ADOPTION LAWSA Comparison of The Hague Convention and Philippine Domestic Laws

DEFINITION OF TERMS

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)

RELEVANT LAWS

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 8552-- Domestic Adoption Act of 1998 (approved 25 February 1998)

A.M. No. 02-6-02-SC- Procedural Rule on Adoption

RELEVANCE IN PRIVATE INTERNATIONAL LAW

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

CAPACITY OF AN ALIEN TO ADOPT

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

CAPACITY OF ALIEN TO ADOPTRA 8053 RA 8552

Alien residing abroad Alien 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

OTHER PEOPLE QUALIFIED TO ADOPT 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

OTHER EXEMPTIONS 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

ADOPTION BY SPOUSES (RA 8552)

Husband and wife shall jointly adoptExceptions: 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.

WHO MAY BE ADOPTEDRA 8053 RA 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;

HAGUE CONVENTION

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

APPLICABILITY OF CONVENTIONArticle 3The 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

REQUIREMENTS FOR INTER-COUNTRY ADOPTIONSState 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

REQUIREMENTS FOR INTER-COUNTRY ADOPTIONS (HAGUE CONVENTION)

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. 02-6-02-SC)

CENTRAL AUTHORITIES AND ACCREDITED BODIES (CH. III, HAGUE CONVENTION)

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 

PROCEDURAL REQUIREMENTS (HAGUE CONVENTION)

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 Adoption5. Transfer- must be secure and appropriate

circumstances and, if possible, in the company of the adoptive or prospective adoptive parents

REPORT BY RECEIVING STATE

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

REPORT BY STATE OF ORIGIN

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.

DECISION BY STATE OF ORIGIN RE ADOPTION (HAGUE CONVENTION)

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.

PROCEDURE (UNDER RA 8043)

Filing of Application

Family Selection/ Matching

Placing/ Transfer

Supervision of Trial

Custody

Decree of Adoption

FILING OF APPLICATION

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)

FAMILY SELECTION/ MATCHING

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

SUPERVISED TRIAL CUSTODY

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

ISSUANCE OF DECREE OF ADOPTION

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

EFFECTS OF ADOPTION DECREE

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 24The 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.

PROCEDURE IN RA 8552

Inquiry at DSWD

Attendance at DSWD Adoption For a (includes Counseling)

Application for Adoption

Case Study Report

PROCEDURE IN RA 8552

Matching

Placement

Supervised Trial Custody

Home Study Report

PROCEDURE IN RA 8552

Recommendation and Consent

Petition for Adoption

Adoption Decree

CASE STUDY

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.

SUPERVISION OF TRIAL CUSTODY

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

ADOPTION DECREE

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.

EFFECTS OF ADOPTION

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.