1. The Federal Republic of Germany as a Contracting State to the Hague Adoption Convention
Since 1 March 2002, the Federal Republic of Germany has been a Contracting State to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). This Convention has as its members both States of origin and receiving States in cross-border adoptions. The Convention builds on the United Nations Convention on the Rights of the Child of 1989. The aim of the Convention is to ensure the protection of children during intercountry adoption and to establish procedures for co-operation. Intercountry adoptions should take place in a way that is in keeping with the best interests of the child and with respect for his or her fundamental rights. It aims to prevent child trafficking. For this purpose, the Convention sets out certain requirements for intercountry adoptions. Before a cross-border adoption takes place, States are under an obligation to give due consideration to possibilities of placement within the State of origin, the consent of the biological parents and the suitability of the prospective adoptive parents. The State of origin and the receiving State work together to ensure this is the case. The Convention also facilitates the recognition of adoption decisions issued in other Contracting States. An adoption which takes place as set out in the Convention is recognised by force of law in all contracting States on the basis of a certification of conformity issued to this end, as long as the adoption is not manifestly at odds with the public order of the State in which the adoption is to be recognised, and giving due consideration to the best interests of the child.
2. Implementation in Germany
In Germany, the Hague Adoption Convention was implemented by way of the Adoption Convention Implementation Act (Adoptionsübereinkommens-Ausführungsgesetz (AdÜbAG). The Act was supplemented by the Act on Adoption Placement (Adoptionsvermittlungsgesetz – AdVermiG) and the Act on the Effects of Adoption (AdWirkG – Adoptionswirkungsgesetz). These can be accessed by going to the “Legal Provisions” section of the website.
The German Central Authority under the terms of the Hague Adoption Convention on a federal level is the Federal Office of Justice. Furthermore, the Federal Office of Justice is responsible for coordinating intercountry adoptions in Germany relating to countries that are not contracting States. This gives our partners and citizens from other countries a definite first port of call for all of the issues thrown up by intercountry adoption.
Responsbility for carrying out the adoptions themselves lies with the Regional Central Authorities at the Youth Welfare Offices of the Länder and the Accredited Adoption Bodies. You will find the relevant contact information under “Addresses”.
The national rules were reformed in 2021 and now contain an explicit requirement for the involvement of such an organisation and a ban on such adoptions being carried out without the involvement of an intercountry adoption body. Intercountry adoptions which are not carried out with the involvement of such a body are no longer recognised in Germany under any circumstances. The standards of protection agreed upon internationally and as provided for by the Hague Adoption Convention must be complied with during all intercountry adoption procedures; this is the case regardless of whether the State of origin is a signatory to the Hague Adoption Convention or not. In the event that no certificate of conformity, proving that it conforms with the Hague Adoption Convention, is provided for the adoption, proceedings on the recognition and legal effect of the adoption must be carried out before the German family courts. The Federal Office of Justice is involved in such proceedings.
3. The process of an intercountry adoption
Prospective adoptive parents who wish to apply under an international adoption procedure must first of all contact an intercountry adoption body. In Germany, this includes the Regional Central Authorities at the Youth Welfare Offices and the independently owned state-accredited adoption bodies. Prospective adoptive parents can decide for themselves whether they wish to apply at their local Regional Central Authority at a Youth Welfare Office or at one of the adoption accredited bodies. The latter are able to provide detailed information to the prospective adoptive parents.
Once prospective adoptive parents have decided that they wish to adopt from another country, they will be subjected to a two-step test of their suitability. This consists of a general examination of suitability by the Youth Welfare Office and a country-specific suitability examination from the selected adoption body. The prospective adoptive parents have a legal right to undergo such a suitability examination. If the first, general suitability examination is passed, the country-specific examination will take place. If both stages of the examination have been passed, the intercountry adoption body sends the application documents submitted by the prospective adoptive parents to their counterparts in the other countries.
The application is followed by – usually after a certain waiting period – an adoption proposal from the body in the other country. A comprehensive assessment of the adoption proposal is carried out by the intercountry adoption body. Taking into consideration what is offered by the prospective adoptive parents, the children are then “matched” to the prospective adoptive parents. The aim of this is to ensure that the prospective adoptive parents are a good fit in terms of the resources and abilities at their disposal for the real-life needs of the child in the adoption proposal, so that it can be ensured that the child is as well looked after as can possibly be the case. Once this has taken place, the adoption proposal is disclosed to the prospective adoptive parents. If they agree to the proposal, the intercountry adoption body officially declares to its counterparts in the other country that it consents to the continuation of the procedure.
As a rule, the adoption is then pronounced and carried out in the child’s State of origin according to that country’s law. Before the child travels to Germany, the relevant official documentation for entering Germany must be applied for at the relevant embassy, consulate, or other official representation.
For an adoption decision issued abroad to become legally effective in Germany, in the event of adoption procedures that began after 31 March 2021, proceedings on the recognition and legal effect of the adoption must under all circumstances be carried out before the German family courts. The application must be made immediately after the issuance of the adoption decision issued abroad. In cases where there is a certificate issued under Article 23 of the Hague Adoption Convention, in cases of domestic adoption or in cases in adoptions carried out in third country, in which all of the parties have their habitual residence outside of Germany, there is no requirement for a court to carry out proceedings on the recognition and legal effect of the adoption.
