Tag Archive for: international adoption law

HCCH Monthly Update: November 2021

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Conventions & Instruments

On 17 November 2021, the Russian Federation signed the HCCH 2019 Judgments Convention. Although the 2019 Judgments Convention is not yet in force, the Russian Federation is its fifth signatory. The Russian Federation has been a Member of the HCCH since 2001 and is a Contracting Party to six HCCH Conventions. More information is available here.

Meetings & Events

On 5 November 2021, the HCCH hosted a virtual seminar on the HCCH 1980 Child Abduction Convention and the HCCH 1996 Child Protection Convention for the Supreme Court of Ukraine. This was the second of a series of seminars, organised with the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine. More information is available here.

On 8 November 2021, the HCCH Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met via videoconference. The Group continued to work on the development of a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the HCCH 1993 Adoption Convention. More information is available here.

From 15 to 19 November 2021, the HCCH Experts’ Group on Parentage / Surrogacy met via videoconference. The Group discussed the form, structure and focus of the final report that is to be presented to the Council on General Affairs and Policy of the HCCH at its 2023 meeting. More information is available here.

From 22 to 25 November 2021, the HCCH participated in the 24th International Congress of the International Union of Judicial Officers. Secretary General Dr Christophe Bernasconi participated in the panel discussion “Cyber Justice: New Opportunities for the Judicial Officer” and in the roundtable discussion “Cyber Justice – The future of our profession – Evolution or Revolution?”, while Senior Legal Officer Dr Ning Zhao delivered a presentation on the HCCH 2019 Judgments Convention. Dr Zhao’s accompanying article “The HCCH 2019 Judgments Convention – adding essential components for an effective international legal framework on recognition and enforcement” will be published in the proceedings of the Congress. More information is available here.

Upcoming Events

HCCH a|Bridged Edition 2021 will be held online on Wednesday, 1 December 2021. This year’s edition will discuss contemporary issues relating to the application of the HCCH 2005 Choice of Court Convention, including the establishment of international commercial courts around the globe and how it enables party autonomy. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Change in German International Adoption Law

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Last week the German parliament approved a reform of the German adoption law. The reform was triggered by a decision of the Constitutional Court (Bundesverfassungsgericht – BVerfG) declaring provisions unconstitutional that did not allow a stepchild adoption for non-marital couples (English translation of the decision here).

The legislator took the opportunity to adapt the conflict of law provisions. The relevant rule, article 22 Introductory Act to the Civil Code (EGBGB) only applies to adoptions in Germany and those abroad that were not established by a foreign court or authority. In the latter case the rules on recognition of court decisions apply. Furthermore, the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption prevails. The new rule, thus, mainly determines the law applicable on the acceptance of an adoption by private agreement that occurred abroad.

The former relevant provision, Article 22 para 1 EGBGB stated, cited after the translation made by Juliana Mörsdorf for the Federal Office of Justice:

Article 22 Adoption

(1) The adoption of a child is governed by the law of the country of which the adopter is a national at the time of the adoption. The adoption by one or both spouses is governed by the law which applies to the general effects of the marriage under article 14 subarticle 1. The adoption by a life partner is governed by the law which applies to the general effects of the life partnership under article 17b subarticle 1 sentence 1.

[…]

The new Article 22 para. 1 states that

“the adoption of a child in Germany is governed by German law. In all other cases the adoption is governed by the law of the country in which the adoptee has his habitual residence at the time of the adoption.“ [my translation – German federal law in general is not very aware of the use of a gender neutral wording. Of course, also female and non-binary adoptees and their habitual residences are included.]

Due to the Constitutional Court’s ruling, all references to an adoption by somebody living in a marriage or registered civil partnership were eliminated. Furthermore, the rule is a good example for some general general shifts in the German International Family law system regarding connecting factors:

  • First, in the name of procedural efficiency (according to the travaux préparatoires, BT-Drs. 19/15618, p. 8, 16), there is the tendency to distinguish between legal situations occurring in Germany or abroad and use conflict of laws more often to accept legal situations established abroad. Adoptions in Germany are always governed by German law and always require a court proceeding (sec 1752 German Civil Code for minors and sec 1767 para. 2 for adults). With the new provision, the legislative confirmed that an adoption that occurred abroad will be accepted in German according to the so-called method of “recognition by conflict of laws”, as article 22 para 1 phrase 2 exclusively provides a rule for adoptions that took place outside of Germany.
  • Second, by determining the law applicable, the German rule no longer focuses on the adopter(s) but the adoptee. This change is in accordance with the general awareness to put the child’s best interest in the centre of attention in cases involving fundamental changes to a child. While, of course, there can be adoptions of adults, the adoption of a minor is the most common (see also the travaux préparatoires, BT-Drs. 19/15618, p. 16).
  • Third, the rule also includes a temporal connecting factor. Traditionally, German conflict of laws rules do not state the temporal connection factor, thus, the rules always refer to the moment of the closure of the court hearing. This can create uncertainty as it allows a change of connecting factors over time and even in the course of a proceeding.
  • Last but not least, and maybe even more interesting, the main connecting factor changed from nationality to habitual residence. Traditionally in German International Family Law, nationality was the central connecting factor, as it is still in article 13 (law governing the conclusion of a marriage). In article 22, instead, connecting factor is the habitual residence (of the adoptee). This shows a general tendency in German conflict of laws which was mainly triggered by the harmonization of conflict of laws in the EU. Last year the central rule regarding international marriage law (article 14, losing the importance to the latest EU regulations, though) changed the “rungs” of its famous “Kegel’s ladder”: Traditionally, the first “rung” of said ladder was the spouses shared nationality or last shared nationality during marriage. Only in case there was neither, applicable was the law of the spouses’ habitual residence. Since January 2019, main connecting factor (“first rung”) is the spouses’ habitual residence, the second the spouses’ habitual residence during the marriage if one spouse has maintained that habitual residence. Only the third step refers to the shared nationality.

The new law will come into force 31 March 2020. The new provisions apply to international adoptions that were not completed before that date (article 229 § 51 EGBGB).