«REPUBLIC OF HAITI Ministry of Social Affairs and Labor (MAST) Institute for Social Welfare and Research (IBESR) The Law Reforming Adoption was ...»
LAW REFORMING ADOPTION
REPUBLIC OF HAITI
Ministry of Social Affairs and Labor (MAST)
Institute for Social Welfare and Research (IBESR)
The Law Reforming Adoption was enacted on October 28, 2013, and published in the
official gazette Le Moniteur (no. 213) on November 15 of the same year.
THIS PUBLICATION REPRODUCES THE CONTENTS OF THE OFFICIAL DOCUMENT.June 2014
BACKGROUNDIn the past five years the legal framework of the fight for child protection has improved considerably in Haiti, thanks largely to the efforts of stakeholders, led by the Institute for Social Welfare and Research (IBESR) and its international cooperation partners.
The IBESR, an entity of the Ministry of Social Affairs and Labor (MAST), is guided by its dedication to the interests of children. Thus, since 2009, a series of reform proposals have been made to strengthen the legal and institutional framework for child protection.
Conventions were therefore submitted to the Parliament for ratification, and votes were called on a set of laws. Among the conventions was the Palermo Protocol, which seeks to combat and punish trafficking in persons, especially women and children.
This additional protocol to the United Nations Convention against Transnational Organized Crime, which had been under discussion in the country since 2003, was finally ratified in March 2009. Other conventions include the Hague Convention on Intercountry Adoption, as well as ILO Conventions 138 on the minimum age for employment and 182 on child labor. As this booklet was being drafted, two other protocols to the Convention on the Rights of the Child were published.
• The Optional Protocol to the Convention on the Rights of the Child relating to the involvement of children in armed conflict
• The Optional Protocol to the Convention on the Rights of the Child relating to the sale of children, child prostitution, and child pornography Examples of domestic legislation include the Antitrafficking Law published in Le Moniteur (the official gazette), no. 103 (June 2, 2014); and the Law on Paternity, Maternity, and Filiation, commonly referred to as the Responsible Paternity Act, voted on in 2012 and recently enacted and published in Le Moniteur, no. 105 (June 4, 2014).
A final example is the Law Reforming Adoption of August 29, 2013, the subject of this publication.
WHY A NEW ADOPTION LAW?
There are six main reasons for the new law:
• The 1974 decree on adoption did not conform to international standards, especially the principles of the Hague Convention.
• The 1974 decree did not define the criteria for adoptability.
• There was no provision for follow-up after adoption.
• The Haitian government had no central authority responsible for adoption.
• There was no provision for full adoption.
• Adoptability was determined by a child’s poverty and not his or her best interests.
TABLE OF CONTENTSBackground
Why a New Adoption Law?
Chapter I. Purpose and Definitions
Chapter II. Domestic and Intercountry Adoption
Section 1. General Principles
Section 2. Prospective Adoptive Parents
Section 3. Adoptees
Section 4. The Legal Form of Adoption
Section 5. The Effects of Full Adoption
Chapter III. The Central Authority
Chapter IV. The Adoptability Process and the Adoption Process
Section 1. The Adoptability Process
Section 2. The Adoption Process
Section 3. Postplacement Follow-up
Chapter V. Licensed Adoption Agencies
Chapter VI. Penal Provisions
Chapter VII. Transitional and Final Provisions
Chapter VIII. Abrogation Clause
In consideration of Convention 138 on the Minimum Age for Employment ratified by the decree of May 14, 2007;
In consideration of the Convention on the Worst Forms of Child Labor (ILO Convention 182) ratified by the decree of May 14, 2007;
In consideration of the additional protocol to the Convention against Transnational Organized Crime to prevent, combat, and punish trafficking in persons, especially women and children, ratified by the decree of November 26, 2003;
In consideration of the Haitian Civil Code;
In consideration of the Haitian Civil Procedure Code;
In consideration of the Haitian Penal Code;
In consideration of the law of May 7, 2003, on the prohibition and elimination of all forms of violence against or abuse or inhuman treatment of children;
In consideration of the decree-law of December 22, 1971, regulating social services;
In consideration of the decree of December 3, 1973, regulating the status of minors in children’s homes;
In consideration of the decree of April 4, 1974, on adoption reinforcing the provisions of the decree of March 25, 1966;
In consideration of the decree of November 4, 1983, reorganizing the Ministry of Social Affairs and Labor in its provisions regarding the Institute for Social Welfare and Research (IBESR);
Considering that the examination of the practice of intercountry adoption per the Hague Convention has identified deficiencies in current legislation on adoption, especially the decree of April 4, 1974. Today, intercountry adoption has expanded rapidly; this requires that the Haitian government enact new laws and procedures to strengthen child protection;
Considering that in adoption matters, national legislation must adapt to advances in international law, specifically with respect to human rights and child protection, in the light of the International Convention on the Rights of the Child dated November 20, 1989, and The Hague Convention dated May 29, 1993, on the protection of children and cooperation in intercountry adoption;
Considering that certain fundamental principles now govern intercountry adoption, namely, the principle of the best interests of the child, the subsidiarity principle that considers intercountry adoption to be a last resort, the principle of nondiscrimination prohibiting any distinction of race; gender; religion; birth;
disability; ethnic, national, or social origin; or any other situation, giving adoptees the same rights as biological children;
Considering that the state has the duty to promote and facilitate the implementation of policies, programs, and services and the creation of structures to improve the living conditions of families, to preserve the family unit, and to protect children;
It is therefore appropriate for the Haitian government to modernize its national system of child protection, taking into account the child’s best interests and right to a permanent family environment in which he or she can thrive, for which reason it is necessary to amend the provisions of the decree of April 4, 1974, on adoption.
Based on the report of the Ministry of Social Affairs and Labor and the Ministry of Justice and Public Security, and after deliberation by the Council of Ministers, the Executive Branch has presented and the
Parliament has voted on the following law:
Article 2. Under the present law, the following concepts should be understood as follows:
Adoption: a formal decree pronounced by a court that establishes, between a heterosexual couple or a single person and a child not biologically theirs, family relationships similar to those resulting from a filiation through blood. This decree is a protective measure established in the best interests of the child, offering the child a permanent family environment that will favor his or her development and respect his or her fundamental rights.
Private/direct adoption: adoption where adoption provisions have been agreed directly between (one of the) biological parents, or by individuals or organizations to whom the child has been entrusted, and future adoptive parents.
Independent/individual adoption: situation where future adoptive parents considered qualified and able to adopt by their central authority or by their adoption agency travel independently to a country of origin to seek a child to adopt without the assistance of a central authority or an organization authorized in the state of origin.
Intercountry adoption: action by which a child residing in Haiti is adopted by a person habitually residing in a foreign country according to the rules established by law.
Intrafamilial adoption: action by which an individual adopts a child with whom he or she has family relationships, either by blood or by marriage.
Domestic adoption: action by which an individual residing in Haiti for at least five years, without any intention of leaving the country, and who has his or her business and personal and professional interests there, adopts a Haitian child habitually residing in Haiti according to the rules established by this act.
Full adoption: action by which the adopted child benefits from all the filiation rights in his or her adoptive family and breaks definitively and irrevocably the filiation relationship with his or her biological family.
Simple adoption: action by which the adoptee benefits in his or her adoptive family from some filiation rights, such as those of name or inheritance, but remains related to his or her biological family. Simple adoption does not terminate the parent/child relationship existing prior to adoption but creates a new family relationship between the child and his or her adoptive parent(s), who are granted parental authority over the child.
Approval: official license delivered by the central authority to an adoption agency, allowing the latter to undertake some aspects of the adoption process.
Matching process [apparentement]: process to identify, among kin deemed qualified and suited to adopt, those relatives who meet the needs of the child in light of reports on the child and prospective adoptive parents.
Authorization: official license by which an organization licensed in a hosting country is granted permission to operate in another country.
Central authority: public organization appointed by a country and exclusively charged with preparing domestic or intercountry adoption files, overseeing adoptions, and meeting the requirements of the Hague Convention on Intercountry Adoption.
Capacity of discernment: children are considered to have sufficient capacity of discernment if they can understand what happens to them and can express their opinion on this.
Special-needs children: children who have behavior problems (such as those caused by trauma), who have physical or mental disability, are more than six years old, or are members of a sibling group.
Licensed adoption agency (LAA): foreign or domestic organization specializing in adoption that has been granted approval in its country to work in Haiti and that, according to the Hague Convention, performs certain functions under the convention in place of the central authority or jointly with it. The LAA performs tasks entrusted to it by the IBESR.
The parents’ poverty or extreme poverty cannot under any circumstances be sufficient grounds for adoption. The state has the duty to promote and facilitate the implementation of policies, programs, and services and the creation of structures to enhance the living conditions of families and to protect the family unit.
Article 4. Based on the principle of subsidiarity in intercountry adoption, it will be resorted to only when all other forms of permanent family custody in Haiti have been duly evaluated and found wanting or nonexistant.
Article 5. In each adoption case, administrative and legal authorities must take all necessary provisions to avoid improper financial gain.
Article 6. The following are prohibited:
• Private and independent adoption.
• Decision by the child’s biological parents or legal guardians as to which person(s) will adopt their child, except in cases of adoption of a spouse’s children or intrafamilial adoption. The case of a foster-care family that previously hosted the child and wants to adopt him or her constitutes the other exception.
Le Moniteur No. 213 Friday 15 November 2013
• Contact, before conclusion of the matching process, between the child’s future adoptive parents, biological parents, or any other person who can influence the consent of the authorized person or with institution involved in the adoption process, except if the adoption takes place between members of the same family.
• Consent by biological parents to the adoption before the child is three months old.
• Improper material gain by people, organizations, and authorities involved in the adoption process.
Procedures compromised by one of the prohibitions described above will be immediately suspended and the adoption petition will be rejected, with possible legal actions. The relevant authority shall automatically take necessary steps to protect the child.
In the case of a domestic adoption, candidates must be considered qualified and able to adopt by the central authority.
In the case of an intercountry adoption, candidates must be considered qualified and able to adopt by the relevant authorities of their country of habitual residence.
Article 8. Adoption can be requested jointly by a heterosexual couple married (and not separated) after five years of marriage and when one spouse is at least 30 years old.
The set age condition is not required in cases of adoption of the spouse’s or partner’s child.
Article 9. Adoption can be requested by two people of different sexes living together for at least five years and when one partner is at least 30 years old.
Cohabitation must be established by a certificate delivered by the relevant authorities, and the consent of both cohabitants is required, except if one of them cannot express his or her will.