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​​​​​​​​1.2.1 International Treaties​

In date progressive order is a brief history of how the international community came to view intercountry adoption, culminating in the implementation of the Hague Convention. 

The 1986 United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption, Nationally and Internationally (UN Declaration) states that;

If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family. [Article 17]

This has come to be known as the ‘subsidiarity’ principle. It is a major issue for a country to give up its children, therefore every effort must first be made for the child to be cared for in its own country, prior to considering intercountry adoption.

Additionally the declaration requires that there is counselling for all directly involved and that there is professional observation of the relationship between the applicants and the child before the adoption takes place.  The prevention of abduction and improper financial gain is emphasised as well as protection of the child’s legal and social interests.

The 1989 United Nations Convention on the Rights of the Child (UNCROC)

The UNCROC has 2 Articles that specifically relate to adoption [Article 21 and Article 35]. The subsidiarity principle of adoption is an important principle and Article 35 specifically provides that there must be adequate protection from sale, trafficking and abduction of children.  

The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 

The Hague Convention was principally set up as a mechanism for international co-operation to give practical effect to the UNCROC provisions relating to intercountry adoption.  

The Hague Convention is an international legal document created in May of 1993 through the Hague Conference on Private International Law, a global inter-governmental organisation which develops conventions (similar to treaties) promoting mutual agreement and compatible legal procedures among countries. 

The principle objectives of the Hague Convention are:

(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;
(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

It was implemented to:
  • Standardise and streamline Intercountry Adoption procedures.
  • Promote a clear, open, and predictable process.
  • Create a legal framework where each country could rely on the integrity of the legal process in other states.
To accomplish this the Hague Convention sets standards for both legal procedures and ethical practices in Intercountry Adoption. It also requires a "Central Authority" to oversee the adoption process in each country, and requires that adoption providers be certified by the Central Authority, or someone they delegate, in order to work in intercountry adoptions with other Hague countries.  The Hague Convention only covers adoptions between countries which have agreed to abide by it.

Abuses in intercountry adoption then are, not surprisingly, more likely in countries where there are no effective legal frameworks and/or no coherent and workable child and family welfare policy. Those involved must gradually eliminate legal and procedural loopholes as they become aware of them in order to maintain standards and protect the principle such as that of Subsidiarity. ‘Compassion for Orphans’ therefore has a policy to work only in countries that have agreed to abide by the Hague Convention. ‘Compassion for Orphans’ also believes that countries that have not acceded to or ratified the Hague Convention should be encouraged to do so.

The Hague Convention came into force for New Zealand on 1 January 1999.

Click here for the list of Hague Convention signatories. Note that not all countries are ‘sending countries’ i.e. countries that send children out for intercountry adoption.

The New Zealand Central Authority under the Adoption (Intercountry) Act 1997​ can delegate certain functions to an accredited body.

New Zealand has entered into formal agreements with the following Hague Convention Countries:​
  • Chile
  • China
  • Hong Kong
  • India
  • Lithuania
  • Philippines
  • Thailand