A DOPTION L AWS A Comparison of The Hague Convention and Philippine Domestic Laws

D EFINITION OF T ERMS Adoption- is a juridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation Inter-country Adoption- refers to the socio-legal process of adopting a child by a foreigner or by a citizen permanently residing abroad (Sec. 3(a), RA 8043)

R ELEVANT L AWS Convention on Protection of Children and Co- operation in respect of Inter-country Adoption (Concluded 29 May 1993, Entered into force 1 May 1995) RA 8043 – Inter-Country Adoption Act of 1995 ( approved 1 June 1995 ) RA Domestic Adoption Act of 1998 ( approved 25 February 1998) A.M. No SC- Procedural Rule on Adoption

R ELEVANCE IN P RIVATE I NTERNATIONAL L AW Adoption- is a matter affecting the status of the parties Governed by lex domicilii Problem: When adopter and adoptee are domiciled in 2 different places One solution: Look at adoption’s main object: WELFARE OF CHILD, then apply the laws of his domicile Complication: When domicile of child is constructive He is a citizen of a state where he does not actually reside

C APACITY OF AN A LIEN TO A DOPT Under Family Code Not allowed Exception: aliens who have some relationship with the adopted child by consanguinity or affinity (Art. 184) Under RA 8552 and RA 8043 Aliens could now adopt Provided: He has legal capacity to adopt (based on laws of his state) State laws allows the entry of an adoptee into the adopter’s country

C APACITY OF A LIEN TO A DOPT RA 8053RA 8552 Alien residing abroadAlien has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted, at the time of application Must be of legal age and at least 16 years older than the child to be adopted Age and 16 year gap requirement: may be waived if adopter is the parent by nature of the child to be adopted or the spouse of such parent 16 year gap may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent

O THER P EOPLE Q UALIFIED TO A DOPT UNDER RA 8552: Any Filipino citizen of legal age in possession of full civil capacity and legal rights of good moral character has not been convicted of any crime involving moral turpitude emotionally and psychologically capable of caring for children at least sixteen (16) years older than the adoptee, in a position to support and care for his/her children in keeping with the means of the family. The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities

O THER E XEMPTIONS GRANTED UN RA 8552 requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse

A DOPTION BY S POUSES (RA 8552) Husband and wife shall jointly adopt Exceptions: if one spouse seeks to adopt the legitimate son/daughter of the other; or if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; or if the spouses are legally separated from each other.

W HO MAY BE ADOPTED RA 8053RA 8552 Only a legally free child may be the subject of inter-country adoption. (a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; (b) The legitimate son/daughter of one spouse by the other spouse; (c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; (d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; (e) A child whose adoption has been previously rescinded;

H AGUE C ONVENTION Important Principles Recognized: 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 Inter-country 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

A PPLICABILITY OF C ONVENTION Article 3 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") Movement is either: after his or her adoption in the State of origin or for the purposes of such an adoption in the receiving State or in the State of origin Article 4 Only to adoptions which create a permanent parent-child relationship

R EQUIREMENTS FOR I NTER -C OUNTRY A DOPTIONS State of origin: must establish that the child is adoptable; must determine that an inter-country adoption is in the child's best interests; must ensure that the persons (including the child), institutions and authorities whose consent is necessary for adoption have been counseled their consent was freely given, not induced by payment or compensation of any kind and have not been withdrawn On the part of the mother, the consent was given only after the birth of the child

RA 8043 Only a legally free child may be the subject of inter-country adoption “Legally-free child” voluntarily or involuntarily committed to the Department, in accordance with the Child and Youth Welfare Code below fifteen (15) years of age Last Resort Provision The Board shall ensure that all possibilities for adoption of the child under the Family Code (now RA 8552) have been exhausted and that inter-country adoption is in the best interest of the child

RA 8552 Consent Necessary for Adoption: The adoptee, if ten (10) years of age or over; The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; and The spouse, if any, of the person adopting or to be adopted.

RA 8552 Counseling Services to be Provided by the Department to: Biological Parent(s) before and after the birth of his/her child. after he/she has relinquished his/her child for adoption Prospective Adoptive Parent(s) Note: In Inter-country adoption, Counseling must be undergone by the prospective adoptive parents in the receiving state. Prospective Adoptee

R EQUIREMENTS FOR I NTER -C OUNTRY A DOPTIONS (H AGUE C ONVENTION ) Receiving State: must determine that the prospective adoptive parents are eligible and suited to adopt; must ensure that the prospective adoptive parents have been counseled as may be necessary; and must determine that the child is or will be authorized to enter and reside permanently in that State.

RA 8043 Who may Adopt: An alien or a Filipino citizen permanently residing abroad has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country (Sec. 9 (c) ) is eligible to adopt under his/her national law (Sec. 9 (e)) comes from a country with whom the Philippines has diplomatic relations government maintains a similarly authorized and accredited agency adoption is allowed under his/her national laws (Sec. 9 (h)) Note: These requirements must be alleged when the prospective adopter files his/her petition (Sec. 30, A.M. No SC)

CENTRAL AUTHORITIES AND ACCREDITED BODIES (C H. III, H AGUE C ONVENTION ) Article 6 A Contracting State shall designate a Central Authority Functions (Art.9): 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; facilitate, follow and expedite proceedings with a view to obtaining the adoption; promote the development of adoption counseling and post-adoption services in their States; provide each other with general evaluation reports about experience with intercountry adoption; Reply to justified requests from other Central Authorities for information about a particular adoption situation. Article 10 - Accredited Bodies Accreditation- granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted. must be: non-profit objectives Act within limits as may be established by the competent authorities of the State of accreditation

RA 8043 Art. II- Inter-Country Adoption Board The central authority in matters relating to inter- country adoption policy-making body Composition: DSWD Secretary (ex officio Chairman) six (6) members to be appointed by the President 1 psychiatrist or psychologist 2 lawyers who shall have at least the qualifications of a regional trial court judge, one 1 registered social worker 2 representatives from non-governmental organizations engaged in child-caring and placement activities

P ROCEDURAL R EQUIREMENTS (H AGUE C ONVENTION ) 1. Application of Prospective Adopter –to the Central Authority in the State of their habitual residence. 2. Central Authority of Receiving State-Prepare Report and Transmit it to the State of Origin 3. Central Authority of the State of origin- prepare a Report and transmit to the Central Authority of the receiving State 4. Decision by State of Origin re Adoption 5. Transfer- must be secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents

R EPORT BY R ECEIVING S TATE Contents: Adopter’s identity eligibility and suitability to adopt Background family and medical history social environment reasons for adoption ability to undertake an inter-country adoption characteristics of the children for whom they would be qualified to care

R EPORT BY S TATE OF O RIGIN Information re adoptee: identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child due consideration to the child's upbringing and to his or her ethnic, religious and cultural background ensure that consents required have been obtained determine whether the envisaged placement is in the best interests of the child.

D ECISION BY S TATE OF O RIGIN RE A DOPTION (H AGUE C ONVENTION ) Requisites: the Central Authority of the State of Origin has ensured that the prospective adoptive parents agree; the Central Authority of the receiving State has approved such decision, if it required by either law of State of Origin/ Receiving State the Central Authorities of both States have agreed that the adoption may proceed; and it was determined that: prospective adoptive parents are eligible and suited to adopt child is or will be authorized to enter and reside permanently in the receiving State.

P ROCEDURE ( UNDER RA 8043) Filing of Application Family Selection/ Matching Placing/ Transfer Supervision of Trial Custody Decree of Adoption

F ILING OF A PPLICATION Where: either with the Philippine Regional Trial Court having jurisdiction over the child or Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents (Sec. 10)

F AMILY S ELECTION / M ATCHING Condition: child cannot be adopted locally. Personal fetching by adoptive parents or any one of them When the Board is ready to transmit the Placement Authority to the authorized and accredited inter- country adoption agency and all the travel documents of the child are ready

S UPERVISED T RIAL C USTODY By: The governmental agency or the authorized and accredited agency in the country of the adoptive parents Period: 6 months from the time of placement Responsibilities of the adopting parents: submit a progress report of the child's adjustment

I SSUANCE OF D ECREE OF A DOPTION Upon lapse of 6 months of Trial Custody By who: Court where application was filed Where to be issued: country of the adoptive parents a copy of which shall be sent to the Board

E FFECTS OF A DOPTION D ECREE Article 23 (Hague Convention) 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 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.

P ROCEDURE IN RA 8552 Inquiry at DSWD Attendance at DSWD Adoption For a (includes Counseling) Application for AdoptionCase Study Report

P ROCEDURE IN RA 8552 MatchingPlacementSupervised Trial CustodyHome Study Report

P ROCEDURE IN RA 8552 Recommendation and Consent Petition for AdoptionAdoption Decree

C ASE S TUDY Made by: a licensed social worker of the Department the social service office of the local government unit or any child-placing or child-caring agency Subjects: adoptee, his/her biological parent(s), the adopter(s), Task: submitted a report and recommendations What must be established: the adoptee legally available for adoption and that the documents to support this fact are valid and authentic. The genuine intentions of the adopter(s) adoption is in the best interest of the child.

S UPERVISION OF T RIAL C USTODY Period: six (6) months Purpose: parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. temporary parental authority shall be vested in the adopter(s). The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. Alien adopter(s), he/she must complete the six (6)- month trial custody except for those given exemptions

A DOPTION D ECREE Requisites: publication of the order of hearing has been complied with no opposition has been interposed to the petition consideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submitted Effectivity: as of the date the original petition was filed. This provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall state the name by which the child is to be known.

E FFECTS OF A DOPTION Parental Authority. Severed legal ties between the biological parent(s) and the adoptee Legal tie between on the adopter and adoptee. Legitimacy. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes Succession. adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.