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​​​1.2.2 ​Best Interests of the Child​

In determining what constitutes the best interests of the child, ‘Compassion for Orphans’ agrees in principle with the definitions published by the International Social Service Organisation (an international resource centre for the protection of children in adoption), including: ​
  • Adoption is a social and legal protective measure for children.

  • Adoption should be made available to all children whose personal and family situation warrants it, without prejudice against the child’s or his or her parent’s or legal guardian’s race, colour, gender, language, religion, political or other opinion, national, ethnic or social origin, social situation, physical features, culture, property, physical or mental health disorders, birth or other status.

  • It is the child who must be the starting point in the process leading up to adoption; this process to be initiated because the situation of the child warrants it, not because others have expressed the wish to adopt the child or are in the quest for a child.

  • The handling of any child’s case cannot be left to the birth parents, to unqualified protagonists or those of doubtful ethics, or to prospective adoptive parents. It must be carried out by services competent (governmental or private bodies whose official responsibility is to carry out the tasks implied by the child’s protection) in the protection of children.

  • Professionals engaged in adoption proceedings should be guided as a priority, in the perception of their work and in their practice, by the needs of the child. While they must be careful to listen to and respect the wishes of prospective adoptive parents and the demands of birth parents, whatever their particularities may be, they are not required to accord them priority, but rather to consider the extent to which they correspond to the best interests of the child. Professionals must be aware that adoption in the best interests of the child is one that fosters the creation of an environment or family relationships that satisfy all parties.

  • Since time is essential in a child’s development, professionals should act as quickly as possible without jeopardising overall respect for procedures. They should cut as much as possible the period of waiting, uncertainty or transition that children live through.​

  • The child, in a manner appropriate to his or her age and degree of maturity, must be kept informed and consulted about any life plan for him/her.

  • ​​​Priority for the prevention of abandonment:

    • Priority must go to allowing children to be raised in their own family, i.e. staying with birth parents or the extended family, being reunited with the immediate or extended family. (Governments and civil society must do their utmost to ensure that families of origin have the possibility, and are encouraged, to care for their own children).
    • Search for alternatives. When the birth family does not meet the conditions that ensure the psychosocial development as well as the physical and emotional integrity of the child, competent child protection bodies must seek adequate alternatives.
    • Priority for an alternative family. The family is the best environment for a child’s development. Offering a child a substitute family should, other than in exceptional and justified cases, prevail over his or her placement or long-term residence in an institution.​​
  • Priority for a permanent solution. To flourish, a child needs stability in his or her contacts with the adults around him/her. Permanent solution must prevail over provisional arrangements for an undetermined period of time.

  • ​Subsidiarity of Intercountry Adoption:​

    • Intercountry Adoption is subsidiary to domestic adoption.  As a priority a child must be placed for adoption in his or her own country or in a culture, linguistic and religious environment akin to his or her community of origin.  A decision in favour of intercountry adoption should be taken only after an unsuccessful search has been conducted for a satisfactory solution in the child’s country of origin.  In the interests of the child, the competent authorities shall see to it that such a search is carried out without undue delay.

    • Adoptability of the child.  Authorities must determine the legal adoptability as well as determine that it is impossible for the birth family to care for the child and assessment of the child’s capacity to benefit from a family environment.  The adoptability of the child must be determined before starting adoption proceedings.  Psychological, social, medical and legal factors must be taken into account.  It must be made certain also that a child’s relinquished status is not the result of trafficking, sale or kidnapping.

    • Prospective parents eligibility to adopt.  The adoptive family must be recognised ahead of time as being apt and able to ensure, in a lasting and satisfactory manner, the protection and respect of a child with a background that may include traumatic experiences, may have little in common with their new society.

    • Replacement Preparation.  The child, the adoptive family and the birth parents should be prepared for adoption. Adoption will satisfy the interests of all parties, only if adequate preparation permits each person to understand the short and long-term implications of adoption on his or her life and on the child’s life. Counselling must help the child and the adoptive family to approach their first meeting and the start of life together with more serenity.

  • Post adoption support. Access to qualified post-adoption support services should be made available to the child, the adoptive parents and siblings, as well as birth parents, in order to answer questions and unravel or resolve any problems which may arise.

  • Right to Confidentiality.  The child, the birth parents and the adoptive family have the right to confidentiality and to respect for their private lives.

  • Search for Origins.  Children have the right, if they feel the need and when age and maturity permit, to know their history, especially information relating to their birth mother and father, and siblings wherever possible.  It is essential to have this information gathered and preserved.

  • Profit, Abuse, Trafficking, Sale.  The protection of children in a vulnerable position must not be a source of material or other profit.  Any abuse, trading or trafficking in this field flouts the rights of the individual human.

  • ​Armed Conflict and Natural Disasters.  Intercountry adoption is not a step to consider in countries where armed conflict prevails or among victims of natural disasters.  It may only be contemplated after a sufficient period (two years are generally recommended) to allow competent bodies to ensure that no member of the child’s family or community is still living and willing to care for the child.

Further Commentary [from ISS/IRC August 2006]:

In accordance with article 3 of the United Convention on the Rights of Child (UNCROC), the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. This principle, reiterated in article 21 UNCROC in relation to adoption, implies a case-by-case appreciation of the interest of the child, and conflicts with a general approach which considers the adoption of a child as beneficial for him in all cases. Also, one should not lose sight of the fact that the interests of the child may be perceived differently depending on the culture, and that its respect does, inevitably, not lead to the same solutions as those commonly admitted in Western societies.  

The child first

This “primary consideration” underlines the importance of placing the child and his needs at the centre of decisions concerning him. It is incumbent upon all actors involved to guarantee its respect. However, it is also a matter of safeguarding other opposing interests, whether the right of the child not to be separated from his parents and to be cared for by them, or that of the biological parents to maintain a family life, for example, when it appears that adoption occurred against their wish or without their consent. 

The pursuit of the best interest of the child is the foundation of adoption, from which ensue two equally essential principles: subsidiarity and adoptability, which in fact represent two means of application. 


Respect for the principle of subsidiarity – which requires that adoption should only be considered once all measures to maintain the child in his biological family have been exhausted – must be amongst the questions that must be raised before deciding on a child’s adoptability. Given that the competent authorities of the country of origin must first examine all possibilities for the child’s placement in his state of origin, and given that adoption is in itself a subsidiary child protection measure, intercountry adoption thus becomes twice subsidiary. 

A concrete implementation of the principle of subsidiarity naturally encourages domestic adoption. This approach already exists in many countries of origin, but it naturally implies a political will and budgetary efforts which are not always combined. When it is implemented, it often results in an increase of the average age of internationally adoptable children, as the younger ones are more easily adopted by local couples. 

Adoptability

Currently, poverty raging throughout the world may be considered as the main factor for abandonment if it is considered it its wider sense, i.e. including its direct consequences such as illiteracy, lack of access to primary healthcare, conditions for economic survival and, sometimes, social obscurantism. However, although poverty is indeed a cause, it should not in itself justify the adoptability of a child, nor his removal from his family environment. Although Western societies have abandoned the systematic application of such a policy (even though some placements still occur on grounds of negligence, a term which may, in reality, often cover economic distress), there is no reason for such an evolution to be denied to the poorest countries. It goes without saying that the parents’ impossibility to take upon themselves the care of the child may lead to his abandonment or placement; however, in parallel, the weak means granted by states to provide support or alternatives too often prevent from curbing significantly this phenomenon. Nonetheless, ethics compels to combat this de facto situation. This is the responsibility of states and adopters.

The concept of abandonment is, also, not perceived in the same manner across the world: street children are not all without a family and children placed in institutions are not all orphans. The temporary placement of children in the extended family, with acquaintances, or in a state institution is a widespread phenomenon in numerous societies worldwide: parents entrust the child they cannot care for, without, however, wishing to abandon him. Similarly, in several African cultures, for example, the placement or movement of a child amongst members of the extended family is not necessarily linked to the loss of the biological parents and takes on very different social meanings.

It follows from these few examples that the concept of “adoptability” varies in accordance with the socio-cultural context. The definition and the declaration of abandonment must therefore be in line with these realities, and consequently be a matter of the law relating to the adoptee rather than to the adopter.​