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Statutes of Newfoundland 1999


CHAPTER A - 2.1

AN ACT RESPECTING ADOPTIONS

(Assented to December 14, 1999)

Analysis

1. Short title

2. Definitions

3. Best interest of child

PART I
ADMINISTRATION

4. Director and provincial director

5. Adoption agency licence

PART II
PLACEMENT FOR ADOPTION

6. Placement

7. Director and adoption agency duties

8. Provincial director duties

9. Direct placement

PART III
CONSENTS

10. Consents

11. Birth parent under 19 years

12. Form of consent

13. Dispensing with consent

14. Revocation of consent

15. Revocation by birth mother

16. Revocation by child

17. Revocation of consents given outside province

18. Court revocation

PART IV
CARE, CUSTODY AND GUARDIANSHIP

19. Care, custody and guardianship

PART V
COURT PROCEEDINGS

20. Who may apply to adopt

21. Director certificate

22. Required documents

23. Additional information

24. Court requirement

25. Adoption order

26. Change of name

27. Effect of adoption order

28. Effect on access order or agreement

29. Hearings private

30. Confidentiality

31. Duties of court registrar

32. Extra-provincial adoptions

PART VI
INTERPROVINCIAL AND INTERCOUNTRY ADOPTIONS

33. Approval for extra-provincial child

34. Exception

35. Convention

36. Definitions

37. Central Authority

38. Authority of foreign bodies

39. Authority to act abroad

40. Conversion of adoptions

41. Disclosure

42. Powers of director

PART VII
OPENNESS AND DISCLOSURE

43. Openness agreements

44. Post adoption openness

45. Disclosure in the interest of a child

46. Register

47. Post adoption information

48. Disclosure to adopted person 19 or over

49. Disclosure to birth parent

50. Disclosure veto and statement

51. No-contact declaration and statement

52. Compliance with Vital Statistics Act

53. Contact by the provincial director

54. Mutual exchange of identifying information

55. Provincial director's right to information

56. Search and reunion services

57. Sharing of information with adoption agencies

PART VIII
ADMINISTRATION, POWERS AND INSPECTION

58. Provincial director's and director’s power to delegate

59. Inspection

60. Search with warrant

61. Telewarrant

62. Protection from liability

PART IX
REGULATIONS

63. Ministerial regulations

64. Lieutenant-Governor in Council regulations

65. Fees and forms

66. Service and notice

67. Status of children

PART X
APPEALS

68. Appeal

PART XI
OFFENCES AND PENALTIES

69. Prohibitions

70. Advertising prohibition

71. Making a false statement

72. Penalty

PART XII
TRANSITIONAL, REPEAL AND COMMENCEMENT

73. Transitional

74. RSN1990 cA-3
Rep.

75. Commencement

Schedule

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Adoption Act.

Definitions

2. In this Act

(a) "adopted child" means a child adopted under this Act or a former Act;

(b) "adopted person" except in paragraph 50(1)(a) and subsection 51(2) means a person who is 19 years of age or older who was, as a child, adopted under this Act or a former Act;

(c) "adoption agency" means an adoption agency licensed under section 5;

(d) "adoptive parent" means a person who has adopted a child under this Act or a former Act;

(e) "birth father" means a child’s biological father;

(f) "birth mother" means a child’s biological mother;

(g) "birth parent" means a birth father or a birth mother;

(h) "board" means a regional or integrated health and community services board constituted under the Health and Community Services Act or a board constituted under the Hospitals Act to which responsibilities under this Act are delegated;

(i) "child" means an unmarried person under the age of 19 years;

(j) "convention" means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption attached in the Schedule to this Act;

(k) "court" means the Trial Division and the Provincial Court of the province;

(l) "custody" means the rights and responsibilities of a parent in respect of a child;

(m) "department" means the department presided over by the minister;

(n) "direct placement" means the placement of a child for adoption with one or 2 adults, none of whom is a relative of the child, by a birth parent or other person having custody of the child;

(o) "director" unless the context indicates otherwise, means a director appointed under subsection 4(1);

(p) "former Act" as the context requires, includes the Adoption of Children Act, the Adoption of Children Act, 1964 and Part V of the Child Welfare Act, 1952;

(q) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(r) "openness agreement" means an agreement made under section 43;

(s) "post placement report" means a report prepared by a director or an adoption agency as required under section 22;

(t) "provincial director" means the provincial director appointed under subsection 4(2);

(u) "registrar", unless the context indicates otherwise, means the Registrar General appointed under section 3 of the Vital Statistics Act; and

(v) "relative" means a parent, grandparent, aunt, uncle or sibling of a child.

Best interest of child

3. (1) This Act shall be construed so as to provide for new and permanent family ties through adoption while, in every respect, giving paramount consideration to the best interest of the child.

(2) All relevant factors shall be considered in determining the best interest of the child including the

(a) child’s safety;

(b) child’s physical and emotional needs and level of development;

(c) importance of stability and continuity in the child’s care;

(d) importance to the child’s development of having a positive relationship with a parent and a secure place as a member of a family;

(e) quality of the relationship the child has with a birth parent or other individual and the effect of maintaining that relationship;

(f) child’s cultural, racial, linguistic, and religious heritage;

(g) child’s views; and

(h) effect on the child if there is delay in the making of a decision with respect to the child.

PART I
ADMINISTRATION

Director and provincial director

4. (1) A board shall, for the region represented by that board, appoint a director of adoptions to exercise the powers and perform the duties of a director under this Act.

(2) There shall be appointed in the department an employee of the government of the province to be the provincial director of adoptions who shall be responsible for

(a) the selection of a child for placement for adoption and the selection of an adult or adults with whom a child being adopted is to be placed;

(b) interprovincial adoptions;

(c) adoptions made in accordance with the convention;

(d) monitoring, reviewing and establishing province wide policies and standards for adoptions and adoption agencies; and

(e) reviewing and establishing standards and qualifications for adoption agency licensing.

(3) Where, as a result of a report made by the provincial director the minister believes that a director is not administering adoptions and adoption services in accordance with this Act, the minister may direct the board that employs the director to take remedial or other action that he or she considers appropriate, and the board shall comply with the minister’s direction.

(4) Where there is no director of a board, a board does not appoint a director under subsection (1) or a board does not comply with a direction made under subsection (3), the powers and duties of a director under this Act shall vest in the provincial director for the purpose of adoption services in the region for which that board is responsible.

Adoption agency licence

5. (1) A person may apply to a director for, and a director may issue to that person, a licence to operate an adoption agency where he or she is satisfied that the person

(a) meets the requirements of this Act respecting the establishment of an adoption agency;

(b) has the educational, employment and other qualifications required under this Act;

(c) has provided the documents and other information required under this Act; and

(d) has paid the required fee.

(2) A licence issued under subsection (1) may be issued subject to terms and conditions that the director may, in accordance with the regulations, impose.

(3) A licence issued under this section may be renewed in the same manner as for an application for a new licence made under this section.

(4) An adoption agency licensed under this section shall keep as confidential all information with respect to adoptions except as required under this Act to be released to the minister, provincial director, a director or another person under this Act.

(5) A person shall not carry on the work of an adoption agency unless that person holds a licence issued under this Act.

(6) A licence is not transferable to another person.

(7) A director shall notify, in writing, an applicant for a licence of his or her refusal to issue that licence to that person and provide the reasons for the refusal.

(8) Where an adoption agency does not comply with this Act, a director may, notwithstanding a penalty that may be imposed under section 72, revoke a licence issued to that agency under this Act.

PART II
PLACEMENT FOR ADOPTION

Placement

6. (1) A child shall be selected for adoption by the provincial director and placed for adoption by a director.

(2) Notwithstanding subsection (1), a birth parent or other person having custody of the child may place that child for adoption by a direct placement that a director shall first approve in accordance with this Act.

(3) A child may be placed for adoption with one adult or 2 adults jointly.

(4) A birth parent may place his or her child for adoption with a relative of that child.

(5) A prospective adoptive parent shall be a resident of the province for not fewer than 6 months before applying to have a child placed in his or her home for the purpose of adopting a child under this Act.

Director and adoption agency duties

7. (1) Before a child is placed for adoption, a director or an adoption agency shall

(a) provide information on adoption and alternatives to adoption to the birth parent or other person having custody of the child who is requesting a placement of that child for adoption;

(b) obtain as much information as possible about the medical and social history of the child’s birth family and preserve the information for the child;

(c) give the prospective adoptive parents information on the medical and social history of the child’s birth family;

(d) make sure that the child

(i) if sufficiently mature, has been counselled on the effects of adoption, and

(ii) if 12 or more years of age, has given his or consent to the adoption;

(f) make reasonable efforts to obtain consents required under section 10; and

(g) make reasonable efforts to give notice of the proposed adoption to a person named by the birth mother as the child’s birth father if his consent is required under section 10.

(2) A director or an adoption agency shall complete a home study report of prospective adoptive parents in accordance with the regulations and, where that study is carried out by an adoption agency, that agency shall forward the completed home study report to the director for approval.

(3) Where a home study report has been completed under subsection (2), the director may, based upon that report, give approval for prospective adoptive parents to have a child placed into their home for the purpose of adopting that child.

(4) A director or an adoption agency shall do those things necessary to acquire the documentation required under subsection 22(1) and where the documentation is acquired by an adoption agency, copies of that documentation shall be forwarded to the director in the manner required by regulation.

Provincial director duties

8. (1) The provincial director shall determine the manner in which a

(a) child is selected for placement with prospective adoptive parents; and

(b) prospective adoptive parent is selected to have a child placed into his or her home for the purpose of adoption.

(2) Before selecting a prospective adoptive parent placement for a child, the provincial director shall, if the birth parent or other person having custody of a child and requesting the placement wishes to select the child’s prospective adoptive parent, provide the director with information to share with the birth parent or person having custody of the child.

(3) Information shared by the director under subsection (2) may, in the discretion of the director, be identifying or non-identifying information.

(4) The provincial director shall only select a placement for a child with a prospective adoptive parent who has been approved under subsection 7(3).

(5) The provincial director has all the powers of a director under this Act for the purpose of interprovincial adoptions and adoptions to which the convention applies.

Direct placement

9. (1) Where a birth parent or other person with custody of a child wishes to make a direct placement of that child, he or she shall, before making that direct placement, notify the director of his or her intent.

(2) As soon as possible after being notified under subsection (1), a director shall

(a) provide information on adoption and the alternatives to adoption to the birth parent or other person having custody of the child and who is proposing to place the child;

(b) obtain as much information as possible about the medical and social history of the child’s birth family and preserve the information for the child;

(c) give the prospective adoptive parents information on the medical and social history of the child’s birth family and preserve the information for the child;

(d) prepare, in accordance with the regulations, a pre-placement assessment of the prospective adoptive parents; and

(e) make sure that the child

(i) if sufficiently mature, has been counselled on the effects of adoption, and

(ii) if 12 or more years of age, has given his or her consent to the adoption.

(3) A director shall determine if a direct placement with a prospective adoptive parent is to be approved and that parent may receive a child by direct placement only where, before the child is received into his or her home, the

(a) prospective adoptive parent has been approved by the director to have the child placed with him or her;

(b) birth parent or other person having custody of the child who is placing the child receives an approval from the director for the direct placement; and

(c) prospective adoptive parent receives, in accordance with the regulations, information relating to the medical and social history of the child’s birth family.

PART III
CONSENTS

Consents

10. (1) A child shall not be adopted in the province without the consent of each of the following:

(a) the child, where the child is 12 or more years of age;

(b) the birth mother;

(c) the father; and

(d) where applicable, a person having custody of the child.

(2) For the purpose of giving a consent for an adoption, a father is a person who

(a) has acknowledged paternity by signing the child’s birth registration;

(b) is or was the person with custody or joint custody with the birth mother;

(c) has acknowledged paternity and has custody or access rights to the child by an order of the court or an agreement enforceable under Part III of the Children’s Law Act or Part IV of the Family Law Act;

(d) has acknowledged paternity and has supported, maintained or cared for the child voluntarily or under a court order; or

(e) has acknowledged paternity and is named by the birth mother as the child’s father.

(3) Where the child is in the continuous custody of a director under the Child, Youth and Family Services Act, the only consents required are

(a) that director’s consent; and

(b) the child’s consent, where the child is 12 or more years of age.

(4) Where a child who has been adopted is to be adopted again, the consent of a person who became a parent at the time of the previous adoption is required, instead of the person who ceased to have any parental rights and responsibilities upon the granting of the previous adoption order.

(5) Where a child from another jurisdiction is to be placed for adoption in the province, the laws of that jurisdiction shall apply with respect to the consents required for the placement of the child.

(6) A birth mother’s consent to the adoption of her child is not valid unless her child is more than 7 days old when her consent is given.

(7) Where a person whose consent is required under this section is deceased, upon production of proof satisfactory to the court of the person’s death, consent is not required.

Birth parent under 19 years

11. A birth parent who is under 19 years of age may give a valid consent to the adoption of his or her child.

Form of consent

12. (1) A consent to the adoption of a child in the province by a person resident in the province shall be in the required form.

(2) Where a consent to the adoption of a child in the province is required from a person who resides outside the province, the consent is sufficient for the purpose of this Act if it is in a form that meets the requirements for adoption consents in the jurisdiction in which the person is resident.

Dispensing with consent

13. (1) On application, a court may, by order, dispense with a consent required under this Part where

(a) the court considers it to be in the best interest of the child;

(b) the person whose consent is to be dispensed with is not capable of giving an informed consent;

(c) reasonable but unsuccessful efforts have been made to locate the person whose consent is to be dispensed with;

(d) the person whose consent is to be dispensed with

(i) has abandoned or deserted the child,

(ii) has not made reasonable efforts to meet his or her parental obligations to the child, or

(iii) is not capable of caring for the child; or

(e) there are other circumstances that justify the dispensing with consent.

(2) Notwithstanding subsection (1), a court may, by order, dispense with a required consent of a child only where the child is not capable of giving informed consent.

(3) Before making an order under this section, a court may consider a recommendation in a report filed by a director or a parent.

(4) An application may be made under this section without notice to another person and may be joined with another application that may be made under this Act.

Revocation of consent

14. (1) A person who has consented to a child’s adoption may, in writing, revoke his or her consent not more than 21 days after giving that consent provided that the revocation is received by the director before the child is placed with prospective adoptive parents.

(2) As soon as possible after receiving the written revocation, the director shall make reasonable efforts to give notice of the revocation to each person who consented to the adoption.

(3) Where the person revoking consent had care and custody of the child immediately before giving consent, the child shall be returned to that person as soon as possible after the director receives the written revocation.

Revocation by birth mother

15. (1) Notwithstanding that a child has been placed by a director with a prospective adoptive parent for the purpose of the adoption of that child, a birth mother who has given her consent to that adoption may revoke her consent not later than 28 days after the birth of her child but only where the revocation is

(a) in writing; and

(b) received by the director before the end of that 28 day period.

(2) Where a director receives a revocation under subsection (1), he or she shall, as soon as possible,

(a) give notice of the revocation to the prospective adoptive parents; and

(b) make reasonable efforts to give notice of the revocation to each person who consented to the adoption.

(3) A child shall be returned to the birth mother as soon as possible after the prospective adoptive parents have been given notice of the revocation.

Revocation by child

16. Where a child is required to give his or her consent to an adoption that child may revoke his or her consent at any time before the adoption order is made by advising the director of his or her intent to revoke that consent.

Revocation of consents given outside province

17. (1) A consent to the adoption of a child residing in the province where the consent was given under the law of another jurisdiction may be revoked in accordance with the law of that jurisdiction.

(2) Subsection (1) does not limit a child’s right under section 16 to revoke a consent before an adoption order is made.

Court revocation

18. (1) Where more than 21 days have passed since a consent to the adoption of a child has been given under this Part, a person may apply to a court to have his or her consent revoked and that consent may only be revoked with the approval of a court in accordance with sections 15, 16 or 17.

(2) An application to a court under subsection (1) may only be made before an adoption order is granted.

(3) A notice of an application to a court under subsection (1) shall be served on the director to whom custody of the child has been given and each person who consented to the adoption.

(4) A court may, in accordance with this section, revoke a consent to an adoption if it is satisfied that it would be in the best interest of the child to make that revocation.

(5) Failure to comply with an openness agreement shall not be considered to be a reason for a court to revoke a consent to adoption.

PART IV
CARE, CUSTODY AND GUARDIANSHIP

Care, custody and guardianship

19. (1) A birth parent or other person having custody of a child may transfer that child into the custody of a director for the purpose of the adoption of that child until an adoption order is made or a consent to the adoption of the child is revoked under this Act.

(2) Where a child has been placed for adoption under this Act by direct placement or otherwise, the birth parents or other persons from whom consent to the adoption of that child is required under Part III shall transfer custody of that child to the director responsible for adoptions in the region in which the child resides until an adoption order is made or a consent to the adoption of the child is revoked under this Act.

(3) Notwithstanding subsection (2), the child may be given into the care of a prospective adoptive parent chosen for a direct placement under section 9 or with a caregiver whom the director may choose.

(4) Where a child has been given into the care of a

(a) person under subsection (3);

(b) relative of the child; or

(c) prospective adoptive parent selected by the provincial director,

that person, relative or parent may

(d) authorize a health care provider to examine the child; and

(e) consent to necessary health care for the child where, in the opinion of the health care provider, the health care should be provided.

(5) Where a director has custody of a child under subsection (1) or (2), the Registrar of the Supreme Court is the guardian of that child’s estate as if that guardianship had been granted under the Judicature Act and the Rules of the Supreme Court, 1986.

PART V
COURT PROCEEDINGS

Who may apply to adopt

20. (1) One adult alone or 2 adults jointly may apply to a court to adopt a child under this Act.

(2) One adult may apply to a court to jointly become a parent of a child with a birth parent of that child.

(3) A person shall

(a) be a resident of the province; and

(b) have had a child placed and residing in his or her home for at least 6 months,

before making an application under this Act to adopt that child.

(4) For the purpose of this Part, an applicant is a person who may apply to adopt a child under this section.

Director certificate

21. (1) An adoption order shall not be made unless a director has certified, in writing, that

(a) the child has lived with the applicant for at least 6 months immediately before the date of the application and that, during that time, the conditions under which the child has lived justify the making of the adoption order; or

(b) the applicant is, to the knowledge of the director, an appropriate person to have the care and custody of the child and that, for reasons set out in the certificate, the period of placement and residency under paragraph 20(3)(b) may be dispensed with.

(2) Where an applicant is a person who wishes to become a parent jointly with the birth parent of a child, and the child for whom an application for adoption is made is the child of that birth parent,

(a) subsection (1) does not apply to his or her application for an adoption order; and

(b) an adoption order shall not be made unless all consents required under section 10 have been given.

(3) Subsection (1) and subsection 6(5) do not apply where an applicant is a relative of the child and the persons from whom consent is required under section 10 have placed the child in the care of that relative for the purpose of the adoption of that child.

(4) Where the court is satisfied that the consent of a person required under subsection (2) or (3) cannot be obtained, the court may dispense with that consent.

Required documents

22. (1) An application to a court to adopt a child shall be accompanied by

(a) all consents required for the adoption or the orders dispensing with consent or an application to dispense with consent;

(b) the child’s birth registration or, if it cannot be obtained, satisfactory evidence of the facts relating to the child’s birth;

(c) a home study report approved by a director;

(d) post placement reports containing the information required by the regulations; and

(e) additional information that may be required by the regulations.

(2) Where subsection (1) has not been complied with, an adoption order shall not be made.

(3) Notwithstanding subsection (2), paragraphs (1)(c) and (d) do not apply to an application made by an applicant referred to in subsection 21(2) or (3).

Additional information

23. Where an applicant has applied for an adoption order, a director or an adoption agency may file with the court

(a) other evidence or information the director considers necessary to enable the court to determine whether the proposed adoption is in the child’s best interest; and

(b) a recommendation on any issue relating to the adoption.

Court requirement

24. A court may require a director or an adoption agency to inquire into a matter respecting an application for an adoption order that the court considers necessary.

Adoption order

25. (1) After considering the documents and evidence filed or given under sections 21 to 24 the court may make an adoption order if it is satisfied that

(a) where it is a requirement, the child has resided with the applicant for not fewer than 6 months before the date of the adoption hearing; and

(b) it is in the child’s best interest to be adopted by the applicant.

(2) Where it is a requirement under this Act that the child reside with the applicant for not fewer than 6 months, a court may, after considering recommendations made by a director, alter or dispense with that requirement.

Change of name

26. (1) An applicant may request that a court change the child’s given names or family name.

(2) Where a request is made under subsection (1), a court may change the child’s given names or family name in the adoption order provided that

(a) where the child is 12 years of age and over, the child gives his or her consent; and

(b) where the child is not less than 7 and not more than 12 years of age, his or her views on the matter are considered.

(3) A child’s consent under subsection (2) is not required where the court has dispensed with the child’s consent to adoption.

Effect of adoption order

27. (1) Where an adoption order is made,

(a) the child becomes the child of the adoptive parent; and

(b) the adoptive parent becomes the parent of the child; and

(c) the birth parents cease to have parental rights and obligations in respect of that child, except a birth parent who remains as a parent jointly with the adoptive parent; and

(d) a person having custody of the child ceases to have that custody; and

(e) a person whose consent is required under section 10 ceases to have a right or obligation with respect to that child.

(2) Where a child is adopted for a subsequent time, the

(a) child becomes the child of the subsequent adoptive parent; and

(b) subsequent adoptive parent becomes the parent of the child; and

(c) adoptive parent immediately before the subsequent adoptive parent ceases to have parental rights and responsibilities with respect to that child except an adoptive parent who remains as a parent jointly with the applicant; and

(d) a person having custody of the child ceases to have that custody.

(3) An adoption order does not affect an interest in property or a right of the adopted child that vested in the child before the date of the adoption order.

Effect on access order or agreement

28. (1) Where an adoption order is made, an order or agreement for access to the adopted child ceases unless the court orders otherwise under subsection (2).

(2) The court may, in the child’s best interests terminate or vary an access order or an access provision of an agreement that is enforceable under Part III of the Children’s Law Act or Part IV of the Family Law Act.

Hearings private

29. An application under this Act or another Act for an order relating to a child placed for adoption, or an appeal from that order, may be heard and a decision made in the absence of the public.

Confidentiality

30. (1) Where the identity of a birth parent or other person having custody of a child and the identity of an applicant are not known to each other, the court may order that their identities or information that could reveal their identities not be disclosed in a document.

(2) An application for an order under this Act or a document filed in court in connection with the application may be searched only

(a) by order of the court; or

(b) with the approval of the provincial director.

Duties of court registrar

31. (1) Where an adoption order is made, the court registrar shall send a copy of the order to the

(a) registrar; and

(b) provincial director.

(2) Paragraph (1)(b) does not apply to an adoption order made with respect to an applicant referred to in subsections 21(2) and (3).

(3) The court registrar shall provide to the registrar information relating to an adoption order that the registrar may require.

Extra-provincial adoptions

32. Where a person has been adopted in or under the laws of another jurisdiction, the person and his or her adoptive parent have the same status, rights and duties as if the adoption had been in accordance with this Act.

PART VI
INTERPROVINCIAL AND INTERCOUNTRY ADOPTIONS

Approval for extra-provincial child

33. (1) Before a child who is not a resident of the province is brought into the province for adoption, his or her prospective adoptive parent shall obtain the approval of the provincial director.

(2) Where the laws of adoption in the jurisdiction in which the child is a resident have been complied with, the provincial director may grant approval under subsection (1).

Exception

34. Section 33 does not apply to a child who is brought into the province for adoption by a relative of the child or by a person who will become an adoptive parent jointly with the child’s birth parent.

Convention

35. (1) The minister shall request that the Government of Canada declare, in accordance with Article 45 of the convention, that the convention extends to the province.

(2) The minister shall publish in the Gazette notice of the date the convention comes into force in the province.

(3) The provisions of the convention have the force of law in the province on the date referred to in subsection (2).

(4) This Act and other laws of the province apply to an adoption to which the convention applies.

(5) Notwithstanding subsection (4), in respect of an adoption to which the convention applies, where this Act or another law of the province conflicts with the convention, the convention prevails.

Definitions

36. Words and expressions used in sections 38 to 42 have the same meaning as in the convention.

Central Authority

37. The provincial director is the Central Authority for the province for the purpose of the convention.

Authority of foreign bodies

38. Where authorized by the provincial director, a body accredited in a contracting state may act in the province.

Authority to act abroad

39. The provincial director may authorize an adoption agency licensed under this Act to act in a contracting state.

Conversion of adoptions

40. (1) Upon application by a person resident in the province, a court may make an order converting an adoption referred to in Article 27 of the convention to an adoption under this Act.

(2) An application for an order under this section shall be accompanied by proof that the consents required under Article 27 of the convention have been given.

Disclosure

41. The provincial director may, in accordance with this Act, disclose to a person who is 19 years of age or more who, as a child. was adopted in accordance with the convention, information in the provincial director’s records concerning the person’s origin.

Powers of director

42. For the purpose of sections 37 to 41 and the adoption of a child in the province to whom those sections apply, the provincial director has the powers and duties of a director under this Act.

PART VII
OPENNESS AND DISCLOSURE

Openness agreements

43. (1) In order to facilitate communication or to maintain personal relationships after an adoption order is granted, an openness agreement may, in accordance with the regulations, be made by a prospective adoptive parent or an adoptive parent of a child and

(a) a relative of the child;

(b) another person who has established a relationship with the child; and

(c) a prospective adoptive parent or adoptive parent of a birth sibling of the child.

(2) An openness agreement may

(a) be entered into only after consent to the adoption is given by the birth parent or other person having custody of the child who placed or requested that the child be placed for adoption; and

(b) include a process to resolve disputes arising with respect to the agreement or matters associated with it.

(3) Where a child is 12 or more years of age, his or her consent to an agreement made under this section is required before that agreement is entered into.

Post adoption openness

44. (1) An adoptive parent of a child and a birth relative of that child may, in accordance with the regulations, register with a director to indicate their interest in making an openness agreement.

(2) Where an adoptive parent and a birth relative of the adoptive parent’s child have both registered under subsection (1), the director

(a) may assist them in reaching an openness agreement and may facilitate the exchange of non-identifying information; and

(b) shall, if they both wish to exchange identifying information, disclose to each the identifying information provided by the other.

(3) An adoptive parent of a child and an adoptive parent of a birth sibling of that child may register under this section and subsections (1) and (2) shall apply, with the necessary changes.

Disclosure in the interest of a child

45. A director may disclose identifying information to a person if the disclosure is necessary for the

(a) safety, health or well-being of a child; or

(b) purpose of allowing a child to receive a benefit,

and where identifying information is disclosed, the person being identified shall be notified by the director of that disclosure.

Register

46. (1) The registrar shall establish and maintain at the public registry established under the Vital Statistics Act in St. John's, a register to be called the Adopted Children Register in which entries shall be made as directed in an adoption order.

(2) An adoption order, together with the documents used in the application for that order, shall be filed in the office of the judge of the court that made the adoption order and 2 copies of the order, certified by the judge, shall be forwarded to the provincial director.

(3) The provincial director shall forward one copy of the adoption order referred to in subsection (2) to the registrar who shall record the adoption order and make the changes in the records required by that order.

(4) Where, upon application for an adoption order, there is proved to the satisfaction of the court, the

(a) date of birth of the child; and

(b) identification of the child with a child to which an entry in the register of births relates

the adoption order shall contain a further direction to the registrar to mark the birth entry in the register of births with the word "adopted" and to include, in the entry in the adoption register recording the adoption, the date stated in the order of the adopted child’s birth.

(5) An adoption order, application for an adoption order, documents filed and the record of proceedings shall not be made public or disclosed except upon the direction of a judge of a court, the provincial director or in accordance with the disclosure requirements of this Act or an agreement made under this Act.

(6) The registrar may refer to the Adopted Children Register for the purpose of preparing a birth certificate requested by an adopted person or an adoptive parent and the birth certificate shall be in the name given to the adopted person by the adoption order.

(7) A certified copy of an entry in the Adopted Children Register, where purported to be sealed or stamped by the registrar, shall, without further or other proof of the entry

(a) where the entry does not contain a record of the date of the birth of the adopted child, be received as evidence of the adoption to which the entry relates; and

(b) where the entry contains a record of the date of the birth of the adopted child, be received as evidence of the adoption to which the entry relates and of the date of the birth of the adopted child to which the entry relates,

to the same extent as if the copy were a certified copy of an entry in the register of births.

(8) The registrar shall keep those other registers and books that are necessary to record and make traceable the connection between an entry in the register of births which has been marked "adopted" and a corresponding entry in the Adopted Children Register.

Post adoption information

47. (1) The adoption order, application, documents filed and record of proceedings in relation to an application for adoption shall be kept by the court in a sealed packet and papers in the custody of the provincial director relating to the adopted child shall be kept by the provincial director in a sealed packet and neither packet shall be opened except upon the direction of a judge or the provincial director.

(2) A person may not receive information in respect of an adoption or have a packet referred to in subsection (1) searched or obtain a certified extract from it except

(a) with the consent, in writing, of the provincial director; or

(b) with the consent, in writing, of the provincial director in accordance with an openness agreement; or

(c) by an order of a court.

Disclosure to adopted person 19 or over

48. (1) An adopted person may apply to the registrar for a copy of the following:

(a) the adopted person's original birth registration; and

(b) the adoption order.

(2) Where an adopted person applying under subsection (1) complies with section 52, the registrar shall give to him or her the requested copies unless a

(a) disclosure veto has been filed under section 50; or

(b) no-contact declaration has been filed under section 51 and the person applying has not signed the undertaking referred to in that section.

Disclosure to birth parent

49. (1) A birth parent named on an adopted person's original birth registration may, with respect to that adopted person, apply to the registrar for a copy of one or more of the following:

(a) the original birth registration with a notation of the adoption and changes of name consequent to the adoption; and

(b) the birth registration that was substituted for the adopted person's original birth registration; and

(c) the adoption order.

(2) Where a birth parent applying under subsection (1) complies with section 52, the registrar shall give to him or her a copy of the requested records unless a

(a) disclosure veto has been filed under section 50; or

(b) no-contact declaration has been filed under section 51 and the birth parent has not signed the undertaking referred to in that section.

Disclosure veto and statement

50. (1) The following persons may apply to the registrar to file a written veto prohibiting the disclosure of a birth registration or other information applied for under section 48 or 49:

(a) an adopted person who is more than 18 years of age; and

(b) a birth parent named on the original birth registration of an adopted person referred to in paragraph (a).

(2) Where a person applying under subsection (1) complies with paragraph 52(a), the registrar shall file the disclosure veto submitted by that person.

(3) A person who files a disclosure veto under this section may file with it a written statement that includes the following:

(a) the reasons for wishing not to disclose identifying information;

(b) in the case of a birth parent, a brief summary of information available in respect of the medical and social history of the birth parents and their families; and

(c) other relevant non-identifying information.

(4) Where a person applying for information is informed that a disclosure veto has been filed, the registrar shall give to that person the non-identifying information filed with the disclosure veto.

(5) A person who files a disclosure veto may, in writing, request that the registrar cancel that veto and the registrar shall carry out that request.

(6) Unless cancelled under subsection (5), a disclosure veto continues in effect until 2 years after the death of the person who filed the veto.

(7) While a disclosure veto is in effect, the registrar shall not disclose information that is applied for under section 48 or 49 that relates to the person who filed the veto.

(8) Notwithstanding paragraph 2(b), an application made under subsection (1) and a disclosure veto filed under this section may only be made or filed with respect to a birth registration or other information relating to an adoption ordered under a former Act.

No-contact declaration and statement

51. (1) A birth parent who is named in an original birth registration and who wishes not to be contacted by the person named as his or her child in the registration may apply, in writing, to the registrar to file a no-contact declaration.

(2) An adopted person who is 18 years of age or over who wishes not to be contacted by a birth parent named on a birth registration may apply to the registrar to file a written no-contact declaration.

(3) Where a person applying under subsection (1) or (2) complies with paragraph 52(a), the registrar shall file the no-contact declaration.

(4) The registrar shall not give a person to whom a no-contact declaration applies a copy of a birth registration or other record naming the person who filed that declaration unless the person applying for that copy or record has, in the required form, signed an undertaking respecting that registration or record.

(5) A person who is named in a no-contact declaration filed under this section and has signed an undertaking under subsection (4) shall not

(a) knowingly contact or attempt to contact the person who filed the declaration;

(b) procure another person to contact the person who filed the declaration;

(c) use information obtained under this Act to intimidate or harass the person who filed the declaration; and

(d) procure another person to intimidate or harass, by the use of information obtained under this Act, the person who filed the declaration.

(6) A person who files a no-contact declaration may file with it a written statement that includes the following:

(a) the reasons for wishing not to be contacted;

(b) in the case of a birth parent, a brief summary of non-identifying information available with respect to the medical and social history of the birth parents and their families;

(c) in the case of an adopted person, non identifying information that he or she wishes to disclose; and

(d) other relevant non-identifying information.

(7) Where a person to whom a no-contact declaration relates is given a copy of a birth registration under section 48 or 49, the registrar shall give to him or her the information in written statements filed under subsection (6).

(8) A person who files a no-contact declaration may, in writing, to the registrar, cancel the declaration.

(9) Unless cancelled under subsection (8), a no-contact declaration shall continue in effect until 2 years after the death of the person who filed the no-contact declaration.

(10) Notwithstanding paragraph 2(b), an application made under subsection (1) or (2) and a no contact declaration filed under this section may only be made or filed with respect to an adoption ordered under a former Act.

Compliance with Vital Statistics Act

52. A person who applies to the registrar under this Part shall

(a) supply proof of identity that the registrar may require; and

(b) where the application is for a copy of a record of information, pay the required fee.

Contact by the provincial director

53. In circumstances affecting a person’s health or safety, the provincial director may contact the following to share with or obtain from them necessary information:

(a) a birth parent;

(b) if the birth parent is not available, a relative of the birth parent;

(c) an adopted person; and

(d) an adoptive parent of an adopted child.

Mutual exchange of identifying information

54. (1) An adopted person and an adult relative of an adopted person may, in accordance with the regulations, register with the provincial director to exchange identifying information.

(2) Where, under subsection (1), an adopted person and an adult relative of the adopted person have both registered under this section, the provincial director shall notify each of them and disclose the identifying information provided by the other.

Provincial director's right to information

55. (1) The provincial director has the right to information that is in the custody or control of another department of the government of the province or a board, commission or other body listed in the Schedule in the Freedom of Information Act that is necessary to enable him or her to locate a person for the purpose of this Act or is necessary for the health or safety of an adopted person.

(2) A department or board, commission or other body referred to in subsection (1) that has custody or control of information to which the provincial director is entitled under subsection (1) shall, upon request, disclose that information to the provincial director.

(3) This section applies notwithstanding another Act of the province.

(4) A director under the Child, Youth and Family Services Act shall, upon request, disclose to the provincial director information obtained under the Child, Youth and Family Services Act that is necessary to enable the provincial director to exercise the powers or perform the duties or functions given to him or her under this Act.

Search and reunion services

56. (1) An adult who has obtained a copy of information under section 48 or 49 may apply to the provincial director for assistance in locating

(a) if he or she is an adopted person, his or her

(i) birth parent, or

(ii) birth grandparent or adult birth or adopted sibling; and

(b) if he or she is a birth parent, his or her adult adopted child.

(2) A birth parent who signed a consent to the adoption of a person as a child may apply to the provincial director for assistance in locating that adopted person.

(3) After the death of an adopted person,

(a) an adult son or daughter or adult grandchild of the deceased; and

(b) where a son or daughter of the deceased is a child, the child's surviving parent or person having custody of him or her

may apply to the provincial director for assistance in locating

(c) a birth parent of the deceased; and

(d) an adult birth or adopted sibling of the deceased.

(4) After the death of an adopted person’s birth parent, his or her other birth parent or adult birth sibling may apply to the provincial director for assistance in locating the adopted person.

(5) A person applying under subsection (4) shall provide to the provincial director copies of the deceased's death certificate.

(6) A person is not entitled to assistance under this section in locating a person who has filed a disclosure veto or a no-contact declaration under section 50 or 51.

(7) Where a person located by the provincial director wishes not to be contacted by a person applying under this section, the provincial director shall not disclose information identifying the name or location of the person.

(8) Where a person located by the provincial director wishes to be contacted by a person applying under this section, the provincial director may assist them to meet or communicate.

(9) The provincial director shall inform a person applying under this section of the outcome of his or her search and, where applicable, shall advise that the person whom he or she requested assistance in locating

(a) does not wish to be contacted;

(b) cannot be located; or

(c) is deceased.

Sharing of information with adoption agencies

57. (1) The provincial director may disclose information to an adoption agency, including information obtained by the provincial director under section 55, if the disclosure is necessary to enable the agency to perform the duties or to exercise the powers and functions given to the agency under this Act.

(2) An adoption agency shall not use or disclose information provided under subsection (1) except for the purpose for which it was provided.

PART VIII
ADMINISTRATION, POWERS AND INSPECTION

Provincial director's and director’s power to delegate

58. (1) The provincial director may delegate to a person or class of persons a power, duty or function given to the provincial director under this Act.

(2) A director may delegate to a person or a class of persons a power, duty or function given to a director under this Act.

(3) The delegation of the powers, duties or functions of the provincial director or a director shall be in writing and may include terms or conditions that the provincial director or director, as the case may be, considers advisable.

Inspection

59. (1) Where it is reasonably necessary to ensure compliance with this Act, the provincial director, a director or a person who he or she may authorize may

(a) at reasonable times enter an adoption agency and inspect the premises;

(b) require the production of books, records or other documents applicable to that adoption agency and may examine those books, records or documents or remove them for the purpose of making copies of them;

(c) interview staff of an adoption agency to determine if the agency is complying with this Act; and

(d) inquire into all matters relating to the adoption agency, its employees and former employees.

(2) Where a person removes books, records or other documents under paragraph (1)(b), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.

(3) The provincial director and a director may require the inspection of an adoption agency yearly or more frequently where he or she considers that inspection necessary.

Search with warrant

60. (1) Where the provincial director, a director or another person acting under this Act believes on reasonable grounds that a person is contravening or has contravened this Act, or where entry onto an adoption agency or other public or private premises where a contravention of this Act is believed to occur or has occurred is refused or denied, the provincial director, a director or other person may, with a warrant issued under subsection (2), enter those premises and do all those things referred to in section 59.

(2) A Provincial Court judge or a justice of the peace who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act has occurred or that entry onto an adoption agency or other public or private premises has been refused or denied, may issue a warrant authorizing the provincial director, a director or other person named in the warrant to enter the adoption agency or other public or private premises, including a dwelling house, and search for and inspect anything that may provide evidence with respect to a contravention of this Act and to do all those things referred to in section 59.

(3) The holder of an adoption agency licence issued under this Act, the owner or operator of premises referred to in this section and section 59 and a person found there shall give the provincial director, a director or other person reasonable help to enable them to carry out their duties and functions under this Act and shall provide the information that they may reasonably require.

Telewarrant

61. (1) Where, in the opinion of the provincial director, a director or other person it would not be practical to appear before a Provincial Court judge or justice of the peace to apply for a warrant, the provincial director, a director or other person may make the application by telephone, facsimile or other means of telecommunication.

(2) Where the information on which an application for a warrant is submitted by telephone, facsimile or other means of telecommunication, the information shall be given under oath or affirmation, and the oath or affirmation may be administered by telephone, facsimile or other means of telecommunication.

(3) The information submitted by telephone, facsimile or other means of telecommunication shall include

(a) a statement of the circumstances that make it impracticable for the provincial director, a director or other person to appear personally before a Provincial Court judge or justice of the peace;

(b) a statement of the provincial director’s, a director's or other person’s grounds for believing that a person has contravened this Act or that entry onto public or private premises where a contravention of this Act is believed to occur has been refused or denied; and

(c) a statement that a less intrusive course of action is not available or would be detrimental to children who are being proposed for adoption.

(4) The sworn or affirmed information submitted by telephone, facsimile or other means of telecommunication by the provincial director, a director or other person shall specify the name of the person giving evidence, the facts ascertained and the manner and location in which evidence was received, and a record of that information shall be filed by the Provincial Court judge with the clerk of the court over which the judge presides.

Protection from liability

62. (1) The provincial director, a director, the registrar or other person are not personally liable for anything done or omitted in good faith in the exercise or performance or intended exercise or performance of

(a) a power, duty or function conferred upon him or her by or under this Act; or

(b) a power, duty or function on behalf of or under the direction of a person on whom the power, duty or function is conferred by or under this Act.

(2) Notwithstanding the Freedom of Information Act and the Privacy Act, the use of, disclosure of and access to information in records pertaining to adoptions, regardless of where the information or records are located, shall be governed by this Act.

PART IX
REGULATIONS

Ministerial regulations

63. The minister may make regulations

(a) respecting residency in the province for the purpose of this Act;

(b) respecting the placement of children for adoption;

(c) respecting the efforts to be made by the director or an adoption agency to notify birth parents or other persons having custody of a child as to the placement of their children for adoption;

(d) respecting adoption consents;

(e) respecting home studies, pre-placement assessments, post-placement and other required reports;

(f) prescribing additional information to be filed with a court before an adoption order is made;

(g) respecting the disclosure of information concerning the origin of a person adopted in accordance with the convention and designating the competent authorities for the purpose of the convention;

(h) respecting disclosure vetoes and no-contact declarations;

(i) respecting the search for and disclosure of information acquired and required under this Act;

(j) respecting agreements that the provincial director and directors may enter into for the purpose of this Act and prescribing some or all of the contents of those agreements;

(k) respecting the functions and duties of adoption agencies and respecting the delegation of a power, duty or function of the provincial director and directors under this Act to adoption agencies;

(l) respecting the licensing of adoption agencies and the suspension, cancellation and reinstatement of licences issued under this Act;

(m) respecting educational and other standards and conditions required for adoption agencies and their employees to obtain and retain a licence;

(n) respecting the information, documents and reports adoption agencies are required to submit to a director, the frequency of the submissions and the inspection of the information, documents and reports by the director or other person;

(o) respecting the disclosure of information by adoption agencies to directors and the provincial director;

(p) respecting the surrender of records, accounts or other documents and information by adoption agencies and former adoption agencies to the provincial director and to directors;

(q) respecting any other matter necessary for the proper operation, management, administration and accountability of adoption agencies;

(r) respecting notifications required to be made, time periods for those notifications and applications to the provincial director, a director and the registrar under this Act, the information to be provided to and by the applicant including a proof of identity to be provided;

(s) respecting the registration of information under this Act, the length of time that a registration shall stay in force and its cancellation or removal;

(t) respecting who may access information provided by a person who has registered that information under this Act and respecting the confidentiality, security, disposal and disclosure of the information;

(u) respecting openness agreements, post adoption information release and disclosure;

(v) respecting promotional material, advertising restrictions and exemptions from advertising restrictions under this Act; and

(w) generally to give effect to the purpose of this Act.

Lieutenant-Governor in Council regulations

64. The Lieutenant-Governor in Council may make regulations

(a) specifying the circumstances where fees may be collected in respect of services relating to an adoption of a child under this Act; and

(b) establishing the fees or other expenses adoption agencies may charge for services and prohibiting adoption agencies from charging fees or expenses for specified services.

Fees and forms

65. (1) The minister may set fees and establish forms and the information to accompany those forms for the purpose and administration of this Act.

(2) In this Act, "required form", unless otherwise stated, means in the form established under subsection (1).

Service and notice

66. Where, under this Act, service upon or notice to a person is required, that service or notification shall be made in person or by registered mail at the last known address of the person and where that person is a corporation, that service or notification shall be made in the same manner upon a director or chief executive officer of the corporation.

Status of children

67. The status of an adopted child is as set out in Part I of the Children's Law Act.

PART X
APPEALS

Appeal

68. (1) A person aggrieved by an order of a judge under this Act, or by the refusal of a judge to make an order, may appeal from the decision granting or refusing the order, where the judge is a judge of the

(a) Trial Division, to the Court of Appeal; and

(b) Provincial Court, to the Trial Division,

and the provisions of the Judicature Act, the Rules of the Supreme Court, 1986, the Provincial Offences Act and rules applicable to the provincial court, as the case may be, shall govern the proceedings on the appeal.

(2) The Trial Division or Court of Appeal to which an appeal is made may set aside or confirm the order referred to in subsection (1) or may make an order that a judge under this Act may make or may, by order directed to the judge from whom the appeal is taken, require that judge to make an order as the circumstances of the case may require.

PART XI
OFFENCES AND PENALTIES

Prohibitions

69. (1) A person shall not place or arrange the placement of a child for the purpose of adoption unless the person is authorized under this Act to do so.

(2) A person shall not receive a child into his or her home for the purpose of caring for that child as if he or she had custody of that child unless that person has had that child placed into his or her home by a relative, under this Act or under another law of the province or of Canada.

(3) A person shall not receive a child into his or her home for the purpose of adoption except in accordance with this Act.

(4) A person shall not receive a child placed into his or her home by direct placement unless the person has complied with and is authorized under this Act to receive the child.

(5) A person shall not give, receive or agree to give or receive a payment or reward, whether directly or indirectly,

(a) to procure or assist in procuring a child for the purpose of adoption in or outside the province; or

(b) to place or arrange the placement of a child for the purpose of adoption in or outside the province.

(6) Subsection (5) does not apply to

(a) a lawyer receiving reasonable fees and expenses for legal services provided in connection with an adoption;

(b) a health care provider receiving reasonable fees and expenses for medical services provided to a child who is the subject of an adoption or to the birth mother in connection with the pregnancy or birth;

(c) an adoption agency receiving fees and expenses that do not exceed those allowed under the regulations; and

(d) another person prescribed by the regulation.

Advertising prohibition

70. (1) A person shall not publish or have published in any form or manner an advertisement dealing with the placement or adoption of a child.

(2) Subsection (1) does not apply to

(a) the publication of a notice under a court order;

(b) the publication of a notice authorized by the provincial director or a director;

(c) an advertisement by an adoption agency advertising, in accordance with the regulations, its services only, without reference to specific children;

(d) an announcement of an adoption placement or an adoption; and

(e) other forms of advertisement specified by the regulations.

Making a false statement

71. A person shall not make a statement that the person knows to be false or misleading in an application or in connection with an application

(a) for a copy of a birth registration or other record under this Act; or

(b) to file a disclosure veto under section 50 or a no-contact declaration under section 51.

Penalty

72. (1) A person who contravenes a provision of this Act is liable on summary conviction

(a) for a first offence to a fine of not less than $1,000 and not more than $5,000 or to a term of imprisonment of not more than 60 days or to both the fine and imprisonment; and

(b) for a subsequent offence to a fine of not less than $5,000 and not more than $10,000 or to a term of imprisonment of not more than 90 days or to both the fine and imprisonment.

(2) Where a person convicted under subsection (1) is a corporation, in addition to a fine that may be imposed upon that person, one or more directors and the chief executive officer of that corporation may be fined and imprisoned in accordance with that subsection.

(3) In addition to a penalty that a judge of the Provincial Court may impose under subsection (1) or (2), the judge may make an order revoking the licence of an adoption agency.

PART XII
TRANSITIONAL, REPEAL AND COMMENCEMENT

Transitional

73. (1) Notwithstanding Part VII, information or assistance that may be given or released to a person by the registrar or the provincial director under that Part shall not be given or released to that person before one year after the coming into force of this Act.

(2) Upon the coming into force of this Act, where, under the Adoption of Children Act in force immediately before the commencement of this Act,

(a) a child has been placed for adoption;

(b) a birth parent or other person having custody of a child has consented to the placement of the child for adoption;

(c) a director has been given custody of a child with the intent that the child be placed for adoption;

(d) prospective adoptive parents have requested that they have a child placed into their home for the purpose of adoption; and

(e) a home study, post placement or other report has been commenced or carried out in respect of a person,

and an adoption order has not been made under that Act, this Act, with the necessary changes, shall apply to those persons referred to in paragraphs (a) to (e).

RSN1990 cA-3
Rep.

74. The Adoption of Children Act is repealed.

Commencement

75. This Act shall come into force on a date to be proclaimed by the Lieutenant-Governor in Council.

 

Schedule

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

The States signatory to the present Convention,

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

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

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

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

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

Have agreed upon the following provisions,

CHAPTER 1 — SCOPE OF THE
CONVENTION

Article 1

The objects of the present Convention are,

(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;

(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

Article 2

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

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

Article 3

The Convention ceases to apply if the agreements mentioned in Article 17, subparagraph (c), have not been given before the child attains the age of 18 years.

CHAPTER II — REQUIREMENTS FOR
INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin,

(a) have established that the child is adoptable;

(b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

(c) have ensured that,

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

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

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

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

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

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

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

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

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

Article 5

An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State,

(a) have determined that the prospective adoptive parents are eligible and suited to adopt;

(b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and

(c) have determined that the child is or will be authorized to enter and reside permanently in that State.

CHAPTER III — CENTRAL
AUTHORITIES
AND ACCREDITED BODIES

Article 6

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

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

Article 7

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

2. They shall take directly all appropriate measures to,

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

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

Article 8

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

Article 9

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

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

(b) facilitate, follow and expedite proceedings with a view to obtaining the adoption;

(c) promote the development of adoption counselling and post-adoption services in their States;

(d) provide each other with general evaluation reports about experience with intercountry adoption;

(e) reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

Article 10

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

Article 11

An accredited body shall,

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

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

(c) be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

Article 12

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

Article 13

The designation of the Central Authorities and, where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.

CHAPTER IV — PROCEDURAL
REQUIREMENTS IN INTERCOUNTRY
ADOPTION

Article 14

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

Article 15

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

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

Article 16

1. If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall,

(a) prepare a report including information about his or her identity, adoptablity, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child;

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

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

(d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

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

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if,

(a) the Central Authority of that State has ensured that the prospective adoptive parents agree;

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

(c) the Central Authorities of both States have agreed that the adoption may proceed; and

(d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.

Article 19

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

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

3. If the transfer of the child does not take place, the report referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

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

Article 21

1. Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular,

(a) to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;

(b) in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care; an adoption shall not take place until the Central Authority of the State of origin has been duly in formed concerning the new prospective adoptive parents;

(c) as a last resort, to arrange the return of the child, if his or her interests so require.

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

Article 22

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

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

(a) meet the requirements of integrity, professional competence, experience and accountability of that State; and

(b) are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

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

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

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

CHAPTER V — RECOGNITION AND
EFFECTS OF THE ADOPTION

Article 23

1. An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, subparagraph (c), were given.

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

Article 24

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

Article 25

Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognize adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.

Article 26

1. The recognition of an adoption includes recognition of,

(a) the legal parent-child relationship between the child and his or her adoptive parents;

(b) parental responsibility of the adoptive parents for the child;

(c) the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

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

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

Article 27

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

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

(b) if the consents referred to in Article 4, subparagraphs (c) and (d), have been or are given for the purpose of such an adoption.

2. Article 23 applies to the decision converting the adoption.

CHAPTER VI — GENERAL PROVISIONS

Article 28

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

Article 29

There shall be no contact between the prospective adoptive parents and the child’s parents or any other person who has care of the child until the requirements of Article 4, subparagraphs (a) to (c), and Article 5, subparagraph (a), have been met, unless the adoption takes place within the family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.

Article 30

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

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

Article 31

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

Article 32

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

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

3. The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.

Article 33

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

Article 34

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

Article 35

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

Article 36

In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units,

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

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

(c) any reference to the competent authorities or to the public authorities of that State shall be construed as referring to those authorized to act in the relevant territorial unit;

(d) any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.

Article 37

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

Article 38

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

Article 39

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

2. Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

Article 40

No reservation to the Convention shall be permitted.

Article 41

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

Article 42

The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.

CHAPTER VII — FINAL CLAUSES

Article 43

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

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

Article 44

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

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

3. Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in subparagraph (b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

Article 45

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

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

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

Article 46

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

2. Thereafter the Convention shall enter into force,

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

(b) for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.

Article 47

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

2. The denunciation takes effect on the first day of the month following the expiration of 12 months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

Article 48

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

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

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

(c) the date on which the Convention enters into force in accordance with Article 46;

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

(e) the agreements referred to in Article 39;

(f) the denunciation referred to in Article 47.

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