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Adoption LawsA Comparison of The Hague Convention and Philippine Domestic LawsDefinition of TermsAdoption- 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 LawsConvention on Protection of Children and Co-operation in respect of Inter-country Adoption (Concluded 29 May 1993, Entered into force1 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 LawAdoption- is a matter affecting the status of the partiesGoverned by lex domiciliiProblem:When adopter and adoptee are domiciled in 2 different placesOne solution:Look at adoptions main object: WELFARE OF CHILD, then apply the laws of his domicileComplication: When domicile of child is constructiveHe is a citizen of a state where he does not actually resideCapacity of an Alien to AdoptUnder Family CodeNot allowedException: aliens who have some relationship with the adopted child by consanguinity or affinity (Art. 184) Under RA 8552 and RA 8043Aliens could now adoptProvided:He has legal capacity to adopt (based on laws of his state)State laws allows the entry of an adoptee into the adopters country

Capacity of Alien to AdoptRA 8053RA 8552Alien 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 enteredat 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 adoptedAge 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 parent16 year gap may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parentOther People Qualified to Adopt under RA 8552:Any Filipino citizen of legal agein possession of full civil capacity and legal rightsof good moral characterhas not been convicted of any crime involving moral turpitudeemotionally and psychologically capable of caring for childrenat 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 8552requirements 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; orone who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; orone 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 spouseAdoption by Spouses (RA 8552)Husband and wife shall jointly adoptExceptions:if one spouse seeks to adopt the legitimate son/daughter of the other; orif one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified his/her consent thereto; orif the spouses are legally separated from each other.Who may be adoptedRA 8053RA 8552Only 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 ConventionImportant 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 understandingInter-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 orfor the purposes of such an adoption in the receiving State or in the State of origin

Article 4Only to adoptions which create a permanent parent-child relationshipRequirements 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 thatthe persons (including the child), institutions and authorities whose consent is necessary for adoption have been counseledtheir consent was freely given, not induced by payment or compensation of any kind and have not been withdrawnOn the part of the mother, the consent was given only after the birth of the child

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

RA 8552Consent 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 childThe legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if anyThe 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; andThe spouse, if any, of the person adopting or to be adopted.

RA 8552Counseling 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 adoptionProspective 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; andmust determine that the child is or will be authorized to enter and reside permanently in that State.

RA 8043Who may Adopt:An alien or a Filipino citizen permanently residing abroadhas 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 6A Contracting State shall designate a Central AuthorityFunctions (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 BodiesAccreditation- 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 8043Art. II- Inter-Country Adoption BoardThe central authority in matters relating to inter-country adoptionpolicy-making body

Composition: DSWD Secretary (ex officio Chairman)six (6) members to be appointed by the President 1 psychiatrist or psychologist2 lawyers who shall have at least the qualifications of a regional trial court judge, one1 registered social worker 2 representatives from non-governmental organizations engaged in child-caring and placement activities

Procedural Requirements (Hague Convention)Application of Prospective Adopter to the Central Authority in the State of their habitual residence.Central Authority of Receiving State-Prepare Report and Transmit it to the State of OriginCentral Authority of the State of origin- prepare a Report and transmit to the Central Authority of the receiving StateDecision by State of Origin re AdoptionTransfer- must be secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents

Report by Receiving StateContents:Adopters identityeligibility and suitability to adoptBackgroundfamily and medical historysocial environmentreasons for adoptionability to undertake an inter-country adoptioncharacteristics of the children for whom they would be qualified to care

Report by State of OriginInformation re adoptee: identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the childdue consideration to the child's upbringing and to his or her ethnic, religious and cultural backgroundensure 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 Statethe Central Authorities of both States have agreed that the adoption may proceed; andit was determined that: prospective adoptive parents are eligible and suited to adoptchild is or will be authorized to enter and reside permanently in the receiving State.

Procedure (under RA 8043)Filing of ApplicationWhere: 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/ MatchingCondition: 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 CustodyBy: The governmental agency or the authorized and accredited agency in the country of the adoptive parents Period: 6 months from the time of placementResponsibilities of the adopting parents:submit a progress report of the child's adjustmentIssuance of Decree of AdoptionUpon lapse of 6 months of Trial CustodyBy who: Court where application was filed Where to be issued: country of the adoptive parentsa copy of which shall be sent to the BoardEffects of Adoption DecreeArticle 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 8552Procedure in RA 8552Procedure in RA 8552Case StudyMade by: a licensed social worker of the Departmentthe social service office of the local government unitor 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 CustodyPeriod: 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 exemptionsAdoption DecreeRequisites:publication of the order of hearing has been complied withno opposition has been interposed to the petitionconsideration of the case studies, the qualifications of the adopter(s), trial custody report and the evidence submittedEffectivity: 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 AdoptionParental 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 purposesSuccession.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.