The Hague Convention vs UN Convention on the Rights of the Child (UNCRC)

We are regularly asked to explain the principle of subsidiarity, which is why we draw your attention to this publication regarding the principle of subsidiarity within The Hague Adoption Convention and the UN Convention on the Rights of the Child (UNCRC). If these conventions are studied thoroughly, it shows a huge difference in the interpretation of the subsidiarity principle. The confusing thing is that there are two completely different approaches.

Article 21 (b) UNCRC:”.. recognize that inter-country adoption may be considered as an alternative means of child’s care if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; “

Article 4 (b) Hague Convention:”..after possibilities for placement of the child within the State of origin have been given due consideration, that intercountry adoption is in the child’s best interests;”

The subsidiarity principle under the UNCRC makes intercountry adoption subsidiary to the non-existence of other ways to appropriately care for a child. This makes intercountry adoptions, if all, the extreme exception.

The subsidiarity principle used by the Hague Adoption Convention makes intercountry adoption subsidiary to the lack of local adoption options. This Convention does not see residential care or foster care as appropriate care. Children are then declared adoptable, and when no local adopters are available within a strict time-limit, intercountry adoption follows.

In the Hague Convention, intercountry adoption is seen as a child protection measure and by that giving the opportunity to ignore local solutions.

In its report with the advice to the minister, the Raad voor Strafrechtstoepassing en Jeugdbescherming (English translation: Council for Application of Criminal Justice and Youth Protection, RSJ) also makes it clear that the principle of subsidiarity from the UNCRC must be maintained.

The child protection measure used as the explanation of a child’s best interest in the Hague Convention makes the entire system flexible. As a result, excesses are made possible. In addition, the Hague Convention is based on the principle of trust. There is no form of control, nor any consequence of non-compliance with the treaty.

The difficulty with the Hague Convention is that it was established in the private domain. It is being used to overrule the UNCRC, which is a public human rights law. The Hague Convention is downgrading human rights, which makes it easier for adoption organizations to function within an intercountry adoption system based on supply and demand.

Romania was the first sending country that implemented the Hague Convention. Under the rules of the Hague Convention, intercountry adoption became a child protection measure. Over the next three years, these intercountry adoptions skyrocketed from 500 to 3000 per year. It created a legal market in children.  Although Romania did ban intercountry adoption in 2005, nowadays Romanian citizens abroad can adopt Romanian children, even from foster care.

The girl in the video, Sorina, was forcibly taken away from the foster family for intercountry adoption by the police and a prosecutor. Sorina and her sister were raised by the foster family until she was 8 years old. This course of action would therefore not have been possible according to the UNCRC, as the child was in appropriate care.