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The Fifth International Policy Conferenceon the African Child

29-30 May 2012United Nations Conference Centre

Addis Ababa, Ethiopia

Intercountry AdoptionAlternatives and Controversies

The Fifth International Policy Conference on the African Child

The AfricAn child Policy forum (AcPf)

AcPf is an independent, pan-African institution of policy research and dialogue on the African child.

AcPf was established with the conviction that putting children on the public and political agenda isfundamental for the realisation of their rights and wellbeing and for bringing lasting social and economicprogress in Africa.

AcPf’s work is rights based, inspired by universal values, and informed by global experiences andknowledge. its work is guided by the un convention on the rights of the child, the African charter onthe rights and Welfare of the child, and other relevant regional and international human rightsinstruments. AcPf aims to specifically contribute to improved knowledge on children in Africa; monitorand report progress, identify policy options, provide a platform for dialogue, collaborate withgovernments, inter-governmental organisations and civil society in the development and implementationof effective pro-child policies and programmes and also promote a common voice for children in andout of Africa.

The African child Policy forum (AcPf)P.o. Box 1179, Addis Ababa, ethiopia Tel: +251 (0)116 62 81 92/96/97/99fax: +251 (0)116 62 82 00email: [email protected] Websites: www.africanchildforum.org

www.africanchild.info

© 2012 AcPf

Suggested citation: AcPf (2012). Intercountry Adoption: Alternatives and Controversies. The Fifth International Policy

Conference on the African Child. Conference Report. Addis Ababa: The African child Policyforum.

i iIntercountry Adoption: Alternatives and ControversiesThe Fifth International Policy Conference on the African Child - Conference Report

AcKnoWledGmenTSThe fifth international Policy conference on the African child entitled “intercountry Adoption:Alternatives and controversies” involved considerable preparation and coordination in orderto be a success. AcPf is grateful to organisations and individuals who partnered with it inplanning and organising the conference.

first and foremost, our appreciation goes to the Government of The federal democraticrepublic of ethiopia, more specifically to the ministry of Women, children and youth Affairs,the federal first instance court, the Justice and legal Systems research institute and theethiopian human rights commision for supporting AcPf with the preparations andsuccessful completion of this conference.

our profound gratitude goes to h.e. the first lady of the republic of uganda and ministerof Karamoja Affairs, mrs. Janet museveni, for accepting to be the Guest of honour andgracing the conference. in addition, AcPf is extremely grateful to all cabinet ministers whomade it to the conference and to h.e. mrs. Joyce Banda, President of the republic of malawi,who despite not being physically present, sent her remarks through hon. mrs. Anita Kalinde,minister of Gender, children and community development of the republic of malawi.

To the excellent team of chairpersons, speakers and discussants, we are grateful for takingyour time to attend, facilitate and speak at the conference.

We would also like to thank dr. charlotte Phillips, children’s rights specialist, for her workon this report.

We are especially indebted to investing in children and their Societies (icS) and Planinternational, for their technical and financial support without which this conference wouldnot have been possible.

Special thanks also go to Wereldkinderen, the unicef liaison office to the Au and unecA,international Social Service (iSS) and The hague conference on Private international law(hcch) for their extremely valuable technical contribution to the conference.

To all the participants, we are grateful for your involvement and for contributing to theachievement of the objectives of the conference and also joining AcPf in addressing thepertinent issue of intercountry Adoption in Africa.

lastly, our sincere thanks go to our international Board of Trustees, under the leadership ofh.e. dr. Salim A. Salim for their devotion, guidance and expertise to ensure that the conferencewas a success.

The African child Policy forum (AcPf)July 2012Addis Ababa

noteAcPf is pleased to announce that the full proceedings and presentations of the conferencehave been posted on our website: www.africanchildforum.org/ipc

TABle of conTenTS

AcKnoWledGemenTS ........................................................................................................... i

AcronymS ............................................................................................................................. ii

1 inTroducTion ................................................................................................................... 1

1.1 Goals and objectives of the conference .................................................................... 1

1.2 Participants ................................................................................................................. 1

1.3 Summary of emerging issues .................................................................................... 1

1.4 outcomes of the conference ..................................................................................... 2

2 inTercounTry AdoPTion: The AfricAn conTexT ...................................................... 4

3 inTernATionAl lAW And inTercounTry AdoPTion ................................................... 6

4 exPerienceS from counTrieS of oriGin .................................................................. 9

5 exPerienceS from receiVinG counTrieS ................................................................. 13

6 AlTernATiVeS To inTercounTry AdoPTion ................................................................. 15

7 ToWArdS A PAn-AfricAn frAmeWorK ......................................................................... 19

Annex i AddiS ABABA communiqué on inTercounTry AdoPTion ............................ 20

i 1Intercountry Adoption: Alternatives and ControversiesThe Fifth International Policy Conference on the African Child - Conference Report

it is estimated that there are over 58 millionorphaned children in Africa, due to a variety ofcauses. The majority of these children have been

absorbed into informal alternative care settings,primarily provided by extended family members,but also by the community. however, extendedfamily and community networks, which Africa hasrelied on for generations, are no longer able tocope with the increasing number of children inneed of alternative care. As a result, a growingnumber of African children are put up for adoptionacross the world.

intercountry adoption is a form of adoption in whichthe legal parenthood of a child is transferred toadoptive parents who reside in or are citizens ofanother country. While global numbers ofintercountry adoption have decreased in recentyears, Africa is the only continent where intercountryadoption is on the increase. This trend has led to agrowing concern among African governments andchildren’s rights advocates as serious risks andchallenges have presented themselves. Althoughsome children may benefit from the adoptionsystem, experiences from various countries suggestthat this type of adoption may have detrimentaleffects on children involved and is marred withserious institutional, procedural and other problems.

Against this background, The African child Policyforum (AcPf) organised the fifth internationalPolicy conference on the African child (iPc),entitled ‘intercountry adoption: Alternatives andcontroversies’. The conference was held on 29 and30 may 2012 at the united nations conferencecentre in Addis Ababa, ethiopia.

1.1 Goals and objectives of theconference

The overall goal of The fifth iPc was to further thediscussion on intercountry adoption and tocontribute to the improvement of national laws,policies, systems and procedures relating to

intercountry adoption. The main objectives of theconference included:

- To raise awareness on the practice of intercountryadoption in relation to the protection of Africanchildren in need of alternative care.

- To provide a platform for sharing information andexperiences on intercountry adoption.

- To promote legal and policy action on intercountryadoption, consistent with the best interests ofthe child.

- To adopt a Pan-African framework and Guidelineson intercountry adoption.

1.2 ParticipantsThe conference brought together about 500participants from a wide variety of backgroundsand countries around the world. Among those whoattended the conference were government officialsfrom various African and non-African countries,representatives of the African committee ofexperts on the rights and Welfare of the child, theun committee on the rights of the child, unagencies, the African union commission and otherinternational and non-governmental organisations,members of civil society organisations, advocacygroups, academic institutions, private adoptionagencies and individual children’s rights activists.

1.3 Summary of emerging issues- African governments should ratify the requisite

international legal instruments governingintercountry adoption.

- Support and resources should be made availablefor countries of origin that wish to ratify and/ordomesticate the 1993 hague convention onProtection of children and co-operation inrespect of intercountry Adoption.

- African countries must be vigilant in drawing upadequate legislation and policies regulatingintercountry adoption.

1 INTRODUCTION

Intercountry Adoption: Alternatives and ControversiesThe Fifth International Policy Conference on the African Child - Conference Report

- notwithstanding the importance of regulatoryframeworks governing intercountry adoption,there is concern as to the efficacy of theseframeworks, particularly in relation to people atgrassroots level.

- There is a lack of reliable data on the real needfor intercountry adoption.

- The term ‘adoption’ does not feature in Africanlanguages and in many African countries adoptionis a concept that most people are not familiarwith, which signifies the fact that intercountryadoption is a ‘foreign practice’.

- Awareness should be raised throughout thecontinent as to what adoption entails and thatintercountry adoption should be a measure oflast resort.

- There is a need to share best practices anddevelop collaborations between differentstakeholders involved in intercountry adoptionpractices in Africa.

- communication plays an important role insharing good practices, such as efforts toprevent intercountry adoption by means ofsocial cash transfers.

- countries of origin invariably have insufficientresources to establish safeguards and to enforcegatekeeping measures of intercountry adoption.

- There is too little attention to family empowermentprogrammes, especially informal ones, or fordomestic adoption; these options should be givenmuch more consideration by countries of origin.

- rather than removing children from theircommunities and their families throughintercountry adoption at a high cost, receivingcountries should consider supporting childrenand their families locally.

- Some of the major receiving countries, includingthe uS and france, allow for private (orindependent) adoptions, which tend to haveless safeguards than public adoptions.

- The principle of the best interests of the childshould guide all actions pertaining tointercountry adoption and it must be properlyinterpreted in the context of adoption.

- There is a strong desire in African countries tobring intercountry adoptions from Africa to anend within the near future. in this respect,developments in latin America and Asia, regionswhere intercountry adoption was reducedsignificantly, are good examples of the feasibilityof this desire.

- Some African countries spend less than 1% oftheir budget on child protection. if adequateresources are made available, children can besupported in their own communities andintercountry adoption can be avoided altogether.

1.4 outputs of the conferenceAcPf has produced the following documents asoutputs of the conference:

Addis Ababa Communiqué on

Intercountry Adoption

The conference adopted the Addis Ababa

Communiqué on Intercountry Adoption which callsfor a reversal of the current trend of resorting tointercountry adoption as a primary solution forAfrican children in need of alternative care.instead, the communiqué calls for prime priority tobe given to enabling all children in Africa to remainwith their families and in their communities. Thecommuniqué therefore calls upon African States,civil Society organisations and Treaty Bodies toassume their responsibilities in ensuring thewellbeing of all children in Africa.

Guidelines for Action on Intercountry

Adoption of Children in Africa

The conference adopted the Guidelines for Action

on Intercountry Adoption of Children in Africa.These Guidelines explicitly do not promote orencourage intercountry adoption. They are aimedat facilitating and supporting the efforts of AfricanStates to take all appropriate legal, administrative

i2

and other measures to ensure that all persons andorganisations involved in the adoption of a child actin conformity with applicable international legalinstruments.

Proceedings Report–Intercountry

Adoption: Alternatives and

Controversies

The Proceedings report presents summaries of allpresentations delivered and of all plenary discussionsheld during each session of the conference.

Conference Report–Intercountry

Adoption: Alternatives and

Controversies

This conference report presents a synthesisedaccount of all technical input papers, presentations,discussions and recommendations of the conference.

Publications on Intercountry

Adoption

Africa:

The New Frontier for

Intercountry Adoption

Documentary on Intercountry

Adoption in Africa

These two publications were prepared as background documents to inform the discussions and debatesduring the conference, and were distributed to participants at the conference.


The African Child Policy Forum (ACPF)B. P. 1179, Addis Abeba, Ethiopie

Téléphone : +251 (0)116 62 81 92/96/97/99Télécopie : +251 (0)116 62 82 00

Courriel : [email protected] Site internet: www.africanchildforum.org

www.africanchild.info

© ACPF

The New

Frontier forIntercountry A

doption

The African Child Policy Forum (ACPF)P. O. Box 1179, Addis Ababa, Ethiopia Tel: +251 (0)116 62 81 92/96/97/99

Fax: +251 (0)116 62 82 00Email: [email protected]

Websites: www.africanchildforum.org www.africanchild.info

© ACPF

An uncertain Journey

An investigative documentary on intercountry adoptionhighlighting different aspects of the debate from the pointof view of the African child.

Visit Website

Intercountry Adoption:

An African Perspective


The African committee of experts on therights and Welfare of the child (AcerWc) hasnoted with great concern that in most

countries socio-economic conditions continue todeteriorate, leading to violations of even the mostbasic children’s rights. many children on theAfrican continent find themselves in need of caredue to a variety of causes, such as poverty, natural

disasters, conflict and orphanhood due to hiV/AidSand other communicable diseases. These factorshave resulted in an increasing number of childrenleft to care for themselves outside the nuclear family,which in turn has led to the rise of intercountryadoption in Africa. however, serious reservationshave been expressed about intercountry adoption asa solution to the aforementioned problems.

The examination of country reports of States partyto the African charter on the rights and Welfare ofthe child (AcrWc) by the AcerWc has led to theconclusion that adoption procedures vary widelyfrom one country to another, lacking a well-structuredand consensual model. furthermore, it has becomeapparent that the financial requirements andconsiderations in respect of intercountry adoptionare often high and that there is insufficient data

regarding both domestic and intercountry adoptionin Africa.

furthermore, the phenomenon of adoption isrelatively unknown in Africa. it is a foreign conceptthat most people on the continent are not familiarwith and the term ‘adoption’ does not feature inAfrican languages. in an attempt to ensure theprovision for basic needs of their children, parentsresort to intercountry adoption as a solution, oftenunaware of the legal implications of adoption. Thelack of effective national policies and regulatoryframeworks endangers the situation of vulnerablechildren and leads to children being trafficked,used in prostitution rings or as sex slaves, forcedto perform hard labour or to become victims oforgan harvesting.

current statistics show that Africa has become anew frontier for intercountry adoption: whereas thenumber of intercountry adoptions in other parts ofthe world is decreasing, adoptions from Africa areon the increase. Global trends indicate that in theyear 2004 an unprecedented 45,298 childrenwere adopted worldwide. This number declined bya third to 29,095 in the year 2010 and the numberof children adopted in 2011 has been estimatedat approximately 23,000, indicating a furtherglobal decline. conversely, in Africa, the number ofintercountry adoptions nearly tripled from 2,254 inthe year 2003 to 6,349 in 2010, making up 22%of the total number of intercountry adoptionsworldwide. The top five sending countries are:ethiopia, nigeria, the drc, South Africa and mali.The top five receiving countries are: the uS, italy,france, Spain and canada. more than 25% of allchildren adopted in the year 2010 in the uS and infrance were of African origin.

most notable is the increase in global terms in thenumber of children adopted from ethiopia, whichin 2009 was second to china as a country of originand the main supplier of children to Belgium anddenmark. in the year 2010 a total of 4,397children were adopted from ethiopia alone.

2 INTeRCOUNTRy aDOpTION: The afRICaN CONTexT

mme Agnès Kaboré, chair, African committee ofexperts on the rights and Welfare of the child

Intercountry Adoption: Alternatives and ControversiesThe Fifth International Policy Conference on the African Child - Conference Reporti5

however, there are limitations to data onintercountry adoption and it should be noted thatthese are estimates. due to the fact that most ofthe countries of origin have not ratified the hagueconvention on Protection of children and co-operation in respect of intercountry Adoption(hague convention) and therefore do not providedata to the hague conference, the source of theaforementioned figures is a database comprisingdetails of 23 receiving countries. unregisteredadoptions are not included in the figures.

The rapidly growing number of children who areadopted from Africa are a reason for major concernand recent studies have revealed critical adverseeffects of intercountry adoption. most importantly,children become culturally disconnected from theirown country, community and family, often resultingin serious emotional problems. furthermore, adoptedchildren are frequently stigmatised, leading topsychological trauma. The national social contextand the broader socio-political situation of receivingcountries should be taken into consideration.Adoptive parents may have good intentions, but theenvironment into which the adopted child is broughtmay not necessarily be ideal for the child inquestion. in some instances children are adoptedand, for various reasons, later rejected by theiradoptive parents; multiple changes in a child’s caresituation may lead to attachment disorder.

With regard to the adoption process itself, concernsrelate to the financial gains and corruption, whichare recognised as a major driving force behindintercountry adoption, rather than the considerationof the best interests of the child. fees of $10,000 –$30,000 are paid for a single intercountryadoption procedure and a number of orphanageshave been found to operate on the basis of fundsprovided by adoption agencies. in many countries,adoption agencies are poorly monitored or notmonitored at all. in order to facilitate and expediteintercountry adoptions, falsification of records andformal documents or the status of biological parentsoccur. The practice of intercountry adoption is moreoften than not demand driven, due to pressurefrom receiving countries to provide children foradoption, giving precedence to the interests offuture adoptive parents, rather than the bestinterests of the child.

from an African perspective the AcrWc, the unconvention on the rights of the child (crc) andthe hague convention are recognised as guidinginstruments for the regulation of intercountryadoption. despite the tremendous improvementsthat have been made in terms of national legislationand policies with regard to children’s rights, majorgaps between legislative promulgation and theactual implementation of the aforementionedinstruments still exist.

The general consensus is that the focus should beon preventing intercountry adoption and on findingsolutions within children’s own countries. Africancountries should prioritise strengthening alternativecare systems and support to families in order tokeep children at home or within their communities.in this regard, the possibilities of national adoptionshould be explored. Good practice examples canbe found in uganda, where campaigns werelaunched to familiarise the population with domesticadoption. These campaigns have proved to besuccessful and have led to an increase in thenumber of national adoptions.

Guidelines and policies are urgently needed toregulate the adoption of children for whomalternatives in their own country are not available.furthermore, consistent policies should beimplemented across Africa on whether a child maybe considered adoptable and appropriate checksand balances to ensure proper practices should beput in place.

mr david mugawe, executive director, AcPf


intercountry adoption in Africa is governed bythree international instruments, namely theAcrWc, the crc and the hague convention on

intercountry Adoption. most African countries areparty to both the AcrWc and the crc, whereas thehague convention has been ratified by only 13African nations.

Both Article 24 of the AcrWc and Article 21 of thecrc explicitly declare that the best interests of thechild should be the paramount consideration inany adoption procedure. furthermore, theseArticles state that intercountry adoption may onlybe considered “as an alternative means of a child’scare, if the child cannot be placed in a foster or anadoptive family or cannot in any suitable mannerbe cared for in the child’s country of origin”.Governments should ensure that children affectedby intercountry adoption enjoy all safeguards andstandards necessary, and appropriate measuresshould be taken to ensure that intercountryadoption does not result in trafficking or improperfinancial gain for those who are involved in theprocess.

The hague convention reinforces the aforementionedArticles, as well as other principles of the AcrWcand the crc. it provides a proper legal andadministrative framework for intercountry adoption,both at a global and national level. By ratifying thehague convention, States strengthen theirprotection mechanisms for children which relate tointercountry adoption. The AcrWc and the crcshould be regarded as the first layer of protection,the hague convention as the second layer andnational laws as the third; together these layersshould ensure respect for the rights of children. incases where both the country of origin and thereceiving country have ratified the hagueconvention, an improvement in adopted children’ssituations is evident. in addition to stipulations onintercountry adoption, the hague convention alsocontains sections on interfamily adoption and itencourages domestic adoption.

The aim of the hague convention is to setminimum standards for intercountry adoption onthe basis of a number of principles. The principleof the child’s best interests: children should onlybe adopted when this is in their best interests andwhen their fundamental rights are safeguarded. inaddition, the principle of subsidiarity should beadhered to. According to this principle, childrenshould be raised by their biological parents ormembers of the extended family wheneverpossible. furthermore, the hague conventionencourages cooperation between States andwithin States to protect children and to achieve itsobjectives, including the prevention of improperfinancial gain or bad practices. States shouldensure that only competent bodies are authorisedto perform the convention’s functions. lastly, thehague convention establishes standards,safeguards and procedures to prevent abduction,sale and trafficking of children.

research indicates that the hague convention hashad a number of positive effects. first of all, it hasled to increased awareness of good practices ingeneral as well as in emergency situations, whilestimulating efforts to combat negative practices.in addition, the convention motivates governmentsto look at domestic solutions for children in needof care. The hague convention empowers countriesof origin to resist inappropriate pressure fromreceiving countries. finally, the convention promotesshared responsibilities by countries of origin andreceiving countries for the enforcement of goodpractices and the condemnation of malpractice.

A significant number of African countries haverecently enacted comprehensive and compositenew child laws which cover all aspects of childprotection, including children in need of alternativecare. examples of countries where new laws havealready been passed are South Africa, mozambique,lesotho, Botswana, malawi, Tanzania, South-Sudan, Sierra leone and Zanzibar. furthermore, innamibia the new child care and Protection Bill is

3 INTeRNaTIONal law aND INTeRCOUNTRy aDOpTION


expected to be tabled in Parliament in 2012 andin uganda an Amendment Bill to the 1997 childrenAct is in the process of being drafted. many Africancountries have to a greater or lesser degreeprovided for adoption and intercountry adoption intheir legislation, or are planning separate laws todomesticate or ratify the hague convention.

Given that adoption is primarily a legal transactionin which the formal legal responsibility for a childis transferred to the adoptive parents, therebyterminating the legal status of the birth parents,the law is a very important factor in any adoptionprocedure. This cannot be achieved without anenabling statute authorising the change of thechild’s legal family status and providing proceduralrules. According to the hague convention,minimum standards and safeguards should beestablished, but the uniformity of internal adoptionlaws is not required and different methods ofadoption procedures are permitted. municipallegislation is therefore a prerequisite for a well-functioning international adoption apparatus.

in the African context, where States’ structures arefrequently inadequately resourced and humanresources are limited, international legalinstruments should not be ratified withoutcontemplating in advance the institution ofeffective domestic restraints. The omission of thisphase may lead, for example, to countries beinginundated with requests from overseas agenciesfor adoptable children, far exceeding the numberof children available.

“The Guide to Good Practice to the hagueconvention” requires a legislative framework aspart of the pre-planning for implementation of theprovisions of the convention. The Guide furtherclarifies that the basic principles and minimumstandards for intercountry adoption provided by thehague convention should be supplemented byprovisions in national laws. for instance, withregard to the principle that intercountry adoptionshould only be considered as a measure of lastresort, national laws should clarify how it is to berecorded that sufficient and true efforts for adomestic placement have been exhausted.national legislation should also provide for the

required criminalisation of improper inducements,illegal solicitation, improper financial gain, untowardadvertising and trafficking. in this respect theprinciple nulla poena sine lege (no penalty withouta law) applies.

it should be noted that the law in itself is notsufficient to protect children in need of care.however, the law is a foundational element of theimplementation and the control of this intricateprocess.

notwithstanding the international instrumentsavailable, there is still diversity throughout theworld in terms of approaches to intercountryadoption, legislative frameworks, proceduralsafeguards, resource allocation and alternativecare systems in place, both in receiving countriesand in countries of origin. This diversity is by nomeans always in response to differing culturalsituations and needs, but to a range of otherfactors, such as those that lead to intercountryadoption.

even though the majority of receiving countrieshave ratified the hague convention, which impliesthat domestic laws and procedures are generallycompatible with this convention, very differentpractices exist. for instance, legislation in franceand the uS allow for privately-arranged adoptions,also known as independent adoptions, fromcountries that have not ratified the hagueconvention, whereas other countries such as italyand Sweden outlaw all independent adoptions.Another example relates to the number ofaccredited adoption agencies. The uS hasaccredited more than 150 adoption bodies forapproximately 10,000 intercountry adoptions peryear; in france 34 accredited agencies handle3,500 adoptions, whereas in Sweden only fiveaccredited agencies process 900 adoptions peryear. The proliferation of adoption agencies insome countries of origin has led to great concernover accreditation and monitoring.

With regard to countries of origin, a variety of legalframeworks are in place, ranging from outdated,colonial laws to laws which provide for swiftadoption procedures. due to the sudden increase


According to the un Special rapporteur onthe Sale of children, child Prostitution andchild Pornography the family forms the first

shield of protection for any child. in most Africancountries the term ‘family’ does not only refer tothe nuclear or elementary family, but also toextended family members and, in certain cases,neighbours and community members. A child’sfamily environment may be affected by manyfactors and in the African context a long history ofnatural and man-made disasters has diminishedthe capacity of the traditional family network ofprotection. children have the right to grow up in asafe family environment and social support shouldbe provided to parents and families who lackadequate means to take care of their children, thusenabling them to raise their children in line with thecrc provisions.

intercountry adoption practices deserve specialattention and should be regulated, monitored andcontrolled. in situations where a legal frameworkis not in place, there is a high risk of premature,illegal adoptions and the sale of children. Adoptionshould not be utilised as a solution to poverty or

an alternative for families in precarious situations;instead, it should only be contemplated as ameasure of last resort and the interests of the childshould always be the paramount consideration.The fact that the birth of a child has not beenregistered should not lead to the conclusion thatthe child in question is adoptable, especially insituations where births of newborns are deliberatelynot registered, with a view to facilitating their sale.

countries of origin should make every effort toimplement reliable and credible informationsystems, containing data on all children, such asbirth registrations and risk factors. At the sametime, receiving countries should ensure that allobligations of the hague convention are respected,even when the country of origin has not ratified theconvention.

democrATic rePuBlic of conGoThe 1987 Adoption law was drafted for theprotection of children deprived of a familyenvironment. in historical terms the drcimplemented adoption laws at two different points

4 expeRIeNCes fROm COUNTRIes Of ORIgIN

from left to right: mrs yayesh Tesfahuney, director, child rights Promotion and Protection directorate, ministry of Women, children and youth Affairs,ethiopia, mrs Gertrude lynn hiwa, law commissioner, malawi, dr mary Shawa, Principal Secretary, ministry of Gender, children and communitydevelopment, republic of malawi


in time: before and after 1987. during the periodbefore 1987 the main goal of adoption was toprovide a family with a child in cases of childlessfamilies or situations where an heir was lacking. Asof 1987, the focus shifted from parent-centred tochild-centred practices, aimed at providing childrenin need of parental care with a family. only twoprovisions in the Adoption law relate tointercountry adoption. Although the drc has notyet ratified the hague convention, certainprovisions of the convention have beenincorporated into the 2009 law no. 09/001 onchild protection.

in the period 1997 – 2007 the drc was ravagedby war and it is estimated that more than 5 millionpeople were killed. many children were left withouta family and there was a strong concern to providemechanisms to help these children. As a result,laws on adoption and alternative care provisionswere changed, paving the way for adoptions to takeplace within communities.

The 1987 Adoption law contains a number ofrequirements for adoptive parents: they have tohave been married for a minimum of 5 years, theyshould be at least 15 years older than the adoptedchild and they should not have more than threechildren alive at the time of adoption. furthermore,the law stipulates that official documents, such asa marriage certificate and proof of health of bothparents are required.

The Government of the drc is actively involved inthe process of intercountry adoption throughParliament, the ministry of Justice and the ministryof Social Affairs. however, there is no centralAuthority governing intercountry adoption, which isa major concern as the lack of such an authorityfragments the regulation and monitoring oforphanages, adoption agencies and adoptions ingeneral. This potentially leads to illicit adoptionpractices. The harmonisation of domestic laws withinternational principles on intercountry adoption istherefore vital.

federAl democrATic rePuBlicof eThioPiAethiopia has ratified most international legalinstruments relating to the protection of children,namely the crc, AcrWc, ilo convention on theminimum Age of employment and the iloconvention on the Worst forms of child labour.furthermore, the principle of the best interests ofthe child has been incorporated in the constitutionand the revised family code. The latter containsprovisions relating to both domestic andintercountry adoption. in addition to these laws, apolicy framework aimed at children and youth wasdeveloped by the Government of ethiopia.

in 2011, the population of ethiopia was estimatedat more than 82 million people of whom 55% arechildren. Approximately 6 million children areconsidered ‘vulnerable’; these children are deprivedof their family, neglected, displaced, living in thestreets, abandoned or disabled. Structural causesleading to the vulnerability of this vast number ofchildren include extreme poverty, hiV/AidS andurbanisation, while underlying factors ofvulnerability are family instability and disintegration,violence in the home, abuse and disability. in anattempt to combat children’s vulnerability, thegovernment has provided for a range ofinterventions and options, such as community-based care, foster care, adoption, reunification andreintegration. community-based care is pursued asthe main strategy, while institutional care isregarded as a measure of last resort and is least-promoted. in the year 2011, more than 700,000children received government funded support,primarily within their own family or community andan estimated 7,000 children lived in an institution.

in 2011, approximately 3,000 children left ethiopiathrough an intercountry adoption procedure. Anumber of challenges with regard to intercountryadoption may be discerned. first and foremost, theavailability of domestic alternative care options isvery limited. furthermore, there is a lack of


accurate and reliable data on children’s situationsand a comprehensive information system is not inplace, all of which is further complicated by thenon-compulsory nature of birth certificates. otherchallenges include a lack of post-placement follow-ups and the fact that a large part of the populationis not familiar with the concept of intercountryadoption.

The ethiopian alternative care system is currentlyin the process of being amended and national lawsare assessed on the basis of international laws andtreaties. The regulatory framework will bestrengthened and an adequate data managementsystem is being set up. in addition the ethio-alternative care network has recently beenlaunched, a national alternative care network thatserves as a platform for public-private partnershipsto share information and resources amongrelevant stakeholders in the area of alternativecare. in addition, community-based child careprogrammes, as well as local adoption andreunification are promoted by means of nationaland local media. Social cash transfer programmestargeting vulnerable households have also beenrolled out.

The Government of ethiopia has indicated itsintention to ratify the hague convention, as well asthe further development of family-based careprogrammes.

rePuBlic of mAlAWimany children in malawi are unprotected and thereis an urgent need for an integrated child protectionsystem. despite efforts to reduce poverty, 52% ofthe population in malawi lives below the povertyline and 10% of children grow up without parentalcare. The government recognises the need toaddress the root causes of poverty, hiV/AidS andother problems related to child care and protectionand intensify the social support system.

Attitudes with regard to intercountry adoption differsignificantly in malawi, ranging from people fullysupporting it to those who argue that it is harmfulfor children. The legal framework in malawi offersprotection to children who are in need of care andincludes provisions with regard to both national andintercountry adoption. The constitution, the childcare, Protection and Justice Act, and the Adoptionof children Act consolidate rules and regulationsrelating to children and govern adoption procedures.These laws are based on the fundamental principleof the best interests of the child. The “Adoption ofchildren Act” was enacted in 1949, based on an oldenglish statute of 1926, and laws on adoption havelargely remained unchanged since then. These lawsare now outdated and incompatible with currenttrends and realities.

due to the increased number of children adoptedfrom malawi, a Practice direction on intercountryadoption was issued in 2009. however, areplacement of existing adoption laws is urgentlyneeded. A review of the “Adoption of children Act”by the law commission has already been put intoeffect and the commission intends to harmonisethe Act with the hague convention and otherrelevant international instruments.

despite legislation, the concept of adoption wasrelatively unknown in malawi until very recently andpeople have little or no knowledge of intercountryadoption. in most cases, parents consent toadoption in the understanding that it is atemporary arrangement, rather than a permanentone. This misconception is frequently exploited byadoption agencies, who omit to explain the legalconsequences of adoption to the biological parentsor family of a child. it is therefore essential toimprove general knowledge on the concept ofadoption. The Government of malawi recognisesthat domestic adoption should be a firstconsideration, while intercountry adoption shouldbe regarded as a measure of last resort. Thegovernment also acknowledges the need forratification of the hague convention.


federAl rePuBlic of niGeriAAdoption in nigeria is characterised by misconceptions,illicit practices and total disregard of applicablelegislation, as well as negative public attitudes. inmany cases, children are adopted for reasonsother than their welfare. in some instances, themain purpose for adoption is child labour or ritualchild abuse. Vital records and data required forplanning and improvement of services arefrequently unavailable or difficult to obtain.

in nigeria, the phenomenon of adoption wasintroduced as a legal institution in 1965. Atpresent, adoption is mainly regulated by the childrights Act 2003, as well as by a number of otherstatutes. however, the rules and regulations inplace are strictly limited to domestic adoption andnone of the provisions relate to intercountryadoption.

According to the child rights Act, variouscategories of children are considered adoptable.first of all, abandoned children may be adopted.in nigeria, abandoned babies constitute the largestpercentage of children who are adopted. Secondly,orphans or children who are deprived of a familyenvironment can be adopted. children whose well-being and development are threatened due toinadequate care by their parents, are adoptable ifparents consent to adoption.

The child rights Act 2003 also provides rules andregulations with regard to adoptive parents. everyadoptive parent must be at least 21 years older thanthe child he or she adopts and both the adoptiveparent and the child must be resident in the samestate. couples who are unable to have children oftheir own may adopt. Also, any adult, whethermarried or single who can provide a permanent,stable and caring home for a child may adopt.others considered suitable to adopt include:married couples with or without children of theirown, provided they have reached the age of 25years; a single person, provided he or she hasattained the age of 35 years (singles are not allowedto adopt children of the opposite sex). it is prohibitedfor other nationals to adopt a child in nigeria.

The absence of intercountry adoption servicesand/or accredited adoption agencies in nigeria hasled to the situation that private maternity wards andorphanages are exploited, resulting in the illicit saleof babies, child trafficking and facilitatingunauthorised intercountry adoptions. it is thereforeessential that nigeria develops clear and conciselegal provisions on intercountry adoption, as well asprocedures based on international best practices.ratification of the hague convention should beconsidered by the Government of nigeria.

dr mary orjioke, deputy director, child developmentand Participation, federal ministry of Women Affairsand Social development, nigeria


ith the decrease in the number of adoptable children in china, one of the most popular countries of origin during

the past decade, the pressure on other countriesof origin has increased, most notably in Africa.There is still a surplus of people wishing to adopt,while the number of children for whom intercountryadoption is considered to be a suitable alternativeis declining. in many countries of origin thepromotion of the application of the principle ofsubsidiarity has resulted in a revision of their childprotection systems and the strengthening ofdomestic alternative care programmes. ratherthan resort to intercountry adoption, solutions suchas programmes for family preservation, reunification,foster care or national adoption are pursued, inconformity with the principle of subsidiarity.

The fact that some receiving countries, despitetheir ratification of the hague convention, allow forindependent adoptions is highly questionable asthe principle of the best interests of the child maybe compromised as a result.

frAncein france, intercountry adoption is not a newphenomenon. After World War ii charities utilisedintercountry adoption to provide childless familieswith one or more children. in the past the focuswas on the adoptive family, whereas nowadays theadopted child is of central importance.

france has ratified the hague convention and hasestablished a central Authority as well as therequisite bodies to oversee all adoptionprocedures. nevertheless, france adopts childrenfrom both hague and non-hague countries andindividual adoptions are not prohibited, despitethis being a violation of the hague convention. Theprohibition of independent adoptions requires anamendment of the law, a complicated and lengthyprocedure. Adoption agencies provide adoptive

parents with all the necessary information, includingthe cultural aspects that need to be taken intoaccount in cases of intercountry adoption. inaddition, networks have been set up for adoptiveparents to share experiences and information.Protection mechanisms are in place and adoptedchildren are continuously monitored by the frenchSocial Services. in france, a total of 34 adoptionagencies have been accredited; agencies are notallowed to operate without accreditation. Thefailure rate of intercountry adoption is a mere 1%.

The adoption of African children by french citizensis common, although figures stabilised in the year2005 at approximately 3,500 children anddropped in 2011 to an estimated 2,000. There areno quantitative limits to adoptions from anygeographic area. due to the current downwardtrend of intercountry adoption, the number ofdomestic adoptions in france has risen. it is alsonoteworthy that there is an increasing number ofadoptions of slightly older children, rather thaninfants. furthermore, there is an increase inadoptions of children with special needs. due tomore stringent and lengthier procedures, adecrease in the number of applications forintercountry adoption is observed. There is a riskthat this may lead to families resorting toindependent and illegal adoption procedures,which are significantly shorter.

france considers intercountry adoption to be ameasure of last resort.

The neTherlAndSThe dutch government ratified the hagueconvention in 1998. A quality framework has beenput in place to accredit adoption agencies and allagencies are subject to monitoring. in 2007, morethan 2,400 prospective adoptive parents appliedfor an intercountry adoption permit, which numberhad fallen by 50% to approximately 1,200

5 expeRIeNCes fROm ReCeIvINg COUNTRIes

W


applications in 2011. in practice, a total of 782children were adopted into The netherlands in2007 and 528 children in 2011. The reduction inboth applications and actual adoptions may beattributed to the global economic crisis and thecosts incurred in intercountry adoption. Anothercontributing factor to the decline is a change in theprofiles of children who are adoptable: anincreased number of children made available foradoption fall into the category ‘special needs’.

despite the overall decline in the number ofintercountry adoptions, the percentage of childrenadopted from African countries to The netherlandsincreased from 18% in 2007 to 27% in 2011. Themain countries of origin are Kenya, the drc, SouthAfrica, ethiopia, nigeria and uganda. during theperiod 2007 – 2011 there was a decrease of 9%of adoptions from Asian countries.

in The netherlands, great importance is attachedto the exchange of information with countries oforigin. To enable prospective adoptive parents andthe authorities of the receiving country to make aninformed choice, they need to be fully informedabout the medical, social and psychologicalbackground of the child. equally important arereports containing all the relevant informationabout prospective adoptive parents. free exchangeof information between countries of origin andreceiving countries is therefore essential and allparties should cooperate fully, on the basis of thehague convention. Post-placement reports areprovided when required by countries of origin.

it is essential that there is a balance between theneeds of children, the desire of prospective adoptiveparents and the ability to resist the pressure fromreceiving countries by countries of origin. in this

respect, a well-developed child protection systemis required. intercountry adoption should only beconsidered when it is an option in conformity withthe principle of a child’s best interests and whensuitable adoptive parents are available.

uniTed STATeS of AmericA (uS)The uS fully endorses intercountry adoption anddoes not regard it as a measure of last resort.despite the acknowledgement of the principle ofsubsidiarity, the main purpose of intercountryadoption is considered to be the upbringing of achild by a loving family, even when this entails thephysical removal of a child from his or her familyor country of origin.

The main motivation for the uS to ratify the hagueconvention was to bring trafficking and the sale ofchildren to a halt. uS laws on trafficking only applyto activities relating to labour and sex, and illicitintercountry adoptions are therefore not regardedas trafficking. in the uS it is permissible to adoptchildren from countries that have ratified thehague convention as well as from non-haguecountries. Privately arranged adoptions are alsoallowed. All parties involved have the obligationthat the rules governing intercountry adoption areadhered to and to monitor procedures. The uSgovernment shuts down intercountry adoptionoperations when improper practices occur.

The uS functions both as a receiving country andas a country of origin. it is estimated that almost10,000 children were adopted into the uS in 2011,the majority from non-hague countries; at thesame time, a substantial number of children wereadopted from the uS.

5 expeRIeNCes fROm ReCeIvINg COUNTRIes


Good PrAcTiceS in AfricA

omestic adoption is not an alien concept in every African country; however, in some countries national adoption procedures are

more cumbersome than intercountry adoptionprocesses. in countries where domestic adoptionis not available or is uncommon, awarenesscampaigns should be launched.

With regard to intercountry adoption in general, theprinciple of the best interests of the child is ofparamount importance. in addition, the principleof subsidiarity is of great significance. due to thefact that intercountry adoption is regarded as ameasure of last resort both in the AcrWc (Article24) and in the crc (Article 21), there is a rights-based argument for alternatives to intercountryadoption.

family preservation should be considered as ‘firstresort’ and deserves special attention in allcountries. in many parts of Africa various economicfamily strengthening programmes have beendeveloped and launched. Good practices of familysupport programmes include the South Africanchild Support Grant and the Safety-net Programme

in ethiopia. however, poverty reduction alonecannot resolve all child protection issues and inconjunction with social protection systems,national child protection systems should be inplace for children to benefit sufficiently.

Besides family preservation, family reunificationwill lead to a significant reduction in the number ofchildren who need alternative care and theimportance of family reunification and reintegrationprogrammes should be acknowledged. childrenshould not be adopted at the height of anemergency, as this may curtail their chances ofreunification with their families. instead, time andeffort should be dedicated to returning children totheir families. There are, of course, limits to thisprocess and questions that arise are: has everypossible effort been made to locate a child’sfamily? how much time is reasonable? how do weassess the concept of ‘reasonable prospect ofreunification’? in all cases of separation ordisplacement of children, an adequate birthregistration system is vital. An example of a goodpractice in this regard is the situation after the2007-2008 post-election violence in Kenya.Through concerted efforts, more than 82% ofseparated children had been returned to theirfamilies by August 2009.

With regard to community-based care, foster careand kinship care, good practices exist in a numberof countries, including ethiopia, Kenya and malawi.it is noteworthy that in namibia permanent kinshipcare is embedded in the law. institutionalisation ofchildren has been documented as having anegative impact on their growth, development andcapacity to form attachments and should thereforebe avoided wherever possible. depending on thetype of residence and the specific situation of achild, institutional care may be employed on atemporary basis or in the process of familyreunification. currently, institutional care is heavilyoverused as approximately 80 – 90% of children inresidential care settings have at least one livingparent. in spite of this, evidence indicates that the

6 alTeRNaTIvesTO INTeRCOUNTRy aDOpTION

D

dr Benyam d. mezmur, Vice-chair, AcerWc; research fellow, uWc, South Africa


number of orphanages is on the increase,particularly in countries impacted by high povertyrates, conflict, hiV/AidS, displacement or acombination of these factors. in Zimbabwe, whichhas a high hiV prevalence rate, 24 new orphanageswere built between 1996 and 2006, 80% of whichwere initiated by faith-based groups. it is thereforeessential that faith-based organisations beengaged in de-institutionalisation processes. inliberia, the number of orphanages increased from10 in 1989 to 121 in 1991 due to the war.however, in 2008 at least 117 orphanages stillexisted, of which more than half were unregisteredand unmonitored.

rather than rely heavily on donors and externalassistance, African governments should join forces,sharing regional experiences and implementing goodpractices from neighbouring countries.

norTh AfricAn exPerienceSThe menA (middle east and north Africa) countrieshave not ratified the hague convention, due to thefact that adoption is prohibited by law in thesecountries, with the exception of Tunisia. instead,the menA countries provide for a form ofalternative care known as kafalah, which is thecommitment to voluntarily take care of themaintenance, education and protection of a minor,in the same way “as a father would do for his son”.

Advantages of kafalah are:- the preservation of a child’s blood lineage

(adoption changes this)- children can carry the fourth surname of their

new parents (important in social muslim traditions)- it provides for appropriate financial support and

family-based care- it reduces the dependence on institutional care.

disadvantages of kafalah are:- it is a cumbersome process- the best interests of the child is not a central

consideration- a child is not entitled to the same rights as

biological children (most notably that of nameand inheritance)

- social stigma challenges the child’s full integrationin the family and in society

- the practical implementation of kafalah is besetby a tremendous gender bias.

Gender discrimination affects the observation ofchildren’s rights in egypt. for instance, a man’sword is enough to declare a newborn as his child,whereas a mother cannot report the birth of herchild without official proof of marriage, leading tobirths remaining unregistered. furthermore, orfi(unregistered) marriages subject women toimmense social stigmatisation, whereas this is notthe case for men. children born in orfi marriageshave no rights and are virtually non-existent in theeyes of the law.

The egypt child law no. 126/2008 provides arights-based reformed legal framework to alleviatethe plight of children without parental care. it focuseson prevention, protection and early intervention andcontains a number of vital aspects and principles.firstly, it forms an umbrella, guaranteeing as aminimum all rights enshrined in the crc, itsoptional Protocols and other international humanrights conventions. Secondly, children’s right to afamily environment and care is embedded in thechild law. in addition, the right to an identity anda nationality as well as the right to education arecovered. The law also provides for three new childprotection mechanisms, namely General childProtection committees at Governorate level,district Protection committees as well as a childhelpline, a national, toll-free, 24-hour service.

With regard to the implementation of the child law,a number of challenges remain. The best interestsprinciple is not always the paramount considerationin all actions concerning children. for example, thecare for a child in need of alternative care can besought after as a source of income. inspection ofalternative care settings is inadequate and thereare no follow-up mechanisms in place. As the lawis still relatively new, there is inadequate for:advocacy to raise awareness for its benefits;capacity building of all professionals dealing withvulnerable families and children; financial andhuman resources. due to the current politicalsituation in egypt, some of the legislative gainsachieved are under threat.


AlTernATiVeS in BurKinA fASoin Burkina faso children constitute 57% of thepopulation; a considerable proportion of them livein precarious situations. Support is often obtainedfrom the community and from funding agencies.Three main forms of alternative care are practisedin Burkina faso, namely guardianship, careplacements and intercountry adoption. There arenumerous challenges relating to intercountryadoption, the principal being that procedures arelengthy and most people do not support this formof alternative care. When considering alternativecare options for children, intercountry adoption isa measure of last resort.

The Government of Burkina faso promotes supportfor children in their country of origin. Therefore, anawareness campaign aimed at familiarising peoplewith domestic adoption has been launched.furthermore, efforts are being made to supportfamilies through social protection programmes inorder to ensure that vulnerable children areprovided for within their own environment, therebyreducing the need for intercountry adoption.

AlTernATiVe cAre in KenyAin Kenya, legislation governing children’s issues arethe 2010 constitution and the children’s Act 2001.The children’s Act gives effect to the principles ofthe AcrWc and crc, and contains provisions withregard to parental responsibility as well as differentforms of alternative care. despite legislation,children are faced with many challenges, such aspoverty, hiV/AidS, child labour, harmful practicesand child abuse. Statistics show that more than 2.5million children fall into the category ‘vulnerable’,approximately 700,000 children are involved inchild labour, more than 300,000 children live onthe streets and about 1 million children of school-going age are out of school.

Adoption is a relatively new concept in the Kenyansociety and the first law on adoption was the 1963Adoption Act cap143, which has been repealed inthe meantime by the aforementioned children’sAct. Adoption is defined as the complete severanceof ties with biological parents and the establishmentof a new legal relationship between the adoptedchild and the adoptive parents.

Kenya ratified the hague convention in 2007. inline with the convention, a national Adoptioncommittee has been established which approvesevery prospective intercountry adoption procedurebefore the adoption process can begin. other dutiesassigned to the committee are policymaking, theregistration of adoption agencies and the monitoringof all adoption activities in Kenya. more than 200adoptions are concluded every year, of which 60%are domestic. A number of these national adoptionsare problematic in that adoptive parents shy awayfrom registering the adoption of a child, an essentialstep in the finalisation of the process. furthermore,adoptive parents sometimes do not inform theiradopted children about their true identity. in somecases, Kenyan citizens living abroad employ thedomestic adoption procedure, while in fact theadopted child will be transferred to another countryand intercountry adoption rules should apply.

in 2004 the cash Transfer–orphans and Vulnerablechildren (cT-oVc) Programme was established,with very positive results. The objective of thisprogramme is to ensure that orphans andvulnerable children are retained within theirhouseholds, families or communities, providingthem with access to basic services. initially, about500 families benefited from the programme; todayapproximately 134,000 families are supported. Todate, the primary benefits of the programme are:

- an increase of real household consumption levels- a reduction of poverty levels by 13%- an increase of food expenditure by 15%- improved acquisition of birth certificates by 12%- improved access to secondary school by 6%.

The only disadvantage of the cT-oVc Programmeis that there is no national coverage as yet.

under the children’s Act 2001, the system of fostercare has been revised. formal foster care isdefined as the placement of a child with a personwho is not the child’s parent, relative or guardianand who is willing to undertake the care andmaintenance of that child. At present, 640 childrenare recorded as being in formal foster care.however, in Kenya fostering is usually carried outon an informal basis. There is no data relating tochildren in informal foster care settings.


furthermore, the children’s Act provides forguardianship. A guardian is defined as a personappointed by will or deed by a parent or by courtorder to assume parental responsibility for a childupon the death of the parent, either alone or inconjunction with the surviving parent of the child.This form of alternative care is relatively unknownand not commonly practised.

The last alternative care modality laid down in thechildren’s Act is residential care in the form of thecharitable children’s institution (cci). A cci isdefined as a home or institution which has beenestablished by a person, corporation, religiousorganisation or an nGo and has been grantedapproval by the national council for children’sServices to manage a programme for the care,protection, rehabilitation or control of children.ccis must renew their registration every threeyears and have to meet set standards. currently,more than 700 ccis are operational, hostingapproximately 41,000 children. The biggestcontroversy surrounding residential care is that insome instances it appears to be a first choice asopposed to a measure of last resort for children inneed of alternative care.

Policy meASureS in mAlAWiin malawi, there are approximately 1.2 millionorphaned children, 50% of which cases are due tohiV/AidS. The government has recently revisedvarious legislative provisions in order to provideadequate safeguards for the protection of thesechildren. in 2010, the malawi Parliament passedthe child care, Protection and Justice Act, no. 22of 2010, which provides the overall legalframework for children in need of care andprotection. The ministry of Gender, children andSocial Welfare is in the process of developingimplementation guidelines for the Act, aimed atimproving access to justice for all children.furthermore, government policies prescribe thepromotion of community-based approaches for thecare, protection and support of children. for

instance, the orphans and other Vulnerablechildren Policy promotes formal and informal fostercare by relatives and non-relatives.

intercountry adoption has become a reality inmalawi. The situation has led to the urgent reviewof the Adoption Act to avoid putting malawianchildren at risk of trafficking and exploitation.Principles from the crc and the hague conventionhave been domesticated in the new Adoption Act.The ministry will also produce policy guidelines,regulations and procedures with regard to adoptionwhich will protect and safeguard the best interestsof children eligible for adoption. As stipulated byboth the AcrWc and the crc this policy considersadoption as a measure of last resort.

The review process of the Adoption Act is nearingcompletion and its drafting was highly consultative.Through consultations it was observed that theterm adoption is considered to be foreign by mostmalawians who, due to cultural tendencies, do notreadily ascribe to the notion of permanent severanceof ties between a child and the biological parentsand family. most rural communities conceptualiseadoption as a process whereby the adoptive familyhelps the biological parents by raising their child;when the child reaches adulthood, the biologicalfamily may reclaim their rights over the child. Anotheroutcome of the consultations was the fact that themajority of malawians is not in favour of adoptionagencies operating in their country becauseagencies are often associated with child trafficking.

in order to reduce the need for intercountryadoption, malawi has embarked on the promotionof child protection strategies that address theproblems of poverty, social security, nutrition andhealth in order to fulfil the right to life, survival,growth, development and protection of all children.As part of this process, a Social cash transferscheme has been implemented, providing supportto the 10% of ultra-poor families, coupled witheducation and early childhood development.


The number of children in need of alternative careis still on the increase. Therefore, the developmentand implementation of adequate care systemswhich guarantee children in Africa a family- andcommunity-based upbringing is essential. Africahas the ability as well as the space to developeffective child care programmes.

With regard to intercountry adoption there are twomajor viewpoints:

- those who accept it as a child protection measure- those who oppose the practice, owing to the fact

that, generally, it is not in the child’s bestinterests to be removed from his family andcommunity, and should be a measure of lastresort.

from an Africa-wide perspective there is an urgentneed for a regulatory framework for intercountryadoption. only when international and regionalstandards are implemented and adhered to, canchildren’s rights be guaranteed.

in aid of the realisation of a Pan-African framework,the draft Addis Ababa communiqué on intercountryAdoption (Annex 1) was drawn up by a Task force

which was composed of a pool of experts fromdiverse backgrounds. The development of thecommuniqué was a shared effort based on thedeliberations, presentations, debates andcomments made during the conference. The Taskforce comprised:

- Ambassador moushira Khattab, Phd (egypt)- dr Benyam dawit mezmur – Vice-chair, AceWrc

(ethiopia)- ms Violet odala – AcPf (ethiopia)- mr Shimelis Tsegaye – AcPf (ethiopia)- Justice edward Twea – national child Justice

forum (malawi)- ms laura martinez – hcch (netherlands)- mr Gorqui Sow –AncefA (Senegal)- mr hervé Boéchat – iSS (Switzerland)- mr nigel cantwell – independent consultant

(Switzerland)- ms freda luzinda – child Advocacy Africa(uganda).

The Guidelines for Action on intercountry Adoptionof children in Africa will be submitted to theAcerWc for consideration.

for the full text of the Guidelines, please click here.

7 TOwaRDs a paN-afRICaN fRamewORk

from left to right: hon. mrs Anita Kalinde, minister of Gender, children and community development, republic of malawi, mr david mugawe,executive director, AcPf, h.e. Almaw mengist, State minister of Women, children and youth Affairs, federal democratic of ethiopia, h.e. mmeclémence Traoré, ministre de l'Action Sociale et de la Solidarité nationale, Présidente de l'Autorité centrale du Burkina faso,

Intercountry Adoption: Alternatives and ControversiesThe Fifth International Policy Conference on the African Child - Conference Report

aNNex I aDDIs ababa COmmUNIqUé

ON INTeRCOUNTRy aDOpTION

i20

The fifth international Policy conference on theAfrican child29-30 may 2012 - Addis Ababa, ethiopiaThe AddiS ABABA communiqué oninTercounTry AdoPTion

Recalling the African charter on the rights andWelfare of the child (AcrWc) and the conventionon the rights of the child (crc), and all rightsguaranteed therein, including the right of the childto be brought up in his/her family wherever possible;

Cognisant of the right of the family to receive anynecessary support and the child’s right to begranted special assistance if he/she cannotremain in parental care, and in that case preferablyto be placed in an alternative family environment;

Conscious of the fact that African societies havefor centuries been able to care for their children,including those left without parental care, basedon collective values and wisdom;

Aware of the present reality that the very fabric andintegrity of the African family is threatened, amongothers, by poverty, disease, hiV/AidS, and conflict,leaving children in dire circumstances;

Recognising that intercountry adoption could beresorted to in truly exceptional circumstances forcertain children without parental care, and with thebest interests of the child as the paramountconsideration, in particular as provided for byarticle 24 of the AcrWc;

Concerned by the trend of Africa being the newglobal frontier for intercountry adoption at a timewhen the practice is sharply declining in othercontinents;

Duly acknowledging that a vast majority ofadoptive parents sincerely wish to provide a lovingand lasting family environment for children in needof alternative care;

Taking note nonetheless of reports, in someinstances, of intercountry adoption resulting inabuse of children in the receiving countries;

Recognising the usefulness of follow-up reportsregarding the well-being of adopted children but

with due recognition of the fact they cannot replaceproper safeguards within the adoption procedures;

Concerned that sometimes children are beingprocured for adoption abroad through manipulation,falsification and other illicit means of securingfinancial gains;

Concerned also that in some instances there areboth internal and external pressures put onfamilies and governments to make their childrenavailable for intercountry adoption;

Convinced that with a modest degree of economicand social support, African families and communitiescould provide for children without parental care;

And bearing in mind that the global and Africancommunity has agreed on various principles to berespected towards each child, as set out in regionaland international instruments and documents,notably The African charter on the rights andWelfare of the child (1990); The un convention onthe rights of the child (1989); The Protocol to thecrc on the Sale of children, child Prostitution andchild Pornography (2000); The 1993 hagueconvention on Protection of children andcooperation in respect of intercountry Adoption;the un Guidelines for the Alternative care ofchildren (2009), and the declaration and Plan ofAction for an Africa fit for children (2001) and thecall for Accelerated Action (2007);

We, the participants of the Fifth International

Policy Conference on the African Child, call upon:

1. African StatesTo assume and honour their responsibility forensuring the well-being of Africa’s children,including children without parental care. AfricanGovernments should therefore:

a. Give absolute priority to enabling all children inAfrica to remain with their families and in theircommunities by among other things:

i. harmonising national legislation with theAcrWc, the crc and other applicableinternational human rights instruments;

7 TOwaRDs a paN-afRICaN fRamewORk


ii. Putting in place a comprehensive childprotection system;

iii. establishing credible data-gathering andanalysis systems to ensure evidence-basedpolicies and decision-making on needs andappropriate responses in the sphere ofalternative care;

iv. Allocating adequate financial and humanresources to support vulnerable families;

v. Strengthening families and providing for thenatural and basic needs of children;

vi. Promoting and supporting informal andtraditional mechanisms of care such askinship care;

vii. Promoting non-institutional forms of alternativecare for children, such as foster care,guardianship and domestic adoption;

viii. ensuring strict oversight over the quality,number of residential care facilities, theirsource of funding, the reasons for andnumber of admissions of children, and theduration of their stay in these facilities; and

ix. establishing partnerships with cSos, themedia, traditional and religious leaders.

b. When considering intercountry adoption:i. Put in place appropriate legislative and

procedural measures to ensure propersafeguards for children involved in intercountryadoption;

ii. ratify and ensure the implementation of the1993 hague convention on intercountryAdoption;

iii. establish a central database of childrenwithout parental care in need of adoption;

iv. establish a mechanism to ensure that thechild is adequately prepared for psychologicaland emotional challenges which they mayexperience in the course of intercountryadoption;

v. Prohibit independent and private adoptions;and

vi. combat illicit financial gains.

2. civil Society organisationsa. To monitor government compliance with their

treaty obligations;b. To raise awareness on domestic family-care

options;

c. To carry out research and generate data onthe state of children without parental care;and

d. To advocate for the rights of children withoutparental care.

3. Treaty Bodies, in particular,a. The African committee of experts on the rights

and Welfare of the child should monitor:i. developments in African countries regarding

intercountry adoption, and the observanceof internationally recognised safeguards andthe un Guidelines on Alternative care; and

ii. measures taken by States to address familypoverty and breakdown and to improvedomestic alternative care provision.

b. The un committee on the rights of the child should pay special attention to:i. The compliance of both “receiving countries”

and “countries of origin” with intercountryadoption standards; and

ii. The commitment of “countries of origin” todeveloping appropriate and effective domesticresponses to children without parental careor at risk of being so.

Therefore, We, The PArTiciPAnTS of The fifThinTernATionAl Policy conference on TheAfricAn child, cAll for A reVerSAl of ThecurrenT Trend of reSorTinG To inTercounTryAdoPTion AS An eASy And conVenienT oPTionfor AlTernATiVe cAre in AfricA, And forGiVinG ABSoluTe PrioriTy To enABlinG Allchildren in AfricA To remAin WiTh TheirfAmilieS And Their communiTieS.

We TAKe uPon ourSelVeS The duTy ofenSurinG ThAT inTercounTry AdoPTion iSGuided By The BeST inTereSTS of The child,APPlied only When An AlTernATiVe fAmilyenVironmenT cAnnoT Be found in The homecounTry, And, in line WiTh The AfricAnchArTer on The riGhTS And WelfAre of Thechild, iS uSed AS A lAST reSorT.

AdoPTed on 30 mAy 2012 AT The fifThinTernATionAl Policy conference on TheAfricAn child (iPc), orGAniSed By TheAfricAn child Policy forum (AcPf)

www.africanchildforum.org/ipc

29-30 may 2012 united nations conference centre addis ... · made it to the conference and to h.e....

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