NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

CONFLICT OF LAWS PROJECT

INTER COUNTRY ADOPTION

SUBMITTED BY,
ATUL NARAYAN
ROLL NO. 845
SEMESTER V
NUALS

TABLE OF CONTENTS
I POSITION IN ENGLAND........................................................................................ 2
II POSITION IN INDIA: ADOPTION........................................................................... 3
III
THE HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION
IN RESPECT OF INTERCOUNTRY ADOPTION..............................................................7
A.

INTRODUCTION............................................................................................. 7

B.

IMPORTANT PROVISIONS................................................................................7

C.

CENTRAL AGENCIES: A COMPARATIVE............................................................8

D.

IMPACT OF THE CONVENTION........................................................................9

IV CONCLUSION.................................................................................................. 10
V

BIBLIOGRAPHY............................................................................................... 12

I POSITION IN ENGLAND
Adoption was unknown at Common Law, and is a creature of statute, the first of which was
the Adoption of Children Act, 1926, now replaced by the Adoption Act, 1976. An English
court only has jurisdiction if the applicant, or, in the case of a married couple applying, one of
the applicants, is in any part of the United Kingdom, and the child is in England.1
The court applies English domestic law when it decides an application for adoption, and that
law lays down the factors to be taken into consideration.2 So the motive for the application
has to be considered; if the motive of the applicant was to give the child British nationality,
and to safeguard the interests of the applicant in her old age, and not primarily to promote the
welfare of the child, the application was refused.3
The rule that courts apply the rules of English law could lead, in some cases, to unfortunate
results as a child could be regarded as validly adopted in England, and enjoy the status of an
adopted child in England, but might not enjoy that status in the country where it was born; it
may, thus, be the child of X, the adoptive father, in England, and that of Y, the natural father,
in the place where it was born. A possible solution to this was suggested in a case where it
was observed that though the court must apply English law, it must consider the law of the
domicile of the child to avoid a result where a child has one status in England, and another in
another country.4
An adopted child has the same status as a natural child. The effect of an adoption order is to
make the adoptive parents the parents of the adopted child, and severs the parental
responsibility of the natural parents.

1 Dicey & Morris, Conflict of Laws, thirteenth ed., p 887.

2 Re B (S) (An Infant) [1968] Ch. 204
3 Re W (A Minor) (Adoption Non-Patrial) (1986) Fam. 54
4 Supra note 2

Foreign adoption orders are recognized if the person who adopts is domiciled in that country.
This is based both on comity and on principle as explained by Lord Denning MR5:
When a court of any country makes an adoption order for an infant child, it does two
things:
(1) It destroys the legal relationship theretofore existing between the child and its natural
parents, be it legitimate or illegitimate;
(2) It creates the legal relationship of parent and child between the child and its adopting
parents, making it their legitimate child.
It creates a new status in both, namely, the status of parent and child. Now it has long been
settled that questions affecting status are to be determined by the law of the domicile. This
new status of parent and child, in order to be recognized everywhere, must be validly created
by the law of the domicile of the adopting parents. You do not look to the domicile of the
child: for that has no separate domicile of its own. It takes its parents' domicile.
The United Kingdom has adopted the Hague Convention on Protection of Children
and Cooperation in respect of Inter-country Adoption 1993, by The (English)
Adoption (Inter-country Aspects) Act 1999. The Convention applies if a child
habitually resident in a Convention country is brought after adoption to another
Convention country.

II POSITION IN INDIA: ADOPTION

Adoption can only be recognized if it is permitted by statute, or is recognized by custom.
Customary Hindu Law permitted adoption, and adoption among Hindus is now regulated by
statute. There is no other statute in India on the subject. Under customary Hindu Law, though
adoption was always permitted, only a man could adopt, though, in certain areas, a widow
also could, and only a son could be adopted. 6 The law is now contained in the Hindu
Adoptions and Maintenance
5 Re Valentine's Settlement [1965] Ch 831, p 842
6 The object of adoption was spiritual, so that the son could perform the funeral and other rites of the adopter,
and secular, so that the adopter would have an heir; both objects were sewed only by adopting a son.

Act 1956, whose provisions override all rules of customary law.7The Act extends to the whole
of India, except Jammu and Kashmir, and applies to 'Hindus', that is, to Hindus, as well as to
Buddhists, Sikhs and Jains.
Unlike customary Hindu Law, under the statute, females can also adopt, and a girl can also be
adopted, but the statute lays down certain conditions for a valid adoption.
(a) Both the person adopting, and the person giving in adoption must have the capacity to do
so- s 6.
(b) If the person adopting is a male, he can do so if he is not a minor and is of sound mind,
and if he is married, he can only do so with the consent of his wifes 7.
(c) If the person adopting is a female, she can only do so if she is not a minor, is of sound
mind, and is either not married, or if married, if her marriage has been dissolved, or if her
husband is dead, or has renounced the world, or has ceased to be a Hindu or is not of sound
minds 8.
(d) the persons entitled to give in adoption are: (i) the father, if not a minor and if of sound
mind, and if the mother is alive, with her consent (unless the mother has renounced the world
or has ceased to be a Hindu or is not of sound mind, and has been so declared by a competent
court); (ii) the mother, if the father is dead or has renounced the world or has ceased to be a
Hindu or is not of sound mind, and has been so declared by a competent court); (iii) a
guardian, if both father and mother are dead or have renounced the world or cannot be traced
or have been declared not to be of sound mind, provided that no guardian can do so except
with the permission of the court, and the court will only give such permission if satisfied (i)
that the adoption is for the welfare of the child; (ii) if the child is old enough to understand,
after considering its wishes; and (iii) only if it is satisfied that no payment has been made for
the purpose except such payment as the court may sanction S 9. 77
Certain other conditions are prescribed: (i) if the person being adopted is a son, the adoptive
father or mother must not have alive a son, or a son's son, or grandson; (ii) if the person being
7 The Hindu Adoptions and Maintenance Act 1956, s 4.

adopted is a daughter, the adoptive father or mother must not have alive a Hindu daughter or
a son's daughter; (iii) if the person adopting is a male, and he is adopting a female child, he
must be at least 21 years older; (iv) if the person adopting is a female, and she is adopting a
male child, she must be at least 21 years older; (v) a person cannot be given in adoption at the
same time to two or more personss 11.
Once a child is adopted, it is deemed to be the child of the adoptive parents for all purposes,
and the ties of the child to its natural family are deemed to be severed, except that (i) he or
she cannot marry any person he could not have married had he not been adopted, (ii) any
property that may have vested in the adopted child before the adoption shall continue to be so
vested, and (iii) the adopted child will not divest any one of property already vested in him
before the adoption.
As s 17 of the Act absolutely prohibits the making of any payment in consideration of an
adoption, and makes doing so a criminal offence, the payment permitted under the section
presumably refers to payment of expenses relating to an adoption such as the expenses of a
ceremony of adoption.
Under Hindu Law, no intervention of a court is required to adopt a child, and, consequently,
no question of a court has jurisdiction can arise. The Hindu Adoptions and Maintenance Act,
1956 has not been extended to the State of Goa, and the Union Territories of Daman and
where
the law in force prior to the area becoming part of India continues to apply. Under a Decree
of 1889, the customary law applicable to Hindus continued to apply to Hindus, except as
modified by the Decree.
Presumably, therefore, Hindus in that area can only adopt in accordance with the rules of
customary Hindu law. The Hindu Adoptions and Maintenance Act 1956, does not apply to
residents in the State of Pondicherry; it would not, therefore, apply to persons who opted to
be governed by the French Civil code 1880; such persons, presumably cannot adopt.8

8 It is unlikely that there are any significant numbers ofsuch renoncants today.

In India, no Christian or Parsi can adopt, as no statute permits it, and there is no custom
enabling them to do so.
Adoption is not known in customary Mahomedan Law.9 Certain statutes relating to certain
areas permitted adoption.10 In certain localities, custom permitted Muslims to adopt; the
custom was not abrogated by the enactment of the Muslim Personal Law (Shariat)
Application Act 1937, as adoption did not fall within the ambit of s 2 of that Act.
In the State of Jammu and Kashmir, a local law, the Sri Pratap J & K Laws Consolidation
1977, applies to Muslims, so that if a custom permitted adoption in an area, the custom
continues to be valid and effective in the state so that Muslims to whom the custom applies,
can adopt. There have been numerous examples of couples living in foreign countries
desiring to adopt babies in India. As no statute has been enacted in India to regulate such
adoptions, the Supreme Court has laid down certain guidelines to be followed by courts when
an application is made by parents living outside India to adopt an Indian child.

Suits based on foreign judgments where a party had been adopted in a foreign country in
which they were domiciled have been noted.11 Indian courts have recognised adoptions
upheld by foreign courts. As whether a person is or is not the adopted son of another is a
matter of status, and as status is in Indian law dependent on the law of the domicile Indian
courts would ordinarily recognize such an adoption of the parties, applying the law of the
domicile of the father of the person (and, perhaps, after considering the law of domicile of the
person adopted); if such recognition is granted, a person so recognized should be entitled to
succeed to property as a natural child.

Indian courts can be guided by the rules of English courts as also the principles laid down in
the Hague Convention on Inter-country Adoptions. That India has not signed or implemented
9 Muhammad Umar Khan v Muhammad Niaz- ud- Din Khan (1911) LR39
10 Abdul Halim Khan v SaadatA1i Khan (1932) LR 59 IA 202, AIR 1932 PC 137
11 Nataraja Pillai(GS) v G S Subbaraya Chettiar AIR 1950 pc 34

the Convention should not preclude an Indian court from considering its provisions to enable
it to do justice.

III
THE HAGUE CONVENTION ON PROTECTION OF CHILDREN
AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
A.

INTRODUCTION

The Hague Conference on Private International Law came into existence in 1893. The idea
behind the Conference was to unify the rules in the Private International Law domain. Prior
to HC each country had different law and in cases of inter country disputes we see that
solving the dispute becomes very expensive and a long drawn process. Moreover inter
country decisions also face the problem of execution as no nation would want to compromise
on its sovereignty. This led to severe uncertainty in overall situation and to deal with the
problem the Conference was formed. Its aim is to provide legal security to players in the
international arena.
The HC meets this objective by creating multilateral agreements, once such Convention
relates to the Inter-Country Adoptions which was concluded on 29 th May 1993 and came into
force in 1st May 1995.
As of October 2008 the Convention has been ratified by 76 countries and India is also a
signatory to the Convention. A nation need not be part of the HC to be part of the Convention.
B.

IMPORTANT PROVISIONS

The preamble clearly states that its goal is to provide a residence to the child via an intercountry adoptions if the child cannot be settled in the home country. The convention has two
fold objectives, first that the child should be safeguarded with his best interests and
fundamental rights in mind and second that the party nations should cooperate in order to
further the objectives. Requirements for inter-country adoptions are set out in Article 4 and 5
of the Convention, it is mandated that nations establish central agencies and accredited
bodies. However, we see that mostly it is the Central Agencies who perform the dual function
of accrediting bodies and facilitating inter-country adoptions.

The provisions of the Convention emphasize the welfare of the child. Its principal features
are:

1. It only covers adoptions which create a permanent parent-child relationship.12

2. An adoption can only take place after

a) The competent authorities of the 'state of origin' have determined that the child is
adoptable, that inter-country adoption is in the best interests of the child, and the necessary
permissions from the parents and competent authorities have been secured, that such consent
has been obtained without the payment of compensation, the consent of the mother has been
given only after the birth of the child, that the child, if it is old and mature enough, has been
consulted and its opinions considered;13 and

12 Art. 2 (2) of the Convention

13 Art. 4 of the Convention

b) After the competent authorities of the 'receiving state' have stated that the adoptive parents
are eligible to adopt, have been consulted and that the child will be authorized to enter and
reside permanently in that state.14

3. An adoption can only take place if these formalities have been completed before the child
attains the age of 18.15

4. An adoption in accordance with these rules will be recognized by operation of law in all
contracting states,16 unless such recognition is manifestly contrary to its public policy 'taking
into account the best interests of the child.17

5. Recognition of the adoption includes recognition of the legal parent child relationship,
parental responsibility of the adoptive parents for the child, and the termination of the preexisting legal relationship between the child and its mother and father.18

C.

CENTRAL AGENCIES: A COMPARATIVE

Under the 1993 Convention, Central Agencies have a very important role to play. Their
functions include, inter alia, execution of the Convention and overseeing the ICA. The
functions of the Central Agencies are more or less similar.

14 Art. 5 of the Convention

15 Art. 3 of the Convention
16 Art. 23 of the Convention
17 Art. 24 of the Convention
18 Art. 26 of the Convention

In India, the ICA is administered by the Central Adoption Resource Agency (CARA) which
was set up by Supreme Court after realizing that ICA was leading to massive trafficking of
children, it was not directly to execute the 1993 Convention.
In the US, the Bureau of Consular Affairs, Office of Childrens Issues along with the
Department of State looks after the ICA. The US Central Agency is primarily to facilitate
ICA and see to it that the immigration process happens smoothly.
In the UK since 2007, the responsibility of the ICA rests on the shoulders of UK Government
Department for Children, Schools and Families. The UK Central Agency does not encourage
adoptions however upon fulfilling the legislative requirements it allows adoptions. The
functions of the Central Agencies are very much in common. Firstly, they all coordinate with
governments of other nations represented by the central agencies to fulfil domestic law
requirements and requirements of Convention. Secondly to comply with the provisions of the
domestic law and Convention 1993. Third provide information regarding procedure and rules
of the domestic law. Fourth oversee the working of agencies that administer adoptions to
fulfil objectives of Convention. Fifthly these authorities can accredit the voluntary body
undertaking adoptions, while in UK and US these guidelines have legislative basis, in India it
is the Supreme Court lays down the guidelines. However these judicial guidelines have been
incorporated by Central Government and are now binding on Child welfare agencies in India,
also the foreign nations have to comply with them in case of ICA.
D.

IMPACT OF THE CONVENTION

The Declaration of Social and Legal Principles Relating to the Protection and Welfare of
Children with Special Reference to Foster Placement and Adoption 1986 (U.N. Adoption
Declaration) said that national adoption should be encouraged over the ICA and ICA should
be the last option. This shows the need for the convention for the exploitation with regard to
ICA has been high. In 1989 United Nations Convention on the Rights of the Child (U.N.
Convention) also spoke of ICA which shows the pressing need for a Convention to take care
of the trafficking and abuse in the name of ICA. The Convention echoes the sentiments of the
UN declaration and convention.

Unfortunately, the costs are too high to implement convention completely hence many
developing Countries do not have a proper mechanism in place, on the other hand, the

developed countries can afford to put off the implementation because they are economically
strong and would not face any reprimanding for the same.
The Convention mirrors the sentiments of popular agreements when it discourages the ICA to
an extent that it makes it seem like a negative thing clearly forgetting that the purpose of
adoption is to ensure that the child has a home where he can be cared for and lived a good
life. This is done when the Convention focuses on the best interest principle and goes to the
extent of saying that ICA should be the last option for the child.
Article 24 is the most criticized provision of the Convention as it allows an exception even
though Article 40 does not allow for reservations. Article 24 allows a country to deny
recognition to ICA on ground of public policy, this vague term allows the party nation to
exercise its discretion.

IV CONCLUSION
A beginning has been made and the impact can be felt. The letter in spirit supports a noble
cause by laying down exhaustive procedure and the need for Central Agency. However, it is
ultimately left to the party countries to take domestic measures to give effect to the
Convention. Also the UN organs are involved in the ICA, it would probably be a good idea
for them to coordinate and support each other instead of making ICA an immigration issue.
The best interest of the child should be kept in mind.
The Convention has made a good start by trying to unify the rules in order to provide a
uniform procedure to protect the child in case of ICA. The Convention is a child friendly one
aiming at not only facilitating the ICA but also stopping trafficking and abuse of children
under the garb of ICA. In that sense the text of the Convention is straight forward, clear and
states the obligations of the part in clear terms. However, the lack of penal provisions or any
follow up mechanisms to check on the signatory nations, it leaves a lot to be desired as it
depends heavily on the action of the countries in strengthening the domestic legislations for
ICA from within.
There is a need for international pressure on the nations which are the largest suppliers of the
children so that the convention is more effective. South Korea (1779 children), Ukraine (1106
children) and Vietnam (766 children) are in the top ten countries which supply children

however there since they are not party to the Convention, these adoptions may not be safe for
the children.
In 2001 US was the largest receiver of children topping the list with 19,237 followed by
Spain with 3,428 backed by France which received 2,850 children in 2001. In suppliers, India
is the 4th highest supplier of children by supplying 466 children in 2002 while China topped
the list by supplying 5053 children.
Looking at the specific case of India, the last legislative effort to deal with ICA was attempted
in 1980 called the Adoption of Childrens Bill which due to many reasons did not come
through. Fortunately, the active judicial stand has encouraged the effective implementations
of guidelines regarding ICA laid down by the 1993 Convention. Even the recommendations
of the Law Commission of India insist that a special legislation for ICA be made and the law
is to be secular and uniform with emphasis on the welfare of the child. Today 16 years have
gone by and India does not even have a draft. In terms of UK and US, we see a strict
following of procedure and norms not merely for following the objectives of the Convention
but to also prescribe and keep in check on immigration. Hence it is submittes that UK and US
are ahead of India in the limited sense of having a legislation, however, through the judicial
pronouncements and guidelines, India has the right attitude towards the ICA and upholding
the aims of the Convention, this coupled with a strong legislation will definitely set the pace
for some serious action on part of India regarding the 1993 Convention.
___________________________________________________________________________

BIBLIOGRAPHY
1) Atul M Setalvad, Setalvads Conflict of Laws, Lexis Nexis Publishers, Third Edition,
2014.
2) Paras Diwan and Peeyushi Diwan, Private International Law, Deep & Deep
Publications, Fourth Edition, 1998.
3) Jstor.org Online Database

4) HeinOnline Online Database