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Many of you see the term “Hague” or “The Hague Convention” and see reactions to those words but never have familiarized yourself with them. Most are somewhat aware of the stoppage “The Hague” caused in Guatemala almost 3 years ago. If you are not up on the latest information on any information about “The Hague Convention” then you must read the following statement. This was provided to the Moose by fellow Adoption Forum member Tifany E Markee, Esq. who has extensive knowledge in immigration law. A special thanks is due her for providing the forum and now our blog readers with such detailed information. It may be helpful to read the Hague Convention’s “CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION” to have a deeper understanding of the situation before reading this summary
She writes:
As a bit of background, I am an immigration attorney, and specialize, in part, in international adoption law. I am an active member of the American Immigration Lawyers Association (AILA). Further, I am general counsel to 2 international adoption agencies, and have also been successful in assisting families with disputes they have with international adoption agencies. Finally, I am an adoptive mother of two children from Russia.
My statements below are simply my legal opinion, based upon my research and first-hand conversations with the Joint Council on International Children Services (JCICS) and the Department of State.
As many know, Guatemala acceded to the Hague Convention (hereinafter called HC) in 2002. A challenge was immediately put before the Supreme Court in Guatemala; the eventual ruling was that the method of accession was improper, as the process violated the constitution of Guatemala. Many here remember the near total stoppage of adoptions during that time.
Until now, this has never been an issue. However, in February, the US finally signed on to the Hague. The Hague implements a myriad of changes, but most principally, it will demand that any adoptions which occur between 2 HC countries must be done in accordance with the requirements of the Hague Convention itself. This includes that the adoption be completed only by an accredited agency (the actual process of US accreditation is a work in progress), and also demands that the sending country (i.e. the country from which the children originate) have a central authority which oversees, directs and coordinates the adoptions (similar to Russia’s Ministry of Education and China’s Chinese Center for Adoption Affiars). If the adoption is between a HC country and a non-HC country, no changes will be affected; the Hague does not apply at all.
So now the pressing news, and the reason why this has become such loud news among the Guatemala adoption community:
The Department of State publicly confirms that the US considers Guatemala to be a HC country (i.e. a signatory to the Hague Convention, and thus bound by its rules and regulations). The Dept of State first made this statement in the March 17th public forum on the Hague; it then released a statement on travel.gov which confirms its views and conclusions. The Dept of State reasons that it did not recognize the “constitutional challenge” put forth in Guatemala, as that only pertained to domestic law, not international law. The US seems to feel that the actual logistics of HOW the HC was acceded makes no difference in determining whether the country is a signatory to the HC.
However, the Dept of State also said in the very same statements that the adoption procedures in Guatemala were NOT in compliance with the HC. And in fact, they are admittedly not in compliance with the Hague Convention. Guatemal makes no claims that its system does meet the requirements of the Convention; rather, I assume that Guatemala has taken the position that it need not conform to the Hague demands because it does not recognize itself as a Hague Convention country.
So this presents an interesting problem: if the US considers Guatemala to be a HC country, then it will demand that any adoptions that occur after the effective date (which is slated, presently, to be sometime in 2007, as a goal) MUST comply with the HC. However, at the present time, Guatemala does not comply.
The Joint Council has confirmed that is indeed the US’ view, and again, the Dept of State’s public posting on travel.gov also confirms this approach.
The Joint Council as well as the Dept of State are presently encouraging Guatemala to align itself with the Hague regs: form a central authority, and implement all other necessary safeguards. Guatemala does not seem so inclined to act, although there are several in Guatemala that would like to see such a central authority take over the job from the private attorneys. Guatemala also has the option of formally withdrawing from the Hague Convention; this approach is being actively pursued by agencies such as Focus on Adoption (FOA), as an alternative solution. If indeed Guatemala formally withdrew from the Hague Convention, the US could continue adoptions without change, as the adoptions would then involve a Hague and non-Hague country.
Indeed, from both a legal and logical standpoint, adoptions from Guatemala (or more specifically, the US immigration of/ issuance of immigrant visas to children from Guatemala) are at jeopardy. The Department of State is clear: Guatemala, a Hague country, is not in compliance. Once the US effectuates the Hague, the convention effectively requires that the US not allow the immigration of adopted children from Guatemala, unless and until Guatemala complies with the Hague demands. If Guatemala fails to do that, I would expect that the US would refuse to proceed with Guatemalan adoptions (or, specifically, refuse to recognize the adoption and grant an immigrant visa based upon that adoption). Again, this is the legal and logical conclusion, although one that has not been specifically and explicitly confirmed by the Department of State. At this time, I believe that the Dept of State wishes to place public pressure on Guatemala to act, hoping for a resolution before the full Hague implementation.
I have also posted on this subject on Adoption.com, as well as GuatAdopt.com, and have gotten several questions about options. I have a few main thoughts I would like to share:
1. Adoption from Guatemala are at risk. Any prospective adoptive parent needs to be aware of the pending regulations, and take them into consideration as a part of making a decision to proceed with Guatemala. Families should take this news very seriously, and not allow an agency to dismiss it or claim that they have nothing to fear. It is up to the families to press their agencies for news and updates. I would once again reinforce that any families who are uncertain of a Guatemalan adoption may wish to wait and see; but those who are committed to starting the process should begin that process within the next few months.
2. Any agency that completes adoptions from Guatemala needs to properly advise prospective adoptive parents of the risks. I personally feel that it is unethical for any agency to brush this under the rug, and dismiss any conversations about it. I would recommend to any agency to have a full and frank conversation with their families, and allow the families to make an informed decision. Agencies need to lead their clients in a fair and informed manner. I have advised one of my agency clients to begin these discussions with its families within the Guatemala program.
3. The Department of State has preliminarily indicated that the filing of the I-600A will preserve eligibility to complete an adoption from Guatemala, despite a suspension (i.e. a grandfathering). They have indicated that in order to remain eligible, the I-600A has to be received, and the filing fee cashed/ receipted. A postmark on the implementation date will not suffice. I, however, would like to see that families are farther along; the I-600A simply states that Mr. and Mrs. American citizens are stable and proper adoptive parents for an international child, and it is not country-specific (the approval is then cabled to the country of the family’s choosing). For this reason, I would encourage any family to initiate the process in Guatemala prior to any cut-off date — filing of the Power of Attorney, filing for Pre-Authorization, etc. This should ensure that families are allowed to continue and complete. I would also anticipate that there will be interpretation issues that arise in individual cases, and may require the intervention of an immigration or international adoption attorney.
4. As it relates to point #3, I would strongly encourage any family who is currently on the fence about adopting from Guatemala to make a decision, and a commitment, and move forward as soon as they can. I have been in the immigration community for many years, and have seen many individuals who miss cut of dates of programs due to inaction. If a family has committed to Guatemala, I would advise that family to begin as soon as possible, with the goal of being as far down the path as possible by late 2007 (which is the current goal of implementation by the Dept of State). Hopefully, this will ensure that all families make it under any imposed cut-off lines.
5. Do not panic. I have seen the Department of State and CIS change and implement many programs over the years; often times, they extend deadlines and move the effective dates many times. While the Department of State has indicated that late 2007 is the goal for implementation, many other things need to be completed before Hague implementation, including the completion of the regulations related to the Intercountry Adoption Act (IAA), the US implementation of the Hague, as well as the accreditation regs and procedures.
I will be attending the JCICS conference at the end of April, at which time I will attend the Guatemala caucus, the Hague meetings, as well as the open forum with the Department of State. I am happy to provide a summary and highlights as soon as I return. I am also happy to answer questions as they come.
I also invite all families to maintain an open dialogue with all participants in this important discussion, including JCICS, FOA, as well as their agencies, to hopefully reach a solution to this upcoming potential problem.
Tifany E. Markee, Esq.
Milner & Markee, LLP
www.milner-markee.com
I will continue to monitor the information Tifany brings to us and I will present it here on the Guatemala Adoption Blog as soon as possible. Please leave your comments here on your thoughts or added knowledge about this situation.
Another option for the US is to object to Guatemala’s accession to the Hague.
Under Convention Article 44, when a country ratifies the Convention, it
may, at that time, raise an objection to the accession of a country that
previously acceded to the Convention. Several countries raised such objections at the time Guatemala acceded to the Hague. One of them was the UK, and they continue to process adoptions with Guatemala, as they would with any non-Hague country.