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Official Gazette

Friday, October 7, 2022

Adoption Law seeks to match international practice

Updated: 10:27’ - 27/07/2010

Dam Thi Thuy Hang
Country Director
Holt International Children’s Services
*

Vietnam’s newly passed Adoption Law has marked solid commitments and efforts of the Vietnamese Government in moving towards Hague Convention compliance and addressing the key principles in the best interest of children. The new Law has covered many important international standards and key points. For example, the Law has provided a clear priority for considering adoptive placement: (1) remaining in care in family of origin; (2) adoption in a child’s birth country; and (3) intercountry adoption. These placement priorities are universally supported in the international professional child welfare community to be in the best interests of children and are fundamentally inscribed in the Hague Convention. The Law also outlines a clear process of determining child eligibility for adoption; clear timelines for processing adoption; clear roles and responsibilities of relevant government ministries and licensed adoption agencies. 

The approval of the new Adoption Law during the 7th National Assembly session is a fundamental step for Vietnam to move forward to a more ethical and professional adoption practice. However, there is a lot of work to be done between now and the date the Law comes into force. The Law has demonstrated a number of strengths, but there are also points that require further technical clarification prior to implementation. The following discussion will highlight two major concerns regarding the Law, as well as present some suggestions on how to enhance the efficiency and effectiveness of implementation.

Matching process

In practice, in an adoption placement decision there are two major facets to be cautiously considered and reviewed: the social and legal aspects of an adoption placement. Both of these aspects play equally important roles in ensuring that a placement decision is in the best interest of a child. The social aspect of an adoption placement serves to assess and identify specific needs of an individual child to ensure an ethical, thoughtful decision and the “right” placement. Meanwhile, the legal aspect of adoption serves to verify the legal status of a child to be adopted, and to legalize the placement.

In the Law, the legal aspect of adoption has been thoughtfully and carefully considered and clearly delineated. Nevertheless, the social aspect of adoption has not been adequately reflected in the law. Specifically, the matching process remains one of the biggest concerns in the implementation of the law. The Law stipulates that matching will be undertaken by the provincial-level Department of Justice (DOJ). In practice, this responsibility requires specific skills to understand a child’s unique set of needs, and to then determine which prospective adoptive family can best meet the needs for that specific child. In many countries, the matching is performed by a matching committee consisting of a group of professionals such as social workers, lawyers, psychologists and doctors. These professionals are trained and work primarily on adoption and matching. This matching committee gathers and analyzes all the needs of the child who needs home finding. Then they consider which family among the top waiting list will best meet the needs of that specific child. Finally, a vote is taken to determine the final matching decision. Having a well-prepared matching process will ensure high possibility of a successful placement.

Permanent placement decisions are not well-placed within the system

Another aspect of concern is the separation between policy/practice and permanent placement decisions. In Vietnam, the Ministry of Labor, Invalids and Social Affairs (MOLISA) provides oversight in working with and taking care of abandoned or homeless children, both through social welfare policy and through oversight of child welfare centers (CWCs). Meanwhile, permanency placement decisions for children for either domestic adoption or intercountry adoption (ICA) are the responsibility of DOJ. Directors of CWCs have expressed several concerns with the Law, including: (1) among existing social welfare policy, there is no specific decision that requires CWCs to develop permanency planning for children. Permanency planning can be understood as plans and efforts to place a child in a permanent family, either it is birth family, local adoptive families or foreign adoptive families as it is for the best interest of a child that he or she lives in a family environment setting rather than in institutional setting; (2) in current policy, costs related to completing the child dossier and child background investigation are not adequately covered by the social welfare financial system; (3) to complete a child dossier (especially for adoption), professional skills in child development and funding are required; (4) if CWCs receive reimbursement for child documentation from adoptive families through a responsible government body, it is not clear whether CWCs will receive reimbursement for all cases in care or only cases referred for ICA; (5) what happens with a child’s file for cases who are not referred for ICA; (6) it is unclear which government body and personnel will be responsible for conducting home studies for domestic families; and (7) the Law defines a number of responsibilities of CWCs, but the rights of the CWC are not defined (e.g. whether a CWC can receive a child’s post placement report after a case placement). All of these concerns need to be thoughtfully addressed and considered during implementation in order to ensure the effective implementation of the Law.

Suggestions/Recommendations

m  Gather opinions, feedback from different stakeholders and professionals in the decision making process for the implementation phase of the Law.

m  Create detailed and transparent guidelines for adoption fees and how these fees are distributed to cover ICA related costs and to support the overall child welfare system and services.

m  Work collaboratively with other Ministries to revise the current financial management system to more fully support CWCs to provide case management services to all children in care.

m  Develop a training plan for personnel involved in adoption placement including personnel at commune-level People’s Committees responsible for domestic adoption placements, and those involved in international adoption placements.

m  Develop standardized forms used in both domestic and international adoption processes to ensure integrity of information.

m  Support efforts to reduce institutionalization of children.

m  Develop policies that promote permanent placements of children in care in CWCs. Alternative community-based care options should be carefully reviewed for each individual case.

m  Develop a case management system on all cases in care in CWC. Case management services should include: child/family needs assessment, background verification; permanency planning, filing and documentation, case monitoring and supervision, etc.

m  Develop short-term and long-term training plans, such as short courses for recent graduates in essential social work skills, and four-year academic training courses for Bachelor’s of Social Work programs.

m  A separate process and faster timeline should be established for adoption of older children and children with special needs. The current law does not address the issue of older children or children with special needs.-

 

Decree on financing housing projects

On June 23, 2010, the Government issued long-awaited Decree No. 71/20010/ND-CP (Decree 71) detailing the 2005 Housing Law regarding housing management and development. The new decree, which will come into force on August 8, 2010, in replacement of Decree No. 90/2006/ND-CP of September 6, 2006, contains specific provisions on financing of housing projects, incentives for investment in the construction of social houses, and purchase of homes in Vietnam by overseas Vietnamese.

Diversifying forms of capital raising

Under Decree 90, investors of property projects are only permitted to mobilize capital from customers or partners after having completed the construction of project infrastructure work (for new urban center projects) or house foundations (for individual housing projects). This regulation aims to ensure that investors have adequate financial capacity for project execution and protect customers from the risk of having their money illegally appropriated. However, it fails to take into consideration the fact that housing projects need a huge amount of capital, ranging from hundreds to thousands of billions of dong. With this regulation, housing developers have faced great difficulties in raising funds for their projects.

To dodge this rule, real estate investors and customers have inked capital contribution contracts or loan agreements which are, in essence, illegal house sale and purchase contracts. The existence of these contracts and agreements reflects the supply and demand relationship in the real estate market in which customers wish to buy houses at reasonable prices while investors need capital for their projects.

Coming up with housing developers’ expectations, Decree 71 allows them to sell in advance at most 20 per cent of the total number of houses and apartments in a property project to raise cash from individuals and organizations though capital contribution contracts. The remaining 80 per cent of houses and apartments to be formed in the future may be sold after their foundations is completely built. 

According to Nguyen Tri Dung, deputy director of Viglacera Real Estate Company (Viglacera Land), with these regulations, Decree 71 can be considered a source to slake investors’ thirst for capital for series of dormant housing projects having awaited funds for years.

Decree 71 stipulates in detail several forms of capital raising, including: (i) signing loan agreements with credit institutions or investment funds or issuing bonds with no priority in house purchase for lenders or bond holders; (ii) signing loan agreement or investment cooperation contracts with sub-investors to transfer land-use rights with technical infrastructure to these sub-investors; (iii) signing capital contribution or  investment cooperation contracts or documents with organizations and individuals; (iv) signing business cooperation contracts with real estate enterprises; and (v) raising capital via advance payment for future houses under house sale and purchase contracts signed with those who are allowed to own homes in Vietnam.

In the cases (iii) and (iv) above, capital contributors or cooperation parties may receive profits only in cash or shares or receive houses based on their contributed capital portions. In-kind distribution will only be permitted after the project is approved, ground breaking is commenced and a notice is sent to the provincial-level Construction Department. However, it will be restricted to those who are eligible to own homes in Vietnam and must not account for more than 20 per cent of the total houses in each project. Houses divided as profits to capital contributors and cooperation parties are not required to go through a real estate trading floor but the project owners must inform and get certification by the Construction Department which will be used as a ground for the issuance of house ownership certificates.

Professor Dang Hung Vo, former Deputy Minister of Natural Resources and Environment, said that raising funds from advance payment for future houses is a popular form of capital mobilization in the world. In Vietnam, it has become a major channel of capital inflow for the real estate market. However, reality shows that this form of capital mobilization is often accompanied with latent risks such as poor quality of houses, delayed delivery of houses or unexpected house price increase. In addition, the provision allowing secondary investors to mobilize capital even when they have not yet signed land-use right transfer contracts with primary investors may lead to a risky situation that investors can secretly transfer their projects to others without providing information to customers while the transfer of contributed capital portions among customers is not recognized by law.

“The answer to the question of how to reduce risks from the mobilization of capital as advance payment leads us back to an old story, i.e., the supervision of projects allocated land by the State by functional agencies,” said Mr. Vo.

Encouraging investment in social houses

Decree 71 also offers a raft of incentives and encouragements for investment in the construction of social houses.

Accordingly, investors of social housing development projects funded with non-state capital will be eligible for such incentives as exemption from land use levy or land rental, corporation income tax exemption, reduction and incentives, or investment credit supports.

Social houses built for industrial park workers and low-income earners in urban centers will be subject to no restriction on the number of stories while the construction density and land use coefficients may increase 1.5 times over those prescribed under current construction regulations.

The enormous potential of the social housing market can be seen through statistics released by the Ministry of Construction. By the end of May 2010, about 130 housing projects targeting low-income earners had been registered nationwide, of which 33 projects capitalized at some VND 2.5 trillion are under construction. It is estimated that there is still a lack of about 150 million m2 of houses for some seven million urban inhabitants. To satisfy this need, according to the Ministry of Construction, a total funds of about VND 300-400 trillion must be raised. At the same time, investment should be made to renovate three million m2 of floor areas in old apartment buildings (including 200 seriously deteriorated ones) built prior to 1991, which are homes of more than 100,000 households.

In order to avoid the abuse of the social housing policy for self-seeking purposes, Decree 71 provides that individuals or households that purchase or rent social houses will only be permitted to sell or lease their house after 10 years, provided that they have fully paid for the houses and obtained house ownership right certificates. If wishing to sell houses ahead of the 10-year time limit, house owners can sell their houses to the State, project owners or entities eligible to purchase social houses. However, the selling price must not exceed the price of social houses of the same category at the time of sale.

Favorable conditions for home purchase by overseas Vietnamese

With the promulgation of Decree 71, overseas Vietnamese will have more opportunities to buy and own home in Vietnam in a stable and long-term manner with no time restriction.

Specifically, persons who hold Vietnamese citizenship; are of Vietnamese origin; make direct investment in Vietnam; have made meritorious contributions to the country; are cultural activists, scientists or persons with special skills; or are spouses of Vietnamese citizens who reside in the country may own homes like Vietnamese citizens without any cap on the number and category of homes. Houses to be owned by overseas Vietnamese are those they purchase from or exchange with others or those they receive as gifts or inheritance. Overseas Vietnamese may also receive land-use right transfer from real estate businesses.

Overseas Vietnamese of other categories who obtain a visa-exemption paper and are allowed to reside in the country for three months or more may own a home or an apartment as a place of residence in Vietnam for themselves and their families.

While facilitating home ownership by overseas Vietnamese, Decree 71 also imposes penalties for related violations. For instance, if an eligible home owner is detected as having falsified papers or committed other illegal acts to purchase more than one home in Vietnam, no house ownership right certificate will be issued for the illegally purchased home. In case a certificate has been issued, the home owner must sell the violating home within 120 days after his/her violation is detected. Past this time limit, the home will be placed under the ownership of the Vietnamese State while the issued certificate will be withdrawn.(VLLF)-



* *Holt International Children’s Services is a US non-governmental organization working in providing child welfare services and advocating for the best interest of children. Holt International develops and supports programs to prevent child abandonment, reunify children with their birth or extended families, ensure that vulnerable children are cared for in safe and loving environments, and find permanent homes for the world’s orphans. Holt International accomplishes its mission through its international headquarters in Eugene, Oregon and overseas Holt offices and partner agencies in Bulgaria, Cambodia, China, Ethiopia, Guatemala, Haiti, India, Mongolia, Nepal, the Philippines, Romania, South Korea (with assistance provided to North Korea), Thailand, Uganda, Ukraine, the United States and Vietnam.

In the early 1990’s, Holt International was one of the first American non-governmental organizations to sign a memorandum of agreement to re-establish work in Vietnam.  Holt established family preservation, family reunification, foster care and adoption programs. Holt continues to support programs in Vietnam and is dedicated to providing technical assistance and support on behalf of the future of the children of Vietnam.

VNL_KH1 

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