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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
21 August 2002
HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION ON INTER-COUNTRY ADOPTION: RATIFICATION
Chairperson: Mr. E. Saloojee (ANC)
Documents handed out:
Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption
Optional Protocol to the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption for consideration, ratification and report in terms of Section 231(2) of the Constitution, Act 108 0f 1996. (See Appendix)
The Committee convened to adopt the Optional Protocol to the Convention on the Rights of the Child on the sale of Children; Child prostitution and Child Pornography; and the Convention on Protection of Children in respect of inter-country adoption. After concluding comments by members of the Committee, both the Protocol and the Convention were ratified.
HAGUE CONVENTION AND OPTIONAL PROTOCOL
The Chairman of the Committee opened the meeting by stating that the section of the Protocol referring to the employment of children in armies (liberation movements, national and civil war forces, etc.) w not form part of this Committee's work. The Department of Defence must first handle this issue.
The Chairman briefly reviewed the previous meeting, stating that the Committee had discussed the relevant documentation substantially. All the discussions would be compiled into a report which, together with the Convention and the Protocol, would be referred to Parliament. He concluded his opening remarks by reiterating the urgency to complete the work of this meeting, as the President requested swiftness on this issue.
Ms N. Tsheole referred to the establishment of a Central Authority for adoption within three months of the passing of the legislation, as outlined in the documentation. She asked what was the state of affairs surrounding the establishment of such an Authority.
Mr Theron replied that there already was a registrar for adoption in place, which would aid in the establishment of a Central Authority. There would be a person responsible to negotiate with other countries about inter-country adoption. The positions required in the Central Authority would for the time being be filled by people already working in the adoption centre, as well as by people from International Social Services.
There would be about eight people dealing with this process. Present staff would do the work until additional people have been employed.
Ms N. Tsheole asked if adoption cases that have already taken place could be checked in terms of this new legislation, maybe via reports from other countries.
Mr Theron answered that South Africa already had a good adoption system in place, so if there were problems it would be with other countries. He stated that he could request of follow-up report on all the cases of inter-country adoptions that have already occurred. Once the protocol comes into effect, it would put in place a structure to bring social workers in private practices in line with the new legislation. The ratification of the protocol would therefore lead to better controls over the adoption process.
The Chairman suggested that maybe in the near future, some officials from the relevant department could give a briefing on the protocol systems that would at that time already be up and running.
Mr Theron replied that special representatives from the United Nations would arrive to review the implementation of the protocol, as well as report on the resources available to sustain this system. The Central Authority must in any case report back to the United Nations with regards to the implementation of the protocol. Therefore such a suggestion could be organised.
The chairman asked if there were any final comments, and then signed the documentation ratifying the protocol and the convention.
Mr Theron ensured members of the Committee that all concerns would be covered by the new legislation.
The meeting was adjourned.
THE MINISTER OF SOCIAL DEVELOPMENT LAID UPON THE TABLE:
Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption for consideration, ratification and report in terms of Section 231(2) of the C9pstitution, Act 108 of 1996.
NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES
Hague Convention on Protection of Children and Co-operation in respect of Inter-County Adoption
The purpose of this memorandum is to obtain Parliament's approval for the Republic of South Africa to accede to the Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption, being an Instrument to be signed, ratified and considered in terms of section 231(2) of the Constitution of the Republic of South Africa, 1996.
2.1 South Africa ratified the Convention on the Rights of the Child (CRC) on 16 June
1995. In order to achieve the purpose of the Convention on the Rights of the Child, it would be appropriate for state parties to undertake ratification of other treaties to guarantee the protection of the fundamental rights of children from being sold or trafficked between countries.
2.2 The Hague Convention in Respect of Inter-country Adoption applies to all persons under the age of 18 years. This is in line with Section 28(2) of the Constitution that states that the child's best interests are of paramount importance in every matter concerning the child. Article 3 of the Convention on the Rights of the Child (CRC) and Article 4 of the African Charter on the Rights and Welfare of the Child (African Children's Charter) which South Africa ratified, on 16 June 1995 and 7 January 2000 respectively, emphasise the best interests of the child in all matters affecting him/her.
2.3 Inter-country adoptions may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.
2.4 This Convention only covers adoptions, which create a permanent parent-child relationship, and it also secures the recognition in contracting states of adoptions made in accordance with this Convention.
2.5 This Convention ceases to apply if the child attains the age of 18 years prior to the central authorities of both states having agreed that the adoption may proceed.
2.6 Ratification of this Convention will promote the protection of children against being abducted, sold or trafficked between countries.
2.7 The country of origin must also ensure that the consent is given freely in the required legal form and evidenced in writing. Such consent may not be induced by payment or compensation of any kind.
2.8 The child's consent to the adoption, in instances where it is required, has to be given freely in the required legal form or evidenced in writing and may not be induced by payment of compensation of any kind.
2.9 Contracting States should designate a Central Authority to carry out the duties, which are imposed by the Hague Convention in Respect of Inter-country Adoption upon such authorities. Central authorities should take all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Hague Convention in Respect of Inter-country Adoption.
2.10 The Contracting State has to communicate the designation of the central authorities, the extent of their functions, names and addresses of the accredited bodies to the Permanent Bureau of the Hague Conference on Private International Law.
2.11 The text of the Hague Convention in Respect of Inter-country Adoption appears not to be in conflict with the domestic law of the Republic of South Africa.
2.12 This situation on the sale and trafficking of children is aggravated by a lack of reliable statistics, concerning this phenomenon. This situation is not unique to South Africa, but it is also a growing global concern.
2.13 The Registrar of Adoptions in the National Department of Social Development has registered + 107 inter-country adoptions since May 2000 where adoption orders were made by the SA Children's Courts.
2.14 The Inter-country Social Services Affiliated Bureau in the National department has dealt with a number of cases of children who had leff the country without following the correct procedures as described in the Hague Convention in Respect of Inter-country Adoption
2.15 Once the Hague Convention has been ratified the Central Authority will have the power to regulate adoptions to and from South Africa.
2.16 The Office on the Rights of the Child in the Presidency, which is responsible for coordinating and monitoring the Convention on the Rights of the Child, could be charged with monitoring the implementation of the Hague Convention in Respect of Inter-country Adoption
2.17 The implementation and monitoring of this Convention is a crosscutting issue within Government. The Departments of Social Development, Justice, Home Affairs and Foreign Affairs share a collective responsibility to monitor inter-country adoptions and to accredit welfare organizations rendering this service.
3.1 It is recommended that Parliament consider the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption for ratification and report.
3.2 It is further recommended that this process be done in consultation with committee structures that deal specifically with the promotion and protection in the rights of the children to address the cross cutting responsibilities.
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