Commission on Security and Cooperation in Europe

Testimony :: H.E. Sorin Ducaru
Ambassador to the United States - Romania

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Ladies and Gentlemen, Members of the Commission, it is a great honour for me to appear before you to address my country’s new legislative framework in the field of child protection and adoptions and also the recent measures for the implementation of these new provisions.

 

When the communist regime fell in 1989, Romania inherited a very difficult situation of abandoned children, a system overburdened with institutionalized children. In the following years, efforts have been started towards creating a comprehensive and functioning child protection system. At the same time, thousands of domestic and international adoptions were concluded, many of them by US families. We appreciate those US adoptive families that offered a loving home to many Romanian children in need, in a moment of lack of substantive legislative and institutional framework in the field of child protection.

 

However, the abuses of the system of inter-country adoption in place in Romania became the subject of international criticism and the Government decided to introduce a moratorium on international adoptions, which came into effect in October 2001.

 

The criticism referred to the ambiguous nature of some legal provisions regarding adoptions, lack of transparency regarding the procedural stages of an international adoption, including the financial aspects of these procedures, elements that led to widespread corruption in the system. The flagrant inconsistency between certain provisions in the Romanian law and the stipulations of the UN Convention on the child’s rights and of the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption was also invoked.

 

In spring of 2001, ABC’s 20/20 broadcasted a story called “Children for Sale” which clearly depicted how special interests and money were generating and even encouraging new situations of child abandonment instead of finding families for children already waiting in state institutions. Romania had started to be viewed as a market for international adoptions, where financial considerations prevailed over the humanitarian dimension, which is assuring the best interest of the child. This is why the Romanian Government had decided to institute a clear policy of finding a national solution for the children and to impose a moratorium on international adoptions



The purpose of the moratorium on international adoption was to provide the time needed to develop appropriate new legislation and the administrative capacity to ensure that inter-country adoption would be restored exclusively in the best interest of the child, if no other suitable form of care was available in Romania.

 

During October - December 2001 and February – December 2004, while the moratorium was into force, Romania had no legal framework to support the registration and processing of new cases of international adoption. Between December 2001 and February 2004, the government has approved international adoption for the cases registered before the moratorium (the so called “pipe-line” cases). All US cases of international adoption submitted before the moratorium were finalized.

 

Nonetheless, foreign families continued to file requests to adopt Romanian children, based on false expectations that the ban on international adoptions would be lifted after the approval of the new Romanian law. The United States pending cases are amid the above mentioned; it is essential to emphasize that no American family that currently awaits approval for adopting Romanian children had filed the request prior to October 2001. Also, it is important to stress that the registration of a petition for international adoption during the moratorium represented a mere administrative act and did not signify approval of the request. According to reports received by the Romanian Embassy in Washington and Romanian authorities, many US families were told by their adoption agencies that their requests had been approved, when in fact their application for international adoption was only registered.

 

Irregularities involving international adoptions registered during the moratorium were observed:

·        Many requests for adoptions were referring to children who did not have an “adoptable” status; under these circumstances, the children were not registered in the official records. All efforts focused on declaring the child adoptable, without any previous effort to integrate him/her within the biological or extended family, thus eluding the provisions of the Hague Convention.

·        Many unsolved files were incomplete; many files even failed to identify a child; there are situations when the adoptive family/person nominated several children or situations when a child was nominated by several adoptive families/persons

·        The majority of the American families have submitted applications for children younger than three years old. Those children could only be adopted nationally even according to the former methodology in force at that time, only children older than the age of three could have been considered for international adoption.

All these shortcomings basically led to the conclusion that the system failed to act constantly in the best interest of the child. It prioritized the identification of a child for a family, not a family for a child.

 

Romania’s new legislative framework on child protection and adoptions

 

The new legislative framework that regulates the current status of adoption in Romania came into effect on January 1st,   2005 and is based on the principle of promoting the best interest of the child. It was drafted together with a group of European Commission experts that provided permanent consultancy, taking into consideration the provisions of UN Convention on the child's rights[1], the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption[2] and the European practices in the field. The final version of the new legislative framework included the recommendations of the Council of Europe as well.

 

The UN Convention on the child's rights states that the best interest of the child shall be the most important reasoning in the field of adoption. This implies that no other interest, economical, political, state safety or of the adoptive persons will have priority and will be considered equal to the interest of the child, the rights of the child being primordial compared to the rights of adults. Thus, it is necessary to emphasise that the new Romanian legislation in the field of adoption provides as a final goal the identification of a family for a child and not the identification of a child for a family.

 

The existent legislation approaches the child in the context of all his/her rights, basically in the context of his/her biological family, trying to raise awareness of the primordial nature of the parental role and responsibility towards one’s own child.

 

The new legislation regulates the following aspects that were not regulated by the previous legislation:

 

-    procedure and situations in which a child can be adopted. The individualised protection plan identifies domestic adoption as the final solution for the child’s welfare, provided that all the efforts to reintegrate the child within the biological family and to integrate the child within the extended family have failed. International adoption is considered as an option of last resort, and only for the biological grandparents who are living abroad. According to the previous legislation, the activities meant to reintegrate the child in the biological family were not stimulated, thus giving priority to adoption and not to the reintegration of the child in his/her family. This was in contradiction with the provisions of the UN Convention on child’s rights.

 

-    only the Court decides the initiation of the domestic adoption procedure after rigorously checking that all means of reintegrating the child in the biological family or integrating the child in the extended family have been exhausted; the procedures under the previous legislation encouraged the identification of a child for a family willing to adopt and not the identification of a family function of the specific case of each child after exhausting all means of reintegrating the child into its biological family. In practice many families met the children before they had the status of children free to be adopted, thus violating the regulations of the Hague Convention; the child became “the object of a transaction” between persons/institutions and his/her rights were infringed.

 

-    maintenance of the right of the parent withdrawn of his parental rights or to whom the punishment to forbid parental rights was applied to consent to the adoption of the child; this provision results from the temporary, reversible nature of the measure of withdrawing parental rights and from the permanent and irreversible  nature of adoption regarding the natural descendants; even in the mentioned conditions, the previous law did not emphasised the rights and the responsibilities of the parents towards their own children.

 

-    the obligation to counsel the biological parents or the legal representatives previously to their consent to adoption, provision of the Hague Convention; the Court has the certitude that the parents freely consent to the adoption and no payment or advantage intervened in order to obtain the consent; the previous legislation did not stipulate this provision and the child could be declared abandoned “ex officio” if the family had not maintained a relationship with the child for more than 6 months (under the Law no. 47/1993);

 

-    adoption is approached as a civil law institution and not as a measure of protection (as it was regulated in the previous law) meaning it does not address automatically to all the children needing a protection measure but to all the children to which such a legal operation meets his/her needs and specific situation.

 

Regarding the results registered in the field of child protection during 1998-March 2005 (based on the information indicated in the attached annexes) the following observations can be noted:

-          the number of national adoptions increased simultaneously with the diminution of the number of international adoptions every year after 2001. Since the Moratorium on international adoptions entered into force, the efforts focused on identifying Romanian families for children declared adoptable. Romania’s domestic capability to protect its own children, by reintegrating them in their natural family, extended family or by national adoption has improved.

o       during January-March 2005 a number of 1312 children were reintegrated within the biological family;

o       the number of children protected in substitutive families (extended family, foster families, other families/persons) has increased while the number of children protected in placement centres decreased starting with 2000;

o       the number of alternative services increased during 2002-2004 (services to prevent child’s separation from his/her family as well as support services for the integration of the child within the family). As a result of the development of these services, the number of the children protected in the system decreased; we have increased the number of day care centres (by 40), the number of services providing counselling and support for parents (by 30) and the number of centres to support the reintegration or the integration of the children in the family (by 17).

-          The alternative services had also a positive impact on addressing the problem of child abandonment in our country. During 2004, out of 4,614 children left in the maternity hospitals and pediatry sections a number of 2,389 children were reintegrated within their biological family and 940 children were placed within foster families

-          regarding the age of the children protected in the residential system, starting with 2002, the number of under1 year-old children has decreased significantly from 1028 children in 2002 to 436 children in 2004 meaning that the number of children entered in the residential system has decreased significantly starting with 2002 ; at the end of 2004, under 10 year-old children protected in the residential system represented almost 22% of the total of children in the residential system, tendency noted also in 2002. In conclusion, the number of children entered in the system decreased significantly as a result of the development of the services to prevent child’s separation from his/her family

-          since the beginning of 2005, 1047 Romanian families soliciting the adoption of a child have been registered in the National Register for Adoptions. 688 domestic adoptions have been approved by now. The Courts initiated the domestic adoption procedure for 192 children. There are also 217 pending case in view of initiating the adoption procedure.

 

The general conclusion of those analyses:

-          the number of children that entered in the residential care system decreased following the development of services to prevent child’s separation from his/her family;

-          the number of children protected in the family care system increased compared to the number of children protected in the residential system and the total number of children benefiting of a special protection measure decreased as a result of the development of services to prevent child’s separation from his/her family and of the services for the integration of children within their families;

-          the number of national adoptions increased while international adoptions decreased.

 

The mentioned results indicate the progresses obtained in this respect, progresses noted by the European Commission in the periodical reports that monitor the evolutions registered in Romania in view of joining the European Union. Also, according to the European Parliament’s report of December 3, 2004 (raporteur Pierre Moscovici), the EU Parliament "congratulates Romania on responding to international appeals and Parliament’s requests by introducing national child protection standards and strict rules to govern inter-country adoption; considers that this new legislative framework should serve to protect children’s rights even more effectively and must be properly enforced”.

 

Also, in May 2005, the EU Commissioner for Enlargement, Mr. Ollie Rehn, wrote to the Romanian Government:" I take note of and appreciate your willingness to explore any possible solutions to respond to the various concerns expressed, as long as such solutions are not contradicting the current legislation in force in Romania. I am convinced that your position should be solely based on the best interest of the child. We also naturally expect you to fully implement the new Romanian legislation, which is in line with international standards. To deviate from these principles would require amendments to your new legislation which would re-open the debate and whose results could become worse than the initial objective..."

 

Taking into consideration the fact that foreign citizens applied for the adoption of Romanian children during the period when the moratorium on international adoptions was in force, the Romanian Office for Adoptions decided to clarify the situation of those cases by analysing each file, with the aim of ensuring that in each case the respect of rights of the child is beyond any doubt.  

 

This analysis will be performed by a Romanian national Working group, established on June 29, 2005. It is composed of Romanian specialists with qualifications and responsibilities in the field of child protection employed in several ministries/other central institutions. They are currently analysing the files existing at the Romanian Office for Adoptions as well as the information regarding the situation of each child.

 

The audit report will be finalized by the working group within 4 months from its setting up, probably in October 2005. Based on the results of this audit, suitable measures will be identified with the aim of finding the appropriate solutions for these cases.

 

The Romanian Office for Adoptions will share the results of this domestic effort and consult with the European Union, in compliance with Romania’s accession commitments, as well with American and all the other concerned parties, in a transparent manner.

 

Romanians are engaged to address the issue of abandoned children within the framework of the present legislative framework creating the premises for the prevention of the abuse and corruption that may occur in the adoption system. All the institutions and public authorities involved in the adoption procedure as well as those with an important role in preventing child’s separation from his/her family shall improve the function mechanisms according to the new legislation in view of respecting and guaranteeing the rights of the child.

 

In Romanian culture and tradition, such as in the culture of many other nations, children represent a supreme treasure and the best hope for a better tomorrow. It is matter of national pride and responsibility to prove to ourselves and to the international community that we can take care of our own children and overcome an unflattering past of abuse and corruption.

 

 





[1] Ratified by Romania in 1990.



[2] Ratified by Romania in 1994.