Dao Ha, LLM
Adoption Department, Ministry of Justice
The first legal document of Vietnam dwelling on intercountry adoption was the Ministers Council’s Decision No. 145/HDBT of April 2, 1992, which temporarily provided for intercountry adoption of abandoned, orphaned and disabled Vietnamese children raised at child welfare centers (CWC). Under this Decision, the Ministry of Labor, War Invalids and Social Affairs was responsible for managing and dealing with the intercountry adoption of Vietnamese children.
On December 2, 1993, the National Assembly Standing Committee passed the Ordinance on Marriage and Families between Vietnamese citizens and foreigners. To enforce this Ordinance, on November 30, 1994, the Government issued Decree No. 184/CP stipulating procedures for marriages, recognition of out-of-wedlock children, adoption and foster care between Vietnamese citizens and foreigners. Under these documents the state management of intercountry adoption was assigned to the Ministry of Justice (MoJ) while the processing of adoption applications was decentralized to provincial-level Departments of Justice (DoJ).
On July 10, 2002, the Government issued Decree No. 68/2002/ND-CP detailing a number of articles of the Law on Marriage and Families on marital and familial relations involving foreign elements. This Decree was then amended by Decree No. 69/2006/ND-CP of July 21, 2006.
In June this year, the National Assembly passed the Adoption Law, introducing a new set of intercountry adoption procedures.
These procedures are illustrated in the following diagram:
CWCs compile dossiers of children eligible for intercountry adoption Prospective adoptive parents submit dossiers to MoJ MoJ verifies dossiers of prospective adoptive parents MoJ transfers dossiers of prospective adoptive parents to provincial-level DoJ Provincial-level DoJ introduces children to prospective adoptive parents MoJ returns dossiers or request supplementation of papers Adoption institutions supplement papers Provincial-level People’s Committee considers and gives opinions Provincial-level DoJ transfers dossiers of children to MOJ MoJ examines and makes an assessment report on the child and notifies prospective adoptive parents (via competent foreign authority) Prospective adoptive parents disagree- MoJ notifies provincial-level DoJ for introduction to other families and stops considering dossiers of prospective adoptive parents if they have no plausible reasons Prospective adoptive parents agree, send their paper of consent and certifications of competent foreign authorities permitting the child’s entry and residence Provincial-level People’s Committee issues a decision to permit the adoption of the child Adoptive parents return home, send biannual reports during first three years on the growth of the child to MOJ and overseas-based Vietnamese representative mission
Prospective adoptive parents arrive in
Compared to current regulations, these procedures have the following new points:
First, provincial-level Departments of Justice must consult related persons on the intercountry adoption of children.
To ensure that intercountry adoption of a child is based on free consent, honesty, non-coercion, non-intimidation and non-bribery, Clause 1, Article 33 of the new Adoption Law requires provincial-level Departments of Justice to seek opinions of persons defined in Article 21, including the concerned child who is 9 years or older and his/her blood parents. If a parent is dead, missing or unidentifiable or has lost his/her civil act capacity, consent of the other parent is required. If both parents are dead, missing or unidentifiable or have lost their civil act capacity, his/her guardian must be consulted.
Second, provincial-level Departments of Justice are competent to introduce children for intercountry adoption.
The Law provides that provincial-level Departments of Justice must base themselves on criteria specified in Article 35 of the Law when considering and introducing children. These criteria include:
- Remarkable characteristics, hobbies and habits of the child;
- Integration and growth abilities of the child;
- Financial conditions, family environment, society and aspirations of prospective adoptive parents.
In addition to these legal grounds, when considering and introducing a child, a provincial-level Department of Justice must refer to opinions of the child welfare center in order to find the most suitable family for the child, ensuring that he/she will quickly integrate into the family of his/her adoptive parents.
Third, provincial-level People’s Committees must give opinions on the introduction of children before the Adoption Department notifies their prospective adoptive parents.
Clause 1, Article 36 of the Law provides that after introducing a child to the foreign prospective adoptive parents, a provincial-level Department of Justice must report this to the provincial-level People’s Committee for opinion before the Department sends the dossier of introduction of the child to the Ministry of Justice.
The past years have seen that in not a few cases after the dossier of a child was completed, the prospective adoptive parents had arrived in Vietnam for receipt of the child but the provincial-level People’s Committee rejected the adoption and refused to issue a decision to permit the adoption. The new provision will help prevent this problem, securing the agreement between competent Vietnamese authorities before notifying the result of introduction of a child to his/her prospective adoptive parents.
Fourth, new provision concerns certification of adoptions.
Under Article 38 of the Law, the Ministry of Justice will issue a certificate that an adoption has been settled in accordance with this Law and adoption treaties to which Vietnam is a contracting party for sending to competent foreign authorities upon request.
Competent Vietnamese authorities are now completing preparatory formalities for signing and ratifying the 1993 Hague Convention on the Protection of Children and Cooperation on Intercountry Adoption. This provision is a step in incorporating Clause 1, Article 23 of the Hague Convention into the national law.
Fifth, the time limit for notifying the growth of children is shortened.
Under current law, the adoptive parents must notify biannually the provincial-level People’s Committee and the Adoption Department of the growth of the adopted child for the first three years, then once every subsequent year till the adopted child reaches 18 years.
Reality shows that this provision on reporting responsibility is impractical and formalistic as it requires adoptive parents to make too many reports while competent Vietnamese authorities cannot go through all of these reports to make sure adoptive parents have sent all reports according to regulations. On the other hand, after a certain period of time, when the adopted child has acquired foreign citizenship, reporting on his/her growth till he/she reaches 18 years is unnecessary.
Therefore, the Law only requires adoptive parents to report on the growth of adopted children during the first three years of adoption. This provision is feasible and compatible with the laws of neighboring countries (like China and Thailand). The Standing Committee of the Hague Convention has also recommended that reporting on the growth of adopted children is necessary but with a suitable number of reports and modes of reporting. At present, only two countries, Vietnam and Madagascar, require reporting till adopted children reach 18 years.
The Law will take effect on January 1 next year. Its practical enforcement will prove the effectiveness of the new provisions. With the efforts of competent Vietnamese authorities in the process of formulating the Law and constructive comments of international friends, it is hoped that the Law will meet requirements posed by real life, helping place disadvantaged Vietnamese children in the care of loving and sympathetic families.-