The HCCH 1993 Adoption Convention entered into force for Angola – but not between Angola and two European States

This post ends with the following remark:

“Interestingly, under this Convention, there is approximately a 3-month gap between the date of entry into force and the end of the objection period.”

Indeed, Article 46(2)(a) of the Convention states:

‘(2) Thereafter the Convention shall enter into force –
a) for each State ratifying, accepting, approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval, or accession;’

And Article 44(3) of the Convention states:

‘Such accession shall have effect only in relation to the acceding State and those Contracting States which have not raised an objection to its accession within six months of receiving the notification referred to in subparagraph b) of Article 48. Such an objection may also be raised by States when they ratify, accept, or approve the Convention after an accession. Any such objection shall be notified to the depositary.’

Where the Convention enters into force in an acceding state three months after accession, approximately, objections to the accession can still be raised for approximately three months thereafter.

In the 2008 Guide to Good Practice No. 1 on the implementation and operation of the Convention, this issue is expressly addressed (paragraph 8.3.2, Nos. 468 and 469):

“There appears to be something of a contradiction between Article 46(2), which specifies a three-month period (following the deposit of the instrument of ratification, acceptance, approval, or accession) for the entry into force of the Convention, and Article 44(3), which prevents the Convention from coming into effect between an acceding State and any Contracting State that raises an objection within a six-month period.
The Permanent Bureau has taken the view that the Convention should be treated as coming into operation between the acceding State and the existing Contracting States after the initial three-month period provided for in Article 46(2). From the standpoint of legal interpretation, this proposition is tenable, though admittedly the matter is not crystal clear. One could alternatively argue that the Convention comes into effect between an acceding State and existing Contracting States after the six-month period allowed for objections. However, the reasons for preferring the former interpretation are:

• The wording in Article 44(3) does not expressly state that relations are not established until the expiry of the six months. It would have been easy to make this clear if this had been the drafters’ intention.

• The wording of Article 41 lends some support. Specifying the cases to which the Convention must be applied, that Article refers to applications (under Article 14) received after the Convention “has entered into force” in the receiving State and the State of origin. The date of “entry into force” in each State is governed by Article 46(2), not Article 44(3).

• For an existing Contracting State, practical difficulties should not arise if the view is taken that the Convention enters into force at the earlier date. If an existing Contracting State is actively considering raising an objection under Article 44(3) to a newly acceding State, it may be unwise in the meantime to allow the processing of adoptions in respect of that State.

• In the vast majority of cases (i.e., where a new State accedes to the Convention), no objections are raised under Article 44(3). It is generally not in the interests of children that there should be a delay in the coming into effect of the Convention between Contracting States. It should be remembered that adoptions made before the Convention comes into effect do not enjoy the protections afforded by the Convention nor the advantage of automatic recognition among all Contracting States.”

In my dissertation (in Dutch) on the recognition and conversion of foreign adoptions in the Netherlands, available through the University Library of the University of Groningen (A. Mens, Erkenning en omzetting van buitenlandse adopties in Nederland. Over de betekenis van beide fenomenen in het Nederlandse internationaal privaatrecht), I have paid attention to Article 44(3), but I have not addressed this specific point.

If we follow the interpretation desired by the Permanent Bureau of the Hague Conference on Private International Law, then the Convention will, in any case, enter into force after the three-month period referred to in Article 46(2)(a), in the acceding state and between the acceding state and all existing Contracting States. But what happens if, within a period of three months after this entry into force—i.e., within the six-month period referred to in Article 44(3)—one or more existing Contracting States object to the accession? Does the Convention (only) cease to apply at that moment between the acceding state and the objecting Contracting State(s)? Or does the objection have retroactive effect? And what are the consequences of either scenario, for instance, regarding recognition?
In the first case, the Convention would have entered into force between the acceding state and a (later) objecting state when the Convention entered into force in the acceding state, and the Convention would have been in effect between these states until the moment the objection was lodged. This concerns a period of a maximum of three months. The Permanent Bureau rightly suggests that it is unlikely that intercountry adoptions would have been initiated or completed between the acceding state and a (later) objecting state during this period. But let’s consider the following, maybe only hypothetical, situation: within this maximum three-month period during which no objection has yet been lodged by a Contracting State, an intercountry adoption is completed between the acceding state and a Contracting State that does not intend to object, and then one of these states issues a certificate of conformity as referred to in Article 23. The question that now arises is whether a (later) objecting state is obliged to recognize this intercountry adoption between the acceding state and the non-objecting Contracting State. I believe this question must be answered in the affirmative. After all, the adoption was completed and certified at a time when the Convention was still in effect between the acceding state and the (later) objecting Contracting State. But what then is the situation if the adoption is completed only after the objection has been lodged? Or if the adoption was completed before the objection was lodged, but the certificate of conformity was issued only afterwards? I think that in these two latter cases, it must be assumed that there is no general obligation of recognition for a (later) objecting Contracting State. In the first situation, I believe this is the case because, from the perspective of the (later) objecting Contracting State, a non-Contracting State was involved in the intercountry adoption. In the second situation, I think this is the case because, from the perspective of the objecting Contracting State, the certificate of conformity was issued by a non-Contracting State. In this context, see paragraphs III.1.2.1.1.4 and III.1.2.2. of my dissertation.
In the second case, the Convention would be deemed never to have applied between the acceding state and a (later) objecting Contracting State. This would then, I think, mean that, retrospectively, there is no treaty obligation for an objecting state to recognize an intercountry adoption involving the acceding state and for which a certificate of conformity has been issued. In theory, this could create transitional issues, particularly if recognition had initially occurred in the (later) objecting state, i.e., before the objection was lodged. However, I consider the likelihood of this situation arising in practice to be negligible.
Which of these two options is preferable (if we follow the interpretation of the Permanent Bureau)? Since an objection can be considered as a vote of no confidence in the acceding state, the second option—assuming retroactive effect—might seem the most logical, at least at first sight. That there would be no treaty obligation to recognize for the objecting states in this case does not mean that an objecting state could no longer recognize an adoption involving the acceding state and for which a certificate of conformity has been issued. An objecting state would then be allowed to apply its national recognition rules to determine whether recognition is justified (in the child’s best interests) or not (in this context, see paragraph III.1.2.2. of my dissertation). Under the applicable national law, stricter recognition requirements likely apply (not only the public policy exception as referred to in Article 24 of the Convention), providing more opportunities for review than under the Convention.

Another possible interpretation, according to the Permanent Bureau, is that the Convention only enters into force between an acceding state and the existing Contracting States after the six-month period referred to in Article 44(3) has expired. This means that, although the Convention enters into force in the acceding state after the three-month period referred to in Article 46(2)(a), it has not yet entered into force between the acceding state and the existing Contracting States. Only after the six-month period referred to in Article 44(3) has expired, does the Convention enter into force between the acceding state and the non-objecting existing Contracting States. Given the above, this would be the simplest solution. However, as stated, the Permanent Bureau does not favor this interpretation. Nevertheless, there is something to be said for this interpretation as well. The first sentence of Article 44(3) reads, as mentioned, as follows:

‘Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b) of Article 48.’

We could also read this sentence a contrario:

‘Such accession shall have no effect as regards the relations between the acceding State and any Contracting States until six months have passed without an objection from the existing Contracting States.’

If we thoroughly consider both versions, it becomes clear that only after the six-month period referred to in Article 44(2) has elapsed can it be (definitely) determined which existing Contracting States have raised objections to the accession of the new state and which existing Contracting States have not. In light of this, one could argue that only after the expiration of the six-month period can it be determined which existing Contracting States have entered into a treaty relationship with the acceding state (and which have not), and thereby that the accession only takes effect in the relations between the acceding state and the non-objecting Contracting States after this period. In other words, the Convention only takes effect between the acceding state and the non-objecting Contracting States after the six-month period has passed, and the Convention never enters into force between the acceding state and the objecting Contracting State(s). If we assume this to be the case, then after the expiration of the three-month period referred to in Article 46(2)(a), the Convention first enters into force solely in the acceding state. It is beyond the scope of this contribution to consider what exactly this entails, but I assume that this means, for example, that the acceding state will in any case have to comply with the obligations set out in Articles 7, 8, and 9 of the Convention. Strictly speaking, during the subsequent three-month period, no treaty-based adoption can be carried out between the acceding state and an existing Contracting State, as the Convention does not yet apply to their mutual relations. For this reason, it seems wise to wait three months before initiating intercountry adoption procedures involving the acceding state. Another option would be to shorten the six-month period referred to in Article 44(3) to three months, so that it aligns with the three-month period referred to in Article 46(2)(a). In that case, the questions raised earlier would no longer be relevant. Just as it is currently clear that if, within the three-month period referred to in Article 46(2)(a), one or more existing Contracting States raise an objection to the accession of a new state to the Convention—i.e., before the Convention enters into force in the acceding state—the Convention will, after those three months, enter into force only in the acceding state and between the acceding state and those Contracting States that have not objected to the accession, but not between the acceding state and the Contracting State(s) that have objected to the accession.