Hong Kong Ordinances

ADOPTION ORDINANCE - SCHEDULE 3

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

[section 20B]

(Done at the Hague on 29 May 1993)

CHAPTER I—SCOPE OF 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,
sub-paragraph (c), have not been given before the child attains the age of
eighteen 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and have not been withdrawn, and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 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.

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,
        adoptability, 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 parents.

(3) If the transfer of the child does not take place, the reports 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 informed 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.

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,
sub-paragraph (c), were given.

CHAPTER VI—GENERAL PROVISIONS

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, sub-paragraphs (a) to (c), and Article 5,
sub-paragraph (a), have been met, unless the adoption takes place within a
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.

(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 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 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.

(Schedule 3 added 28 of 2004 s. 34)