Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions

Austria

08-10-1968

The Federal President of the Republic of Austria herewith submits the Declaration envisaged in Article 13 of the Convention on Jurisdiction, Applicable Law and Recognition of Decrees relating to adoption with effect to prohibitions specified in sub-paragraphs d, e and f of this Article.

16-04-1969

Re Article 17
a)The following comments refer to consent and consultations under Austrian law:
A written contract must be concluded before an adoption can be completed. If the child is not yet competent to act, a legal representative shall act on its behalf in the matter of concluding the contract. Since a contract is obligatory, the legal representative's conclusion of the contract, in conformity with this condition, or his consent to the contract, as the case may be, shall be regarded as constituting his consent to the adoption.

In addition, consent is required from:
1. the father of a legitimate minor child, provided he has not been permanently deprived of paternal authority;
2. the mother of a minor child;
3. the spouse of the adopter and that of the child.
Consent may be dispensed with in certain cases;
in certain other cases the Court may give consent where it has been withheld.

Those entitled to be consulted on the adoption are:
1. A child not competent to act, after it has completed its fifth year, unless it has lived with the adopters from that date onwards;
2. the father of a legitimate major child, provided he has not been permanently deprived of paternal authority;
3. the mother of a major child;
4. the natural father of the child if he has acknowledged paternity before the Court of the official guardian (Ambtsvormund) or if paternity has been established by the Court;
5. the foster parents of the child, the person with whom the child is boarded out or the supervisor of the home in which the child is being cared for;
6. the local authority within whose jurisdiction a minor child resides.
Consultation may be dispensed with in certain cases.
b) Re subparagraph d) of paragraph 1 of Article 13:
Under paragraph 2 of Section 179 of the General Civil Code, the adoption of a child by more than one person, either at the same time or at different times, is permitted only if the adopters are married to each other. From this it follows that the existence of a previous adoption by other persons is permissible only if the other person is the spouse of the adoptive father or of the adoptive mother.

Re subparagraph e) of paragraph 1 of Article 13:
Under Section 180 of the General Civil Code the adoptive parents shall be at least 18 years older than the child to be adopted; a difference in age slightly less than 18 years shall be disregarded if the relationship that has developed between the adopter and the child is similar to that which normally exists between parents and their issue. If the child is the issue of the adopter's spouse or is related to the adopter, a difference in age of 16 years shall suffice.

Re subparagraph f) of paragraph 1 of Article 13:
Under Section 180 of the General Civil Code the adoptive father shall have completed his thirtieth and the adoptive mother her twenty-eighth year.

07-04-1978

1) In Article 17, under a, in the first list (rights of consent), no. 1 now reads:
"1. the father of a legitimate minor adoptive child"
2) In the second list under a of Article 17 (rights of consultation), no. 2 now reads:
"2. the father of a legitimate adoptive child who has reached the age of majority;"
3) In this same list, no. 4 now reads:
"4. the father of an illegitimate child, if paternity has been established;"
4) The right of consent lapses if the person entitled to it has signed the adoption agreement as the legal representative of the adoptive child, or if this person is more than temporarily incapable of making a reasonable statement, or if the whereabouts of this person have been unknown for at least six months. A consent that has been withheld can be substituted by the court if there are no justifiable grounds for withholding it.
5) The right of consultation lapses if the person entitled to it has signed the adoption agreement as the legal representative of the adoptive child, or if this person cannot be consulted, or can only be consulted with disproportionate difficulty.
6) In the Explanatory Note relating to b of Article 17, concerning letter f of paragraph 1 of Article 13 of the Convention, the text should now read:
"The adoptive father must be at least 30 years of age, and the adoptive mother at least 28 years of age. However, if a husband and wife are adopting a child together, or if the adoptive child is the biological child of the spouse of the adoptive parent, these age limits do not apply, if a relationship corresponding to that between biological parents and their children already exists between the adoptive parent and the adoptive child. In this case there is no minimum age."
7) As the age of majority in Austria is 19, the term "adoptive child without full capacity" used under letter a in the above-mentioned Explanatory Note relating to Article 17 refers to a child of under 19 years of age.

14-12-1989

a. Provisions regarding consent and consultations
A written contract must be concluded before adoption can take place. If the child to be adopted is not yet competent to act, a legal representative shall act on its behalf in the matter of concluding the contract.
The following persons must give their consent:
1. the parents of a minor adoptive child;
2. the spouse of the adopter;
3. the spouse of the person being adopted.
Any of the above-mentioned persons loses the right to give consent if he/she has concluded an adoption contract as the legal representative of the adoptive child, if he/she is permanently incapable of making a rational statement or if his/her place of residence has been unknown for six months or longer.
At the request of a contracting party, the court shall be obliged to give consent where it has been withheld without good reason.
The following persons shall be entitled to be consulted:
1. an adoptive child who is not competent to act, after reaching five years of age, unless it has been living with the adopter since that date;
2. the parents of an adoptive child who has attained the age of majority;
3. the foster parents of the child or the director of the children's home in which the child is living;
4. the child care and protection agency.
Any of the above-mentioned persons shall lose the right to be consulted if he/she has concluded a contract of adoption as the legal respresentative of the adoptive child, if it is impossible to consult him/her or if consulting him/her would entail unreasonable difficulty.

Switzerland

07-06-1973

I. Reservation and declaration

1. Reservation
In accordance with article 22 of the Convention, Switzerland reserves the right not to recognize an adoption granted by an authority exercising jurisdiction under sub-paragraph (b) of the first paragraph of article 3, when at the time of the application to adopt the child had his habitual residence in Switzerland and did not possess the nationality of the State in which the adoption was granted.

2. Declaration
Pursuant to the second paragraph of article 4, sub-paragraphs (e) and (g) of the first paragraph of article 13 and the second paragraph of article 17 of the Convention, Switzerland declares that the prohibitions against adoption contained in articles 264, 264 a and 265 of the Swiss Civil Code are reserved. The text of these provisions is given below.

a) As regards sub-paragraph (e) of the first paragraph of article 13 of the Convention:

IV. Age and consent of the child
Art.265
1.The child must be at least sixteen years younger than the adoptive parents.
2. ....
3. ....

b) As regards sub-paragraph (f) of the first paragraph of article 13 of the Convention:
II. Joint adoption
Art.264 a
1. ....
2 . The spouses must have been married for five years or more or be thirthy-five years of age or over.
3. A person may nevertheless adopt the child of his spouse if he has been married to her for two years or more or if he is thirty-five years of age or over.

c) As regards sub-paragraph (g) of the first paragraph of article 13 of the Convention:

A. adoption of minors
Art.264
A child may be adopted if the future adoptive parents have taken care of him and provided for his upbringing for at least two years and if in the light of all the circumstances it is to be expected that the creation of a tie of legitimate filiation will benefit the child without adversely and unfairly affecting the situation of other children of the adoptive parents.

III. Communication relating to the first paragraph of article 17 of the Convention

Swiss law on adoption requires the following consents:
1. The consent of the child, if he is capable of understanding (article 265 (2) of the Swiss Civil Code);
2. The consent of the guardianship authority responsible for supervision if the child is the subject of a guardianship order (article 265 (3) of the Swiss Civil Code);
3. The consent of the father and mother of the child. This consent is given either orally or in writing to the guardianship authority in the domicile or place of residence of the parents or child, and must be recorded in a procès-verbal. It is valid even if it does not name the future adoptive parents or if the latter have not yet been designated (article 265 a of the Swiss Civil Code);
The consent may not be given until six weeks after the birth of the child. It may be revoked in the six weeks following its receipt. If it is renewed after having been revoked, it is final (article 265 b of the Swiss Civil Code).
The consent of one of the parents may be dispensed with if:
(a) he is unknown, has been absent for a long time without any known address or is not lucid for any length of time;
(b) he has not taken any interest in the child (article 265 c of the Swiss Civil Code).

United Kingdom

24-08-1978

Article 13
1. In accordance with the provisions of Article 13 and with reference to the second paragraph of Article 17 of the Convention, the United Kingdom declares, with a view to the application of Article 4, that the provisions of its internal law prohibiting adoptions are as follows.

a. In England and Wales and Scotland:
With reference to Article 13(b) of the Convention
Under section 11(1) of the Children Act 1975 an adoption order may not be made on the application of one person unless one of the following conditions is satisfied:-
a. he is not married, or
b. he is married and the court is satisfied that:-
i. his spouse cannot be found, or
ii. the spouses have separated and are living apart, and the separation is likely to be permanent, or
iii.his spouse is by reason of ill health, whether physical or mental, incapable of making an application for an adoption order.

With reference to Article 13(b) and (c) of the Convention
Under section 11(3) of the Children Act 1975 an adoption order shall not be made on the application of the mother or father of the child alone unless the court is satisfied that:-
a. the other natural parent is dead or cannot be found, or
b. there is some other reason justifying the exclusion of the other natural parent.

With reference to Article 13(f) of the Convention
Under sections 10(1), 11(1) and 107(1) of the Children Act 1975:
a. the adopter or each of joint adopters must have attained the age of 21;
b. the child to be adopted must be under the age of 18.

With reference to Article 13(g) of the Convention
Under section 3(1) of the Adoption Act 1958 an adoption order shall not be made in respect of any child unless he has been continuously in the actual custody of the applicant for at least three consecutive months immediately preceding the date of the order, not counting any time before the date which appears to the court to be the date on which the child attained the age of six weeks.

b. In Northern Ireland:
With reference to Article 13(b) of the Convention
a.Under sections 1(2) and 4(l)(b) of the Adoption Act (Northern Ireland) 1967 an adoption order may not be made on the application of one person unless:
i. he is not married; or
ii. he is married and either his spouse has consented to the making of the order or the court dispenses with the consent of the spouse on a ground specified in (b) below.
b. The court may dispense with the consent of the spouse of an applicant for an adoption order if it is satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving his consent or that the spouses have separated and are living apart and the separation is likely to be permanent.
c. Under section 2(3) of the Adoption Act (Northern Ireland) 1967 an adoption order shall not be made in respect of a child who is a female in favour of a sole applicant who is a male unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.

With reference to Article 13(f) of the Convention
Under the provisions of sections 2(1) and (2) and 46(1) of the Adoption Act (Northern Ireland) 1967:
a. In the case of a sole applicant who is not a parent of the child;
i. if he is a relative of the child, the applicant must have attained the age of 21;
ii .otherwise the applicant must have attained the age of 25.
b.In the case of a joint application where neither spouse is a parent of the child:
i. if one of the applicants is a relative of the child, (a)(i) applies and the spouse must also have attained the age of 21;
ii. otherwise one of the applicants must satisfy (a)(ii) and the spouse must have attained the age of 21.
c. The child to be adopted must be under the age of 18. "Relative" in relation to a child means a grandparent, brother, sister, uncle or aunt, whether of the full blood, of the half-blood or by affinity, and includes -
a. where an order authorising an adoption has been made in respect of the child or any other person under the Adoption Act (Northern Ireland) 1967 or the Adoption of Children Act (Northern Ireland) 1950 or any enactment repealed by that Act or has been made anywhere in Great Britain, the Isle of Man or any of the Channel Islands, any person who would be a relative of the child within the meaning of this definition if the adopted child were the child of the adopter born in lawful wedlock;
b. where the child is illegitimate, the father of the child and any person who would be a relative of the child within the meaning of this definition if the child were the legitimate child of its mother and father.

With reference to Article 13(g) of the Convention
Under section 3(1) of the Adoption Act (Northern Ireland) 1967 an adoption order shall not be made in respect of any child unless he has been continuously in the care and possession of the applicant in Northern Ireland for at least three consecutive months immediately preceding the date of the order, not counting any time before the date which appears to the court to be the date on which the child attained the age of six weeks.

Article 14
2. In accordance with the provisions of Article 14 of the Convention, the United Kingdom declares that a "United Kingdom national" for the purposes of the Convention shall be a citizen of the United Kingdom and Colonies who has the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act of 1971.

Article 16
3. In accordance with the provisions of Article 16(a) of the Convention, the United Kingdom designates as the authorities having power to grant an adoption within the meaning of the first paragraph of Article 3:
a. In England and Wales: the High Court of Justice;
b. In Scotland: the Court of Session;
c. In Northern Ireland: the High Court of Justice.
4. In accordance with the provisions of Article 16(b) of the Convention, the United Kingdom designates as the authorities having power to exchange the communications envisaged by the second paragraph of Article 6:
a. In England and Wales: the council of a county (other than a metropolitan county), a metropolitan district, a London borough or the Common Council of the City of London;
b. In Scotland: a regional or islands council;
c. In Northern Ireland: a Health and Social Services Board.
5. In accordance with the provisions of Article 16(c) of the Convention, the United Kingdom designates as the authorities having power to annul or revoke an adoption under Article 7, the same authorities as those designated under Article 16(a) for England and Wales, Scotland and Northern Ireland respectively.
6. In accordance with the provisions of Article 16(d) of the Convention, the United Kingdom designates as the authority having power to receive information in pursuance of Article 9 on behalf of the whole of the United Kingdom:
The Registrar General for England and Wales,
General Register Office,
St Catherines House,
10 Kingsway,
London WC2.

Article 17
7. In accordance with the provisions of the first paragraph of Article 17 of the Convention, the United Kingdom declares, with a view to the application of Article 5, that the provisions of its internal law relating to consents and consultations are as follows.
a. In England and Wales and Scotland:
(1) Under section 12 of the Children Act 1975:
i. An adoption order shall not be made unless in the case of each parent or guardian of the child the court is satifisied that;-
a. he freely, and with full understanding of what is involved, agrees unconditionally to the making of the adoption order (whether or not he knows the identity of the applicants), or
b. his agreement to the making of the adoption order should be dispensed with on a ground specified in ii. below.
ii. The grounds mentioned in (1)i.b. above are that the parent or guardian:-
a. cannot be found or is incapable of giving agreement;
b. is withholding his agreement unreasonably;
c. has persistently failed without reasonable cause to discharge the parental duties in relation to the child;
d. has abandoned or neglected the child;
e. has persistently ill-treated the child;
f. has seriously ill-treated the child and (because of the ill-treatment or for other reasons) the rehabilitation of the child within the household of the parent or guardian is unlikely.
iii. Agreement at (1)i.a. above is ineffective if given by the mother less than six weeks after the child's birth.
"guardian" means:-
a. a person appointed by deed or will in accordance with the provisions of the Guardianship of Infants Acts 1886 and 1925 or the Guardianship of Minors Act 1971 or by a court of competent jurisdiction to be the guardian of the child, and
b. in relation to the adoption of an illegitimate child, includes the father where he has custody of the child by virtue of an order under section 9 of the Guardianship of Minors Act 1971, or under section 2 of the Illegitimate Children (Scotland) Act 1930.
(2) Under section 3 of the Children Act 1975:
The court shall so far as practicable ascertain the wishes and feelings of the child regarding the adoption and give due consideration to them, having regard to his age and understanding.
b. Additionally in Scotland only:
Under section 8(6) of the Children Act 1975:
An adoption order shall not be made in relation to a child who is a minor unless with the consent of the minor; except that where the court is satisfied that the minor is incapable of giving his consent to the making of the order, it may dispense with that consent. (A minor in Scotland is a boy aged 14 or over but under 18 or a girl aged 12 or over but under 18.)

c. In Northern Ireland:
(1) Under section 7(l)(a) of the Adoption Act (Northern Ireland) 1967 an adoption order shall not be made unless the court is satisfied that every person whose consent is necessary, and whose consent has not been dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights.
(2) Under section 4 of the Adoption Act (Northern Ireland) 1967:
i. An adoption order shall not be made in any case, except with the consent of every person who is a parent or guardian of the child;
ii. The consent mentioned in (i) may be given either before or after an application has been made for an order and may be given:-
a. either generally in respect of the adoption of the child or only in respect of the adoption of the child by a specified person; and
b. either unconditionally or subject to conditions with respect to the religious persuasion in which the child is to be brought up.
iii. The consent of the mother of a child at (i) shall be of no effect if given earlier than six weeks after the birth of the child.
(3) Under section 5 of the Adoption Act (Northern Ireland) 1967:
i. The court may dispense with any consent under (2) if it is satisfied that the person whose consent is to be dispensed with:-
a. has abandoned, neglected or persistently ill-treated the child; or
b. cannot be found, or is incapable of giving his consent; or
c. has persistently failed without reasonable cause to discharge the obligations of a parent or guardian of the child; or
d. is withholding his consent unreasonably; or
e. in any other case is a person whose consent ought in the opinion of the court to be dispensed with;
and in considering whether the consent of any person should be dispensed with under this provision the welfare of the child shall be the paramount consideration.
ii. Where a person who has given his consent to the making of an adoption order without knowing the identity of the applicant, subsequently withdraws his consent on the ground only that he does not know the identity of the applicant, his consent shall be deemed to be unreasonably withheld.
"Guardian" means a person appointed by deed or will in accordance with the provisions of the Guardianship of Infants Act 1886, or by a court of competent jurisdiction, to be guardian of the child.
(4) Under section 7(1)(b) of the Adoption Act (Northern Ireland) 1967:
The court before making an adoption order shall be satisfied that the order if made will be for the welfare of the child, due consideration being given to the wishes of the child, having regard to the age and understanding of the child.