when assuming an applicant suitability to adopt and most adoption
agencies apply their own upper age limits. It means, in practice, that the adopters must
be at least 21 years old.
In addition, for an adoption it is customarily required that applicants be ordinarily

resident in Ireland and have been so resident during the year ending at the date of the
making of the adoption order. To the contrary, the Adoption Acts do not require that
applicants must have either the Irish nationality or an Irish domicile.
Yet, for adopters who habitually or orderly are resident outside of Ireland the adoption
is possible till it would not be contrary to public policy. This term may be interpreted as
vague and it may give place to speculations. Eventually, the adoption must be
recognised as valid in the place in which it was effected without being contrary to public
policy.
2. The emancipation
The emancipation under Irish Law on adoption may be detected on the fact that foreign
adoptions are ruled in the same manner than the domestic adoptions. As a matter of
policy, adoption legislation requires that only adoptions which agree with the Irish
definition of adoption should be recognised under Irish Law.
Moreover, the original 1952 Adoption Act provided that the child had to be of the same
religion as the adopters.
It meant that any married couple who belonged to different religions were not eligible to
the adoption. The consequent unconstitutionality of this assumption ended with the
revision of the Adopted Act in 1974, which now affirms that a person whose consent is
required for the adoption must be informed of the religion of the adoptive parents.
Yet, it might be assumed that for those which the consent is not required they should
not be informed of the religion of the adoptive parents previously.
3. Conclusions
The fact that the law and the custom differ may create a disproportionally big impact
between those who plead for the protection of the adopted person and those who plead
for the following of the rules. In addition where an adoption is effected outside of
Ireland a rebuttable presumption arises that the law of the place where it was effected
has been complied with in full. It implies that any authenticated document of a foreign
adoptions is deemed to be valid within the Irish territory, unless contrary is proven.
Irish Law
Under Irish Law on adoption the basic credo is that emotional, psychological and
financial support services should be made available to assist adopted children.
In Ireland exists an Adoption Board/Authority which functions as a filter between the

child’s right to be adopted and the parents’ desire to adopt.
136
It is its role, in fact, to place the child for adoption with suitable prospective adopters,
monitor the placement and to provide additional counselling and other social services
for both.
The only requisite for adoption is that a child, be him/her orphan legitimate or
illegitimate or abandoned reside in Ireland at the moment of the adoption certificate.
Yet, the length of this residence is not defined by the Irish law-maker.
The parents’ rights to the adoption have been partially above reported. Peculiar in the
Irish legislation is that posterior to the 1988 Adoption Act amendment the consent of
the natural father of a child placed for adoption is required.
This represents a great form of protection for all the parents in terms of full,
unconditioned and free consent to the adoption.
Nevertheless, the hyper-protectionism of the Irish Law may create some delays when
the natural father needs to be detected and questioned. Yet, under Irish Law the
natural father it is not even presumed being the guardian of the child because this
presumption is only applicable to the mother. Only an order of the Court may decide
the father guardianship.
3. Conclusions
The lesson learnt for Ireland is that the general criteria for adoption find not only a
place in the whole body of laws on the subject-regularly amended-but also in the
Constitution where the well being of the family and, thus, of any of its components is of
uttermost importance.
C- The right to a heritage and the right to a family in the Irish Law
No clear statement is contained into the Irish Adoption Acts in favour of the right to a
heritage. Otherwise, no statement to the contrary is expressed either.
In the silence of the Law it may be imagined that once the Adoption Board/Authority
issues the adoption order and the child ‘becomes’ a member of the adoptive family, the
same rules are applied as they do for biological children.
Talking about the same rules infers, certainly, the same economic treatment and, thus,
the same procedure of inheritance.
The right to a family spurts out as a consequence of what above expressed. The
Adoption Act, in its lack of clarity on the point may be interpreted as in favour of the
adopted person under the financial support services tout court.
3. Conclusions
Despite any interpretation it could be given to the Adoption Act the rights to a heritage
as well as those more generic to a family are guaranteed altogether.
137
This protection is, however, partially secluded by the fact that the adopted person
looses any kind of right coming from his/her biological family of origin.
138
3.14.ITALY
Introduction
common background.
well.
exigencies.
adoption.
A- The concepts of protection and emancipation in the Italian Law
Italy bases adoption on the Act, May 4, 1983 n°184, as amended by Act, March 28,
2001 n°149. Italy is part of the The Hague Convention, which enforced by Act
December 31, 1998, n°476. As seen in other domestic legislations, the respect of the
child’s interests stays predominant.
It has to be hereto stressed that under Italian Law no detailed protection is aimed
towards the adopted person’s religion, which usually takes that of the parents or when
adult may choose to take that of the parents or to keep his/her own.
1. The protection
Italian Law limits adoption only to those who are married at least for three years without
having been separated during this time, not even temporary.
By the lecture of this statement, the rules of adoption deem to be very strict in Italy and
very aged in comparison with the modern society. Probably, the Italian law-maker, in
an attempt of modernisation, admitted in 2001 that for those couples who cohabited
139
before getting married the cohabitation period would have been taken into
consideration grandly diminishing or avoiding the three years period.
A second form of protection detected in Italian Law is for the major-aged adoptions.
The difference of age between the adoptee and the adopters has to be at least of 18
years old and these latter need to be 35 years old at least.
In this manner it is assured that the adult person that will be adopted receives a familiar
influence by parents who detach him/her in age, and, by consequence, in experience.
2. The emancipation
The emancipation under Italian Law is pushed to the point that Title III, Head II of the
May 4, 1983 Act n°184 admits the transfer of an Italian child with a view to adoption.
Yet, by interpretation of the law, this Title is mainly focused either to rule the adoption
of Italian children abroad or the adoption by Italians’ adopters residing abroad. In the
silence of the law it may be imagined that in the hypothesis Italians’ couples residing
abroad want to adopt, they may choose between Italian children and foreign children to
be adopted.
3. Conclusions
Whether Article 40 of the 1983 Act n°184 provides the possibility that persons residing
abroad may adopt Italian children, nothing is mentioned in the Law or in the Italian Civil
Code about the possibility that foreigners regularly residing in Italy may adopt a child.
It may be imagined that under the generic principles of international private law
foreigners in Italy may adopt children from abroad if they come from the same country
than that of the parents under the domestic rules of the parents’ country of origin. Yet,
the doubt that foreigners may adopt in Italy an Italian child is not elucidated by the
Italian domestic legislation.
In addition, even admitting a liberal interpretation of Article 40 a problem might be

detected when foreigners couples, even if regularly residing in Italy, are not married,
are same-sex couples or are together for less than three years.
In the silence of the law only mere speculations are admissible.
Italian Law
Under Italian Law once the adoption is declared it becomes definitive and no more
changeable. On other words, the accomplished adoption interrupts any type of
relationships with the family of the adoptee’s origin. For these reasons the pre-adoption
phase is particularly long and not just competent organs are involved but also different
Ministries and the Juvenile Court of the place where the person wiling to adopt are
resident.
In Italy the Juvenile Courts, as well as some accredited bodies and the Ministry of
Welfare monitor all the adoption phases.
Usually, the child’s right to be adopted under Italian Law corresponds with an
ascertained state of abandonment. This state of abandonment consists literally in a:
140
“objective and not transitory deficiency of adapted relatives/parents assistance”. That is
why the Juvenile Courts play in Italy a relevant role for judicially stating this not
transitory deficiency.
The parents’ right to the adoption has the same judicial strength that derives from the
child’s right to be adopted. The adoption becomes the result of a jurisdictional
judgment.
In the pre-adoptive phase the candidate has the possibility to be placed for a 12
months periods in the adoptive family.
During this time the social assistance services constantly monitor that the child is
integrated and that the parents look after the child. The social assistance services play
a double function, they observe the child in relationship to the parents and vice versa.
3. Conclusions
Under Italian Law once the adoption is complete, very few interferences, in if no one,
are imposed by the social assistance services or by the deputed organs of the Welfare
Ministry.
It means that after the 12 months period where the new family is scrutinized, no other
obligations are required. This lack of Government interference, whether seen as a
natural process of emancipation of the new born family, it may create a dangerous
aptitude when problems arise after the fixed period of 12 months.
C- The right to a heritage and the right to a family in the Italian Law
A clear statement is contained into the Italian Civil Code about the rights of inheritance
towards adopted persons.
Article 567 § 1 of the Italian Civil Code casts no differences between biological children
and adopted ones towards the right of inheritance. All of them, despite their
‘background’ have the same rights and the same duties. No limitations of heritage for
discrepancy under the statute of the children are admissible.
Moreover, the adopted person loses any right from his/her family of origin. Curiously,
but wisely the Italian law-maker has also stated under Article 304 of the Civil Code that
the adoptive family does not have any right of inheritance above the goods of the child
family of origin.
To the contrary, § 2 asserts that the adopted persons are non entrusted to the
inheritance rights coming from the family of both the adoptive parents. In other words
an uncle may or may not leave something to his/her adopted nephew.
Certainly, this limitation reduces somehow the liberalism contained in § 1 of Article 567.
141
3. Conclusions
The Italian norms over inheritance are rather complete. The law-maker had accurately
protected the adopted persons’ rights and those of the rest of the family which is not
necessarily concerned about the adoption in terms of inheritance.
Furthermore, the expressed legislation does not leave great room to the interpretation
and this, especially in a so delicate subject like inheritance of the adopted persons,
might be considered as a positive step.
142
3.15.LATVIA
Introduction
common background.
well.
The best interests of the child are legally inserted into Section 162 of Latvian Civil Law.
This Section is very peculiar because it affirms that the whole adoption depends by the
child’s interests. International co-operation between Latvia and other countries
imposes, nevertheless, the respect of this rule.
exigencies.
adoption.
A- The concepts of protection and emancipation in the Latvian Law
By Act of March 24, 1992 (The Law on Protection of the Rights of the Child) Latvia has
made its own the 1959 Declaration of the Rights of the Child. It means that the special
protection accorded to any child in terms of physical, mental, moral, social and spiritual
development becomes a compulsory obligation in the Latvia domestic legislation.
By this Act, which generally applied to any child, is inferred by Latvian scholarship and
case-law that it is extended to those who are adopted.
1. The protection
It is stressed in capital letters that when considering solutions for the care of the child,
his/her ethnic, religious cultural and linguistic backgrounds are taken into consideration.
143
This vivid affirmation implies that Latvia law on adoption is sensible towards the living
environments of the adopted child, which must reproduce as best as possible those
from where the child was coming from.
2. The emancipation
Under Section 31 of the above reported Law on Protection of the Rights of the Child a
Latvian child may be adopted to a foreign State when Latvia has entered into a bilateral
agreement or by one of the conventions which determines the protection of the
children’s rights and the co-operation in international adoptions.
A foreigner, who does not have a permanent permit of stay or a person residing
abroad, may adopt a child. This formula, however, deems ambiguous. In the second
hypothesis it sounds clear that persons residing abroad may adopt a Latvian child. To
the contrary, in the first hypothesis might be assumed that foreigners without a
permanent permit of stay but residing in Latvia may adopt a child. It means a great
flexibility by the Latvian Government towards adoption.
In addition, in the year 2000 Latvia has rendered domestic law the European
Convention on the Adoption of Children.
3. Conclusions
The Latvian procedures of adoption in comparison to those of many other European

States are very much updated. The domestic Rules for the Procedure of Adoption are
dated 2003.
It means that the Latvian law-maker should have taken into consideration the
nowadays social and political reality when adopted these rules. Yet, the weight of
traditional family, as the union of two different sex persons, is still present in Latvian
law.
Latvian Law
Under Latvian Law the Orphans’ Courts pay great care on assuring the law abiding
development of all the adoption’s phases. However, an adoption in Latvia may be a
reversible act. The same Courts may cancel adoption only pursuant to the joint
application by the adopter and the adoptee when this latest has reached the legal age.
The child’s right to be adopted is in Latvia under conditions not just by the classic
relationship child prospective parents but also by the surrounding environment.
Prospective adoptive parents who have children older than 10 years must let these
former to be interrogated about their attitude towards the adoption.
It implies that the adoption phases explicitly pass through the whole family of the
adoptive parents rendering the whole phenomenon less traumatic for any member of
the family and, by consequence, less traumatic for the adopted person who will receive
more chances to be universally welcomed in the new family.
It is a matter of facts that the child’s right to be adopted is influenced by its health. By
statistics of the Latvian Ministry of Children and Family Affairs the chances to be
144
adopted by a child with health problems were grandly inferior to the chances to be
adopted by a child in good health. In effect, many difficulties were detected to let
children with health problems to find an adoptive family.
Yet, Latvian legislation provides that when adopting brothers and sisters they will not
be separated.
Latvia law on adoption specifies that only married people may adopt. The Latvian
Constitution at Section 110 is very explicit affirming that all rights of the children, be
they natural or adopted, come from those of the married people. No other possibilities
are envisaged. To conclude saying that, even before the silence of the law, mono-
parental families may not proceed to the adoption.
3. Conclusions
To render the interpretation even more blurred Latvian legislation foresees that
adoption cannot be limited by any conditions or terms whatsoever.
Nevertheless, are the evocative Orphans’ Courts appointed by the Latvian Government
to decide over all the steps and decisions to be taken about adoption.
C- The right to a heritage and the right to a family in the Latvian Law
An interpretative statement is contained into the Latvian Civil Code about the rights of
inheritance towards adopted persons.
Section 173 of Latvian Civil Law provides that in relation to the adopter and his or her
kin, the adopted child and his or her descendants shall acquire the legal status of a
child born of a marriage in regard to personal as well as property relations.
These property relations imply the right of inheritance of the adopted person, which is
extended to the descendants’ adopted.
By this wording contained into Section 173, it might be inferred that the legal status of
an adopted person becomes exactly the same than that of a biological child. This
assumption is very clear and does not leave room for argumentations over the aspects
of the heritage to be parted between legitimate and quasi legitimate heirs in case of
adopted ones.
3. Conclusions
The Latvian norms over inheritance are very complete. In fact, the Latvian law-maker
has reduced any discrepancy between the characters to the heritage affirming that
under this angle the adopted persons have to be considered exactly like the biological
ones.
In a certain way the Latvian legislation becomes the precursor of a perfect match
between the adopted and not adopted persons and this capability stays uncommon in
the 27 European Union Member States.
145
Furthermore, like elsewhere reported, the expressed legislation does not leave great
room to the interpretation and this, especially in a so delicate subject like inheritance of
the adopted persons, might be considered as a positive step.
146
3.16.LITHUANIA
Introduction
common background.
More in detail, on one hand, some countries are oriented towards a full integration of the
adopted person in the adoptive family letting the former absorbing the benefices of the new
family not just in terms of material and economic advantages during the parents’ life but also
in terms of inheritance. On the other hand some countries are less eager to fully compare the
rights of the adopted persons with those of the non-adopted ones. This phenomenon is
remarkably seen i.e. about inheritance, where the adopted persons are not granted with the
same rights then the non-adopted persons.
From this very brief foreword an analysis of any single EU Member State deems necessary
taking into account that the common framework is focused on the best interest of the child.
Lithuania drafted Resolution no. 1983 on December 17, 2002 called the Approval of the
General Regulations of the Child Rights Protection Services. It is a very recent drafting in
relationship to other domestic instruments about adoption. Yet, despite its youth age, it takes
into account the today problems like mono-parental couple willing to adopt.
Besides with the June, 18, 2004 Order no. A1-154 of the Lithuanian Minister of Social
Security and Labour called Procedure for Inspection of Readiness of Prospective Adoptive
Parents for Adoption it was enlarged the procedure to detect and to monitor the best
interests of the person to be adopted.
Finally Lithuania in 1997 ratified the The Hague Convention on Protection of the Children
conferring to the country an aura of trans-national impact towards adoption through the lens
of the child’s best interest.
Thus, this ‘best interest’ might be evaluated through a fully domestic- trans-national
approach, which deems although very detailed and sensitive to the adoption universe.
This study will focus on the dichotomy between these complementary but parallel exigencies.
Furthermore, it deems important to stress the relationship between the symbolism and the
pragmatism dictated by the single exigencies when dealing with the world of adoption.
A- The concepts of protection and emancipation in the Lithuanian Law
Like in other recent domestic legislations that of Lithuania has made its own the 1959
Declaration of the Rights of the Child. It means that the special protection accorded to any
child in terms of physical, mental, moral, social and spiritual development becomes a
compulsory obligation in the Latvia domestic legislation.
By this Act, which generally applied to any child, is inferred by Latvian scholarship and case-
law that it is extended to those who are adopted.
147
1. The protection
It is stressed in capital letters that when considering solutions for the care of the child the
Lithuanian courts’ judgment on adoption have to respect all the data preserving the child’s
individuality.
Whether this individuality is easily and immediately individuated in the preservation of the
child name and surname, his/her ethnic, religious cultural and linguistic backgrounds are
taken into consideration as well.
This vivid affirmation implies that Lithuania law on adoption is sensible towards the living
environments of the adopted child, which must reproduce as best as possible those from
where the child was coming from.
In fact any adoption case is filtered by the State Adoption Agency and by the Regional
Services who draft their conclusion on the environment where the child is supposed to live
with.
As already stressed, this environment is not only formed by the preservation of the child
patronymic, but also by his/her choice and preferences.
2. The emancipation
Lithuania is very open towards any hypothesis of adoption despite the fact that the adopters
are Lithuanians, foreigners permanently residing in Lithuania, Lithuanian residing abroad or
foreigners not residing in Lithuania. These cases are contained into Article 3.224-226 of the
2001 Civil Code of the Republic of Lithuania.
It is even admitted the hypothesis of prospective adoptive parents permanently residing on

the Lithuanian soil who wish to adopt a child abroad.
Any hypothesis is taken into consideration and no particular requisite are asked but the pre-
emptive analysis of the State adoption Agency about the ‘adopted destiny’ in a stable
adoptive family.
The slight difference between Lithuanian citizens and foreigners citizens permanently living
in Lithuania is that the latter are checked by the Department of Informatics and
communications under the Ministry of the Interior in order to detect their live conditions.
Given to the fact that the timing for adoption and the procedure is even for all the above
categories of people, this might not be considered as a discrimination towards foreigners but
as a cross analysis conducted by the Lithuanian authorities accurately.
3. Conclusions
The Lithuanian procedures of adoption, as those of other compared Baltic countries, in

comparison to those of many other European States are very much updated.
Lithuanian Law
148
Under Lithuanian law the training for prospective adoptive parents is compulsory. It means
an attentive analysis of the risks and perils bound to adoption. Of interesting report is the fact
that one of the topics treated during the training is the understanding of the child’s feelings
and behaviour.
Under Lithuanian Law the child’s right to be adopted is already been treated by what above
reported.
The strict physical and mental health of the prospective parents along with their economical
status and background to be checked during the adoption phases have to be seen as the
mirror of the child’s interests to be respected.
Lithuanian law on adoption generally rules that married people may adopt. Nonetheless, a
single person may exceptionally be admitted to adopt.
These exception should regard the cases where the adoptive parents divorce during the
adoption phases or when one of the adopters die during the adoption phases.
Yet, in the silence of the law it might be interpreted that even mono-parental couple may file
a request of adoption, which could be accepted.
Moreover, if there is a minimum age difference between adoptee and adopters of 18 years,
the Lithuanian Law foresees a maximum age of 50 years old for the adopters to be
respected.
3. Conclusions
As already stressed, the Lithuanian procedures of adoption - as those of other compared

Baltic countries- are very much updated in comparison to those of many other European
States.
C- The right to a heritage and the right to a family in the Lithuanian Law
If the domestic approach to adoption In Lithuania is very detailed, the rights of inheritance
towards adopted persons give floor to an interpretative statement.
Article 3.227 of Lithuanian Civil Law (Consequences of Adoption) provides that with the
adoption all the personal and property rights and obligations between the child and his/her
parents and relatives by origin are abolished, and such rights, obligations and relations are
established for adoptive parents and their relatives and adopted children, as well as the
latter’s descendants, as for the relatives of origin.
It means the adopted person’s family of origin will not have any more economic obligations
towards him/her nor towards his/her new family, which sounds logical.
To the contrary the new family of adoption is obliged towards the adopted not just in terms of
parents but also in terms of relatives. This represents a real economical emancipation for the
149
adopted which even under the profile of the heritage will be considered at the same stage
than a biological child.
Even the descendants of the adopted persons will benefice by the same economic conditions
given by the grand-parents and relatives inheritance.
By this wording contained into Article 3.227, it might be inferred that the legal status of an
adopted person becomes exactly the same than that of a biological child. This assumption is
very clear and does not leave room for argumentations over the aspects of the heritage to be
parted between legitimate and quasi legitimate heirs in case of adopted ones.
3. Conclusions
The Lithuanian norms over inheritance are very complete and they do leave room to
interpretation. In fact, the Lithuanian law-maker has reduced any discrepancy between the
characters to the heritage affirming that under this angle the adopted persons have to be
considered exactly like the biological ones.
In a certain way the Lithuanian legislation, like that of other examined Baltic countries is
deemed being a precursor of a perfect match between the adopted and not adopted persons
and this capability stays uncommon in the 27 European Union Member States.
150
3.17.LUXEMBOURG
Sources
• In Luxembourg adoption is regulated by the Civil Code.
• Luxembourg ratified the Hague Convention on Protection of children and co-operation in

respect of inter-country adoption in July 5, 2002. The Convention came into force in
Luxembourg in November 1, 2002
A- The concepts of protection and emancipation in the Luxembourg Law
1. The protection
The Luxembourg law aims to protect the adopted child, within the scope of an inter-country
adoption, whether Luxembourg is the original country or the receiving country of the child.
Indeed, when Luxembourg is the receiving country, the central authority (the Ministry of
Family and Integration) throughout the whole procedure of adoption plays an intermediary
role between the future parents and the central authority of the child’s original country.
Therefore, it is carried out a post-adoptive follow-up. But it differs accordingly to the child’s
original country. The countries of origin require that after the adoption procedure the reports
regarding the adoptive families be established and be transmitted to them by the adoption
services. The number of reports as well as the number of years during which the reports will
be held differ in accordance with the child’s original country.
Whether Luxembourg is the original country, the authorities of the receiving country have to
make sure that the requesting parents are qualified and ready to adopt. The authorities
monitor also that the requesting parents be surrounded of the necessary councils.
2. The emancipation
Luxembourg authorises the inter-country adoption. Adoption is opened to the citizen of

Luxembourg and to foreigners. The adoption procedure is identical either the future adoptive
parents have Luxembourg nationality or are they residents in the Grand Duchy of
Luxembourg but from another European country.
However, Luxembourg is a signatory country of the 1993 Hague Convention and the
members of this Convention are committed to search and to encourage national solutions to
place the adoptive child.
So according to the subsidiary principle, the child’s placement in another country for adoption
purposes may only be permitted if a suitable applicant who wishes to adopt that child cannot
be found in his or her State of origin.
3. Conclusions
151
Luxembourg permits the inter-country adoption, yet this procedure may only take place in
strictly protective conditions towards the adopted child.
Luxembourg law
Every adoption in Luxembourg has to be performed in the best interest of the child.
First of all, as to respect this principle, the civil code provides that the adopted child, when
older than 15 years, he/she has to grant its adoption personally.
Giving opinion to the adoption makes him/her participating to his/her future plan of life.
Another important matter is to match the child with the most appropriate parents.
This is why is done an evaluation of the aptitude of the future parents. A social investigation
on candidates is undertaken, relating to personality, health, economic situation, family life,
aptitude to educate the child.
After that the central authority, the Ministry of family and integration of Luxembourg, writes a
report regarding the aptitude of the future parents.
2. Parent’s right to adoption
The parents’ interests are taken into account, whether they are the biological parents or the
adoptive parents, for the adoption procedure.
The biological parents have the right to give their assent to the adoption.
However, when the adoption can take place only with the assent of the two legitimate or
natural parents and one of them wrongly refuses to give it, the other one can require to the
court to ignore this refusal and to pronounce the adoption.
Regarding the adoptive parents, there is an eight hours cycle of preparation for the
candidates to parenthood made by the qualified services. But this is not mandatory.
Following the participation in this cycle of preparation, the candidates to the adoption receive
a participation certificate.
3. Conclusions
Both interests of the child and the parents are taken into account. It seems, in fact, that what
is important is the compatibility between the child and the parents and that the two parties
feel ready to perform the adoption.
C- The right to a heritage and the right to a family in the Luxembourg law
There are two adoption procedures under Luxembourg law: The simple adoption and the
plenary adoption.
152
By a plenary adoption, the adoptee acquires the situation of a biological child by entering in
the new family.
Consequently, the Luxembourg civil code provides that this adoption gives to the adoptee
and his/her descendants the same rights and duties as if he/she was born in lawful wedlock.
So it might be deducted from this article that the adopted child will inherit from his/her
adoptive parents exactly as if he/she were a biological child.
The effects of a simple adoption are different. Indeed, the Luxembourg civil code provides
that, by a simple adoption, the adoptee stays in his/her biological family and keeps all the
rights and duties resulting from this legal bond, especially the succession’s rights.
However it has to be stressed that the adoptee and his/her descendants have from the
adoptive family the same succession’s rights than a natural child, but they do not acquire the
quality of heirs towards the ascendants of the adoptive parents.
That might be a quite fair solution because, even if the effects are not the same for the child
adopted by simple adoption and the child adopted by plenary adoption, the rights of the first
one are not infringed.
Throughout the two adoptions procedures above stated, the simple adoption and the plenary
adoption, the adopted children may benefit from the right to a family.
Therefore, the fact that these two procedures exist means that the children have more
chances to have a family that would take care of them.
3. Conclusions
Even if the children stemming from the two adoption procedures are not exactly treated the
same way, the fact they have been adopted means that they beneficiate from the right to a
family.
It seems that this right might be of prior importance compared to the inheritance one.
153
3.18.MALTA
Sources
• In Malta, adoption is regulated by the Civil Code, last amended by the Adoption
Administration Act of May 1, 2008
• On October 13, 2004, Malta ratified the Hague Convention of May 29, 1993 on Protection
of children and co-operation in respect of inter-country adoption. The Convention came
into force in Malta in February 2, 2004.
A- The concepts of protection and emancipation in the Maltese Law
1. The protection
The Maltese authorities ensure the protection of the adopted child by making sure that the
adoption procedure deems appropriate.
This is the reason why, before releasing an adoption decree, the court should establish
whether the decree will encounter the welfare of the person to be adopted.
To determine whether an adoption decree is made for the welfare of the person to be
adopted, the court determines the health of the applicant parents but also the wishes of that
person.
The court considers the age of the adopted person especially, his/her understanding and the
religious background of this person and of his/her biological family.
2. The emancipation
The emancipation rule under Maltese law on adoption may be detected on the fact that inter-
country adoptions are ruled in the same manner than the domestic adoptions.
Therefore, an inter-country adoption may be performed. However, as Malta is a contracting

party of the Hague Convention of 29 May 1993 on Protection of children and co-operation in
respect of inter-country adoption, the subsidiary principle applies.
That means that the child’s placement in another country for adoption purposes may only be
permitted if a suitable applicant - who wishes to adopt that child - cannot be found in his or
her State of origin.
Finally, under the Maltese law, where an inter-country adoption is performed, the order of the
authority outside Malta whereby such adoption is effected shall have effect as if it were an
adoption decree made by the court of Malta, and the provisions of the Maltese code apply.
This might be seen as a kind of protection because it ensures that adoptions will be
regulated at the Maltese standards of guarantee.
154
3. Conclusions
As for other contracting countries of The Hague Convention, Malta tries to limit the inter-
country adoptions and favours the national ones.
However, where an inter-country adoption cannot be prevented, Malta law provides rules that
ensure a protection to the person to be adopted.
Maltese Law
Every adoption in Malta, national adoption or inter-country one, have to be performed in the
best interest of the child and having regard to his/her welfare.
To make sure that the adopted person agrees with the adoption, the consent of the child is
required, provided that he/she has attained the age of eleven years.
Furthermore, Maltese law provides opportunities for the adoptee to keep contacts with
his/her biological family.
Firstly, the adopted person who has attained the age of eighteen years may apply to the
court for a copy of the relevant adoption decree or details of his/her natural family. Therefore,
the adopted person has the right to apply to the court for authorisation to obtain a copy of
his/her original birth certificate from the Public Registry.
Secondly, in the case the child has attained the age of eleven years and if it is in his/her best
interests, the court may, in releasing the adoption decree, authorise an agreement of open
adoption, whereby the parents and/or the natural family shall maintain contact with the child.
First of all, relating to the biological parents, they have to give their consent to the adoption.
This aims to ensure that the person understands the nature and effects of the adoption
decree for which the application is made, and, especially, that the effects of the adoption
decree will deprive the biological parents of their rights in respect of the adopted child
permanently.
Therefore, once a child is matched with prospective parents, the child is placed under the
care and possession of the prospective parents for a minimum period of three months. The
court will not deliver an adoption decree unless the pre-adoption period has been
accomplished.
This period has for effect to create some bonds between the adoptive parents and the
adopted child.
155
Furthermore, in order to be prepared to the adoption, the prospective parents are trained by
one of the accredited agencies in Malta.
3. Conclusions
There is a good balance between the child’s interest and the parent’s one. However, in any
case the interest of the child has to prevail, in conformity with the best interest of the child’s
principles.
C- The right to a heritage and the right to a family in the Maltese Law
There is no specific provision of the civil code on the succession’s rights of the adopted child.
However, two articles may help to interpret the right to a heritage in the Maltese Law.
Firstly, Article 121 of the civil code states that the person in respect of whom the adoption
decree is made shall be considered with regard to the rights and obligations of relatives in
relation to each other, as the child of the adopter or adopters in lawful wedlock and as the
child of no other person. This relationship is being traced through the adopter.
This article affirms the principle of equal treatment of the adopted child and of the biological
child.
So it might be deducted from this article that the adopted child will inherit from his/her
adoptive parents, exactly as a biological child.
Therefore, another article relating to property rights corroborates this, because it states that
where, at any time after the making of an adoption decree, the adopter or the adopted
person dies intestate in respect of any property, that property shall devolve in all respects as
if the adopted person were the child of the adopter born in lawful wedlock and were not the
child of any other person.
The adoption has to be made in the best interest of the child. So, to act in this way, the
Maltese law provides the possibility for the child to have some contacts with his/her biological
family. The adoptive parents are, of course, seen as the new parents and they have all the
rights and duties of biological parents, as we can see for the succession’s rights.
However, when it is in the interest of the child, this one may keep some bonds with his/her
biological parents (through the agreement of open adoption), or, at least, may have the
possibility to have some bonds (through an application to the court).
3. Conclusions
As we can see, the rights to an heritage and to a family are protected by Maltese law. Those
rights ensure the adopted child to be treated as a natural child.
156
3.19.NETHERLANDS
Sources
• - The Dutch legislation regarding adoption is regulated by Title 12 of Book 1 of the Dutch
Civil Code.
• - The Netherlands ratified the Hague Convention of 29 May 1993 on Protection of children
and co-operation in respect of inter-country adoption in June 26, 1998. The Convention
came into force in the Netherlands on October 1, 1998.
A-Concept of protection and emancipation under Dutch law
1. Protection
One of the points which underline the protectionism of the Dutch law on adoption is that the
adoptive parents have to respect stricter conditions to adopt foreign children than those to
adopt Dutch children.
These differences are considerable.
There are conditions of age for both the child and the applicants (parents may not be older
than 42 years and the child may not have reached the age of six years). Moreover, there are
conditions relating to the applicants status: contrary to a national adoption, where a joint
application for adoption is done, the applicants have to be married and of a different sex.
Finally, there is a difference in age limit of forty years between the parents and the child.
2. Emancipation
An inter-country adoption is possible under Dutch law. The Netherlands authorises the
adoption of children from abroad.
However, this kind of adoption is only allowed under prior permission. To get this permission,
the candidates have to fulfil the conditions explained above which are stricter than the
conditions required for a national adoption.
Moreover, the international adoption mainly concerns the adoption of children with so called
“special needs”, for instance handicapped children.
3. Conclusions
Inter-country adoption is possible in the Netherlands. Nevertheless, the access to the

procedure is limited to applicants who fulfilled some specific conditions. This is why this has
for effect to favour the national adoption to the detriment of the international one.
157
B-Rights of the child to be adopted and the right of parents to adopt under Dutch
legislation
1. Rights of the child to be adopted
It belongs to the Minister of Justice to decide of the applicant suitability. An investigation

takes place in order to determine whether the applicants are able to raise the child in a
suitable manner.
Therefore, before a request for adoption is submitted the parents have to take care of the
child for a determined length of time. However, this period of time depends on the category
of parents. If it is a couple it will take one year, but if the candidate is a single person he/she
will have to take care of the child for three years before the request.
This pre-adoption period is a way, for both the child and the parents, to create bonds. This
“test” period aims to ensure that the applicants are able to assume their role of parents.
It also has to be stressed that when a child is more than twelve years old at the time of the
request, his/her assent deems necessary to grant the adoption. He/she has a right of
objection to this adoption.
2. Rights of parents to adopt
The Adoption Act of April 1, 2000 has widened the categories of parents authorised to adopt
a child. It made it possible for persons of the same sex and single parents to adopt. This rule
not only plays in favour of the parents, but also in favour of the children who see their
chances to be adopted increasing.
However, for the adoption of a child from another country, the right of same-sex couple to
adopt a child does not exist. Couples who wish to adopt abroad need to be married and have
different sex.
Thanks to adoption a new legal family tie arises between the child and the adoptive parents.
In fact, under Dutch law, an adoption may only take place if the child has nothing more to
expect from its original parents.
The family bonds with the original parents cease to exist. This makes of adoption a drastic
measure. The starting point in the legislation is that adoption must only be possible if the
original family ties cannot be maintained. It belongs to the judge to decide whether a parent
may still play his/her role.
3. Conclusions
One may draw the conclusion that the principle of “best interest of the child” is ensured by
Dutch law. However, there are also advantageous conditions for applicants since the law
allows the adoption even by same- sex couples, as well as by single parents. There is, thus,
a good balance between the interests of the child and those of the parents.
C-Right to inheritance and right to have a family under Dutch law
158
1. Right to inherit
One might think that once the adoption procedure is recognised by the qualified authorities,
the adopted child is treated as a biological child. Accordingly the adoptive parents have the
same responsibilities and duties towards the child, which includes economic ones, such as
inheritance rights.
Therefore, under Dutch law, an adoption may be performed only if the child cannot expect
anything from his/her biological parents. Hence, the adopted child does not have any legal
bond with them. In sum, the only way to inherit is from his/her adopted parents.
2. Right to have a family
The Netherlands is a country with a very broad conception of the family. Indeed, in that
country a child may be adopted by married persons, but also by single ones, or even by
same-sex couples.
This has for consequence to widen the categories of applicants able to adopt children. This
would be a good example to follow in countries where there are many children to adopt and
who need a family to take care of them.
3. Conclusions
As we can see, the rights to a heritage and to a family are protected by the Dutch law. Those
rights ensure the adopted child to be treated as a natural child.
159
3.20.POLAND
Sources
• In Poland, adoption is regulated by the Family and Guardianship Code.
• On June 12, 1995, Poland ratified the Hague Convention on Protection of children and co-
operation in respect of inter-country adoption. The Convention came into force in Poland
in October 1, 1995.
A-The concepts of protection and emancipation in the Polish law
1. Emancipation
Polish law on adoption does not encourage inter-country adoption, that is to say the adoption
of a Polish child by parents living in a foreign State.
In accordance to the subsidiary principle such an adoption is only authorised when a

domestic adoption cannot be performed within six months.
According to the Article 114 §1 of the Family and Guardianship Code, the adoption that
causes the change of residence place of the adopted child, from Poland to any other country,
may be exercised only when in this way the child may be ensured of the appropriate foster
home environment.
However, this regulation is not applied if there is a kinship relationship between the adopter
and the adopted child or when the adopter has adopted her/his brother or sister.
2. Protection
Polish law is quite protective in the inter-country adoption domain. In fact, any requirements
are foreseen to make sure the child will adapt easily.
For instance, Poland tries to protect the adoptee by offering him/her a family sharing the
same linguistic and cultural heritage. Within this heritage, it is recognised that candidatures
of parents who are Catholics, are considered in priority compared to others.
Finally, once the adoption is decreed, the Polish central authority requires from the adoptive
parents an annual report on the integration and development of the child, and this for three
years since the adoption.
3. Conclusion
Although it is preferable to find a family within the country of origin of the child, inter-country
adoption is a good solution to ensure that the child will have a family.
160
This is the reason why, to ensure the well-being of the child and his/her good integration, the
authorities chose the families and requires report on the child carefully, even once the
adoption is decreed.
B-The child’s rights to be adopted and the parent’s rights to the adoption in the Polish
law
Above all, it has to be stressed that within Polish legislation ruling the adoption the best
interest of the child deems as a basic principle. In other words, any adoption can only be
performed in the best interest of the child.
1. The child’s rights to be adopted
This principle is particularly obvious considering that many strict requirements are imposed to
the adoptive parents by the law in order to protect the child. It aims to ensure that the
potential adoptive parents are able to take care of the child.
Adoption and custody centres are obliged to conduct psychological and pedagogical
research and environmental inquiries regarding candidates wishing to adopt a child. They
have also obligations to make trainings, qualify the candidates for adoptive parents as well
as prepare family members for receiving adopted children
The adoptive parents also need to have a certain standard of living. The authorities make
sure that the income per family member significantly exceeds the social minimum, but also
that residential conditions of the family are good.
Those requirements are a way for the authorities to make sure that the adoptive parents may
ensure to the adoptee good living conditions, and a good family environment.
Finally, a very important condition to the adoption is that the child consent may be required if
the child has turned thirteen years old. Furthermore, the court also hear a younger child out
provided he or she is able to understand the meaning of the adoption.
2. Parents’ rights to the adoption
The consent of the child’s natural parents is required. The mother has 42 days to take a
decision regarding the renouncement of parental rights. If she decides to renounce to her
rights, she has to make a statement before the court to express her consent to the future
adoption.
This is important that natural parents have to take such a decision because they realize the
consequences of their action. Indeed, once the parents renounced to their right this decision
becomes irrevocable.
Therefore, the criteria for applicants to be accepted as adoptive parents are quite large.
Indeed, an unmarried person may adopt a child. Moreover, an adoption may have the effect
of a joint adoption, even though it is pronounced upon the request of one person, if both
spouses filed the request for joint adoption and one of them died after the proceeding has
been initiated.
3. Conclusion
161
Those rules show how Poland tries to protect the child to be adopted. The child well-being is
a priority. An adoption will be performed only when all conditions are fulfilled. The authorities
are really demanding towards the adoptive parents.
C-The right to a heritage and the right to a family in Polish law
One of the basic principles guaranteed by the Polish Family and Guardianship Code is the
equal treatment of adopted and natural children.
As a result, the adoptee has the same right relating to inheritance that a natural child.
However, some exceptions apply to the incomplete adoption, but this adoption procedure is
exceptional.
Furthermore, the dissolution of adoption terminate any kinship bonds between the adopted
child and both the adopted parents and the original family. This is the reason why when an
adoption is dissolved, the right of inheritance is also terminated.
The dissolution of the adoption is authorised and can be done on the request of the adoptee,
the adoptive parent and the prosecutor.
However, the right to a family is so important that the relation of adoption may only be
dissolved if a significant reason occurs.
For instance the dissolution of the adoption may be asked if the feelings arising between the
adopted child and the adoptive parent justify the contract of marriage, or if the adoptive
parents decide to divorce.
It has to be proved that a complete and irreversible breakdown of family bonds occurred.
3. Conclusion
The inheritance issue cannot put the right to a family into the dark. Even if there are some
discrepancies relating to the succession’s right, the more important thing to the child is to find
a family who will take care of him/her.
162
3.21.PORTUGAL
Sources
• In Portugal, adoption is regulated by the Civil Code.
• on March 19, 2004, Portugal ratified the May, 29, 1993 The Hague Convention on
Protection of children and co-operation in respect of inter-country adoption. The
Convention came into force in Portugal on 1 July, 2004.
A-The concepts of protection and emancipation in the Portuguese Law
1. The emancipation
Portugal is a signatory country to the Hague Convention and members of The Hague
Convention commit to search and encourage national solutions to place the adoptive
children.
The child’s placement in another country for adoption purposes may only be permitted if a
suitable applicant who wishes to adopt that child cannot be found in his or her State of origin,
with due subjection to the principle of subsidiary, as recognised in the Portuguese Law.
This means that all the necessary proceedings regarding a national adoption have already
be done
However, in some circumstances this regulation might not be applied.
A child may be placed abroad if one of the following situations is met:
• The international adoption may be performed if the parent has the same nationality
as the child. This way the child and the parents might at least share the same
culture.
• Another possibility is that the child is the son or the daughter of the candidate’s
spouse.
However, the aim of the Portuguese authorities is that the child be adopted in his/her own
country.
However, if that it is not possible they try to facilitate the integration of the child, as such.
This is why they impose conditions such as the same nationality or family bonds, so that the
child and the adoptive parents do veritably share cultural or family bonds at least.
163
2. The protection
For an international adoption, only full adoption is possible. It seems logical that a child
cannot be adopted under the restricted procedure in another State while he/she still has
bounds with the biological parents.
Indeed, under Portuguese law, the effect of a restricted adoption is the coexistence of the
original filiations and the adoptive relationship.
Then before an adoption is decreed, the child and the adoptive parents have to live together
for at least one year. This aims to ensure that both the child and the parents are ready.
Moreover, this transitional period is a way to create some bonds between them.
It has to be stressed that even for an international adoption the consent of the child over 12
years old is required, so this is in the child’s interest to have time to make up his mind.
Furthermore, when Portugal is the State of origin, the central Portuguese Authority requires
that the foreign authority of the parent’s country ensures a follow up once the child lives with
his/her new family abroad. This foreign authority has to write every six months and for two
years time, a report about the integration and the development of the child.
When Portugal is a receiving State, the authority write a report about the child situation and
also has to take the necessary measures to protect the child when it appears that the
continued placement of the child with the prospective parents is not in the child’s best
interests, and keep the central authority of the State of origin informed about the situation.
3. Conclusions
Portuguese law aims to ensure that the child is well integrated, especially when the adoption
is an international one. In a sort of preventive manner the Portuguese law limits as much as
possible the adoption of Portuguese child abroad and once the adoption is decreed, it
ensures a follow up of the child’s situation.
B-The child’s rights to be adopted and the parents’ rights to the adoption in the
Portuguese Law
The last reform by Act 31 on August 22, 2003 has made of the superior interest of the child,
the most important standard for the pronouncement of an adoption.
The Portuguese civil code submits adoption to the following requirements: it should represent
real advantages for the child, it should be based on legitimate reasons, the bond to be
created between the child and the adoptive parents should be convenient to the child.
Furthermore, the adoptive parents have to take care of the child for an appropriate period of
time before the adoption is decreed.
164
This permits a safer evaluation of the real advantages for the child like the constitution of a
bond between him/here and the adoptive parents.
Moreover, this pre-adoption period should not last more than six months and in case where
the adopted child is the son or the daughter of the adopting parent’s consort, that period
should not last more than three months.
The child participates in the development of its individual care plan. His/her motivations and
expectations are taken into account, but their binding effect depends on the age of the child.
When the child is over 12 years old, his/her consent is mandatory.
The child adopted by a Portuguese national acquires the Portuguese nationality. To conclude
saying that his/her Christian name cant’ be changed, for obvious identity of the child reasons.
The parents have the right to apply to a national and an international adoption
simultaneously.
The biological parents conserve the right to give their assent. The consent cannot be
revoked after it is given.
There is an equality of treatment between Portuguese and non Portuguese residents in

Portugal: all foreigners legally admitted residents of Portugal may adopt at the same
conditions as Portuguese adopters.
In relation to the eligibility and suitability assessment of prospective adoptive parents, the
social security services are entrusted with the task of counselling them throughout the
interviews carried out for that purpose.
In Portugal the adoption is, both for national and international adoption, free of charge. This
aims at stimulating the act of adoption as an altruistic and compassionate one.
3. Conclusions
Portuguese law tries to satisfy both the interests of the child and of the adoptive parents.
Nonetheless, even from the parent’s perspective the main principle behind all these
requirements does not change: adoption aims at satisfying the superior interest of the child.
C-The right to a heritage and the right to a family in the Portuguese Law
In Portugal, there are two types of adoption: full adoption and restricted adoption.
By a full adoption, the adoptee acquires the situation of a biological child by entering the
adoptive family.
165
Consequently, all the rights and obligations of the child and those of the adoptive parents
towards the child are exactly the same as in a biological family. This includes the succession
right. This is an application of the equal treatment of adopted and natural child principle.
However, under the restricted adoption, the adoptee is not legally considered as the child of
the adopting parents. As a result all rights and obligations towards the biological family are
preserved, which means that the adoptee has no right of inheritance from his/her adopting
parents.
3. Conclusions
It might be detected as discrimination between a child adopted by a full adoption and a child
adopted by a restricted adoption because, even if the adoptee from a restricted adoption is
supposed to inherit from his/her biological parents, it may happen that the biologic parents
are dead.
166
3.22.ROMANIA
Sources
- In Romania, the legal system of adoption is regulated by the Law n°273/2004

- On December 28, 1994, Romania ratified the Hague Convention of May 29,1993 on
Convention came into force in Romania on May 1, 1995.
A-The concepts of protection and emancipation in the Romanian Law
1. The protection
In order to protect the child residing in Romania who is adopted in a foreign country,
Romania imposes some conditions to the inter-country adoptions.
First the adoptee may leave Romania only once the court decree becomes irrevocable.
Therefore, the Romanian authority needs to have a feedback of the child situation for two
years after the adoption is decreed.
2. The emancipation
As a signatory country, Romania allows the inter-country adoption, which it is still subject to
strict safeguards.
However, by contrast to the major part of the other contracting parties, this procedure may be
performed in only one circumstance: if the candidates are the grandparents of the Romanian
child.
By limiting it to the grandparents, the Rumanian Government eliminates inter-country

adoptions as an option of abandoned children and thereby prefers domestic foster care and
institutional care above inter-country adoption.
Yet, it should be in the best interest of the child to grow up in a family environment, even in a
foreign country, rather than staying in its original country and leaving in an institution.
3. Conclusions
While other European States with a yearly small numbers of abandoned children and/or
larger percentages of domestic adoptions may potentially claim a law that limits inter-country
adoptions in favour to family members adoptions which deem in the best interests of the
children, this is surely the case of Romania. The economic, cultural and reality in Romania is
that an abandoned child only has a small chance of being adopted domestically. Therefore,
inter-country adoption for many of these children may be the only realistic way to a
permanent family and a permanent home.
Thus, a law that eliminates that realistic option is not in the best interests of the Romanian
children, even though a similar legislation could be adequate to meet the best interests of
abandoned children in another country.
167
B-The child’s rights to be adopted and the parents’ rights to the adoption in the
Romanian law
The step of matching the child and the adoptive parents is seriously taken into account under
Romanian law. The authorities try, in the finest interest of the child, to indentify the best
adopting candidate or the best adopting family for the child to be adopted.
Firstly, indeed, the candidates have to get a certificate in order to be able to adopt. To obtain
this certificate, an evaluation of the candidates, which relates to the moral guarantees, the
economical situation, the living situation, and the aptitude to educate the child, is carried out.
Those criteria aim at selecting the best candidates for the future adopted children ever.
Furthermore, once the candidates are matched with a child, the child is entrusted for a period
of 90 days to the person whishing to adopt him/her. This period of time gives the opportunity
to be sure that both parties are compatible and to detect the way their relationships are
evolving.
The whole of those requirements aims at ensuring that the match between the child and the
parents is the right one and that the authorities have made no mistakes.
The child is also taking part to the procedure since the child consent to the procedure is
required when he/she is older than 10 years. This means that the authorities take seriously
into account the child opinion even if he/she is quite young.
Finally, a follow up of the adoption is always set up. The department of social assistance
from the child’s residence quarterly drafts reports about the evolution of the child for a period
up to two years after the adoption is decreed.
Parent’s interest to adoption is also taken into account during the procedure.
First, child’s parents or the guardian have to express their consent to the adoption.
Therefore, as said above, the child is entrusted for a period of 90 days to the person or
couple whishing to adopt him/her, before the adoption is requested.
In this way, placing the child with the adopter during the adoption’s phases - despite the fact
that the final adoption may be refused - it is considered as a clear sign of protection of the
parents’ rights.
3. Conclusions
Both interests of the child and the parents’ are taken into account. Especially, it seems that
the Romanian law-maker takes care of the two parties’ rights, which is determining for the
rest of the procedure.
C-The right to a heritage and the right to a family in the Romanian Law
168
The Romanian family code provides two types of adoption procedures: the full adoption and
the simple adoption.
By a full adoption the adoptee acquires the situation of a biological child by entering this
family. Consequently, all the rights and obligations of the child and of the adoptive parents
towards the child are exactly the same as in a biological family and this includes the
succession’s right.
However, under a restricted adoption the legal bonds are no so important and this is the
reason why the child does not have the same rights as the child adopted by a plenary
adoption.
It seems that Romanian law does not ensure the right to a family regarding the legislation
relating to inter-country adoptions. Indeed, by limiting inter-country adoption to the close
family, the current Romanian law does not allow inter-country adoptions as an effective
option.
The aim of an adoption procedure is to ensure that a child should grow up in a familiar
“environment”. Consequently, a child should always be placed in a family rather than an
institution or any kind of environment other than family.
By limiting the inter-country adoption to grandparents, the law deprives abandoned children
of their right to a permanent family and to permanent parents because if they can’t find a
family within Romania, children will have to go into an institution. The authorities will not try to
find him/him a family abroad.
3. Conclusions
To conclude, one might argue whether the best interest of the child principle is protected
within the Romanian legislation.
The new Romanian law on adoptions, by effectively eliminating / limiting the international
adoptions, fails to comply with the hierarchy of solutions for the care of abandoned and
children as protected by the United Nations The Hague Convention.
169
3.23.SLOVAKIA
Sources
• In Slovak Republic, the adoption is regulated by the Act on Family of the Civil Code.
• On June 6, 2001, Slovak Republic ratified The Hague Convention of 29 May 1993 on
Protection of children and on cooperation in international adoption. The Convention came
into force in Slovakia on October 1, 2001.
A- The concepts of protection and emancipation in the Slovak Law
1. The protection
When an international adoption is performed, Slovak law aims at protecting the child as
much as possible. The authorities want to ensure the right integration of the child into the
new environment. In effect, it deems important that the transition from children’ home into
adoptive family be smooth.
When Slovak Republic is the country of origin there is a real preparation of the child to the
adoption, so that he/she might get used to the new family gradually. Many interactions are
foreseen.
At first, if the applicants agree with the adoption, a psychological preparation of the child is
organised: the child receives photos, videos or records of the future parents. Then a first
meeting is organised: the parents come to the Slovakia Republic to visit the child.
In this life change process, these first contacts help the child to minimize the feelings of
insecurity, fear of unknown, and also to imagine a family and concretize concepts connected
with family.
Finally, there is a pre-adoption period from nine to twelve months, during which the judge
may authorised the child to go abroad with his/her future family. Once the child is in the new
country, during this pre-adoption period the central authority of the receiving State has to
send to the Slovak Authority reports on the child’s adaptations.
The Slovak authorities, also, focused their attention on the post adoption phases.
The central authority of the receiving State and that of Slovak Republic cooperate not only till
the successful end of the adoption procedure, but also after the child has left Slovakia.
Once the adoption is decreed, for three years after the judgment is issued an annual report
will be written by the social authorities of the receiving State.
Furthermore, the Slovak central authority appreciate, especially, that the adoptive families
send regular news about the child in order to be aware of the child’s development in his/her
new environment.
170
For international adoption the consent of Ministry of Labour, Social Affaires and Family
deems strictly required.
2. The emancipation
Slovakia is a signatory country to the Hague Convention and members of The Hague
Convention commit to search and encourage national solutions to place the adoptive
children.
The child’s placement in another country for adoption purposes may only be permitted if a
suitable applicant who wishes to adopt that child cannot be found in his or her State of origin,
with due subjection to the principle of subsidiary, as recognised in the Slovak Law.
Therefore, it has to be stressed that Slovakia recognizes the double nationality. So that a
child adopted in a foreign country keeps his/her Slovak citizenship. This is a way for the child
to keep some bonds with his/her original country so far.
3. Conclusions
Slovakia, as other contracting Parties of The Hague Convention, tries to prevent the adoption
of Slovak children by applicants from foreign countries.
B-The child’s rights to be adopted and the parents’ rights to the adoption in the Slovak
Law
As a contractual party of The Hague Convention, Slovakia looks after the superior interests
of the child, seen as the most important standard for the pronouncement of an adoption.
This is, for instance, expressed by the fact that there is a pre-adoption period during which
the potential adoptive parents have to take care of the child. In the Slovak Republic this
period of time shall last at least nine months. However, the exact term is decided by the
judge. This mandatory prerequisite aims to create emotional bonds between the child and
the future parents.
Therefore, if the child is able to understand the consequences of the adoption, his/her
consent is required. So the child has the possibility to express his/her opinion freely, which
can be translated into an agreement or a disagreement.
Also, there is only one type of adoption and the decree of adoption may be cancelled for
serious reasons in favour of the child till six months from the validity of the court’s decision on
adoption.
Finally, adopted parents have to ensure to the adopted child an access to the information
about his/her biological parents.
The biological parents conserve the right to give their consent to the adoption.
171
The concrete preparation for parenthood is a requisite under Slovak law for granting parents
the right to adopt. The opportunity to visit the child many times before he/she comes to live
with them is also a way for the adoptive parents to underline the beginning of a special
relationship with the child to be adopted.
3. Conclusions
There is a good balance between the child’s interest and the parent’s one. However, in any
cases the one of the child has to prevail, in conformity with the best interest of the child
principle.
C- The right to a heritage and the right to a family in the Slovak Law
Under Slovak law there is only one type of adoption. The effect of this adoption procedure is
that the adoptive parents have the same responsibilities and duties as the biological parents.
What it has been above asserted denotes the equation of the principle of equal treatment
between adopted and natural children.
3. Conclusions
According to this principle, an adopted child will inherit from his/her adoptive parents in the
same conditions as a biological child.
172
3.24.SLOVENIA
Sources
• In Slovenia, the adoption is regulated by the Marriage and Family Act.
• On January 1, 2002, Slovenia ratified the Hague Convention of 29 May 1993 on

Convention came into force in Slovenia on 1 May, 2002.
A- The concepts of protection and emancipation in the Slovenian Law
1. The protection
A form of protection detected in Slovenian Law is for the major-aged adoptions. The
difference of age between the adoptee and the adopters has to be at least of 18 years.
In this manner it is assured that the adult person that will be adopted receives a familiar
influence by parents who detach him/her in age, and, by consequence, in experience.
Therefore, the conditions to adopt are the same for national and international adoptions. But,
as explained below, inter-country adoptions are rarely performed.
However, it has to be stressed that, contrary to many others European countries, post-
adoption follow-ups are not legally provided for and are not conducted in practise.
2. The emancipation
As a signatory country of the 1993 Hague Convention, the inter-country adoption is

theoretically possible in Slovenia. A Slovenian child could be adopted by foreigners.
However, it has to be stressed that in Slovenia, the number of potential adoptive parents is
very important compared to the number of children that could be adopted.
As a result, almost any international adoption is performed since the waiting list of Slovenian
parents whishing to adopt a child it is already too long.
On the other hand, the Slovenian Parliament adopted on November 2007 an agreement with
Macedonia regulating the adoption of children. This is the only bilateral agreement governing
international adoptions.
So, in those circumstances a foreigner may exceptionally adopt a Slovenian child, but still
according to the subsidiary principle, that is to say, if the Slovenian authority is unable to find
adoptive parents among citizens of Republic of Slovenia.
3. Conclusions
173
It seems that the concept of emancipation in Slovenian law is not effective. Even if an inter-
country adoption may be performed in theory, the fact that the number of applications for
adoption is far more important that the number of children to be adopted make it almost non-
existent. This might be seen as a positive sign, since it means that almost every child find a
family to take care of.
Slovenian law
Under Slovenian law, the adoption has to be to the benefit of the adoptee. If it is not or if the
conditions for adoption are not met, the qualified authority, the centre for social work, rejects
the adoption’s proposal by decree.
Furthermore, once candidates are matched with a child, the adoptee and the potential
adoptive parents have to leave together for a specified period of time before the adoption is
decreed. This period of time aims to make sure that both parties are compatible and to
create emotional bonds between them.
The child is also taking part to the procedure, since the child consent to the adoption is
compulsory when he/she is major of 10 years old. This shows the will of the authorities to
take into account the adoptee’s opinion and to act in the best interest of the child.
Parent’s interest is also taken into account during the adoption’s procedure.
The legal parents of the child have to give their assent to the adoption. Nevertheless, the
consent of a parent from whom parental rights have been taken away or which is
permanently incapacitated from expressing his/her wish, it is not required.
Therefore, as said above, the child has to live with the potential adoptive parents for a
specified period of time before the adoption is requested. Thus, despite the fact that the final
adoption may be refused the act of placing the child with the adopter, during the adoption’s
procedure, ought to be considered as a clear sign of protection of the parents’ rights.
3. Conclusions
Both the interests of the child and those of the parents are taken into account. One may
notice that the children are considered to give their consent to the adoption while still
younger than in the most of the other European countries.
C- The right to a heritage and the right to a family in the Slovenian Law
The adoption under Slovenian law has the effect to cease the rights and obligations resulting
from the bonds between the biological parents and the adoptee. Nonetheless, Slovenian law
applies the system of full adoption under which adopted children are treated in the same
manner as natural children.
174
As a consequence, the adopted child has the same rights towards their adoptive parents
than those of any biological child. It means that adopted child beneficiate also from the
succession’s right.
One might think that the right to a family is guaranteed in Slovenia, since the number of
applicants to adoption is far more important than the number of children to be adopted.
This means that every child has the opportunity to find a family that will take care of and,
consequently, he/she will beneficiate from this new status by having the opportunity to inherit
from his/her adoptive parents.
3. Conclusions
The welfare of the children to be adopted in Slovenia is quite guaranteed. All of them are
almost sure to find a family to take care of and this, within their own country.
As a consequence, since the plenary adoption applies in Slovenia, those children are also
sure to inherit from their adoptive parents.
175
3.25.SPAIN
Introduction
Legal base
• UN Convention on the Rights of the Child, UN OHCHR - Committee on the Rights of the
Child.
• The Hague Convention of 29 May 1993. The Hague Conference on Private law.
• Universal Declaration of Human Rights. UN - United Nations.
• The Spanish national constitution law.
• The Spanish civil code.
A- Concept of protection and emancipation in the Spanish adoption legislation.
1-Protection.
Spain is a receiving state within the adoption procedure and the intermediate person exists
during the administrative part of the adoption.
The Spanish system also provides as some of others European countries system, several
institutions to help children with need. These institutions are: foster residency, foster family
with different modalities and finally adoption. In Spain when a child is without protection, the
competent authority assumes his/her guardianship and decides the best resource for the
child. Only the adoption institution creates filiations’ bonds.
In some cases, where the protection given to the adopted child in Spain becomes
impropriated, the Spanish government took on the assumption the guardianship and
proceeds looking for a new family.
The full adoption is preceded by one “pre-adoptif reception», that is a pre-adoption

placement within a foster family, the adoptee is placed within his/her pre-adoptif foster family
for at least a year.
Only the legal authority is qualified to constitute the adoption. The article 22.3 of the organic
law of the juridical capacity (ley oranica LED poder judicial) states the jurisdiction to the
judges and courts of the civil order to constitute the adoption when adopting parents or the
adoptee are from Spanish nationality or they have their usual residence in Spain. The judge
will always have to take account about the higher interest of the child thus that the adopting
parents’ aptitude.
In the way to protect the children based on the Hague convention mandate, Spain has
created Entities of collaboration to the international adoption (ECAI) accredited by the
176
services of protection of the minors of each Autonomous Community in the framework of a
selection process. They are formed by multi-disciplinary team which must take into account
at least a psychologist, a social assistance officer and a lawyer.
The international adoption must be constituted by the qualified foreign public authority being
or not juridical.
The international adoption decision will be made up pursuant the rules of conflicts of the
country of the qualified authority. It is necessary that the capacity and the assents
correspond to the law of the adoptee, being able the assents given later on either in front of a
Spain authority or in front of another qualified foreign authority.
The certificate emitted by the foreign adoption authority guarantees that the adoption
observes The Hague convention’s conditions. On these sense it is necessary to stress about
international adoption that the requirements demanded by the country of origin of the child
have the priority.
Spanish law establishes a minimum different age of 14 yeas between adoptee and adopting,
this is only unobserved when the original country legislation approve it.
The Spanish laws are deeply “biologists” and the judges stir up, so the biological assent
titular of the parental authority is necessary to decide the adoption.
2-Emancipation.
Based on the article 149 of the Spanish national constitution text the civil matters are the
exclusively responsibility of the autonomous communities and their own foral law. Therefore
the transposition of the international legislation covered by the Hague convention must be
determined in each case by the law conceived by the autonomous communities. However,
the principle of the best interest of the child is also foreseen within the constitutional Spanish
law.
The Spanish law provides the major’s and emancipated minor’s adoption. The adoptee can
be major if a situation of common life was initiated with the adopting parent before the
adoptee was 14 years old.
The adoption is irrevocable nevertheless article 177.2 of the Civil code provides that the
biological parents who were not private of the parental authority must agree to the adoption
unless they had not had the possibility to do it during the procedure of adoption for an
independent reason of their will. The article 180 of the Civil code provides they can present a
request within two year since the judgement constitutive of the adoption in order to ask its
extinction to the first instance tribunal of the place of the residence of the adopting in
application of the article 779 of the juridical proceeding Law.
The Spanish adoption law is open in the way of the criteria to be adopting parent. On this
sense Married couples Major the part of the Autonomous Communities give priority to the
married couples as with the couples in fact which prove relation a one minimum duration 3
years; unmarried but stable couples defined as the unions in fact like those formed by a man
and a woman who are living in a permanent way by an emotional relation similar to the
177
marital relation, and finally it is recognised the capacity to the adoption to an unmarried,
divorced or widowed person.
However the great conquest done by the Spanish adoption law is the homosexual couple as
prospective adopting parents; Regarding to homosexual couples, Navarre was the first in
2000, followed in 2003 by the Pays Basque y, 2004 by Aragon and 2005 by Cataluña, of the
many Autonomous Communities had legislated in order to allow the adoption by the
homosexuals. Therefore, the Spanish law was modified by the Law of June 30th, 2005
relating to the marriage of the homosexual people, granting to them the same rights as the
married heterosexual’s couples, including regarding adoption. On this sense it is important to
express that in cases of international adoption, the respect of the origin state requirements
should have priority to the local law.; this means in cases where child’s origin country require
a married or unmarried heterosexual couple instead of homosexual, either if the national
Spanish law recognises the same rights to the homo and hetero, the principle of the best
interest of the child applies on over; therefore the homosexual Spanish couple married or not
does not qualified as prospective adopting parents to this child.
Each Autonomous Community fixes the estimating criteria of the aptitude of the futures
adopting parents; nevertheless there is a hard core which is composed of personal
parameters to coordinate the criteria of evaluation envisaging to reach an homogenisation
among the communities.
3-Conclusions
The Spanish system is more complicated following the different delegated central authorities
considering the various autonomous communities. However, the contains of the protection
are those given by the Hague convention that is compulsory for Spain. Either having different
kind of children’s foster protections, the country abolished the simple adoption institution or
nowadays the full-adoption institution is only allowed by the national legislation.
Regarding the emancipation of the system, the biggest conquest attained by the Spanish
family and adoption legislations was exposed within the 30 June 2005 regarding the
homosexual people legislation. Certainly the recognition to the human right to build a family
became into reality with this law concerning the right to a homosexual couple to adopt a
child. It is not only that a homosexual couple living in cohabitation is able to be prospective
parent of an adoptee, thus the couple maybe married as an heterosexual family and adopt a
child in the same way. The human right to get married and to found a family was recognised
by the Spanish national civil law.
Spanish adoption legislation
In the way of the rights recognised to the children to be adopted, this is envisaged by the
convention on the laws of the child, that is compulsory for Spain but also by the Spanish
law 54/2007 relating to the international adoption which envisages in its article 12 the right of
the child to know biological origins, etc. Thus the public Spanish authorities to collaborate
with him and to store all the relatives’ information about his birth, situation, biological parents,
etc.
178
Besides, the child, according to his age and maturity, has the right to be informed of the
nature and the effects of the adoption, and of course the child, according to his age, have the
right to be heard, and when the assent of the child is necessary, he/she has the right to give
it freely. On this sense it is important to stress the Spanish civil code explains that the minor
youngest than 12 years old providing a sufficient maturity will be heard obligatorily by the
judge. Once reached the 12 years old, the hearing by the Judge is obligatory because in
these cases the child must give its assent to the adoption. In practise the age when the child
may communicate is enough for judges to hear him/her.
The child to be adopted is fully protected by the law having the right on this sense to the
assents of the people or institutions which hold his/her guard are given, by knowing that it
carries on the breaks of the bonds with the biological family. The child has the right to the
recognition of the filiations bond between him/her and the adopting.
The children have the right to a follow-up to his/her adoption decision, Adopting parent have
the obligation to facilitate in the time given to them all information, and documentation asked
by the public utility of protection of the child or by the public entity of collaboration of the
adoption international. The child have the right to be with his/her adoption parents to the
foreseen interviews and they will have to complete the adoptive procedure envisaged by the
country of origin and this with the assistance of the public entity of protection of the child or
the ECAI.
The children have the right to be accepted regarding their different ethnic features, their
cultural differences and their historical luggage, and their original country culture knowledge.
The prospective adopting parents have the right to adopt a child abroad from Spain by
choosing the following possibilities: to pass by a single ECAI because thus the country of
origin of the child requires it, to chose between several ECAI which are accredited for the
same country, to address directly to the minors protections service because no ECAI is
accredited for chosen the country, do not choose any ECAI.
This way they take is important because the prospective adopting parents have the choice
among the informative meetings of various ECAI in order to choose which corresponds to
their needs and possibilities about information, support and collaboration.
After the administrative phase passed, the child proposed, the adopting candidates have the
right to travel to the country of origin in order to know their child.
In some cases, the prospective Spanish adopting parents have the right the Spanish consuls
abroad constitutes an adoption; it may happened when adopting parents are Spanish
citizens and the adoptee has his residence in the consular demarcation.
In Spain adopting parents have the right to associate. The associations of adopting parents,
being not compulsory, constitute a refuge for the parents during the post adoptive time, it
carries out parents and children in order to create bonds and also to envisage the problems
involved in the arrival in Spain: the language, the school, the development of the adoption,
the will of the child to travel to his country, etc. it is a social and emotional support for these
kind of families.
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3-Conclusions
The rights of parents and children seem to be fully respected within the Spanish adoption
institution. The role of the ECAI became fundamental in the way to start the knowledge about
the suture child that the prospective parents want to adopt. On this sense, formed by
professionals and being Spain a receiving country those international adoption collaboration
entities provide the couples the full information and previous preparation to receive the
foreign child. Otherwise these entities are formed and informed about the requirements and
culture of the original country of the child. Therefore both rights children and parents are well
protected.
C-Right to the heritage and right to a family in the Spanish adoption legislation
Either if the Spanish family law expert does not expose within his report the right of heritance
regarding the adoption institution in Spain legislation; it is possible to recognise that the
system is similar to the biological families, since the 21/1987 law of November the 11th had
as a principal objective the assimilation of adoptive filiations to biological filiations. On this
sense it is possible to say that one a child became a full adoptee regarding his/her adopting
parents the right to heritance between parents and child will be the same recognised by the
Spanish heritance law within the framework of the family law legislated by the national law. In
cases regarding the personal property belonging to the child, the principle of the best interest
of the child applying, the central authority and the judge deciding the adoption act should to
take into account the protection of the children real state welfare.
2-Right to a family.
The right to a family is larger recognise in Spain, on these sense this country is a receiving
state on this field. Either if it is possible to find different kind of children’s foster cares, there is
only the full-plein adoption process since the entry into force of the law 21/1987, in
November 11, having the effects of the adoption institution creating a filliation bond among
the members of the new family. The principal objective of this legislation was the assimilation
of adoptive filiations to biological filiations.
The adoption institution creates the following effects: firstly, the breakdown of bonds with the
biological family; This does not mean that the adoptive child cannot know its origins. This is
envisaged by the convention on the laws of the child but also by the law 54/2007 relating to
the international adoption which envisages in its article 12 the right of the child to know
biological origins, owe thus the public Spanish authorities to collaborate with him and to store
all the relatives information about his birth, situation, biological parents, etc., thus it became
an obligation for the Spanish authority and for the adopting parents of the child to supervise
for the care of these rights.
Secondly the adoption decision is irrevocable having created new family bonds that is
different for example in german law (the adoption is revocable in some cases)
Thirsty the declaration to be eligible for adoption recognises the filiations bond between the
adoptee and adopting.
180
3-Conclusions
It is possible to determine that within the Spanish legislation the right to a family grants by
consequence the rights to heritance. On this sense the legislation structure gives the same
rights to adopted and biological children, therefore the family responsibilities being always a
package rights-obligations are similar in the alimony or cares or heritance, since the adoption
decision is taken and the new filiation is created. It is not the same situation if the children’s
relationship care with their tutors regards an other kind as for example a foster family, on this
case since there are not filiation bonds created, there are neither rights-obligations in the
family law sense, thus the heritance rights would appear but in a different way of treatment.
181
3.26.SWEDEN
Introduction
common background.
More in detail, on one hand, some countries are oriented towards a full integration of the
adopted person in the adoptive family letting the former absorbing the benefices of the new
family not just in terms of material and economic advantages during the parents’ life but also
in terms of inheritance. On the other hand some countries are less eager to fully compare the
rights of the adopted persons with those of the non-adopted ones. This phenomenon is
remarkably seen i.e. about inheritance, where the adopted persons are not granted with the
same rights then the non-adopted persons.
From this very brief foreword an analysis of any single EU Member State deems necessary
taking into account that the common framework is focused on the best interest of the child.
Nonetheless, besides the intervention of the domestic law-maker, the rights and conditions of
the adopted persons are covered by some international conventions as well.
Thus, this ‘best interest’ might be evaluated through different legal instruments: the domestic
and the trans-national ones.
Certainly, Sweden is considered as a pioneering country in the field of adoption’s rights. To

the contrary, because these high expectancies, more is expected by Sweden than of many
other European countries.
However, this trans-national instrument, as well as the domestic ones do not emphasise all
the aspects of the adoption integrally. Keeping in mind the best interest of the child some
quasi-philosophical questions might be posed, like the protection of the child versus his/her
emancipation, the adoption at the child’s interest versus the adoption for the parents’ needs
and the inheritance of the adopted versus the capital protection of the biological children.
This study will focus on the dichotomy between these complementary but parallel exigencies.
Furthermore, it deems important to stress the relationship between the symbolism and the
pragmatism dictated by the single exigencies when dealing with the world of adoption.
A- The concepts of protection and emancipation in the Swedish Law
The number of domestic adoptions in Sweden is very small and mainly comprises stepchild
adoption, and adoption of children placed in “family homes” (foster-homes). To the contrary,
about 1,5 % of all children in Sweden have been internationally adopted.
1. The protection
An amendment in 1997 to the Swedish Social Services Act made all the municipalities
responsible for providing the special support and assistance that may be needed after an
adoption case has been settled. The above stated high-quality ranking of the Swedish
182
adoption system is that this duty is not of limited duration but continues until the adopted
child has reached the adult age.
It means a continuous and progressive follow-up by government authorities who endorses

and surely encourages the adoptive parents’ efforts.
In fact, studies have demonstrated that the internationally adopted children are in as good
shape, mentally and physically, as Swedish children.
However, according to the Swedish Inter-country Adoptions Authority (MIA), who acts as the
central pubic agency charged of adoptions from other countries, no cases of Swedish natives
adopted abroad are recorded.
Sweden has had adoption contacts with most of the countries since late 50s’ and in 1997 it
has ratified the 1993 The Hague Convention. It means that in a pure line of principle no
impediments should exist for people who want to adopt Swedish children. Yet, in reality there
are no records of it.
Besides, no impediments should exist for Swedish residents abroad who want to adopt a
child or for foreigners who regularly reside in Sweden. The only conditions are the
requirement of validity that the adoption act released abroad needs before the MIA.
2. The emancipation
Because the feeble number of domestic adoptions and the increasingly high number of
international ones, it should not be common to say that Swedish candidates to the adoption
are adopted elsewhere.
Nevertheless, as above stated no written rules deny the possibility that a Swedish citizen
may be adopted abroad. No written rules deal with the pre-conditions to the adoption.
Eventually, however, the adopted child becomes a Swedish citizen as part of the completion
of the adoption formalities in Sweden. It means that even if the parents are not Swedish
citizens the adopted child will become Swedish by the ‘simple completion’ of the adoption
formalities. This might be detected as a clear sign by the Swedish Government to make the
adopted persons fully integrated and let them to benefice of all the same civil rights and
duties then Swedish citizens do.
3. Conclusions
It might be drawn the conclusion that under the Swedish Law on adoption the integration of
the adopted person, be it a domestic or an international adoption, becomes a priority. This
assumption is even stronger when one imagines that as soon as the child arrives in Sweden
this must be reported to the local social welfare authority and this obligation renders very
eloquent the implication of the Government in any step accomplished by its citizens. As one
the most famous Swedish mottos reports the Government influence is extended: “from the
cradle to the grave”.
Swedish Law
183
Statistics show that one out of every hundred new born children in Sweden today is adopted
from abroad. From the pure statistical figure it ought to be drawn that a relevant percentage
of the Swedish population is composed by adopted persons.
This percentage satisfies the child’s rights to be adopted and the parents’ rights to the
adoption altogether.
In addition, as detected for other Scandinavian countries the Government plays a

fundamental role. The social welfare authorities monitor and detect the whole procedure of
adoption.
The child’s right to be adopted may be resumed in the Swedish viewpoint that the scale of
policy adoption should hinge on the prospects to provide these children with secure
surroundings and strong family links by the means of adoption.
As elsewhere reported a series of parameters are detected to render the procedure as

smooth and quick as possible. Furthermore, the characters are not only the elected parents
and the person to be adopted but also the government authorities who fill the gap between
the parents’ desires, the child’s needs and the consent of the child’s natural parents or that of
the foreign Government where the child comes from.
The knowledge and the experience of children as well as the pre-determined expectations
and concrete preparation for parenthood is a requisite under Swedish Law for granting
parents the right to adopt. In Sweden is the social welfare Committee who grant the consent
to parents for the adoption procedure to continue or to stop.
The current personal conditions of the prospective parents such as home environment,
degree of literacy, work, income and general wealth play an important role for the social
welfare Committee, as well.
To be concluded nothing clear is mentioned about the parents’ religious affiliations to be

transmitted to the adopted child. Yet, the religion of the parents is a question that is posed by
the authorities.
3. Conclusions
In a word it is of concern to ensure that any child coming to Sweden for adoption is truly
intended for adoption at the same conditions as a biological child.
Probably, the quite elevated number of adoptions in Sweden is due to these guarantees of
follow-up by the Government given to the adoptive parents.
C- The right to a heritage and the right to a family in the Swedish Law
The right to a heritage is well developed under Swedish Law to the point that are given to the
adopted persons the same rights that those attributed to biological persons. In fact, no strong
or soft inheritance rights are foreseen under Swedish Law. Thus, the two points hereto under
discussed will show this degree of development.
184
Under Section 4 of the Swedish legal provisions concerning adoption (The 1971 Act on
International Legal Relations Concerning Adoptions), the right of inheritance in adoptive
relationships is applicable irrespective of what law was valid at the adoption stage. It means
that no explicit clauses are conditioning the possibility to limit the right to a heritage for an
adopted person towards his/her own adoptive family. Furthermore, no clauses are
determining the right of the adopted persons towards their families of origin during the
procedure of adoption.
In full protection with the Swedish Succession Law, the Section 4 concludes saying that: “In
cases where the adoptive child does not possess a right of inheritance after the adopter, it
may in accordance with what is deemed reasonable be determined that a contribution
towards the maintenance of the child shall be paid from the balance in hand of the deceased
adopter’s estate”.
In other words under the Swedish Law even before cases where the right of inheritance is
not applicable it is permitted that a part of the adopter’s estates go to the adopted person. It
may be inferred that adopted persons benefice of the same rights that biological ones, if not
of more that the formers.
The right to a family is under Swedish Law a quite broad concept, which eventually becomes
the right to become a Swedish citizen and to be protected by the Swedish welfare system.
3. Conclusions
This interpretation of the Swedish Law seen at point c is perfectly in line with the spirit of
protection of all the Swedish citizens are they biological or adopted.
185
3.27.UNITED KINGDOM
Introduction
Adoption law first became legal in England and Wales by virtue of the Adoption of Children
Act 1926. Adoption law in England and Wales has undergone radical reform very recently.
In December 2000 the UK Government published a White Paper on adoption (Adoption - a

new approach; Cm 5017, Department of Health, December 2000). This set out the
Government's plans to promote greater use of adoption, improve the performance of the
adoption service, and put children at the centre of the adoption process. The White Paper
included a commitment to introduce new adoption legislation in 2001. The legislation, the
Adoption and Children Act 2002, (“the Act”) only fully came into force on 30 December 2005,
repealing the Adoption Act 1976 (apart from part IV of the 1976 Act which deals with the
status of adopted persons).
England and Wales is a common law jurisdiction, however, the law relating to adoption
derives entirely from statute. There is no procedure for adoption under common law box, but
common law does give recognition to some foreign adoptions.
As Wall LJ in the recent Court of Appeal case, Re F (a child) (placement order) [2008] 2
Family Court Reports (FCR) p. 93 set out, "The 2002 Act reformed that the law of adoption.
It is not, I think, controversial to say that the 2002 Act had four main objectives. The first was
to simplify the process. The second was to enable a crucial element of the decision-making
process to be undertaken at an earlier stage. The third was to shift the emphasis to a
concentration on the welfare of the child; and the fourth was to avoid delay. “
A- The concepts of protection and emancipation in the Britannic Law
5. The protection
The court or adoption agency must have regard to the following matters (among others)—
(a) the child’s ascertainable wishes and feelings regarding the decision (considered
in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member
of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the
court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41.) which the child
has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in
relation to whom the court or agency considers the relationship to be relevant,
including,
186
(i) the likelihood of any such relationship continuing and the value to the child of its
doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to
provide the child with a secure environment in which the child can develop, and
otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person,
regarding the child.
In placing the child for adoption, the adoption agency must give due consideration to
the child’s religious persuasion, racial origin and cultural and linguistic background.
6. The emancipation
The applicant, or at least one of the applicants, must either be domiciled in the British Isles
all have been habitually resident in a part of the British Isles of at least one year prior to the
application, section 49.
3. Conclusions
The Britannic law is very protective of the children.
Britannic Law
An adoption order can only be made in respect of a child, namely a person under the age of
18, on the date of the application and still under 19 and unmarried or have never been a civil
partner, at the date of the order. A child must live with its adopters for a probationary period,
section 42.
A child can be adopted by a single person, or by a couple, section 49. If the application is
made by a couple, each applicant must be married, in a civil partnership or in an enduring
family relationship, section 144. An applicant must be over 21 years of age, section 51. The
applicant, or at least one of the applicants, must either be domiciled in the British Isles all
have been habitually resident in a part of the British Isles of at least one year prior to the
application, section 49.
3. Conclusions
The adoption of a major person are not allowed. The conditions to be an adoptive parent are
selective.
187
c- The right to a heritage and the right to a family in the French Law
The Britannic law considers an adoptive child as a biological one.
An adoption order is one which gives to the adopters "parental responsibility" for a child who
is subject to the adoption application, section 46 (1. 2002 Act. Parental responsibility is
defined in section 3 Children Act 1989 as "all the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child and his property."
The process of adoption has sometimes been referred to as the "transplanting" of a child
from its natural family into its adopted one. The adopted person is to be treated in law as if
born as the child of the adopters or adopter, section 67 (1..The child is deemed to be the
legitimate child of the adopter, and, if adopted by a couple or one of a couple, is to be treated
as the child of the relationship of the couple in question, section 67 (2.. Accordingly,
adoptive parents are treated in law as the parents of the child.
3. Conclusions
adoption in UK. The negative points are:
- The applicant, or at least one of the applicants, must either be domiciled in the British
Isles all have been habitually resident in a part of the British Isles of at least one year
prior to the application;
- The interdiction to adopt an adult person;
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4. CONCLUSIONS
4.1. BULGARIA
In the context of the new legislation, Bulgaria is developing measures for child protection
aiming at maintaining or reinserting children in families (help to biological families, placement
in the enlarged family or in a foster family, etc.) In the absence of other solutions, the
abandoned children (whose judicial status is clearly defined) can be adopted. These
provisions lead to a significant increase in the number of national adoptions. Priority is now
given to Bulgarian citizens. The intercountry adoption is a last-resort measure for children
deprived of a family.
We note that Bulgaria ratified on 31 January 2002 the Hague Convention of 29 May 1993 on
protection of children and co-operation in respect of inter-country adoption which came into
force on 1 September 2002. This new legislation and the accession of Bulgaria is a great
success for the European institutions, which required Bulgaria to make a special effort with
respect to the protection of children and ethnic groups, particularly the Roma, in the
framework of its accession process to the European Union.
Indeed, the 2003 accession partnership for Bulgaria stipulated that Bulgaria must: “ensure
the childcare system is reformed so as to systematically reduce the number of children in
institutional care in particular through developing alternative social services aimed at children
and families”.
The European Commission had described the situation and the problems concerning the
protection of children and the Roma minority in its Regular Report 2003 Bulgaria’s
progress towards accession.
The Commission followed up very closely on the progress made in this field and regularly
consulted with the competent Bulgarian authorities on these matters. The Bulgarian
authorities took measures to decrease the high number of children placed in institutions. The
law on child protection and fight against discrimination was adopted.
Besides, an action plan for the implementation of the Framework Programme for the equal
integration of Roma in Bulgarian society included specific financial support to various
measures, such as improving access to and quality of education of Roma children and the
social protection of Roma families.
The Commission had given his support and helped to improve the law on adoption and
among others intercountry adoption.
A change in the family law in 2003 allowed to create a clearer system.
The Commission supported the efforts made by Bulgaria in this matter with the help of the
pre-accession fund in the framework of the PHARE programme. Concerning special aid to
children, aid had been granted in order to improve policies and care of socially marginalized
children, among others a high number of Roma children. The Commission supported and
provided training to the Child Protection Agency, an organ in charge of monitoring the reform
of the child protection system, and to the local services for child protection.
189
The Commission also attempted to support the Bulgarian government by developing
alternative measures for child protection and by reforming the management and protection of
children in selected centres.
Many efforts were made to increase the schooling rate of Roma children and their social
integration.
An additional aid was granted to the Roma children and their families in the framework of the
pluriannual programme 2004-2006.
Furthermore, we want to highlight the intervention of Claire Gibault, a member of the

European Parliament, for the outstanding speech on the subject of intercountry adoption she
delivered on 24 January 2005 on the occasion of a trip to Sofia by the Delegation from the
EU-Bulgaria Joint Parliamentary Committee of which she is a member. In this speech, she
noted with regret that the mechanism set up by the Bulgarian authorities for intercountry
adoption gave the impression of favouring persons wishing to adopt in States which were
most lax in protecting the rights of adopted children and therefore did not want to try to put
and end to the "adoption market". She therefore appealed to Bulgaria to adjust its
mechanism before its entry into the European Union planned for 2007.
Claire Gibault highlighted that Bulgaria had begun to apply the mechanism for intercountry
adoption and introduced the new procedure meeting the criteria of the Hague Convention,
but that its system still has some gaps and was leading to unjustified discrimination in her
eyes. She said that both the officials of bodies approved for adoption and the consular
authorities deplored the lack of transparency. She also stated that for their part, several
central authorities deplored the low level of reactivity by the Bulgarian central authority to
their requests for information, even though these are provided for by the Hague Convention.
In its opinion of the Committee on Women's Rights and Gender Equality aimed a the
Commission for Foreign Affaire on the accession of Bulgaria, the European Parliament
underlined on 5 October 2006 the efforts made for improving the living conditions of the
Roma population with due regard for their specific situation and the need to offer them equal
access to education, training, employment and health but stressed that greater efforts should
be made.
The Parliament points out that Bulgaria ratified the Hague Convention on Intercountry
Adoption, which lays down vital safeguards for combating the trafficking of children and gives
primacy to the rights of the child. The Parliament also draws the attention of the Bulgarian
authorities to the need to scrupulously respect the fundamental rights included in the Hague
Convention on Intercountry Adoption, which is included among the criteria for accession to
the European Union;
It is thus among others thanks to the efforts of the European Commission and the European
Parliament that notable improvements in the field of child protection and adoption were made
in Bulgaria.
190
4.2. ROMANIA
Romanian law currently does not allow for inter-country adoption except by the biological
grand-parents of the child.
Discussion
The main idea of child protection in Communist Romania (1945 to 1989) was that the state –
rather than the family – would take responsibility for children in difficulty. A network of large
institutions was developed and poor families were encouraged to give their children into the
“care” of the state. Traditional patterns of child welfare, like placing a child in difficulty with a
member of the extended family, were undermined.
By 1989 there were over 100,000 children in institutions and over 16,000 children a year
were dying of treatable illnesses and other causes18. What made these bad policies
disastrous was the pro-birth policies of the Ceausescu regime and the economic depression
of the 1980s. One year after his election as Party leader, in his opening speech at the
general assembly of National Women’s Council in 1966, Ceauşescu warned the audience of
the threat posed by the fact that Romania’s birth rate had been declining steadily since 1955.
In November that year, abortion was strictly prohibited by law, (…) without any warning.
Decree no.770/1966 – ‘For the regulation of the interruption of pregnancy’ (Pentru
reglementarea întreruperii cursului sarcinii – in Romanian) limited abortion on request to: (1)
women over 45 years of age; (2) women already supporting four or more children; or (3)
women whose life, in the judgment of a special commission, was endangered by the
pregnancy, or who were faced with the risk of congenital deformity, or whose pregnancy
18
Child Welfare in Romania, the story of a reform process. Published September 2006 by National
Authority for the Protection of Child’s Rights (NAPCR). Phare 2003 “Educational Campaign on
Child’s Rights” In the pre-accession phase assistance was provided to Romania under the Phare
programme to address the delicate situation of children in institutions. In the early years
humanitarian assistance (food aid, supply of heating oil, medicines, repairs and maintenance of
institutions) was predominant, in order to remedy an emergency situation. However, subsequent
programmes were designed to address the structural situation and to promote reform of
Romania.s childcare system. In December 2001 Commissioner Verheugen, then responsible for
accession negotiations reported that the Commission and the Romanian authorities were in the
process of implementing a € 25 million PHARE programme which had the following components:
The creation and development of community integrated child welfare projects at local level, with
special emphasis on preventing child abandonment and institutionalisation.
Restructuring or closure of the old-style residential care institutions by providing alternative
facilities/services.
Technical assistance (using Member States. expertise through .twinning., i.e. the secondment of
national experts to the government of Romania) to facilitate co-operation between the Ministry
of Labour and Social Protection services (at central and local level) with childcare departments
(at central and local level), in order to ensure that Romania.s overall social protection policies
are effective in providing support to families with children at risk, and preventing abandonment
and institutionalisation of children.
A national public awareness campaign aimed at preventing abandonment of children and their
reintegration
into (natural or foster) families. Source: OJC 340 of 4 December 2001, at pp 101-102, Written
Answer given by Mr Verheugen, then EC Commissioner for Enlargement (in the Prodi Commission)
to the Written Question E-0817/01 by Gian Gobbo (TDI) to the Commission on the condition of
children in Romania.
191
resulted from rape, incest, or who were physically, psychologically, or emotionally
incapacitated. This law was modified once in 1972 (before the International Conference on
Demography, held in 1974 in Bucharest) – by Decree no. 53/1972 (the main difference being
that the required age for obtaining permission for an abortion on request was reduced to 40,
(as all the international studies on demographic trends recommended); and once in 1985,
when the required age-threshold was rasied again to 45 years (Decree no.441/1985). 19
In the context of Romania’s accession to the European Union, the Child Protection issue has
been particularly difficult. In its 1997 Opinion on the June 1995 Romanian Accession
application, the EC Commission concluded that Romania was facing particular challenges in
the justice and home affairs area. At that time Romania had only made limited progress
towards meeting the necessary conditions of the justice and home affairs acquis and would
find it difficult to meet the (present and future) acquis requirements in the medium term20.
The EU applied pressure on Romania to make changes in the child welfare system,
emphasizing decentralisation21. In its 2002 Regular Report on Romanian progress towards
accession22, the EC Commission, recommended (as far as judicial co-operation on civil
matters was concerned) that Romania should take further measures to ensure the
implementation of the recently adopted Community instruments in the area of judicial co-
operation in civil matters. It noted that Romania had still not ratified the European Convention
of 1980 on Recognition and Enforcement of Decisions Concerning Custody of Children23.
Beginning in 1997, the Romanian Government, under new political leadership, restructured
the entire legislative and structural organisation of the Romanian child protection system in
general and of the adoption system in particular.
As a result, the following legislation was passed in a very short space of time:
¾ EO no. 25 (approved by the Government on 9.06.1997, but issued in the Official

Gazette later on 6.11.1997), on the legal procedures for adoptions, approved with
amendments through Law 87/1998;
¾ EO no. 26/1997 on child protection, reissued, approved with amendments through
Law 108/1998;
¾ Government Decision no. 245/1997 on the criteria for authorising private organisms
operating in child protection through adoption;
19
Abortion and the making of the socialist mother during Communist Romania, Lorena Anton,
department of Ethnology, faculty of Letters, University of Bucharest, in (M)Othering the Nation:
Constructing and Resisting Regional and National Allegories Through the Maternal Body, (eds.
Lisa Bernstein and Pamela Monaco), Cambridge Scholars Press (2008).
20
EC Commission 2002 Regular Report on Romania's Progress towards Accession, Brussels,
9.10.2002
SEC (2002) 1409, COM(2002) 700 final; Chapter 24: co-operation in the field of justice and home
affairs, Conclusion, p.115.
21
See International Organisations and Democratization, The Case of EU Accession of Romania,
(2006) Silviu Jora at pp. 8 & 9, ‘The Child Protection Issue’.
22
Chapter 24, Op cit. at p. 114.
23
On the other hand as far as judicial co-operation in criminal matters was concerned, Romania
had ratified the optional Protocol to the United Nations Convention on the Rights of the Child on
the Sale of Children, Child Prostitution and Child Pornography. The EU Joint Action of February
2002 concerning actions to combat trafficking in human beings and sexual exploitation of
children had been partially implemented through the law on the Prevention and Combating of
Trafficking in Human Beings, which adopted in December 2001. EC Commission 2002 Regular
Report on Romania's Progress towards Accession, Chapter 24, Op cit. at p. 111.
192
¾ Government Decision no. 502/1997 on structure and functioning of the Romanian
Adoption Committee;
¾ Government Decision no. 217/1998 on foster mothers;
¾ Government Decision no. 604/1998 on criteria for authorising private organisms.
¾ These documents were complemented with methodological norms and ordinances on
reorganising the public institutions in the field (Government Decision no. 117/1999,
EO 192/1999, Government Decision no. 96/2000).
EO 25/1997 set up a mechanism for domestic and international adoption, different from the
one established by the previous Law 11/1990 and was considered better written law than the
other pieces of legislation developed previously24.
However, the legislation adopted from 1997 onwards was found to have distorted the
domestic/international adoption ratio. The IGIAA reported on this outcome in the following
terms:
“In other words, public child protection services shift focus from increasing
quality to stimulating and facilitating international adoption. From a public body
responsible for child protection through adoption, the Romanian Adoption
Committee becomes the regulator of international adoptions and the guarantor
on the international adoption market that the law will be applied.
• In-depth interviews implemented by IGIAA reveal that the activity of the RAC
within 1997-2000 was dominated by international adoption, with almost no
effort to support national adoption, in spite of a large number of Romanian
families residing in Romania seeking to adopt institutionalised children. More
over, the common perception is that some of the executive staff and even some
of the RAC members have indulged in operations that contravene to moral
norms and regulations that govern the activity of civil servants.”
The EC Commission expressed concern over serious shortcomings in Romanian legislation

and practice on international adoptions, which risked giving rise to abuse. Since Romania
had ratified the Hague Convention on Protection of Children and Cooperation in respect of
Inter-country Adoption, some other states party to that Convention prompted by similar
concerns, also opened a process of consultations with Romania in October 1999.
Following these expressions of concern and recognising that economic considerations and
interests other than the children's best interest played a role in the domestic process of
decision-making on international adoptions, the Romanian government took a number of
decisions. In December 2000, when Prime Minister Nastase took office, a de facto
suspension on inter-country adoption was introduced. In June 2001 the Romanian Adoption
Committee announced a one-year moratorium on inter-country adoption due to concerns
about corruption. That led to the suspension of international adoptions for one year
(Emergency Ordinance 121 of 8 October 2001).
The Romanian government also found that a certain number of children in respect of whom
international adoption decisions had been made could not be accounted for. (The EC
Commission found that the cases had been reported to the competent investigating and
prosecuting authorities in Romania).
24
IGIAA (Independent Group for International Adoption Analysis) Re-Organising The International
Adoption And Child Protection System, Final Report, Revised, March 2002 addressed to the Prime
Minister Of The Romanian Government at p.23.
193
In respect of applications for international adoptions that were pending when that ordinance
entered into force, the Romanian government adopted Emergency Ordinance 161 of 7
December 2001, providing for the completion of inter-country adoption procedures for cases
that had already been dealt with, or were being dealt with, by the courts when the
moratorium was decided. This ordinance also allowed the government to forward pending
cases to the courts in exceptional circumstances25.
The United States put pressure on the Romanian government to limit the ban on international
adoptions in the run up to the NATO Prague summit in November 2002. It was even reported
that Romania had lifted the ban under U.S. pressure26. On 15 November 2002, however, the
moratorium on international adoptions was extended until at least 1 February 2003.
Applications from foreign families who were in the process of adopting before the start of the
moratorium were treated on a case-by-case basis.
On June 21, 2004, Romanian President Iliescu signed into law a draft adoption bill that
limited international adoption to a child’s grandparents. The law was published in the
Romanian Government Monitor on June 22 and entered into force on 1 January, 2005.
Contemporary press reports show that adoption of the law was welcomed by the EC
Commission27. Until the 1st of January 2005, Romania had been mainly an origin state for
international adoption of children. In a statement28 the Romanian Office for Adoption has
(seemingly) commented:
“On this date the Law no. 273/2004 entered into force, and art. 39 of this Law
specifies: ” The international adoption of the child whose domicile is in Romania
may only be approved in case the adopter or one of the spouses in the
adopting family who have the domicile abroad is the grandparent of the child for
whom the petition for internal adoption initiation has been approved.”; therefore,
from this moment onwards our country can only be an origin state for the
adoptions performed by second degree relatives of Romanian children”.
25
Sources : OJ C 52, of 6 March, 2003, at pp.29-30, Written Answer given by Mr Verheugen, then
EC Commissioner for Enlargement (in the Prodi Commission) to the Written Question E-1241/02
by Fernando Fernandez Martin (PPE-DE) to the Commission on International adoption of
Romanian children and Joint Council on International Children’s Services Press Release on
Romania and International Adoption available at:
http://www.jcics.org/JCICSPressInformationRO.pdf .
26
EurActiv, Monday 26 August, 2002, Romania lifts child adoptions ban under US pressure.
27
EU congatulates Romania on new adoption law, 22 June 2004: ‘EU enlargement commissioner
Guenter Verheugen on Tuesday congratulated Romania for a new law restricting the possibility
for foreigners to adopt Romanian children. Verheugen called for the law, which parliament voted
last week, to be strictly
applied in order to bring Romania in line with European Union legislation. "This law is very clear.
International adoption is now possible under very strict conditions," Verheugen told a press
conference. "Therefore this new legal situation has to be fully implemented to meet
international legislation," he said. (…) "This text, which was written with the help of independent
European Union experts, is in line with the Geneva convention on the rights of children," said
Gabriela Coman, head of the [Romanian] national agency in charge of child protection’. Original
article published at: http://www.eubusiness.com/afp/040622162450.mhq7p3s0 now available
at: http://www.laborlawtalk.com/showthread.php?t=11257.
28
Response to a questionnaire, available at www.hcch.net/upload/adop2005_roe.pdf the, but N.B.
which is undated and unsigned and therefore an unverifiable source.
194
Law no. 273/2004 appears to be in conformity with the letter of the United Nations
Convention and the European Convention on Human Rights in this respect although it has
been criticised for non-compliance29. It is important to have regard to the necessity of
maintaining continuity in the ethnic, religious, cultural and linguistic environment of the child
(article 20 of the United Nations Convention on the rights of the child.) If the child is deprived
of a family environment, the State has the obligation to provide it with special protection. The
State also must provide alternative care to the child, such as a foster placement, adoption or
if necessary placement in suitable institutions.
In its 2005 Romania, Comprehensive Monitoring Report30, the EC Commision was able to
state that:
“In general, the progress achieved in the field of child protection has been
widely acknowledged by the Independent Panel of Experts on Family Law of
EU Member Sates in May 2005 and is regarded as satisfactory in relation to
Member States’ best practices. Sufficient financial resources should now be
ensured in order to maintain an adequate level of child protection”.31
Specifically as regards adoption it noted that:
“New legislation on children’ rights and adoption entered into force in January
2005. This legislation brings Romania in line with the UN Convention on the
Rights of the Child and the European Convention on Human Rights and
completes the reform of child protection. Intercountry adoption, which is strictly
limited to relatives, is no longer foreseen as a child protection measure. This
represents a firm reaction to past irregularities and distortions and a measure
conducive to developing intra-country alternatives in the best interests of each
child. An action plan for the implementation of the new legislation has been
drawn up. As regard petitions for intercountry adoption registered before the
entry into force of this new law, responses should be given without delay based
on the best interest of the child and in accordance with the relevant legal
provisions. The already existing working party established with the task to
screen pending cases should inform the families concerned of its decisions.
The main outstanding issues concern the raising of awareness of the new
legislation and training among stakeholders such as judges, staff of maternity
hospitals and social workers in general. Cooperation between these actors
should be enhanced and an inspection body should be developed at central
level”32. (Emphasis added).
29
Children Awaiting Parents, Inc. (CAP) a USA national, nonprofit organization issued a 2006 statement,
available at: http://www.adoptionpolicy.org/pdf/Analysis%20of%20Current%20Romanian%20Law3.06.pdf in
which it said: “It is CAP’s view that the current Romanian law on adoptions does not comply with the
international standards governing intercountry adoptions and that it is in violation of Romania’s obligations
under the United Nations’ International Convention on the Rights of the Child (the “UNCRC”) and under the
HCIA. Specifically, the new Romanian law on adoptions - by effectively eliminating international adoptions –
fails to comply with the hierarchy of solutions for the care of abandoned and unparented children that results
from the UN Convention on the Rights of the Child ("UNCRC") and is equally established by the HCIA.
[Hague Convention on Intercountry Adoption].
30
COM (2005) 534 final of 25 October, 2005, SEC (2005) 1354.
31
COM (2005) 534 final at pp. 17-18.
32
COM (2005) 534 final p.17.
195
The European Parliament had sounded an initial warning note in its February 2004 report on
Romania's progress towards accession33. Paragraphs 10 and 11 of the motion for a
resolution of the European Parliament were in these terms :
10. Welcomes the steps which Romania has taken concerning the physical
situation of institutional care and the fulfilment of the National Child Protection
Strategy; calls for further development of alternative support services for
children with special needs; considers as paramount the setting up of an
effective child protection system that protects children's rights, has the interests
of the children exclusively at heart and does not pander towards corruption in
the process; urges the Romanian Government to continue the reform process
within the Commission guidelines;
11. Considers that EU institutions as well as politicians in the EU and further
afield were misled as to the process in which children are identified to be
suitable for adoption; has evidence that numerous children are deprived of a
suitable family setting by the authorities against their will and also disregarding
the wishes of their foster families whose interest in an adoption is denied;
In the meantime the European Parliament’s attitude evolved somewhat. In the report of the
Committee on Foreign Affairs regarding Romania’s readiness for accession34, Romania was
urged to deal with injustices arising from the moratorium on international adoptions.
Paragraph 21 of the proposed European Parliament Resolution was in the following terms
(adopted as paragraph 23 of the resolution on 15 December, 2005):
[The European Parliament]: 21. Warmly welcomes the significant improvements

made by the Romanian authorities in the area of the protection of children;
nevertheless urges the Romanian Government to respond as soon as possible
to the applications for international adoption made during the moratorium of
June 2001, taking account of the real emotional distress felt by the adoptive
parents and the legal framework of Romania; calls on the Romanian
Government to continue its efforts to improve the situation of children in
orphanages; (Emphasis added)
The European Parliament again urged the Romanian government to settle the cases of
applications for international adoption made during the moratorium of June 2001, by adopting
a written declaration (Written Declaration of the European Parliament on international
adoption in Romania35) with 408 signatures calling on the Romanian authorities to resume
without delay consideration of pending cases in the best interests of the children.
Recent developments
The Romanian authorities now have more than four years of experience in dealing with
International adoption procedures under the 1 January 2005 law. Post accession the
practical difficulty for European citizens willing to offer a home to a Romanian child remains
33
(COM(2003) 676 – C5-0534/2003– 2003/2203(INI)) Own inititiative report of the Committee on
Foreign Affairs, Human Rights, Common Security and Defence Policy Rapporteur: Baroness
Nicholson of Winterbourne; FINAL A5-0103/2004.
34
A6-0344/2005 Final: Report on the extent of Romania's readiness for accession to the European
Union (2205/2005(INI)), of 25.12.2005, Committee on Foreign Affairs, Rapporteur: Pierre
Moscovici.
35
Written Declaration 0023/2006 pursuant to Rule 116 of the Rules of Procedure by Claire Gibault,
Jean-Marie Cavada, Antoine Duquesne, Charles Tannock and Enrique Barón Crespo on
international adoption in Romania, (DC\608237EN.doc PE 372.505v01-00).
196
the outright ban on such procedures. It could perhaps be hoped that, at this point, some
relaxation of the outright ban might be possible.
However, some of the most recent reports on capacity building and anti-corruption measures
in Romania indicate that issues remain in this area. The July 2008Co-Operation and
Verification Mechanism (“CVM”) report pointed out that . The concluding paragraphs stated:
Outlook
Romania has started to move into the right direction. The new institutions and
processes need time to prove their effectiveness and should be allowed to
continue on a steady course. That being said, an unequivocal and renewed
commitment is needed at all levels – across the political spectrum, the
administration and the judiciary - to cleanse the system of corruption and to
fully respect the rule of law. The Commission strongly encourages Romania to
intensify its reforms and to maintain its close cooperation with the other
Member States and the Commission so that the significant remaining
challenges can be tackled successfully together.
The February 2009 interim CVM report notes that the pace of progress has not been
maintained and suggests that the Romanian authorities need to regain momentum on judicial
reform and the fight against corruption. It found that although there have been some positive
signals in judicial reform, results are difficult to demonstrate. As regards the outlook, it states:
OUTLOOK
The next assessment of progress by the Commission in summer 2009 will
show to which extent Romania has been able to successfully address the
shortcomings identified in the reform of the judiciary and to produce convincing
and tangible results in the fight against corruption.
Conclusions
It would therefore appear likely that progress towards a more liberal international adoption
regime in Romania will have to wait until the CVM reports show a more encouraging picture
with regard to judicial reform and the fight against corruption.
This would not prevent work on harmonising legislation at the European level, perhaps in the
form of a Directive, in anticipation of such an achievement. 36However, any such work would
need to take account of Romania’s and other Member States international obligations. It will
be noted that non-discrimination is an important principle of public international law and that
not all agencies, notably in the USA, view past interventions by EU institutions, particularly
those of the European Parliament, in a positive light37.
36
It will be noted that in February 2008 two MEPs, Jean marie CAVADA (ACDE, France) and Claire
Gibault (ACDE, France) presented an initiative in favour of adoption of a revised Council of
Europe Convention on the adoption of children, which however does not deal with inter-country
adoption. See Factsheet, Towards a European adoption procedure available at
http://www.coe.int/t/DC/Files/Source/FS_children_adoption_en.doc.
37
See, inter alia, Joint Council on International Children’s Services country information on
Romania, available at http://www.jcics.org/Romania.htm and
197
In his opening statement to the September 14, 2005 hearing of the U.S. ‘Helsinki
Commission’ Christopher H. Smith was particularly critical of the role played by the former
rapporteur of the European parliament on Romania, Lady Nicholson38:
38
As a member of the European Parliament who, until recently, served as rapporteur
for Romania’s accession to the European Union, Lady Nicholson proudly asserts that
she has ‘‘led the fight against the trade in children known as intercountry adoption.’’
I would just note here parenthetically that I am the prime sponsor of the Trafficking
Victims Protection Act of 2000, as well as the 2003 reiteration of that act and
expansion, and the legislation that likely will be marked up tomorrow, that will further
expand U.S. efforts to try to mitigate and end the human slavery known as human
trafficking.
So I take a back seat to no one in trying to fight the scourge of trafficking of anyone—
children, newborns, women, or anyone else. But adoption is not trafficking.
Let me continue. Lady Nicholson stated, ‘‘It was a mistake from the beginning to
assume that for a child’’—and I find this very odious, but this is her quote—‘‘a foreign
adoptive family is better than a family which cannot care for him or her,’’ and she says
this is totally false.
Lady Nicholson has no facts to support her allegations as to the dire fate of children
adopted internationally, and indeed her allegations have been refuted by UNICEF.
Lady Nicholson’s position as rapporteur allowed her to pressure the Romanian
Government into declaring a moratorium on international adoptions in 2001 and in June
2004 to enact a law banning intercountry adoption except in the case of biological
grandparents living outside the country.
Romania’s new law on adoptions, and others addressing child protection, create a
hierarchy of placement for abandoned children, including domestic adoption, foster
care, and institutionalization. This law is based upon the misguided proposition that a
foster family or even an institution is preferable to an adoptive family outside
the child’s country of birth.
Sadly, Romanian children are domestically adopted each year, the remaining 8,000
abandoned children yearly have been sentenced to a life in foster care, usually in large
group homes, or in institutions. Denial of a permanent family will fall hardest on the
Roma children, who are least likely to be adopted in-country due to pervasive societal
prejudice against the Roma minority.
Prior to enactment of the anti-adoption law, approximately 1,700 adoption cases were
registered with the Romanian Government. Of these, 200 children have been matched
with adoptive parents in the United States and the remainder with parents in Western
Europe.
Dozens of these waiting parents are in this hearing room today. I welcome you and I
thank you for traveling to be here with us today. They have come from across the
United States to let the president, President Basescu, know that they are still waiting to
adopt their children.
Statement Of Hon. Christopher H. Smith, Co-Chairman,Commission On Security And
Cooperation In Europe, Hearing September 15, 2005, In The Best Interest Of The Children?
Romania’s Ban On Inter-Country Adoption Hearing Before The Commission On Security And
Cooperation In Europe available at:
http://www.csce.gov/index.cfm?Fuseaction=ContentRecords.ViewDetail&ContentRecord_id=359&R
egion_id=0&Issue_id=0&ContentType=H&CFID=956611&CFTOKEN=33394967. The Commission on
Security and Cooperation in Europe, also known as the Helsinki Commission, is an independent U.S.
Government agency created in 1976 to monitor and encourage compliance with the Helsinki Final
Act and other OSCE commitments.
198
For the present therefore any reform of international adoption procedures in Romania
remains a complex and technically difficult challenge from a legal point of view, from the
point of view of implementation and, moreover, politically.
4.3. SUMMARY
Surveys were impartially and scientifically conducted throughout the entire European Union
based on the questionnaire developed with and approved by the European Commission.
The experts conducting the surveys selected representative panels of adopted children,
adopters, representatives of the competent authorities, Ministries, Judges and administrative
authorities in charge of adoption in each country.
However, we want to highlight that even if we obtained the expected result, which is to say
the number of surveys and the sampling required by the Commission, some of our experts
encountered major difficulties to find participants to the survey. Indeed, in some countries
such as Denmark, Sweden and the United Kingdom, the interviewees often hided behind
confidentiality and protection of private life to avoid answering certain questions.
Moreover, some interviewees could not answer all questions because of insufficient judicial
knowledge or lack of experience in some fields.
The interviewees generally wanted to insist on a specific point of the questionnaire or of their
personal experience.
Although the majority of people interviewed in most countries highlighted the dramas arising
in cases of adoptions outside of Europe and in countries which did not sign the Hague
Convention, they all pointed out loopholes in their national legislation demonstrating that a
supranational intervention was necessary. These loopholes are referred to in the comparison
tables and in the policy option. The insistence of interviewed citizens throughout all Europe
on common loopholes in most legislations show that a European intervention is required.
We also stress that although a number of interviewees considered their national procedure
as adapted to the child’s best interests and the selection criteria for adopters and children as
appropriate, they still mentioned major improvements which they described as expected and
necessary when answering other questions.
Furthermore, when we specifically asked questions about adoption between Member States
of the European Union, the interviewees answered that their country had of course not
developed yet a specific European adoption procedure. However, European citizens
stressing that there was no specific European procedure or that their national law did not
contain any provision on this particular status did not mean that it was not wished or
necessary. On the contrary, many citizens were very positive as to the interest showed by
the Commission towards international adoption.
This demand for a European intervention towards a European adoption procedure came not
only in our study but also on the websites of parents associations consulted by our experts.
Moreover, we note that the European Parliament and in particular Mrs. Claire GIBAULT and
Mr. Jean-Marie CAVADA come to the same conclusions as we do and that they among
199
others pleaded on 9 November 2007 for a European adoption policy at the occasion of a
colloquium organised by the European Parliament.
The conference of 9 November 2006 on “a European adoption Policy?” brought the most
famous experts on international adoption together to ask a fundamental question for the
future of Europe: “Does Europe protect its children?” The situation in orphanages and the
different European legislations were discussed. The responsibility of the European Union
towards these children was highlighted.
We also note the press release of Claire GIBAULT and Jean-Marie CAVADA on 19 February
2008 in Strasbourg, where Mrs. GIBAULT presented a joint declaration inviting the Member
States of the European Union to develop a European adoption procedure.
Our experts and the European citizens who took part in the survey are thus not the only ones
to think that the child’s best interest must always be the first consideration and that this calls
for the need to create a common adoption procedure in all Member States of the European
Union, in line with the recent approval of the report on the rights of the child recommending
an appropriate instrument to favour international adoption in the absence of a national
solution.
Our experts consulted national and international reports and contacted the Ministries and
competent authorities at several occasions to obtain the statistics, which are here presented
per country.
All countries agreed to provide the statistics, but some countries did not have all figures. All
reliable statistics we received are included in the report.
To conclude this study, we have developed tables comparing the different countries based
on their legislations and the surveys we conducted.
Although the adoption procedures, as we have seen, are not really similar within the
European Union, these law systems have already been harmonised to some extent, as most
of these countries have signed the Hague Convention.
One of the first requirements would be to define the concept of adoption itself, its conditions
and consequences.
Several countries foresee various types of simple or plenary adoption, fully covering different
procedures for adopters and adoptees in different conditions with legal consequences with
regard to parentage, heritage, etc., as we explained earlier.
Furthermore, the case of an orphan or a fully abandoned child might be approached

differently than the case where parents were deprived of their authority. In this last case, the
privation of the parents’ authority must be coordinated.
Our study showed that even ungrateful parents showing no interest for their children and
possibly maltreating them, can always oppose the adoption procedure even after a long-term
placement of the children in an institution.
Moreover, the criteria applicable to the adopting parents are totally different from one country
to another. It seems that many countries are desperately calling for training sessions to
prepare parents to the realities of adoption.
200
In many countries also, numerous interviewees were complaining about the lack of training of
all staff representatives at all levels of the adoption follow-up: social workers, psychologists,
people managing the process.
Possible education provided to the staff it often too general and not specific enough. The
people in charge are unable to meet the parents’ expectations with regard to the adoption
process. They cannot counsel and coach parents either.
The same problem arises for the parents’ ability to be good adopting parents, as the persons
in charge of “assessing” them are not sufficiently trained and informed to the realities of
adoption.
These criteria thus need to be coordinated through education of parents and staff.
We also note that private adoption is a major problem, in particular in countries which did not
sign the Hague convention. Many interviewees consider that private adoption leads to child
trafficking in poor countries. In order to limit this trafficking, in the countries which signed the
Hague convention, private adoption should be forbidden; adoption should only be accepted
through the channels of associations.
The provision of a maximum age for the adopting parents was highly stressed in our study.
When parents are too old, social problems can appear. Moreover, for biological reasons, a
minimum and maximum age between the children and their adopting parents should be set
and harmonised, once more to avoid social problems.
A post-adoption follow-up is as well demanded in the countries where such a follow-up does
not exist yet. This follow-up should favour the dialogue between children and adopting
parents and the integration of adopted children. Once more, this follow-up should be
conducted by professionals with a specific educational background to the realities of
adoption.
Moreover, listening (proximity) centres should be opened so that parents sometimes living
difficult situations can talk without being judged. This follow-up should start from the
matching period onwards.
The duration and conditions of this period must of course be harmonised at the European
level and, at this stage, parents must be helped rather than judged in particular when they
are confronted to older children who already encountered great difficulties.
We could also conclude that some really capable parents who truly want to adopt give up the
procedure because of a lack of means.
It is indeed so sad and regrettable that the price of an adoption procedure be redhibitory and
do not allow capable parents to adopt children in need.
We note that throughout Europe, money is one of the first reasons for giving up the adoption
procedure, together with the case where the mother gets pregnant during the procedure.
We can also conclude from our study that citizens complain about bureaucracy, the duration
of the procedure and the disparities in case law. In some countries, indeed, the Courts and
tribunals have no constant case law, even at national level. This leads to very clear
discrimination. The adoptability criteria also need to be harmonised.
201
Our legal study also shows that the procedure can be so long that both parents and children
get older, sometimes too old to adopt or to be adopted.
In general and throughout Europe, the reasons for giving up the procedure are the following :
- Financial reasons;
- pregnancy;
- the age of the parents ;
- divorce.
Main reasons for refusal are:
- the age of the parents;
- inadequacy of parents;
- an application for a second child too shortly after the adoption of the first one;
The main difficulties in adoption procedures mentioned both in our empiric and legal study
are the following:
- Incomplete or incorrect information on the children, in particular about their health;
- Lack of information on the child’s habits and development;
- Language problems arose but only when parents adopted in countries which did
not sign the Hague Convention;
- Risks for child trafficking were feared but only in countries which did not sign the
Hague Convention;
- An insufficient coordination was noted between the different adoption-related

services, both at national and international level, even in countries which signed
the Hague Convention;
- The lack of access of adopted children to their cultural and biological origins and
to related information is generally considered as a negative and disturbing aspect
for the children;
- Several interviewees from several countries mentioned the “Kafala” issue. Islamic
codes and in particular the Moroccan code consider the adoption code as null and
void. “Kafala” is thus more a placement than an adoption. Often “Kafala” is not
recognized in European countries, which triggers issues of private international
law and recognition of the above-mentioned placement in Europe.
- The lack of training provided to the social services and psychologists, but also the
shortage of money and staff are often stressed as obstacles to the adoption
procedure;
202
- No preparation course to adoption;
- The majority of parents wish to adopt children aged less than 2 years and children
aged more than 6 are often very difficult to place;
- Handicapped or special children are often very difficult to place as well;
- In some countries, the consent of biological parents who do not at all take care of
their children is considered as excessive.
203
5. POLYCY OPTION
5.1. Introduction
Just as it is always preferable to maintain the children in their families of origin, but that an
adoption might have the advantage of giving them a permanent family if it is not possible, it is
always preferable to favour national over intercountry adoption. This allows preserving the
cultural, linguistic and religious links more easily.
Some people think that adoption tears the children away from their country. It is true that in
the case of international adoptions, the children leave the country where they were born to
live somewhere else forever. This can be a painful uprooting for older children who can
already talk for example. Very young children will be deprived of the sound, smells, and the
weather they were used to. But growing without parents, without a family, without love is
much worse than leaving one’s country. Adoption does not mean tearing a child away from
its country, it means giving this child parents. If the child has to go far away for this, this is
because no solution was found in the country where it was born. The subsidiarity principle of
the Hague Convention recognizes that international adoption can have the advantage of
giving a permanent family to the children who could not find an appropriate family in their
state of origin.
Finally, we should not forget that our language, culture, way of life, even our country are ours
by birth, but because we grew in them.
The experts who took part in this study think that it is really necessary to take measures to:
- coordinate the adoption procedures within Europe;
- favour national over intercountry adoption;
- favour European over international adoption, which would require the development of
the above-mentioned procedure but would strengthen the sense of European
citizenship;
- rule intercountry adoption in Europe so that it guarantees the children’s best interest
and the respect of their fundamental rights;
Of course, these measures should meet the common provisions based on recognized
principles, such as the United Nations Convention on the Rights of the Child of 20 November
1989, the Declaration on Social and Legal Principles relating to the Protection and Welfare of
Children, under the angle of adoption and family placement practices on national and
international levels, and the Convention of 29 May 1993 on Protection of Children and Co-
operation in Respect of Intercountry Adoption.
As the Member States of the European Union can both be countries of origin or host
countries, it seems to us that for their best interest, European children should first be adopted
within Europe, and in other countries only if the first attempt failed. To this end, we
recommend the creation of a specific procedure and administration at European level.
For the above-mentioned procedure and for the harmonisation of national legislations, we
recommend taking the following steps:
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5.2. Definition
The first requirement for a European adoption system would be to define the adoption
concept in the law. Some countries have different laws based on the adoption type (simple or
plenary adoption). We think that a common definition would be useful, but that adoption
leading to parentage should in any case be prefered.
5.2.1. Judicial or administrative procedure?
In some countries, adoption is a judicial procedure, while it is an administrative procedure in

other countries. None of the options seem to have particular advantages. In both procedures,
cost and duration are mostly criticised. Adopting parents indeed have to wait for years before
being able to adopt, without any guarantee for a quality procedure.
The end goal for the European administration would thus be a structured, efficient and
cheaper procedure, whether administrative or judicial.
However, several countries highlighted the disparities in case law. A harmonization of the
case law could lead to non-discrimination among applications. There is a need for a system
where applications could be coordinated and discrimination could be avoided.
5.2.2. Criteria of adoptability
In all cases, the legislation should determine in which cases children are adoptable. It is
generally when they are orphans, when their parents have lost their parental rights, when
they have been abandoned, or when the mother gave birth anonymously. But some
countries accept the adoption of children who have come of age, with or without conditions,
and other countries only accept the adoption of minor children.
It should also be determined when a child is adoptable at European level, in other words
when one can consider that the child could not be adopted in the country. It is necessary to
determine at European level, for all Member States, when one can consider that the child
could not be adopted nationally and that an adopting family should be found at European
level, or at international level in case of failure at European level.
This question is politically very sensible: our analysis showed that several countries are very
strict as to the possibility to have their national children adopted in foreign countries. This is a
question of values: what is more important to a child, be raised in their language, religion,
culture, in their country of origin? Or sacrifice one of these values so that they can be
adopted in a foreign country, in a stable family?
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5.2.3. Consent
The concept of consent absolutely needs to be harmonised. In most countries, indeed, the
consent of the birth family is needed for adoption. The types of consent differ from one
country to another (in written, declaration in front of a tribunal, etc.)
The consent of the biological parents to the adoption is generally required in all European
countries. However, the exceptions to the consent differ. In some countries, they are listed in
the law; in other countries, a judicial decision can allow for an adoption independently from
the consent of the biological parents, specifically in the case of deprivation of parental
authority.
Moreover, the biological parents – and in particular the biological mother – generally have
some time to make their decision after birth. The parents cannot directly give their consent.
The high majority of legislations provide for a term of several weeks. This point shall be
harmonized.
As we can read from our comparison tables and our legal study, most European legislations
provide for consent of the adopted children if they are aged more than 10 to 15 years. This
age should probably be harmonised as well. In Sweden, for example, the adopted child’s
consent is not applicable if asking the question might be detrimental to him or her, or if he or
she is mentally handicapped.
5.2.4. Selection criteria for adopting parents
In the numerous interviews we conducted, several interviewees have stressed the

importance of clarity, completeness and usability of the documents and the application files
that the adopting parents have to provide. These documents should be identical throughout
all Europe and only translated in national languages.
For this, the selection criteria for adopting parents should be harmonised as much as
possible. These criteria might differ from one country to the other, but are fundamental to
assess the quality and ability of adopting parents. They also ensure non-discrimination
among adopting parents throughout Europe.
There are of course criteria with regard to the stability, motivation of adopting parents toward
adoption, ability and hosting possibility as far as housing and family are concerned,
availability, etc. Some other criteria can be quantified, such as:
5.2.5.Minimum difference of age between the adopted child and the youngest adopting
parent
It seems commonly accepted throughout the European Union that adoption should meet
some « biological rules ». Most countries provide for a minimum age under which parents
cannot adopt. Some countries give the age of majority, but others provide for a higher age
given the specific character of adoption and the difficulties that can arise.
A certain maturity is indeed required for such an important step. However, this minimum age
differ from one European country to the other, and is not even provided in some cases. It
seems to us that the European law should settle this question.
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5.2.6. Maximum différence of age
In the same idea of biological rules, most legislations provide for a maximum difference of
age between the adopted child and the adopting family (or at least one of both parents).
The adoption relationship must respect a certain harmony with the biological relationship
between parents and children. The risks for the children are higher when parents are older.
The risk for parents’ death and physical and psychological problems are more important with
older parents. Sweden, for example, intends to reduce the maximum age of adopting parents
from 45 nowadays to 42 years old.
Although it is true that age limitations would probably be detrimental to special children who
could be adopted by older families with experience in the field, and although it is true that the
love parents give to their children does not depend of their age, we think that a maximum
age might be necessary.
However, we also recommend that some flexibility be given to the organism in charge of the
assessment, particularly in the case of special children.
5.3. Statistics
Yearly statistics should be provided nationally and at European level on the nationality of
adopting parents and adopted children, by age bracket, sex and marital status of adopting
parents.
These statistics shall be at the disposal of authorities, associations and parents wishing to
adopt.
5.4. Parental training
5.4.1. Information meetings
Next to brochures and statistics, it is advisable to organise clear information meetings for
future adopting parents. These meetings should be a place where adopting parents can
exchange information and discuss common issues in order to facilitate their situation.
5.4.2. Psychological and social reports
Most countries call for psychological and social reports on adopting parents. However, the
quality and educational background of psychologists and social workers is extremely different
from one European country to the other.
These social workers and psychologists should be specifically educated to get a full
comprehension of national or intercountry adoption in order to better assess the parents’
abilities.
Adopting parents indeed do not always have a clear idea of practical difficulties linked with
adoptions at this stage. They generally have a general notion of adoption, the creation of
emotional links between a family and a child. But they are not always ready to face the
realities of adoption.
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Most of the time, they are looking for toddlers while the majority of children adopted, mostly
in foreign countries, are aged more than 2 years. Their experience of abandonment and the
difficulties they have been through will require much attention and patience from their
adopting parents.
Applicant parents are thus not always appropriately coached, all the more since social
workers are not all sufficiently specialised and do not always have a sufficient knowledge of
the specificities of adoption.
5.4.3. Training sessions
In many countries, the lack of quality in preparing the future adopting parents leads to
problem when the child arrives, among others regarding the ability of some parents to create
sufficient emotional links with their child. This is often due to the lack of information and
training provided to adopting parents during the adoption process.
The adoption process should be understood as coaching the applicants in their project, and
not only as assessing them.
Several countries, among which Belgium, provide preparation course to adoption. This
common training aimed at applicants to adoption is organized in several sessions. These
sessions are mandatory; if it was not the case, only the most motivated parents would follow
them. Of course, this training and the related parents’ assessment require the participation of
specialised social workers and psychologists.
5.5. Post-adoption follow-up
Some countries have already included the post-adoption follow-up of the children and
adopting parents in their legislation.
Many adopting families face children with a painful past, who are more difficult to manage
than other children. They are scared and sometimes do not know who could help them.
A sociological or social post-adoption follow-up is thus extremely important in the best

interest of the children and their family in order to facilitate the integration of the children and
to give useful advice to the families who can feel lost and desperate in a very difficult
situation.
5.6. Post-adoption family coaching thanks to listening centers
Next to the post-adoption follow-up, in order to facilitate dialogue, it would be advisable to

open centres where parents and children could meet. Regular information on these centres
should be communicated to new adopting families to encourage them to use them.
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5.7. Strengthening the attention on the access of intercountry adopted children to
their origins.
The parents’ attention should be drawn to the necessity to provide intercountry adopted
children information on their past in their country of origin, with the help of the countries in
question.
Some countries like Columbia give particular attention to the matching of a child and the
adopting family which is controlled by the central authority.
5.8. Coaching
The parents are not sufficiently coached after the adoption process.
5.9. Adoption leave
The adoption leave should be coordinated and be sufficient, as these first months are critical
for the relationship between the children and their adopting families. Italy recently increased
the maternity leave in case of adoption from 3 to 5 months.
5.10. School coaching
According to our surveys, adopted children need a longer time to adapt to school. Issues
such as a lack of concentration or difficulties of memorisation can arise and can generally be
alleviated with a psychological support from parents, psychologists or teachers. A school
support based on the age of the children at the time of their adoption can be necessary.
5.11. The criteria of the Hague Convention
Some Member States allow their citizens to adopt outside of the European Union, in
countries which did not sign the Hague Convention. Other demand that these countries have
signed the Hague Convention or that they have the same reliability criteria in order to avoid
children trafficking.
We think that a harmonization in that field is needed in order to avoid children trafficking.
5.12. Recognition of international adoption
We also think that it would be useful to coordinate the criteria for the recognition of
international adoption.
5.13. Which options do the European Communities have to solve the problems raised
by the current study in the best interest of the child protection?
5.13.1. Creation of a European adoption agency.
The advantage of this option is the equality of all citizens thanks to an international
institution. All citizens would indeed be uniformly treated by wholly independent civil servants
who would use identical criteria adapted to the children and to the adopting families. This
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solution would allow for a general harmonization of norms. It would alleviate the problems of
the cost and duration of adoption procedures. The risk for child trafficking and corruption
would be totally erased. The European civil servants would have a level of excellence as in
other European institutions, which would lead to a better management and follow-up of
applications. All European nationalities would be represented with the cultural and language
knowledge required for a proper management of such applications.
The disadvantage of this solution is the time required to set up such an agency while children
need an urgent solution. The creation and management costs of this agency could be high
as well.
5.13.2 Recognition of certificates.
Another option for the European Communities would be a directive on the recognition by all
Member States of the adoption certificates issued in other Member States.
Nowadays, when parents wish to adopt a child in a certain country, they follow the whole
procedure and obtain a certificate. However, this certificate is often limited in time and, of
course, to the country in question. If the adoption does not occur, the parents are not eligible
to adopt in another European country, and if the deadline is elapsed, they have to go through
the whole procedure once more. This can be very regrettable in countries where there is a
maximum age for adopting parents: if the procedure lasts too long, the parents wishing to
adopt a child would not be able to do it.
The advantage of this solution would be to allow parents wishing to adopt a child who
obtained a certificate in a country where the adoption finally did not occur to be able to apply
in other European countries to adopt a child from this second country based on the certificate
from the first country.
The disadvantage of this solution is the risk for « forum shopping ». It cannot be excluded
that parents could take profit of the system by first applying in the country with the most
flexible legislation. This can be partly solved by harmonizing the criteria for the delivery of the
certificate to applying parents.
5.13.3. Creation of a common adoption certificate.
A third solution could be the creation of a common adoption certificate. We can imagine to
develop a single European procedure for the delivery of the certificate. Elected parents would
then be eligible to adopt throughout all Europe.
It would have the advantage of being a unique procedure, saving time and ensuring the
equality of all European citizen towards adoption in Europe.
This solution however would only solve a part of the issues raised in this study.
5.13.4. A register of adoptable children.
A further option is the development of a European register of adoptable children. In

accordance with the Hague Convention, children should first and preferably be adopted in
their own country. However, in order to guarantee the child’s best interest, keeping in mind
that a child should always preferably live in a loving family taking care of it, whatever the
place, rather than in an orphanage, it seems to us that when no appropriate family can be
found in the country, a European family should absolutely be found to protect the child.
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In this respect, we recommend the European institutions to create a European register listing
the children eligible for adoption at the European level.
All these children would then have equal opportunities to find a family in Europe.
However, the difference between the European legislations can be a problem, as each
country today has their own criteria according which a child can be adopted outside the
country. But as we saw in our legal study, some States are very strict as to the possible
adoption of their nationals outside of the country. One could consider this as a limit to the
free circulation of European citizens since they would not have the right to live in their
country of origin with their adopted child (for example when the country of origin demands a
national residence).
To solve this problem, the European institutions could adopt a law to determine the criteria
for adopting a child outside its country of origin, and thus the criteria and the deadline above
which it can be considered that a family could not be found in the country of origin.
5.13.5 The child’s right to a family.
This core principle is not recognized at the international level but should definitely be at the
European level.
Making the child’s right to a family an absolute principle would allow to always act in the
child’s best interest, to protect him and not abandoning him in an orphanage until he comes
of age. We recommend adopting this principle at the European level; the consequences that
we drew as conclusions and the other policy options issues should of course complement it.
The disadvantage of this option, however, is that this right cannot be recognized alone but
must include several consequences. It has to be complemented with other norms.
5.13.6. Harmonization of national legislations
Every Members States of the Hague Convention have set up a central authority. The co-
operation between them could be strengthened. The law systems could also be harmonized,
among others on the issues raised in articles 5.21 to 5.2.11. Similar documents could be
developed throughout all Europe.
The advantage of this solution could be the lower cost compared to the creation of a
European agency. This solution could probably be implemented more rapidly. Moreover,
structures already exist and are close to the adoptable child.
The disadvantage is a weaker harmonization compared to the creation of a European

agency. Moreover, the case law is always much more constant in one institution than in
several. Differences in interpretation could lead to discriminations.
5.3.7. Statu quo
The last possibility, of course, is not to do anything. This option however does not seem
appropriate at all because the intervention of the European institutions is demanded by
European citizens, because the situation in Europe is far from being perfect and because the
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happiness and the quality of life of many children are at stake. We stress that this solution
seems the least appropriate of all to us.
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DEMOLIN BRULARD BARTHELEMY

COMPARATIVE STUDY RELATING TO THE PROCEDURES OF ADOPTION AMONG

Yves BRULARD, Létitia DUMONT

Tutor scientific direction: Thierry MOREAU

This study was commissioned by the European Commission's Directorate-General

1. COMPARATIVE TABLES (LEGAL OPTIONS) .................................................................................... 4

2. COMPARATIVE TABLES (EMPIRICAL STUDY) .............................................................................. 26

1. Minors Adoptions Mayors Adoptions

Germany Yes. Yes. The German law also permits

Bulgaria Yes. No. According to the Bulgarian

2. Existence of representing association for the Obligation to pass

3. Parents previous training post-adoption follows up

4. Le The mother The father consentment When the biological

5. Is the adopotee In such case how old must be the adoptee?

Age difference Adopting parents : a Exceptions

7. Is this country Does this country authorize its citizens to adopt

A single Two Two Two Two

Germany Yes Yes Not Not Not

Ireland Yes Yes Not Not Not.

Knowledge of the existing procedure in the country by category of questioned people:

Parents Children Ministry Judges Lawyers Associations

The number of adoptions in 2005 (to put a figure):

Country Domestic adoptions European adoptions International

The number of adoptions in 2006 (to put a figure):

Country Domestic adoptions European adoptions International

Country Average duration of the Average duration Average duration

Is the procedure of adoption adapted to the child interests?

Country Domestic adoption European adoption International

Country Yes or not in percentage

Country Yes or not in percentage

Parents Children Ministry Judges Lawyers Associations

The number of adoptions in 2005 (to put a figure):

Country Domestic adoptions European adoptions International

The number of adoptions in 2006:

Country Domestic adoptions European adoptions International

Country Average duration of the Average duration Average duration

Country Percentage of abandoned adoptions

Country Domestic adoption European adoption International

Is the procedure of adoption adapted to the child interests?

Country Domestic adoption European adoption International

Country Yes or not in percentage

Country Yes or not in percentage

Parents Children Ministry Judges lawyers Associations

A number of adoptions in 2005:

Country National adoption European adoption International

A number of adoptions in 2006:

Country National adoption International adoption

Country Average duration of the Average duration of the procedure of

Country Percentage of abandoned adoptions

Country Yes or not in %

Country Yes or not in %

Is the procedure of adoption adapted to the interest of the child?

Country National Adoption European Adoption International

Parents Children Ministry Judges Lawyers Associations

A number of adoptions in 2005:

Country National adoption International adoption

A number of adoptions in 2006:

Country National adoption International adoption

Percentage of adoption obtained with difficulty in 2005:

Country Adopted national International adoptions

Percentage of adoption obtained with difficulty in 2006:

Country Adopted national International adoptions

Country Percentage of abandoned adoptions