The Hague Convention
To address concerns about intercountry adoption practices, the Hague Conference on Private International Law introduced the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) in May 1993, based on the principles of the United Nations Convention on the Rights of the Child (UNCROC).
The preamble to the Hague Convention outlines the principles that inform each signatory country’s agreement:
- for the full and harmonious development of their personality, the child should grow up in a family environment, in an atmosphere of happiness, love and understanding
- each state should take as a matter of priority appropriate measures to enable the child to remain in the care of their family of origin
- intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in their state of origin
- measures are necessary to ensure that intercountry adoptions are made in the best interests of the child, and with respect of their fundamental rights, and to prevent the abduction, the sale of, or traffic in children.
New Zealand implemented the Hague Convention by enacting the Adoption (Intercountry) Act 1997, which came into force in January 1999. The Adoption (Intercountry) Act 1997 gives powers to the Oranga Tamariki Chief Executive to act as the New Zealand Central Authority (NZCA). The full text of the Hague Convention is included in this Act, to become familiar with the principles and the Articles which are used in practice.
The Objects of the Hague Convention
Article 1 states the objectives of the Convention are:
- to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for their fundamental rights as recognised in international law
- to establish a system of cooperation among contracting states to ensure that those safeguards are respected and thereby prevent the abduction or traffic in children
- to secure the recognition in contracting states of adoptions made in accordance with the Convention.
Principle of subsidiarity
Article 4(b) of the Hague Convention sets out the principle of subsidiarity. This principle provides that, in order for an intercountry adoption to take place, the competent authorities of the child’s country of origin must have given due consideration to possibilities for placement of the child within their country of origin and that the intercountry adoption would be in the child’s best interests. This means that possible options for placing the child within their country of origin, with relatives or another family, should be considered before a child can be considered for intercountry adoption placement.
Accredited intercountry adoption agencies
Section 6 of the Adoption (Intercountry) Act 1997 allows the NZCA to delegate accredited agencies to work in a country where the NZCA has an existing intercountry adoption relationship. An accredited agency may undertake either assessment or placement functions, but not both, so that there are no conflicts of interest.
The Adoption (Intercountry) Regulations 1997 (section 3) do not allow the NZCA to delegate the tasks of police checks, medical reports and referee checks. While an agency may be accredited to undertake an assessment of the applicants’ suitability to meet the needs of an intercountry adopted child, the NZCA must be satisfied of this as outlined in Article 15.
Agencies accredited to facilitate adoption placements from another Hague Convention country may only offer services to applicants who have been approved by the NZCA as eligible and suited to adopt from this specific country. Placement functions consist of:
- collating application documents
- supporting applicants
- submitting the adoption application to the child's country of origin
- exchanging reports and information required to complete the adoption with the relevant adoption authorities in the child's country
- arranging offshore services to facilitate the adoption process
- post-placement reporting to the child's country.
Accredited intercountry adoption agencies in New Zealand
Adoption First Steps (AFS) is accredited to educate intercountry adoption applicants and undertake intercountry adoption assessments and write Home Study reports.
Two agencies in New Zealand are accredited to facilitate intercountry adoptions from specific Hague Convention countries:
The NZCA role with accredited agencies
The key functions and responsibilities of the NZCA during the accredited agency’s facilitation of the placement and post placement phases are:
- approval of intercountry adoptive applicants assessed by Oranga Tamariki or AFS as eligible and suited to adopt under Article 15 of the Convention
- forwarding the Home Study report and Article 15 Certificate of approval to the New Zealand accredited placement agency concerned
- reviewing the adoption proposal received by the accredited agency from the child's country to assess the suitability of the proposed intercountry adoption placement
- confirming or refusing agreement for the proposed intercountry adoption to proceed under Article 17 of the Hague Convention by the child's country
- ensuring the child can enter New Zealand and gain New Zealand citizenship or permanent residence
- ensuring that the adoption has been made in accordance with the Hague Convention process and procedural requirements.
Working with accredited placement agencies
If the applicants choose to be assessed for intercountry adoption by Oranga Tamariki, the social worker is responsible for working with the applicants through to the point at which the NZCA issues an Article 15 certificate in support of their eligibility and suitability to adopt internationally.
At this point, where the applicants choose to work with an accredited placement agency, the NZCA will forward the applicants’ Home Study report and Article 15 certificate of approval to that agency to facilitate the intercountry adoption application, placement and post-placement reporting.
For intercountry adoption applications where applicants choose to apply to another country via Oranga Tamariki, the social worker continues to work with the applicants (in liaison with the NZCA) to complete the intercountry adoption application, placement and post-placement reporting as set out in the guidance for a specific country adoption programme.