Common sense and the “Guatemala syndrome”

The Ukrainian president’s edict proclaimed 2006 as the Year for the Protection of Children’s Rights. The state has set itself the task of implementing the right of children to a family upbringing and adoption. To this end government guidelines have been clearly formulated not only to declare these priorities, but also to effect a cardinal change in the current situation. An expanded session of a roundtable called “With Love and Care for Children” as well a national conference was dedicated to this topic in 2005. The public heard some mind-boggling statistics: in the past decade the number of orphans and homeless children has increased by 60 percent, while the adoption rate has dropped by 40 percent, with twice as many children adopted by foreigners than Ukrainians.

“MONEY FOLLOWS THE CHILD”

The switch from words to deeds was rather quick. The Ministry of Family, Youth, and Sports has launched a reform in the system of guardianship and care for children. Work has been reoriented toward the development of family-type children’s homes and foster families instead of today’s boarding schools. The “indestructible” pillars of the former system of guardianship and institutionalization have become fragile. Changes have also occurred in its financing; the new formula of “money follows the child” envisages financing of children, not institutions, and is aimed at ensuring that thousands of unfortunate children will enjoy the right to live and be raised in a family.

Active efforts are being undertaken in the legal field. A number of key issues have been regulated as part of the normative-legal reform, including adoption. The Law “On Changes to the Family Code of Ukraine Concerning the Children’s Adoption Center” became effective as of Feb. 1, 2006, instructing the Cabinet of Ministers to create a state administrative body responsible for adoptions and the protection of children’s rights, which will be part of the Ministry of Family, Youth, and Sports. Adoption functions have thus been transferred from the Ministry of Education.

Initially, a functional collision was inevitable. The Adoption Center ended up with no authority, while the new structure was in the process of being formed and could not assume these functions. However, on Jan. 12, 2006, the lack of coordination was resolved; the Adoption Center will continue functioning until the new structure is formed - i.e., until April 2006.

In fact, what is happening is not so much a departmental reshuffling as a reform of the rules of and approaches to the question of national adoption that has a number of unhealthy trends. On the one hand, there is a decrease in the national adoption rate, and on the other, unbelievably complicated procedures that more often than not nullify the efforts of Ukrainian families applying for adoption. The interesting fact is that the low national adoption rate is interpreted as proof that the number of people who want to adopt and can afford to it has decreased.

Studies carried out on the initiative of the Ministry of Family, Youth, and Sports show an altogether different picture: 10 percent of families are prepared to adopt children. The latest census points to 14 million families in Ukraine, 10 percent being 1,400,000 families willing to adopt versus 100,000 orphans. Even if one-half of the surveyed families made a rash decision and may have a change of heart later, the remaining “family potential” is still strong. Experts believe that the eradication of old bureaucratic obstacles will necessarily foster the emergence of people who want to adopt a child.

Therefore, by assuming the new adoption functions, the ministry intends to channel all its efforts into stimulating national adoption by using all resources, including simplified and reformed procedures.

THE HAGUE CONVENTION AND UKRAINE

There is another matter that must still be regulated: interstate adoption. Against the background of recent quick reforms aimed at protecting children’s rights on a nationwide scale, the lengthy debate on the international protection of these rights looks strange at best. The heart of the debate is the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. Ukraine has not succeeded, to put it mildly, in joining it. Arguments and debates have been underway since 1999. They are rather complicated, like the issue of interstate adoption. Over the past years a number of “criminal pages” have been added to the document; they are all connected with children’s destinies and rights that are being cynically ignored. Will Ukraine’s accession to the Hague Convention better protect the rights of Ukrainian children? Is this convention aimed at offering more opportunities to violate these rights? It took more than 10 years to draw up the Hague Convention as part of the Hague Conference (Committee) on Private International Law, formed in 1893. The clauses of the convention were developed in strict accordance with the spirit and principles of the United Nations Convention on the Rights of the Child.

The question of intercountry adoption arose because of the pressing need to adopt children by foreign parents, which became especially acute after World War Two, and the Korean and Vietnam wars. In the 1990s intercountry adoption became so widespread that certain countries lost control over the situation and committed serious violations of children’s and adoptive parents’ human rights. The process was acquiring dangerous and uncontrolled black market trends and their respective hallmarks: trade-commodity-money.

Ukraine was also affected. Corrupt bureaucrats operating hand in glove with shadow intermediaries began to actively develop the Ukrainian “adoption market.” Tentative estimates point to its scope at 150 million a year. This money is earned in the “troubled waters” of perfectly correct laws. For several years the Prosecutor General’s Office has been saying, “Ukraine has nearly perfect legislation on adoption” and that there is no trafficking in children, only trading in information about children.

Yes, there are laws. No one denies the fact. This, however, does not mean that they are not being violated. Otherwise there would be no rampant corruption and no alarming statements from the international community concerning the inadmissible passivity of the Ukrainian state. Incidentally, there has been no monitoring of the effectiveness of the newly enacted laws, but it is done by life itself. Facts pointing to trafficking in children are the most convincing type of monitoring.

Discrepancies have existed and will continue as long as the debates on the 1993 Hague Convention persist. The most acute “arguments” of its opponents boil down to the following:

The Hague Convention was adopted by receiving countries in the interests of adoptive parents.

Accession to the Hague Convention will impede the national adoption process.

The mechanism of feedback in regard to children adopted abroad is not regulated.

However, the issue that is drawing the most fire is the presence of intermediaries in the sphere of adoptions, who receive fees in return for their services. The convention does not ban these activities but Ukraine has by enacting a law. The government is now taking a resolute and uncompromising stand on this matter. So what is the controversy all about?

Before 2000 the Ukrainian family code read: “Intermediary commercial activities” concerning adoption are prohibited. There was no comma placed between the words “intermediary” and “commercial,” but a lawmaker decided that the comma was needed by the state and it was introduced, thus banning both intermediary and commercial endeavors. The paradox is that this punctuation mark did not clear the muddy waters, but is still an obstacle to making the process of intercountry adoptions transparent.

ILLICIT GO-BETWEENS

The purpose of the convention is to protect children, and biological and foster parents taking part in intercountry adoptions, as well as to prevent trafficking in children and other abuses. How conducive is the Ukrainian environment to such abuses? I will analyze the entire adoption process from the moment foster parents arrive in Ukraine. Once they step off the plane, they find themselves in a totally strange environment. These foreigners do not know how to get to their destination, where to change money, where to rent a room, whom to ask about a particular address. They need people to show them around and explain things; this is a packet of services that the state does not provide. Why? Because the Adoption Center has 19 persons on staff who are buried in paperwork and busy receiving visitors. There are simply no other adoption structures and experts because they are prohibited by law. At the same time, such services, which are sorely needed by foreigners, are not envisaged by the adoptive authority’s regulations.

Of course, demand begets supply. Such supply in the person of a translator is a godsend to a foreigner, and it is invariably delivered. A foreigner is ready to cry with joy upon seeing that there is someone who is prepared to help him with such a delicate personal matter. After that, a duly notarized power of attorney materializes and an appointment is made with an expert. True, the foreigner does not understand what the expert is saying and the interpreter explains everything in his own way. For example, the phrase “You can come tomorrow to get the papers” is translated as, “You can’t get the papers.” The foster parent is alarmed and confused, he eagerly listens to the good interpreter’s every word and hears that he will try to solve the problem in return for a certain sum. Great! The problem is solved, meaning, the helpless foreigner is conned.

This primitive example of illicit but extremely lucrative tricks is just the tip of the iceberg. If there were 2,200 children adopted by foreigners last year, this means that Ukraine was visited by some 4,000 foreign foster parents, who generally come as couples. Meanwhile, we pretend that nothing is happening and hope that the reliable law will protect our children’s rights. Once the state allows adoption, it must organize it properly and effectively. This is precisely what the 1993 convention is all about.

WHO BENEFITS?

Every signatory to the convention must have a “central authority” responsible for supervising intercountry adoptions. In addition, this agency licenses and directs organizations that are engaged in protecting children, and ensures that their services conform to established standards. Only state-run and licensed organizations specializing in children’s protection can provide services to children and carry out adoptions. Independent intermediaries are banned from operating in the sphere of intercountry adoptions, yet they feel very much at home in Ukraine, where they conduct their “work,” reporting to no one. They set the rules of the game and the prices.

The convention recommends that signatories regulate the amount payable to accredited organizations in order to prevent unlawful financial or other gains and to keep track of these organizations. When regulating an intercountry adoption, the state must first determine how a given organization is monitored after obtaining a license, and then audit its financial documents. It is recommended that the central authority issue licenses to as many agencies and organizations as it can supervise.

This is how the most contentious issue of intermediary services is formulated. The convention aims at legalizing these activities, the possibility of keeping them under control and auditing them. This is an alternative to the black market and its basic activity: purchase and sale.

Not surprisingly, in Guatemala, where 98 percent of adoptions are carried out by independent intermediaries (lawyers), children are bought from biological parents, and where the per capita adoption rate and the cost of adoption services are the highest in the world, the Supreme Court proclaimed the Hague Convention on intercountry adoptions unconstitutional. Without a doubt, any attempts to reform this lucrative system will be severely resisted. This is the Guatemala Syndrome that regards as unconstitutional efforts to protect rights.

DEMAND MUST BE REGULATED

As for the other “arguments,” they also have their own weak logical connections. For example, one argument states that the Hague Convention was adopted by receiving countries in the interests of foster parents.

The need to develop the convention is explained by the unregulated demand for children in countries believed to be most convenient for intercountry adoptions, and because existing agreements were inadequate. The fact that 8 out of the first 10 countries to ratify the convention were sending ones is proof that they took a keen interest in this instrument.

According to the latest statistics, 66 countries have approved the convention; 46 have ratified it, and 13 have signed it but not ratified it. The UN Committee on the Rights of the Child strongly recommends that the signatories to the Convention on the Rights of the Child ratify or accede to the 1993 Hague Convention because the latter serves as a means of implementing the principles and mechanisms according to the obligations laid down in the Convention on the Rights of the Child.

As for Ukraine, in 2002 the UN Committee noted regretfully that its previous recommendations (October 1995) concerning the ratification of the 1993 Hague Convention on the Protection of Children and Co- operation in Respect of Intercountry Adoption, have not been taken into consideration. The committee repeats its recommendations to the effect that Ukraine should ratify the Hague Convention. Could such a competent and authoritative body specializing in the protection of children’s rights insist on its recommendations in the interests of foster parents? Or perhaps we are interpreting the notion of “children’s rights” differently?

CHILD PLACEMENT PRIORITIES

Another traditional “argument” states that accession to the Hague Convention will impede the process of national adoptions.

What does the convention have to say on this subject?

First, the convention states that a child must be raised in a family. Second, the convention points out the following priorities of child placements:

1. “The state should adopt “all possible measures so that a child remains in the care of its own family.”

2. Adoption of a child in the country of origin (national adoption).

3. Intercountry adoptions.

These priorities are listed according to their degree of importance and are clearly stated.

The provisions of this document can in no way interfere with national adoption, but we do so. As for the above-mentioned “obstacles,” a careful reading and analysis of the meaning of the main clause about adopting “measures so that the child remains in the care of its own family” is crucial. The objective is to save and preserve the family, its healthy state, and the possibility to discharge parental functions. In contrast, we try to “save” when there is nothing left to save: the father has disappeared somewhere and the mother is lying in the gutter. Then we deprive this “alcoholic” of her parental rights. Incidentally, a number of international organizations specializing in adoptions envisage projects to support problem families in order to preserve the child’s biological family.

Therefore, national adoption is an alternative solution when measures aimed at preserving the main priority have been exhausted. Evidence of this is found in our legislation, namely in Article 24 of the Law on the Protection of Childhood. The state must actively develop national adoption, rather than wait for foreign foster parents. Only when it is impossible to place a child in his own country is a decision on intercountry adoption made; no other way. The state can regulate the relationship between “national” and “intercountry,” as the convention recommends to all member countries. The priorities are all clearly stated in the convention.

ADOPTION FOLLOW-UP

The “argument” about the unregulated feedback mechanism in regard to children adopted abroad is perhaps the most confusing one.

The 1993 Hague Convention does not oblige compulsory adoption follow-up reports, but by no means are they restricted or ruled out. Everything depends on the specifics of the receiving country’s national policy. Ukraine has them. Most countries have a maximum period of compulsory follow-up reports ranging from three to five years from the date of adoption. Our country is ahead of them all: here the reporting period is 18 years. Is this expedient and how well is it provided for in terms of manpower? Controlling such reports requires people who are officially responsible for such monitoring. Considering that this function is currently the responsibility of consular officials and that there are three or five persons on staff at the department who have to check reports on 5,000 children adopted in the United States, the task appears unrealistic.

In other countries this responsibility rests with state-controlled accredited agencies. This is impossible in Ukraine because it is forbidden by the law.

As for the long reporting period, it must also be substantiated. Habits are the most painful period of adaptation for a child in a strange environment and for foster parents; it usually lasts between one and three years. Many countries use an algorithm of three to five years. The approximate number of annual adoptions and the possibility of monitoring these reports by governmental or nongovernmental entities are taken into account. In any case, this process must be “ensured.” Otherwise, the situation will be like the one we have now: no clear picture concerning adopted children and increasing activity of all kinds of smart operators requiring the intervention of Interpol, the foreign ministry, and the general public’s concern.

We are doing nothing to correct the situation and are repeating old mistakes. However, this is better than accrediting agencies subject to compulsory monitoring of children after adoption and checking every aspect of their work. No. This is impossible because these organizations will benefit materially from adoptions. Yes, they will because a working expert must be paid: teaching children in school, providing medical aid, or discharging other professional functions. This is undeniable.

Another question is how conscientiously and transparently this expert will build his relations with society and the state. A legal job in accordance with set requirements and a regulated amount of remuneration provide conditions for precisely such relations. Then why is control over legalized intermediary activities bad, but under-the- table services are good? But of course, there are no such services in our country, because our legislation is perfect!

TIME TO MAKE A CHOICE

The 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption does not claim to be a perfect instrument, but it is helping many countries rid themselves of the Guatemala Syndrome. Its task is not to bluff but find optimum legal solutions developed after many years of insightful studies of the adoption process in various countries and concomitant multifaceted problems. The convention does not prohibit member countries to conclude bilateral agreements with other countries, yet the world community is increasingly inclined to work in the legal field of the Hague document, as it reduces to a bare minimum the risk of mistakes fatal to children. How long will our state and lawmakers entertain the assumption that the law solves all problems and that law-abiding citizens do not have the slightest intention of doing things contrary to the law, not to mention with the goal of obtaining illicit financial gains? This question calls for a straight answer.

The time has come for Ukraine to choose between common sense and the Guatemala Syndrome. We are convinced that national adoption statistics will also change. The adoption rate has dropped disastrously in the past several years: last year 1,400 children were adopted in Ukraine and 2,200 abroad.

There are perfectly objective reasons for this decrease, and they are directly linked to economic instability. In addition, we have woefully inadequate legislation for regulating family upbringing. Today active efforts are being undertaken on the president’s instructions to remove artificial barriers that create incredible difficulties in the course of adoption. The required paperwork will also be reformed and simplified.

VERBATIM

From President Yushchenko’s speech at the roundtable “With Love and Care for Children”:

“We must remove the child that has ended up on the street, if we have allowed it to end up there. There is practically one way to do this — by giving the child not a special institution, not a boarding school, but a family.

“The state must give the homeless child a family, people willing to adopt it. This is our number-two task.”