Institute of Social Well-being and Research Central Authority of Haiti Office of the Director General Mrs. Arielle Jeanty Villedrouin Application of The Hague Convention of 1993 on adoption by Haiti Me Andolphe E. D. Guillaume Legal Assistant Guyuna July 14 th, 2016
Context • 2016 marks fifty years since the introduction and the practice of adoption as shape of filiation in Haiti. It also marks two years since the Hague Convention of 1993 entered into force in Haiti. • The legal framework of 1966 modified by that of April 4 th, 1974 is going to know a strengthening by the one of the 1983 then new modifications with the law of 2013 adopted to meet the requirements of the Hague Convention of 1993 on adoption ratified by Haiti in june 2012. • With regard to the article 276 -2 of the Constitution of 1987, the international instruments, once sanctioned and ratified, are a part of the legislation of the country and repeal all the laws which are opposite to them. • Haiti having made choice of a monistic system with superiority of the international law on the internal law submitted itself to the prescribed of the Hague Convention of 1993 by its ratification and the vote of the law of August 29 th, 2013 re-forming the adoption. • The Decree of 1983 introduced the Institute of the Social Well-being and Researches (IBESR) as competent authority regarding adoption. The law of August 29 th, 2013 design this institution as central Authority according to the prescribed of the Hague Convention.
Context Seven (7) major reasons explain the necessity of re-forming the law on adoption • The Decree of 1974 on adoption did not answer the international standards and particularly the principles of the Child Right Convention and the Hague Convention of 1993; • The Decree of 1974 favored independent and private adoption. It did not define the criteria of adoptability nor matching; • The Haitian State had not a central Authority on the subject; • Plenary adoption was not planned; • It is the situation of poverty that determined if a child must be adopted and not his best interests; • No follow-up post-adoption was planned after the adoption; • The Decree of 1974 fixed no penalty against breaches committed regarding adoption.
Reminder of the objectives of the Convention of 1993 on adoption • 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; • 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; • To secure the recognition in Contracting States of adoptions made in accordance with the Convention.
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 Because of the long practice of independent and private adoption (about 40 years) and the fraudulent attempts of adoption, IBESR took the following measures on approval of the Ministry of Social Affairs and based on an integrated communication strategy for change and empowerment of stakeholders: • Elaboration of guidelines for the establishment of host family (foster care) for the coverage of children deprived of family, in link with the principle of subsidiarity. Ø 70 families are accredited as host family to accommodate children who are not adoptable and who cannot return to their families; • Advocacy for the signature than the ratification of the Hague Convention of 1993; Ø The Hague Convention of 1993 has been signed by Haitian Government on Mach 2011 and the Parliament ratified it on June 2012. The Convention enter into force for Haiti in April 2014; • Moratorium on the adoption between May and September, 2012 to align practices with the Decree of 1974 and 1983 in regards of the Convention of Child Rights, then prepare the reform and entry into force of the Hague Convention ; • Elaboration between 2010 and 2013 of the front aiming bill that has to amend the Decree of April 4 th, 1974 on adoption; Ø Pass of the law and its publication in November 2013; Ø Popularization of the law re-forming the adoption;
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 • Training of the judicial actors in association with the School of the Judiciary under the aegis of the Ministry of Justice and Public Security, The Ministry of Social Affairs and Work and the Ministry of the Women Condition and Rights; Ø 240 judges has been formed on the new law and the Hague Convention of 1993 in 7 jurisdictions: Port-au-Prince, Croix-des-Bouquets, Cap-Haitien, Fort-Liberte, Gonaive, Saint-Marc and Jeremie); Ø Training of 80 agents of IBESR; Ø Workshops of scattering with HPP-AKSE supported by USAID, the French and the U. S. Embassies; • Elaboration of the procedures of law enforcement reforming the adoption; • Training, advice and information to the birth parents and children of 12 years old and more whose consent is necessary for adoption, on 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, before giving their consent to the Judge for children. Ø 1550 birth parents or legal representative have been trained and advised before giving their consent to Judge for children Ø 120 children of 12 years old and more have been trained and advised before giving their consent to Judge for children
To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected • Collaboration supported with the central authorities of the receiving countries and with their embassies in Haiti; ØSupport of the French Embassy for the strengthening of the capacities of IBESR by the financing of his information system: The national system of protection and security of the children (SINAPSE) ØSupport of the USAID through HPP-AKSE in training campaigns for the popularization of the laws and communication for change; ØSupport of the United States Embassy within the framework of activities of raising awareness on the law enforcement with the Judges. • In 2009, 10 receiving countries: France, Canada, Germany, USA, Belgium, Spain, Switzerland, Chili, Luxembourg, Holland, have formed the Group of Montreal in order to support Haiti in reforming its adoption system. This group remain until the Hague Convention on adoption enter into force for Haiti. • IBESR authorized 58 Adoption Service Providers (ASP) from the USA (18), Germany (2), Belgium (3), Switzerland (3), Italia (8), France (11), Spain (4), Canada (8), Holland (1) to work in Haiti as anintermediary for adoption. Their authorization must be renewed each two years.
To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected • Continuous collaboration with UNICEF in the advocacy for the ratification of the Hague Convention and the two protocols of the Convention on Children’s Right, for supporting IBESR in advocacy for the vote of the adoption law and two bills approved by the Government and is currently before he Parliament: Bill on Child Protection Code and the new Organic law of IBESR. UNICEF also supports IBESR financially, technically and logistically for the extension of its services to the population across the 10 Departments of the country. • Mission of the Permanent Bureau of The Hague, organized in close collaboration with UNICEF and the International Social Service, as part of the technical assitance program in matters of international adoption (ICATAP) aims to execute a concluded action plan with IBESR preparing for the entry into force of the 1993 Hague Convention in Haiti and the establishment of the Cenral Authorithy.
To prevent the abduction, the sale of, or traffic in children; • Strengthening of the legal frame of the child protection by: Ø The ratification of both optional protocols of the Convention relative to children’s rights; Ø Training of the judicial actors on the implementation of the legal instruments of children particularly on: Ø The law on the fight against the trafficking in human beings has been voted and published also the law on the paternity, the maternity and filiation; • Process of current desinstitutionalization of children by the accreditation of about 70 host families and the closure of 120 children centers not answering to the standards; • Organization of the committee of fight against the trafficking in human beings and the elaboration of a national plan of fight against the trafficking of human beings.
To secure the recognition in Contracting States of adoptions made in accordance with the Convention • Conformity of the Haitian law of august 2013 on adoption and the procedures with the Hague Convention of 1993; • The Children adoption judgment come after that the Central Authority has properly applied the articles 4, 16 by its side, and have the proof the application of the articles 5 and 17 by the authorities of the receiving countries and has authorized the adoption. Then the certificate of compliance is issued by the Central Authority. • Delivery of certificates of compliance after the exhaustion of the administrative and judicial phases of the adoption procedure. Ø 78 Certificates of compliance has been delivered to the adoptive parents in the following country from 2015 -2016: • France (42), Italy (18), Germany (8), Canada (6) and the USA (4)
Difficulties encountered Despite the advances: • Lack of technical and financial resources of the central Authority to properly fill its various missions of social protection central Authority; • Problem of identity (recording of the births both for the biological parents as for their children, difficulties to get documents - acts of civilian state, NIF, CIN, passport; • Organized safeguards to protect the children against the fraudulent adoption and the independent adoption waiting the procedure and create delays with regard to the respect for the deadlines set by the law; • Problems of mobility of the parents and their children compared to children centers where the children is placed voluntarily by its parents. Over 18, 000 children is living in those centers. • Resistances to the change on behalf of certain actors despite some improvements today (lawyers, responsible for children centers, Mayors, some employees of IBESR). • Non-compliance with the application of the costs of the procedure and with the principle of no preliminary contact between the candidates for adoption with the child or his legal representative before the decision of matching.
Lessons Learned • The preparation of the biological parents in matters of adoption and parental responsibility prior informed consent is fundamental. • It is necessary to take into account the sociological and cultural aspects in the implementation of the 1993 Hague Convention and the law in matters of adoption. • Sensitization, training and advocacy in matters of adoption and child protection are essential and require the commitment of political authorities in the vote of the national budget and the implementation of public policy for prevention and strengthening family but also challenge the support of international partners. • Without synergy and cooperation between Central Authorities, the competent authorities and the different actors of countries of origin and receiving countries, it is not possible to enforce the guidelines to protect children against fraudulent adoption, the sale and trafficking, and to prevent undue material gains. • The support of the Permanent Bureau of the Hague Conference through the ICATAP project in the initial demarches to countries that request it, for the ratification of the Hague Convention is to promote for a better harmonization of national legislation. • In Haiti, in matters of child protection state and political actors attach great importance to this area.
Perspectives • Initiation seminar and conference on child protection for the newly elected local authorities; • Strengthening the Multidisciplinary Unit of adoption records processing tools; • Implementation of the information system called SINAPSE; • Increased number of host families and continuation of child deinstitutionalization process; • Advocacy with Haitian Parliament for the vote of the Law on Child Protection Code and the Organic Law of the IBESR; • Advocacy with the Government for signing the Hague Convention on the Protection of Children, the Child Abduction Convention and the Hague Apostille Convention; • Advocacy with the Government for the integration of Haiti as a country member of the Hague Conference.
Thank you Patrick Camille mars 2013
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