This is an HTML version of an attachment to the Freedom of Information request 'Consistent approach: intercountry adoption not a general child protection measure'.


Ref. Ares(2013)3769525 - 19/12/2013
Fourth report to the European Commission of the Independent Expert 
Panel reviewing the Romanian Government’s proposals for new 
legislation on the Rights of the Child and Adoption  
 
Brussels, 19 May 2004 
 
1.  This report was drawn up by the Independent Expert Panel on Family Law 
following their assessment of the draft legislation as received from the 
Romanian authorities on 31 March 2004.  
 
Consultation at Parliament level 
 
2. The experts are aware that the texts may be amended during their 
examination by Parliament. They must however point out that any amendments 
which may be made by the Parliament must assure at least a similar level of 
protection and of promotion of the rights of children. 
 
Explanatory Memoranda 
 
3.  The Explanatory memoranda that were provided do not explain the intended 
effects of the draft laws. 
 
Secondary Legislation 
 
4.  The Independent Panel has in the meantime received the draft secondary 
legislation. This legislation is essential because not only it needs to be 
consistent with the principles of the primary legislation, but it has to state and 
regulate the intended effects of the law.    The Panel will need time to carefully 
analyse this and plans to report before the end of June 2004. 
 
The draft laws 
 
5.  The presented texts correspond, essentially, to the formal recommendations 
of the experts. The observations made concerning the secondary legislation  as 

well as the legal and administrative capacity needed to ensure the reform need 
to be maintained,  meaning that any secondary legislation must be consistent 
with the principles of the primary legislation and the UN Convention on the 
Rights of the Child and the European Convention on Human Rights.   
 
In order to implement legislation fully and effectively and consistently with the 
UNCRC and the European Convection on Human Rights, the Romanian 
authorities will need to have put in place not only the primary legislation but also 
the detailed secondary legislation and have in place the necessary capacity and 
experience in terms of the judiciary and those working in the child care and 
adoption fields. It is not possible to comment further without sight of the 
implementation strategy and the proposed timescale.  
 
 
Draft law on the promotion of the rights of the child 
 
6.  All recommendations made in the 3rd interim report have been taken into 
account, with the following exceptions.  
No transitory provisions have been introduced to ensure that until the respective 
legal provisions on specialised jurisdiction on family matters can fully be 
implemented, competencies may be exercises by not specialised courts/judges, 
might be considered. 
 
7.  The Panel has not been able to take into account the draft secondary 
legislation, which was received only recently. The Panel will report on this 
before the end of June 2004.  
 
8.  Of comment 24 of the 3rd interim report the following observations were not 
given any follow up: 
 
a.  Article 8 (2): The Panel would suggest that expression “if possible” 
is removed. 
 

b.  Article 18 (2): The Panel wonders whether the drafting of the 
provision is not excessive. Does this mean that a child must have 
the authorisation of both parents? And should such an 
authorisation be necessary for travelling inside the country? 
 
c.  Article 21: Corresponds to former Article 15. The Panel would be 
interested in knowing what the compulsory education in Romania 
is and it thinks that this is an important issue specially, when it is 
considered in connection with the provision on child labour (see 
article 24). If compulsory school stops at for example 13 and the 
child is only allowed to work at 16, what will she or he then do for 
3 years? 
 
d.  Article 23: here, and in many other articles (e.g. 29, para (3), 44, 
para (2) and 94) are  fine examples of many new tasks.  If these 
are to come into force immediately, the necessary provision will 
need to be in place.  If not, transitory provisions should be 
included. 
 
e.  Article 24: The former provision on child labour had a reference to 
the minimum age for employment – which was, in the panel’s 
opinion, a good thing. Even if there was a problem in the panel’s 
view with Article 18 (3) of the former version,  as it enabled 
children to work below the age of 16 in conflict with the 
international legal obligations Romania has assumed. 
 
So, the panel’s suggestion is that Romania goes back to the 
earlier version of this Article (of course eliminating its former 
paragraph (3) for the reasons explained) and specify the minimum 
age for admission to employment or work, which is 16 (according 
to the Declaration Romania made upon ratification of ILO 
Convention no. 138).  
 
Moreover, as in the earlier version of the text, there should be a 
provision explicitly stating that work, which is likely to jeopardise 

the health, safety or morals of the child shall not be carried out by 
persons under the age of 18 years. This is also in conformity with 
ILO Convention no. 138. 
 
f.  Article 32 (1): The panel wonders if discerning is the same, or is 
rather a wider expression, than “child who is capable of forming 
his or her views”. We recall that this last formula is the one 
contained in the UNCRC. 
 
g. Article 131: The panel has serious doubts whether this re-
evaluation can be accomplished within six months from the date of 
enforcement of the draft law. 
 
  
Draft law on the legal status of adoption 
 
9. Article 39, like the whole section of which it is part of, has had a 
considerable change, in the sense that international adoption is only to be 
acceptable if between grand parents and grand children.  The third report, in its 
last comment, underlined the necessity to strictly limit international adoptions, 
which remains a definite and deliberate choice of a state. The new dispositions 
therefore take the remarks of the Independent Panel into account. But in the 
absence of any explanations in the Explanatory Memoranda questions remain: 
 
a. Why point to the situation of grand parents? Could they not 
naturally become the legal guardians of their descendents?  Is 
such an adoption, which takes out one degree of the natural order 
of generations, desirable?  Should one not imagine such type of 
adoptions in the framework of other family ties (i.e. between other 
relatives)? 
 
b.  Having regard to this way of limiting intercountry adoption to rare 
cases, is it necessary to maintain such a detailed regulation and 
such important administrative support as mentioned in this law? 

 
c. The reference in the new article 42 to the dispositions of 
international private law in the case where the adopted person 
resides abroad and the adopter in Romania ignores the 
hypothesis of the adopter residing also abroad. In this case, which 
law will be applicable? 
 
 
Conclusions 
 
10.  The presented texts correspond, essentially, to the formal 
recommendations of the experts.  
 
11.   The observations made in previous reports concerning the legal and 
administrative capacity needed to ensure the reform need to be maintained.   
 
12. 
A fundamental change seems to have been made on the issue of 
intercountry adoption, meaning that this will be restricted to situations of close 
relatives. This change of policy will need strong political will to ensure that this 
rule is respected and upheld and also to prevent that it will be circumvented by 
practices based on other legal dispositions.  
 
13.  
The Panel esteems useful to point to the general principles on which it 
based its opinion.  The attached paper sets out  the main opinion of the 
Independent Group based on Member State practice and the basic principles of 
the UN Convention on the Rights of the Child. 
 
 
 
 
 
 

 
INDEPENDENT PANEL OF FAMILY LAW EXPERTS 
 OF EU MEMBER STATES 
 
Summary of opinion on the matter of adoptions 
 
 
The Independent Panel was set up by the European Commission in December 
2002 and consists of experts on family law and children’s rights from Member 
States (civil servants). The Panel reports to the Commission on whether the 
Romanian draft legislative package complies with international standards laid 
down in the UN Convention on the Right of the Child and the European 
Convention on Human Rights. In making its assessments, the Panel considers 
inter-alia whether the proposed legal framework would ensure respect of 
children’s rights at a level comparable to that provided by legislation in the 
present EU Member States.   
 
In Romania adoption was seen as a child special protection measure (Law 
25/1997). However, it is not the case and it is important it should not be seen as 
such. Adoption is rather a civil order, which creates new relationships with the 
adoptive family and severs the relationship between the child and his or her 
birth family. It is one of the available options if a child cannot be returned to his 
or her family (and attempts to rehabilitate the child with his or her family must be 
thorough and not token), but there are other options which also need to be 
considered viz long term placement with the wider family or foster parents. The 
assessment process will need to determine the child’s best interests and how 
these can best be met. Even if it is decided a child should be placed for 
adoption, reviews must be continuous both while the child is not yet placed and 
during the placement.  Especially with intercountry adoption, there is a risk that 
the institutions responsible for children may impose adoption in cases, which 
are unsuitable, so as to compensate for their own lack of resources.   
 
 

In this context it is important to recall that according to Article 20 of the UN 
Convention on the Rights of the Child, States Parties shall ensure alternative 
care to children who are deprived of their family environment.  This provision 
goes further giving examples of different types of alternative care, like for 
example foster placement, placement in institutions suitable for the care of 
children or adoption.  This enumeration does not imply that adoption is to be 
regarded as a “special protection measure” of a similar nature to the other ones. 
It does neither favour one option to the others.  The aim of Article 20 is to give 
States Parties the spectrum of some possible solutions for children deprived of 
their family environment – and one of these possibilities is adoption, which is 
regulated in more depth under Article 21 of the UN Convention. 
 
Intercountry adoption is a very last resort and should only be considered if any 
suitable means of foster, adoptive or residential care cannot be found in the 
country of origin of the child and only if it is manifestly in the best interests of the 
child. It must be clear that residential care comes also before (intercountry) 
adoption – see article 21(b) of the UN Convention on the Rights of the Child.  
 
The reasons and motivation for intercountry adoption should be clearly stated in 
the law. In this respect it is also of importance that there should not be other 
ways to avoid the new regime on intercountry adoptions.  Examples of how the 
new law and system can be prevented from working properly are: recognition of 
a child by a foreign (married) man of a Romanian child of which he clearly is not 
the father.  Another example would be to consider a poor and/or minor 
Romanian mother not able to raise her child with as a consequence that the 
child will be available for adoption in Romania or even for intercountry adoption.  
 
There is also concern about the 5.400 children who the Romanian Adoption 
Committee apparently has on the list of children approved for adoption. 
Clarification is required on what is happening to those children now and whether 
their cases are being reviewed. It would be unacceptable for these children to 
be “available for” inter-country adoption. 
 

The need for hundreds of international adoptions which persists in Romania is 
uncommon when we compare the situation with the other States of the 
European Union.  Without strict limitations in the law, it is to be feared that 
children could be adopted by foreign residents too easily.  International adoption 
besides adoption between relatives is a deliberate choice for a State. 
 
Preference should always be given, and in conformity with the UNCRC, to 
alternatives like foster care and suitable institutional care. 
 
Summary 
 
The Panel’s position is a legal and not a political opinion. The reference, guide 
and basis for its opinion are the UN Convention on the Rights of the Child 
(CRC) and the European Convention on Human Rights (ECHR). Also the 
practices in the EU Member States served as reference.  
 
Intercountry adoption cannot be considered as a protection measure
Romania’s situation is in this regard exceptional, as no EU Member State 
expatriates its children. Other Member States protect their children and deal 
with the issues in-country. Out of home placement is available, guidance to 
parents given and family allocations provided.  It is therefore not necessary to 
abandon children.  
 
The objective of the new legislation is that Romania becomes like other Member 
States and does not export its children anymore. Intercountry adoptions lead to 
a vicious circle: too many intercountry adoptions will mean that Romania will not 
see the need for proper child protection. And as long as the child protection is 
not at European level, Romania risks continuing to use intercountry adoptions. 
 
To resolve this paradox, intercountry adoptions need to become legally more 
difficult, exceptional and truly a measure of last resort.  
 
 
 
 

The Convention on the Rights of the Child 
 
The Convention on the Rights of the Child remains neutral about the desirability 
of adoption even within the child’s country of origin, though article 20 mentions it 
as one of the possible options for the care of children without families. It is clear 
that children’s psychological need for permanency and individual attachments 
can be met without the formality of adoption, but where it is used it should be 
properly regulated by the State to safeguard children’s rights.  
 
In adoption the best interests of the child must be “the paramount” consideration 
rather than simply “a primary” consideration. No other interests should take 
precedence over or be considered equal to the child’s (whether economic, 
political, state security or those of the adopters). 
 
Article 20 of the Convention on the Rights of the Child concerns children who 
are temporarily or permanently unable to live with their families, either because 
of circumstances such as death, abandonment or displacement, or because the 
State has determined that they must be removed for their best interests.  
 
Such children are entitled to «special protection and assistance». Paragraph 3 
of article 20 determines that «Such care should include, inter alia, foster 
placement,  kafalah of Islamic law, adoption or, if necessary, placement in 
suitable institutions for the care of children». 
 
It is important to note that during the negotiations of article 20, there was a 
proposal that States should have to «facilitate permanent adoption» of children 
in care. The proposal was rejected on the grounds that adoption is not the «only 
solution» when children cannot be cared for by their families. Even the weaker 
proposal that children should have a right to a «stable family environment» did 
not survive to reach the final text. 
 
Paragraph 3 of Article 20 also determines that when considering child protection 
solutions, due regard be paid to «the desirability of continuity in a child’s 
upbringing and to the child’s ethnic, religious, cultural and linguistic 

background». This provision relates to article 7 (right to know and be cared for 
by parents) and article 8 (preservation of the child’s identity) of the CRC. 
 
According to UNICEF’s Handbook on the Implementation of the CRC, 
«Continuity of upbringing implies continuity of contacts, wherever possible, with 
parents, family and the wider community – achievable even when the child is 
adopted». The Panel notes that of course, in cases of intercountry adoption it 
will be much harder – and in most cases even impossible – to respect this 
provision of the UN Convention on the Rights of the Child.  
 
On the other hand, article 21 of the Convention on the Rights of the Child, 
stipulates that the system of adoption «shall ensure that the best interests of the 
child shall be the paramount consideration» and in this context it asks States to 
«recognise that intercountry adoption may be considered as an alternative 
means of child’s care, if the child cannot be placed in a foster or adoptive 
family or cannot in any suitable manner be cared for in the child’s country 
of origin».  
 
Again according to UNICEF’s Handbook, article 21 of the Convention states 
that «intercountry adoption is only to be considered if the child cannot be 
suitably placed in his or her country» and «the Convention on the Rights of the 
Child remains neutral about the desirability of adoption even within the child’s 
country of origin, though article 20 mentions it as one of the possible options for 
the care of children without families» 
 
On the question of intercountry adoption the Handbook on the Implementation 
of the CRC says that « the rising number of intercountry adoptions has been the 
cause of much concern. Children are a highly desirable commodity in countries 
where low birth rates and relaxed attitudes towards illegitimacy have restricted 
the supply of babies for adoption. […] This has led an apparently increasing 
number of adoptions to be arranged on a commercial basis or by illicit means. 
Without very stringent regulation and supervision children can be trafficked for 
adoption or can be adopted without regard for their best interests […] ». 
 

The United Nations Committee on the Rights of the Child has openly stated that 
intercountry adoption shall be seen as a solution of last resort.  When 
examining Mexico’s Initial Report the Committee stated the following 
 
«intercountry adoption should be considered in the light of article 21, namely as 
a measure of last resort». 
 
States must therefore take measures to ensure that all possible efforts have 
been deployed to provide suitable care for the child in his or her country of 
origin. This «last resort» provision is in conformity with article 20 (3) which 
refers to the «the desirability of continuity in a child’s upbringing and to the 
child’s ethnic, religious, cultural and linguistic background». This provision 
relates to article 7 (right to know and be cared for by parents) and article 8 
(preservation of the child’s identity). 
 
Finally, it is interesting to remember the statement made by the Holy See to the 
Hague Conference, where a fundamental principle was confirmed, i.e., that 
"children are not isolated individuals but are born in and belong to a 
particular environment. Only if this native environment cannot, in one way 
or another, provide for a minimum of care and education should adoption 
be contemplated. The possibility of providing a better material future is 
certainly not, of itself, a sufficient reason for resorting to adoption".