Improving vietnamese laws on inter country adoption for participation in hague convention 1993

HANOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW IMPROVING VIETNAMESE LAWS ON INTER-COUNTRY ADOPTION FOR PARTICIPATION IN HAGUE CONVENTION 1993 SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 MASTER OF LAW THESIS STUDENT: DAO THITHU HUONG T H lfV lÊ N TRlfÔNG OAI HOC LUÂT H * NÔI PHÔNG GV i _ JULÇ ^ _ i f SUPERVISORS: DR VU DUC LONG DR PROF MICHAEL BOGDAN HANOI -2004 Contents SUMMARY PREFACE ABBREVIATIONS INTRODUCTION 1.1 SUBJECT AND PURPOSE OF THE THESIS 1.2 METHODOLOGY AND MATERIAL 1.3 LIMITATION 1.4 STRUCTURE OVERVIEW OF THE DEVELOPMENT OF ICAS 2.1 BRIEF HISTORICAL DEVELOPMENT OF ICAs 8 2.2 HAGUE CONVENTION 1993 11 2.3 OVERVIEW OF ICAs IN SWEDEN 18 LAW ON ICAS IN VIETNAM 24 3.1 THE LEGAL REGULATIONON ICAs UNDER THE VIETNAMESE LAWS 24 3.2 LAW ON ICAs UNDER THE TREATIES THAT VIETNAM SIGNED OR ACCEDED 34 SOLUTIONS IMPVOVING VIETNAMESE LAWS IN ORDER TO PARTICIPATE IN HAGUE CONVENTION 1993 40 4.1 COMMENTS ON PRACTICE OF SOLVING ICAs IN VIETNAM 40 4.2 COMMENTS ON THE EFFECTS OF H.C 1993 48 4.3 SOME SOLUTIONS TO IMPROVE VIETNAMESE LEGAL PROVISIONS AT PRESENT 52 ÿ CONCLUSION BIBLIOGRAPHY 58 59 Abbreviations AC: AoJ: BAoC: BFA-A: FFIA: GD: GD 184/1994 GD 68/2002 IAA, IAD: ICAs MoJ: The Association the Adoption Centre The bilatéral Agreement on mutual Justice The Bilatéral Agreement on mutual Coopération involving adoption Children Above Ail - Adoptions The Family Association for Intercountry Adoptions Government Decree Government Decree Number 184, dated 1994 Government Decree Number 68, dated 2002 Intercountry Adoption Agency Intercountry Adoption(s) Ministry of Justice MoLWSw NIA: Ministry of Labor -W ar Invalids and Social welfare The Swedish Nation Board for Intercountry adoption H.C 1993 : The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 Introduction 1.1 Subject and purpose of the thesis Adoption is an important institution of not only Law on Marnage and Family in the légal system of many countries in the world, but also of the international law Adoption interests specially both countries and international community, because this is spécial humanity field with necessary légal protection to ensure the best interests for the children- who are immature in both body and intellect as every différent children - and because of spécial reasons/ circumstances, they become homeless, without parents, without relative and are no more being grown up in the family environment, in an atmosphère of happiness, love and understanding They even have to leave completely from mother country in the case they are adopted by foreigners The phenomenon of adopting children from the other countries began mostly after the Second World War1 Over the last 70 years, international community has established and improved the moral - légal standards on the rights of the child meaningfully One of the important standards is to ensure that each family, each country care for its children properly in accordance with its ability Hague Convention 1993 on protection of the children and coopération in respect of intercountry adoption (hereinafïter called Hague Convention 1993) is the most important multilatéral treaty and directly connected with international adoption issue Vietnam is a country that has suffered from wars twice, in which Vietnamese children had to endure the biggest hardship So, adopting Vietnamese children by foreigner is issue that State and ail society have been interested since the war just stopped In the recent years, number of Vietnamese children being adoptions of foreigners is increasing dramatically Furthermore, in comparison with other countries in the area, Vietnam has more intercountry adoption than others With the purpose of creating favourable conditions for foreigner adopting Vietnamese children, Vietnamese laws have timely regulated this field Now, foreign adoption is directly stipulated by the Government Decree No 68/2002 on Guiding the Implementation o f Several Articles in the Law on Marriage and Family involving foreign factors (has come into force 02/01/2003) and some other relevant documents, combine with the agreements on mutual coopération Cederblad, “Compilation o f research into adoptees and their life after adoption” in Summ ary o f reDort o f enquirv into Intercountry A doption (by Ministrv o f Health and Social Welfare, 2003), p.35 conceming adoption that Vietnam has signed with countries (France, Italia, Denmark, Sweden and Ireland) Presently, Vietnam is preparing the necessary conditions for participating Hague Convention 1993 on protection of children and coopération in respect of intercountry adoption that dated in 17th section of Hague Conférence on Private International Law 1993 This even will make the stable international légal backgrounds for Vietnam to cooperate and go together with international community in respect of protection of child right and especially protection of Vietnamese children after they adopted by foreigners With reasons just mentioned, I choose this topic for my thesis Hopefully, from comments on provisions of Vietnamese laws regulating intercountry adoption at the present time, and put them in the mutual coopération with Sweden and particularly in the corrélation with Hague Convention 1993, to suggest spécifié/ possible solutions in order to contribute to improvement of Vietnamese laws in this field, making self - confidence for Vietnam when becoming an official member of this Convention (intended in 2005) This is the major purpose of my thesis With that purpose, the study sets out to answer the following questions: When has international adoption been established in the world? What are major objectives and contents of Hague Convention 1993? And what meaning does it have for protecting children and families involved intercountry adoption? Sweden is the member of Hague Convention 1993 and one of the countries has signed agreement on mutual co-operation conceming adoption with Vietnam Can experiences of Sweden in this field be applied in Vietnam? Vietnam has had many children for adoption by foreigners How Vietnamese laws regulate this spécifié field? Base on the comments on intercountry adoption practice in Vietnam and influence of Hague Convention for Vietnam, what solutions must Vietnam to improve Vietnamese laws in order to go together with contents of Convention? 1.2 Methodology and material In the thesis I have used the traditional légal method of légal dogmatic and examined, described, analysed, compared and interpreted the international légal basis as well as législation of Vietnam and Sweden relating to intercountry adoption Chapter two conceming the historical development of intercountry adoption is mainly based on “Proceedings o f the Seventeenth Session 10 to 29 May 1993” (Tome II: Adoption - Coopération) edited by the Permanent Bureau of the Conférence (SDV Publishers/ The Hague, Netherlands/1994); “some issues of spécial relevance to sending countries ” by William Duncan in Arthur Eliezer David, éd., Jaffe, Intercountry Adoption: law and perspectives o f sending countries (London, 1995) etc and international treaties involving the rights of the child In addition, it also based on some articles of Hans Van Loon - the first Secretary of the Permanent Bureau of The Hague Conférence on Private International Law, and some home pages on intercountry adoption of différent countries in the world With focus on légal régulation involving intercountry adoption in Vietnam, Chapter three is relied upon the current provisions of Vietnamese laws and spécifié international treaties that Vietnam has entered in this field Relating to intercountry adoption in Sweden, author uses the basic materials of Swedish National Board for Intercountry adoption (NIA), information from The Association the Swedes Adoption Centre etc Ail of them are combined with current légal provisions conceming intercountry adoption in Sweden and main content in ''''Swedish law in the New Millennium'1'' edited by Michael Bogdan (Stockholm, 2000) In the Chapter four, author uses the important information of International Adoption Department (under the Ministry of Justice), material of seminar “Completing Vietnamese law to participate Hague Convention 1993 on coopération in respect of intercountry adoption” etc 1.3 Limitation Law on intercountry adoption is large and complex field, each country has its own provisions in this field As the purpose o f the thesis, I have deliberately chosen not to focus on ail the issues conceming intercountry adoption, but only concentrate studying and analysing process and procédures for child adoption in Vietnam under the régulation of Vietnamese laws - as an object of international private law of Vietnam I shall also mainly mention some basic issues involving intercountry adoption in Sweden to seek the experiences that can be applied in Vietnam Moreover I put the régulation of Vietnamese laws on foreign adoption in the corrélation with the régulation of Hague Convention to find the spécifié solutions to improve Vietnamese laws in this field when Vietnam participating this Convention 1.4 Structure Chapter is overview of origin and historical development of intercountry adoption to focus the basic issues of General Convention on intercountry adoption (Hague 1993) such as the meaning, main contents of Convention This chapter also présents generally the basic issues such as policy, facts etc of Sweden - as a receiving country- in the intercountry adoption, with the purpose is to look for the experiences of Sweden that could be applied into Vietnam in this field Chapter concentrâtes analysing the provisions of Vietnamese laws regulating intercountry adoption, including both régulations under the national law and bilatéral agreements that Vietnam has signed with other countries in this field For instance the principles of intercountry adoption, the conditions for adopter and adoptee, settlement procédure, the issue of coopération with other countries etc Chapter gives comments on practice of intercountry adoption in Vietnam (results and difficulties); and influences of Hague Convention 1993 towards Vietnam (both advantages and disadvantages) in the case Vietnam enter this Convention; (thereof) in order to suggest some solutions improvement Vietnamese laws, with purpose that making self confidence for Vietnam when becoming an official member of Convention (intended in 2005) Overview of development of international adoption 2.1 Brief historical development of international adoption Generally, the adoption means a child is adopted by an other family (either in his country or in others) rather than his own family Its aim is to establish a permanent parent-child relationship between the adopter and the adoptee, and ensure that the adoptee is looked after, brought up, cared for and educated in the good family environment Intercountry adoption is a kind of adoption of which the child moves from its country to another for adoption with adoptive parents who have the same or différent nationality with the child’s The adoption in which Vietnamese child is adopted by the foreigner is called international adoption or intercountry adoption Adoption has occurred in the world for several thousand years Hammurabi Code (18th century b.C), one of the oldest written laws, already contained provisions on the adoption of children especially of foundlings Interestingly, the principle that the ‘first priority of the child is to be care for by his/ her own parents’2 is already reflected in that Code: Section 106 provides that ‘before the man can adopt a foundling, he must look for the child’s parents and if he finds them, he must restore the child to them’.3 Thus, it could be said that the best resort that society (from ancient society to present one) gives children is first priority of the child is to be live in the family environment of origin In ancient Rome, the principal object of adoption was to provide a son and heir to a childless man as a means by which the family line was saved from extinction as well as ancestral worship and transmission of property The Napoléon Code of 1804 marked the beginning of modem législative concems adoption Contrary to Napoleon’s wishes, the Code made a very strict view on adoption “It abolished the adoption of minors, only permitted the adoption o f adults who in their youth had been cared for by the adopters for years The adopter had to be or over 50 years of âge and be without descendants (The adoption was a contract but had to be approved by the court, which checked the substantive conditions and the réputation of the adopter) The adoptee retained ail his/ her rights in the original family and only acquired inherited right and follows the name of the adopter”.4 Although adoption has happened for a very long time in the world, but it really became the great interest of international community (from over the The UN Decleration, Article3 The permanent Bureau o f the Hague Conférence, P roceedings o f the Seventeenth Session 10 to 29 M ay 1993, tomes (Netherlands, 1994), tome.2, p.27 U b id , p 17 half of last century) since the Second World War stopped This is one of the fondamental civil rights of the children mat be confirmed in the important international légal documents on human rights This is explained by the fact that after the Second World War in many countries in Europe many children were made parentless and homeless Therefore, international community and nations must be responsible for finding out the alternative family for those unhappy children, in which, including resort o f intercountry adoption if it is really necessary for the best interests o f those children This is humane and urgent requirement In the past, adoption was seen as a way for protecting o f continuing the ancestral line and maintaining property of the ancestor Nowadays, social meaning o f adoption has been changed Adoption is not only a child welfare measure, but also “a social and légal protective measure”5 to create a permanent family with the love o f adoptive parents for unhappy children It could be said that adoption in général and intercountry adoption in particular is a social issue with humane meaning Its principal purpose is “to offer a permanent family to a child, but not to offer a child to the family”6 The phenomenon o f adopting children from other countries began mostly after the Second World War, when there were thousands o f orphans in Europe The Korean War contributed to creating a new génération of orphans and foundlings (about 15,000) who were adopted by American and Westemers Many o f them were children o f American soldiers and were not accepted by Korean society.7 In the 1960s and 1970s the children came from the countries o f Third World for adoption became the high-tide in many industrial countries The positive significance o f this phenomenon is to contribute to sharing the difficulties and help these countries stabilize society, rehabilitate and develop economy Around 1970, in many Western industrial countries, the number o f children available in these countries for adoption decreased rapidly as a resuit of social and démographie change, for examples, birth rates began lowering, birth control practice became socially accepted and widely available, légal abordons started being introduced8 and better socio - economic circumstances in society, making it possible for single mothers to keep their children instead o f giving them up for adoption On the contrary, there were very few prospective adopters in comparison with the vast numbers of children in need of homes in the developing countries This fact made intercountry adoption more complex and disseminated MoJ, Institute o f law research, C h ild a d option régu lation s in Vietnam ese a n d in ternational law s, Hanoi 1988, p 156 Opinion o f Lawyer Muriel Laroque in Seminar Vietnam- France ” L ég a l institution on Adoption", Hanoi 1998 Cederblad, su p n ote I, p 35 The permanent Bureau o f the Hague Conférence, su p note 3, p.39 Besides, each province or city has at least 01 institution for fostering, caring for the children; and this is the basis for introducing children to foreign adoption, (at the moment, there are 120 centers managed by Labor and i in social welfare branch) Additionally, relevant foreign adoption organs are permitted to be functioning in Vietnam The achievements of these organs play an important rôle in process for children adoption in Vietnam and contribute to overcoming intermediate and agency situation and illégal activities in this field; and make favourable conditions for adopters • 4.1.3 The difficulties and entanglements Comments on solving foreigner adopting Vietnamese children in past years, includes both the mechanism, policy and provisions of the laws as well as practice, show that there are some difficulties and entanglements as foliows: Firstly, about the function and power of Central Authority The Central Authority o f Vietnam - the Intercountry Adoption Agency (IAA) still has not enough necessary authority for dealing with and deciding to grant adoption In compliance with the stipulation in Law on Marriage and Family 2000 and GD 68/2002, foreigner adopting Vietnamese child is performed by administrative formalities, through Décision of provincial IQO People’s Committee IAA only fulfills the function State management of intercountry adoption and directly reviews and issues own statement connected to solve spécifié dossiers IAA does not direcily permit adoption, it only examines the dossiers and gives its opinion to Department of Justice.133 Provincial People’s Committee décidés to grant adoption afiter receiving official dispatch from Department of Justice Therefore, in the cases there are différences between opinion of IAA, of Department of Justice and décision o f provincial People’s Committee, an adoption can be carried out This point is making the difficulty for division of responsibility between IAA and provincial People’s Committee Furthermore, the current capacity of IAA is still limited because it was just established and has only 09 cadres134, but must undertake a big volume of work in this field On the one hand, IAA must strengthen the rate of progress of negotiation and signatory the agreements involving adoption with countries to create the légal bae’s for solving adoption On the other hand, IAA must directly receive, examine dossiers of both adopters and adoptees Thereto, IAA is proceeding for compiling the programs of policy and stratégie conceming intercountry adoption to report to the Leaders of Ministry of Justice before submitting to Government With such volume of work, IAA can not settle its tasks in quick succession 130 Source: from M oLW Sw, D ec 2003 131 Supra note 74, Art 58(2) 132 Supra note 80, A r i^ u p r a note 74, A rt^ ÿ 133 Supra note 74, Art 46 134 From the data o f IAA, 2004 46 Besides, there are few wrong conception relating to the rôle of this Agency This reality has made a lot of obstacles to its officers’ psychology as well as influences to the support and help of organs nationally and intemationally for present opération of IAA Second.lv Vietnam has no the home adoption organ (authorized organ) So the work conceming introduction of the child, contacting adoptive parents, verifying family condition, the child’s origin etc are implemented by the childcare centers, Department of Justice and Police agencies As a matter of fact, these agencies have not yet completed these duties because of many différent reasons Thus there are still a lot of mistakes and faults in the dealing with intercountry adoption in some provinces Thirdlv, situation of dossier stagnancy for adoption and overloading children in the local social foster centers This is a paradox which we have to consider Many child-care centers and foster centers are being overloaded of children They not have enough places for foundlings Many centers are lacking in money so that they catch problem in fostering and caring for children Meanwhile, so many dossiers of foreigners (muinly French) are stacked up and awaiting to be solved The main reason of this situation is rather stubble and sensitive, but fmding the solution to remove it is not very simple because it does not merely depend on us Besides, some Centers have available children for foreign adoption, but they 17S detain these children intentionally for other countries This makes the chances of unhappy children slowly, not ensuring for humanity aim of this activity Fourthly, the illégal agencies and intermediate phenomenon related to intercountry adoption have not decreased because there has been no home adoption organ in Vietnam so far The basic motivation of this is the attraction of profit (with financial gain) The consent and helping-hand of persons who directly participate in resolving foreign adoption and our limitation in management, examining, inspecting and handling violations, made this phenomena being uncontrolable Thus we must find out resolute solutions to restrict and overcome this Fifthly, the situation of child-care centers and the children for adoption Presently, the majority of centers have a lot of difficulties on material facilities, staff, expenses for bringing up and treatment of the children Thus the foundling receipt ability of centers are limited and they not fulfill the requirement of the fact Furthermore, children in these centers are or weak or disable, some of them have normal health but not enough condition regarding to légal procédures for foreign adoption.136 Because of the close provisions on conditions for child adoption under Decree 68 combines with this fact, there are only few 135 N guyen Cong Khanh,”the difficulties in solving for foreigners adopting Vietnamese children”, report at the sem inar Com pleting Vietnamese Law in order to p a rticip a te in H ague Convention 1993 on 3-4 D ec 2003, Hanoi, p.26, 27 136 MoJ, Data o f the sem inar C om pleting Vietnamese Law in order to p a rticip a te in Hague Convention 1993 on 3-4 D ec 2003, Hanoi, p 34 47 children satisfying requirements of adopters Besides, many spécial difficult families want to give their child for adoption but are not permitted and these children are not also received by those centers Sixthly according to the Report of MoJ on dealing with Vietnamese children for ICA to Government on 23th March 2004, there are so many abandoned children in the childcare centers, such as Tambinh, Govap (in Hochiminh city), Thainguyen, Danang, Baria - Vungtau Many foreigners want to adopt these children, but their countries have not yet the BAoC conceming adoption with Vietnam Particularly some American citizens wish to adopt Vietnamese children with political reason (not under the principle of GD 68/2002137) But their aspirations are not considered to resolve Thereto, the foreign adoption agencies are permitted to be functioning in Vietnam, but the status of opération for them are not determined clearly In addition, Decree 68 provides: the adopter must make their pledges to report periodically on adoptee stand and development until adoptee reach 18 years old.138 But, this Decree and both the BAoC(s) that Vietnam singed have no provisions related to sanction form if they not carry out their pledges 4.2 Comments on the effects of the H.C 1993 4.2.1 The advantages for Vietnam when participating in the Convention Firstly, when Vietnam participâtes in Hague Convention, the Convention will be a good international légal basis for Vietnam to protect the children’s rights, especially the rights of children being adopted by foreigners Secondly this event will create advantages for Vietnam to establish a broad international coopération mechanism in the field of adoption and overcome the limitation of the bilatéral agreements that regulate only the adoption relationship between citizens of the two Contracting States as well as save the time and expenses spent on negotiai ing and signing the agreement with individual country Thirdly Vietnam has founded a Central Authority on intercountry adoption that is IAA under the Ministry of Justice By means of attending and deployment implementing the provisions of Convention, this is the due agency for coordination of activities by relevant internai agencies to deal with Vietnamese children for adoption, correct and timely hantle any entanglement or other negative phenomenon arise in this field 1,7 See Section 3.1.1 (principles for settling the child fosterage), 138 Supra note 74, Art 47(2) 48 Fourthly, through attending and implementing this Convention, Vietnam will build a close and transparent mechanism for performing intercountry adoption in Vietnam, ensuring for the best interests of the children The dossier for adoption will be sent to Vietnamese Central Authority by the Central Authority of receiving state (directly or through authorized organs) Foreigners who want to adopt are requested only to be present in Vietnam to complété procédures for adoption.139 This process helps restrict the slits of the laws that an individual can exploit for self- seeking interest Fifthly, participation in Hague Convention by Vietnam will lead to clear understanding by international community of Vietnam’s good will in respect of protecting human rights and particularly protecting the rights of the child Thereof, it will facilitate more technical assistance, equipment and material facilities for protecting and care for children, and help to decrease unceasing situation of unhappy children Sixthly, participation in Hague Convention does not affect any international instrument to which contracting States are parties140 and which contains provisions on matter govemed by the Convention This plays an important rôle in negotiating and signing the BAoJ concering adoption, and takes advantage of applying and implementing the Convention (between Vietnam and other member States) Furthermore, this event has an international meaning as marking development o f Vietnam in process of standardization o f international private rules This is a chance for Vietnam to futher integrate in respect of international private law Therefore, participation o f Vietnam in Hague Convention 1993 on protection o f the child and coopération in respect of intercountry adoption is an indispensable requirement for successfully solving intercountry adoption in Vietnam and for protecting Vietnamese adoptees’ rights in foreign countries 4.2.2 The challenges At present, there are some principal difficulties that Vietnam should meet if becoming an official member o f Hague Convention 4.2.2.1 Some Vietnamese légal provisions are not in compliance with the provisions of H.C 1993 Article 40 of Convention states that: “no réservation to the Convention shall be permitted” Thus, Vietnam has to consider thoroughly its participation in Hague Convention Firstly, in accordance with the provisions of the Convention, a contracting State shall de; ignate a Central Authority to discharge the duties in which are imposed by the Convention (upon such authorities) This agency must have 139 Ibid., Art 41 (2); su pra note 85, Section 3.2 140 Supra note 28, Art 39 49 full abilities to carry out effectively its function and responsibility in the field of intercountry adoption In the present context of Vietnam, IAA as a Central Authority has just been established (under the GD 62/2003 of the Government and Décision No 337/2003 of Ministry o f Justice) and still has not enough necessary authority for discharging its function141; the current capacity o f IAA is still limited Therefore, there are a lot of difficulties in solving and managing intercountry adoption for IAA Secondly, Convention provides that: the consent of the mother (where required) has been given only after the birth of the child l42 This stipulation is also impressed in the law on adoption o f almost ail countries For instance, under Swedish law on adoption “The mother’s consent must have been given after she had sufficiently recovéred after the confinement143” But so far, Vietnamese laws have no such provision Under the guidance of IAA (2003), in case the foundling having mother, that child can not be adopted by other without her consent.144 This has made Vietnamese authorities have difficulty in process o f ICAs As the resuit, many dossies for adoption were retumed to foreigners, because the childcare centers who care for these children could not satisfy the above requirement Thirdlv, the probationary period According to Arts 20 and 21 of the Convention, in the case of adoption that is to take place after the transfer o f the child to the receiving State and it appears to the Central Authority o f that State that the continued placement o f the child with the prospective adoptive parents is not in the child's best interests, such Central Authority shall cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care such as to arrange without delay a new placement o f the child with a view to adoption (in consultation with the Central Authority of the State of origin) or to arrange alternative long-term care, and if necessary, this agency can arrange the retum of the child as a last resort if his/ her interests require so.145 Meanwhile, Vietnamese laws have no provision related to probationary period Thus there will be no institution to directly resolve such cases to which the child should be given back How to deal with this problem? This is the question which should be answered when Vietnam participâtes in Hague Convention Fourthly, "there are différent stipulations between the laws o f other countries involving récognition o f the légal conséquences of adoption”.146 Meanwhile, Vietnamese laws have no provision relating to the choice of applicable law to regulate the légal conséquences o f foreign adoption 141 See Part and 4.1.2 142 Supra note 28, Art (c4) 143 Supra note note 66, Section 5a,Chapter 144 Vietnamnet, http://w w w vnn.vn 23 Apirl 2004 145 Supra note 28, Art 21 (1) 146 Nguyen Hong Bac, ”Som e issues should resolve when Vietnam participing Hague Convention 1993” in the Ju rispru den ce Journal, (Hanoi University, 0 ), pp 5-7 50 Under the current stipulation of Vietnamese laws, an adoption upon is recognized and registered by the competent authority will make the appearance of légal relationship between parent- child l47, this means that the adopter and adoptee have the ail the rights and duties as of biological parents and child Vietnamese laws have no provision conceming the termination of légal ties between biological parents and the child for adoption Adoptee still acquires inherited right from birth parents and vice versa.140 Besides, the Vietnamese child who is adopted by the foreigner still has Vietnamese nationality The foreign child who is adopted by Vietnam citizen has Vietnamese nationality upon the adoption is recognized by Vietnamese competent authority.149 Therefore, under the régulation of Vietnamese laws, an adoption makes the parallel existence of the two relationships: (1) relationship between the child and its biological parents; and (2) the relationship between the child and adoptive parents But in Vietnam, the purpose of intercountry adoption is "to make a sentimental permanent ties between adopter and adoptee, ensuring the adoptee would be cared and grow up in the family environment.” 15 This is fondamental différence between provisions of Vietnamese laws and provisions o f many countries involving full adoption.151 4.2.2.2 Vietnam has no Home Adoption organization It is a significant difficulty for Vietnam to perforai the function and duties of member States under the provisions of Hague Convention From the practices and experiences of other member States, there should be an authorized organization to help Central Authority implementing many spheres in the scope of Convention These organs have done a lot of meaningful tasks, such as social investigation of conditions and circumstances of adoptive parents and adoptee to guidance of and assistance for adopter, adoptee and birth parents, including financial assistance for this sphere 4.2.2.3 Priority order Under the Convention, intercountry adoption is the fourth, by the following order: first, should try to keep the child with its biological parents; second, should take the child in an institution; third, the child should be place for adoption in his/her own country;i c'yand fourth, intercountry adoption is considered as a last and final resort Supra note 80, Art 74 148 Ibid., Art 47; Vietnamese C ivil C ode, Art 681 149 V ietnam ese Law on Nationality, Art 30 150 Supra note 80, Art 67 151 Nguyen H ong Bac, Régulation o fla w on Fam ily relation involing fo reig n factor, doctoral thesis, Hanoi Law University, 2003, p 165 152 IRC, The righ ts o f the ch ild and adoption , http://www.iss-iss.org/resourcecentre p.5 51 The family is the best environment for the child ’s development But Vietnam today is a developing country with a low level o f socio - economic development, so many families or institutions are impossible to care for their children Thus, intercountry adoption is also a necessary solution to ensure the best interests for the child Furthermore, with intercountry adoption, the institution where cared for the child may be given the aid of expenses from the foreign adopter or relevant foreign adoption organs However, there is no provision of Vietnamese laws relating to responsibilities of institutions for fulfillment of the need o f Vietnamese * * 153 ,, ■ • » » • families Therefore priority order under Hague Convention is difficult for Vietnam ’s implementation 4.2.2.4 The pressure by member States of Convention This is also a challenge that Vietnam has to consider if participating in Convention Principally, Vietnam will have to accept any application of any person where habitually resident in a Contracting State who wish to adopt Vietnamese child after Convention come into force in Vietnam But Vietnam has right to refuse the adoption of Vietnamese child in a spécifié member State in cases the best interests for the children are taken into considération.154 However, if applicant who is retused is permanently resident in any member State which that has no socio-economic- cultural coopération relations and diplomaticconsular relations with Vietnam, this fact will become more complex.155 In addition, there will be différences in technical assistances and humanitarian aid aspect between adoption organs of member States This will create the considération or refusai of institutions when introducing the child for foreign adoption Thus, it exerts more or less influence on humane aspect of the adoption Those are the issues that we must take into considération especially and settle in order to make self- confidence for Vietnam when becoming an official member of the Convention 4.3 Some possible solutions to improve Vietnamese légal provisions at present Law on intercountry adoption in Vietnam has rapidly developed in both substance as well as its synchroiusm It has timely regulated foreign adoption relation and fulfilled the need for adopting Vietnamese children of foreigners However there are a lot of shortcomings in practice of 153 MoJ, supra note 136, p 101 154 Opinion o f Mr William Ducan in Sem inar on H ague C onvention 1993, Hanoi 12­ 13/11/2003 155 Nguyen Cong Khanh, supra note 136, p.28 52 implementing them Besides, together with area- globalization trend of economic- social relations between countries, intercountry adoption also request having close coopération between the relevant Govemments Hague Convention has fulfilled such urgent requirements Some provisions of Vietnamese laws on intercountry adoption are not similar with provisions of Convention, so some articles of Convention could not be implemented Vietnam is in the process of preparing ratification to become an official member of Convention, it means that Vietnam must self complété the mechanism, policy and laws on intercountry adoption, making the stable international légal basis for the settling and State management in this field, to create self- confidence for Vietnam when becoming an official member of Convention To attain this object, presently Vietnam has to implement some following solutions: 4.3.1 Should improve authority for IAA This will facilitate for IAA implementing effectively its function and responsibility in the field of ICA Especially, should divide clearly about the authority between IAA and provincial People’s committee for permission of adoption From experiences of China, Korea- the mainly countries of sending- or from the form of NIA of Sweden, should divide the function on décision to grant adoption for IAA Besides, should attach spécial importance to foster and enhance officers’ professional abilities o f IAA Additionally, seek out the favourable measures to orientate public opinion for making the sound understanding about this humane sphere generally as well as the rôle o f IAA particularly by ail the society to facilitate adoption in Vietnam 4.3.2 The consent of biological mother Should stipulate in détail the consent of biological mother for accepting adoption (particularly, in the case the mother’ s origin o f the foundling could not determine or in the case that the mother make the difficulty for her consent) This will make Vietnamese authorities have easy in process of implementing ICA and set up the chances for unhappy children to be grown up in the environment families 4.3.3 The probationary period for adoption Should provide obviously on probationary period for adoption because in the necessary case, if the purpose of adoption is not in the child ’s best interests and must arrange the retum of the child, Vietnam should have an agency whose responsibility is to receive the retum of that child 53 4.3.4 The légal conséquence of adoption Vietnamese laws should have more détail provisions related to the choice of applicable law to regulate the légal conséquences of intercountry adoption As mentioned above, under the régulation of Vietnamese laws, an adoption makes the parallel existing of two relationships: the légal relationship between the child and biological parents and the légal relationship between the child and adoptive parents156 Convention provides that the récognition of an adoption includes the récognition of the termination of a pre-existing légal relationship between the child and its mother and father, if the adoption has this effect in the Contracting State where it was made157 Under this provision, there is no légal relationship between the child and its biological parents Convention also provides: where an adoption granted in the State of origin does not have the effect of terminating a pre-existing légal parent-child relationship, it may be converted into an adoption having such an effect in the receiving State which recognizes the adoption under the Convention if the law of the receiving State so permits Thereto, the Convention does not determine compelling duties on the Contracting States conceming the préservation or nonpreservation of légal ties between the child and his/ her biological family means that the convention does not prohibit the parallel existence of these relationships and leaves this matter to be decided by national law It could be said that this is “the opened provision”159 of Convention However, in fact, there are différent stipulations conceming this issue in the laws of countries For instance, according to Swedish laws, the parents by adoption become the child’s guardians and custodians an as such bound to make provision for the child’s upkeep and upbringing The légal relationship between adopted child and its biological relatives no longer apply160 Therefore, Vietnamese laws need to consider this issue in order to regulate it initiatively, should not depend on the régulation of relevant receiving State Should regulate in the way of building the conflict norm in which légal conséquences of an adoption are identifïed by the law of Contracting State in which the adoption is completed161 Thereby, the adoption is completed in foreign country, the légal conséquences are identifïed by the law of that country If in Vietnam, Vietnamese laws should be applied to identify its légal conséquences By that way, our applying will ensure interests for the child and conform with the overriding spirit of the BAoC that Vietnam signed, of Hague Convention in particularly 156 See 4.2.2.1 157 Supra note 28, Art 26 (1-c) 158 Ibid, Art (1 a) 159 Hoang Ly Anh, "Nationality o f Vietnamese children adopted by foreigner” in the Législative Studies Journal, 10 (2003), pp.69 160 Supra note 66, Section 8, chapter 161 Nguyen Hong Bac, supra note 151, pp 165, 166 54 4.3.5 The foreign adoption agencies in Vietnam The relevant foreign adoption agencies are permitted to be functioning in Vietnam162 if they fulfỵll ail conditions in accordance with Vietnamese laws, for the purpose of promoting, assisting in adopting Vietnamese children However, GD No 68/2002 provides only about conditions, process and procédures basically for opening of office of foreign adoption in Vietnam, the status of their opérations is not determined clearly So Vietnam should promulgate général opération status for them, thereof, they will make out own status themselves in order to manage, supervise these organs operating in accordance with the régulation of law, avoid the unwholesome compétition between adoption organs of member countries 4.3.6 Vietnam has no Home Adoption organ Permission for the founding of non - govemment organ of Vietnam to operate in adoption activities is very important issue.163 But from the fact of member States such as China, Sweden etc, the authorized organs have operated effectively, make favourable condition for intercountry adoption Thus, Vietnam should consider and have détail régulations on establishing the Home Adoption organ to help Central Authority of Vietnam implementing the activities in scope of Hague Convention 4.3.7 The legalization issue of relevant papers, documents in the dossier of adoption Art (b) of Convention provides: “Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, ail appropriate measures to facilitate, follow and expedite proceedings with a view to obtaining the adoption” Thereafter, Convention does not directly regulate this matter but encourages member States simplification proceedings involving adoption, including simplification of proceedings for papers, documents in the dossier for child adoption But if Vietnam accédé to Convention, the quantity of dossiers as well as the dossiers which request simplification will increase very much Therefore, Vietnam should consider negotiating on exempting legalization for dossier for adoption with other countries, basing on reciprocal rule, to avoid the stacking up in field of intercountry adoption 162 Supra note 74, Art 58 (2) 163 Nguyen Cong Khanh, supra note 136, p.25 55 Additionally, it is necessary to provide a spécifié period for adopter to submit the paper conceming his income (maybe 06 months) and the papers that can prove that the adopter is full eligible to adopt the child.164 After ail, for implementing effectively law on intercountry adoption at present and minimizing the occurrence of negative phenomenon in this field, fulfillment the need of foreigners adopting Vietnamese children and ensuring interests for Vietnamese adoptee, outside the solutions for improving Vietnamese laws in accordance with the provisions of Hague Convention 1993 just mentioned, immediately, Vietnam has to carry out some following measures: To have a good policy on the finance for increasing social welfare, making the best conditions to keep the child with its biological parents To consider establishing more institutions, increase aid of expenses, material facilities for them in order to can receive most of the unhappy children, ensuring the best foster for these children and a part, can fulfill “requirement” for solving foreigner adopting Vietnamese children To have detailed provisions on légal childcare centers (légal institutions) to implement the policy o f socialization of protecting and educating children in général and “socialization o f childcare centers” in particular properly in Law on Protection, Care and Education of children 2004 To increase the understanding on the importance of internai adoption for the local competent authorities, especially, for the childcare centers in parallel with the légal dissémination and éducation Intercountry adoption should be considered only as a last resort, is subsidiary to internai adoption, GD 68/2002 does not stipulate the mechanism for ensuring implementing this important principle Vietnamese laws should defme duties of childcare centers are to give out the list of children that living there for adoption of Vietnamese families And, when the child be placed for intercountry adoption, that center is responsible to explain why that child not be adopted by Vietnamese family To build the interdisciplinary coordination mechanism 165 between the relevant authorities (such as justice, labor, police branches) and the coordination mechanism between Centers and localities in this field, especially between Ministry of Justice and Ministry of Labor - War Invalids and Social welfare for solving adoption and examining, supervising childcare centers’ s opérations in order to facilitate foreign adoption with the superior object is the best for future development of the child 154 Consular Department (M oF), Report at the Sem inar 3-4 D ec 2003, Hanoi, p 16 165 MoJ, su p note 136, p 53- , 56 To have the légal document to clear provide about the children for adoption: what children being available for foreign adoption and to search for extending the children for adoption who are adopted directly from families in order to specialize Law on Protection, are and Education of children 2004 (will corne into force on l st Jan 2005) To define the papers, documents in more détail and to consider extending up time for some kinds of paper in the dossier for adoption In addition, coordinate closely with foreign offices of relevant countries to search the provisions foreign laws involving the name and form of those papers to have provisions in more suitable and close The Government should consider to permit the provincial People’s committee to be settled adoption (for foreigners who citizens of countries that are not signatories bilatéral agreement on adoption with Vietnam) by spécial exception priority 166 for the children that are in overloaded centers in order to overcome the difficulties for childcare centers and satisfy the aspiration of people wish to adoption The Government should consider allowing applying a spécial mechanism for settlement of adoption with America to fulfill the honest need of American families wishing adopting Vietnamese children when Vietnam and America have not bilatéral agreement on adoption.167 Principle for considération for settling here is to ensure observation of the law, protect the rights of the children and contribute to consolidating and expending foreign relation between Vietnam and America 10 To search practical experiences of China and some other original States to build a patron’s fu n d on intercountry adoption 168 in the way of concentrating on the management of Central Authority 11 Afïter ail, the best solution at present is still implementing effectively the provisions of law on intercountry adoption, continuously negotiating for signatories and performing the mutual agreement on adoption that signed In conclusion, there are a lot of difficulties and challenges that Vietnam should met when becoming an official member of Hague Convention 1993 Implementing spécifié measures both on the laws, policy and mechanism to overcome them is the heavy and complex task It requests the utmost exertion of State and ail the society to resolve many différent matters MoJ, supra note 122, p.9 167 Ibid., p 10 168 Ibid., p 10 57 Conclusion With the recognizating: the child should grow up in the family environment, in an atmosphère of happiness, love and understanding for the full and harmonious development of his/her personality169, Hague Convention 1993 clearly puts the rights of children in the first place in intercountry adoption and gives them spécial protection, create an alternative family and development chance for them through establishing the mechanism of coopération between member States in this spécial sphere However, intercountry adoption should be considered the last resort as an alternative solution for a child in comparison with their life in an institution when they have no the fostering of the biological parents or adoptive parents in their country Intercountry adoption should be based on “the best interests of the child is paramount ” and “considération for the child and its future development is the overriding principle in ail adoption activities” as Swedish policy on intercountry adoption Since Vietnam has carried out a new policy of reform, the civil relations have been extended with the général trend of country, in which intercountry adoption has been, is being to become the social phenomenon of universal interest nationally and intemationally Vietnamese laws have timely regulated this issue, fulfill the dreams of thousands of adoptive parents and continue to provide them joy and intense satisfaction as well as protect Vietnamese children after being adopted by foreigners The signatory of Vietnam in bilatéral agreements on mutual coopération with other countries involving adoption makes the important effects for the international organizations and the foreign représentative agencies in Vietnam On the one hand, they assess highly the paramount effort and progressive légal provisions of Vietnam conceming foreign adoption On the other hand, they wish Vietnam joint into Hague Convention 1993 sooner - the best important multilatéral international treaty in the field of adoption that have 55 member States Vietnam is preparing the conditions for this participation, in which, one of the basic contents is to continue improving the mechanism, policy and the législation on foreign adoption in order to make the stable and safety légal basis for settling and state management in this field This is also international requirement when Vietnam becoming an official member of Hague Convention 1993 169 Supra note 28, Preamble 58 Bibliography Anna von Melen, Strength to Survive and Courage to Live, Trans by Michael Lundin, NIA (Stockholm: 2000) Elizabeth Bartholet “Intercountry adoption: current status and future prospectives” in Family Bonds: Adoption and the Politics o f Parenting (New York, 1995), pp.89-103 Eva Ryrstedt, “Family and inheritance law,” in Arthur Michael Bogdan éd., Swedish law in the New Millennium (Stockholm, 2000) FFIA, http://www.ffia.se/english/mail.html Gunilla Bodin, Director of NIA 24 Sep 2004 ”intercountry adoption in Sweden” Hans Van Loon, “Hague Convention of 29 May 1993 on protection of the children and coopération in respect of Intercountry Adoption” in the International Journal o f children ' s rights, (1995), pp 463-468 Hoang Ly Anh, ^Nationality of Vietnamese children adopted by foreigner” in the Législative Studies Journal, 10 (2003), pp.57-72 International Resource Centre for the protection of children in adoption The rights o f the child and adoption, h trp ://w w w is s iss.org/resourcecentre Jeremy Rosenblatt, Intercountry Adoption (London: Sweet and Maxwell, 1995) 10 Mariane Cederblad, “Compilation of research into adoptees and their life after adoption” in Summary o f report o f enquiry into Intercountry Adoption (by Ministry of Health and Social Welfare, 2003), pp.31-37 11 MoJ, Data o f seminar on légal institution conceming adoption, 1998, Hanoi 12 MoJ, Data o f the seminar Completing Vietnamese Law in order to participate in Hague Convention1993 on 3-4 Dec 2003, Hanoi 13 MoJ, Report on dealing with Vietnamese children fo r intercountry adoption, 2004, Hanoi 14 Nguyen Cong Khanh, “Completing the law on Marriage and Family relation involving foreign factor” in the Législative Studies Journal, (2000), pp.57-54 15 Nguyen Cong Khanh, Régulation o f law on Civil relation involing foreign factor, doctoral thesis, Hanoi Law University 2003 16 Nguyen Hong Bac, “some issues should resolve when Vietnam participing Hague Convention 1993” in the Jurisprudence Journal, (Hanoi University, 2003), pp 5-7 59 17 Nguyen Hong Bac, Régulation o f law on Family relation involing foreign factox, doctoral thesis, Hanoi Law University 2003 18 Peter Selman, “Intercountry Adoption in the New Millennium; the 'quiet migration’ revisited ”, Paper presented at the European Population Conférence Helsinki, Finland 7-9 June 2001 19 The agreements on mutual coopération conceming adoption between Vietnam - France, Vietnam-Ireland, Vietnam-Italia, Vietnam-Denmark and Vietnam-Sweden 20 The agreements on mutual justice signed between The Socialist Republic o f Vietnam and countries (Hanoi, 2001) 21 The Hague Convention on Protection o f Children and Co-operation in Respect o f Intercountry Adoption 1993 22 The International Convenant on civil and Political Rights and Convenant on Economie, Social and Culture Rights 1966 23 The Légal provisions conceming adoption in Sweden 24 The Légal provisions conceming adoption in Vietnam 25 The permanent Bureau of the Hague Conférence, Proceedings o f the Seventeenth Session 10 to 29 May 1993, tomes (Netherlands, 1994), tome.2 26 The Swedish National Board for Intercountry Adoption (NIA), http://www.nia.se/english/forsta.htm 27 The U.N Convention on the rights o f the child 1989 28 The United Nations Déclaration on Social and légal principles Relating to the Protection and welfare o f children, with spécial Reference to Foster placement and Adoption Nationally and Internationally 1986 29.TheAdoptionCentreJittp://www.adoptionscentrum.se/utland/english/adoptions.asp 30 William Ducan, “some ”in Arthur Eliezer David, éd., Jaffe, Intercountry Adoption: law and perspectives o f sending countries (London, 1995),pp.217-227 31 Vu Duc Long, Vietnam and signed international treaties concering Adoption” in the Jurisprudence Journal, (Hanoi University, 2000), pp 23-27 32 Vu Duc Long, “The new points of Government Decree No 68/CP/2002 and duties of IA Agency under Ministry of Justice”, Report at the seminar Completing Vietnamese Law in order to participate in Hague Conventionl993 on 3-4 Dec 2003, Hanoi 60 ... preparing for participation in Hague Convention 1993 for Vietnam on protection of the children and coopération in respect of intercountry adoption 3.1.2 Conditions for child adoption According to Vietnamese. .. of Intercountry Adoption, adopted in 1993 In 1997 Sweden ratified this Convention 2.3.3 The Swedish Nation Board for Intercountry adoption The Swedish Nation Board for Intercountry adoption (NIA)... spécial conventions on protecting children, in which having the field of coopération of intercountry adoption O f the basic international documents concemed adoption of children, Hague Convention 1993