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The Path of Adoption

Emanuele Luzzati 4To adopt

Publication "For an adoptive family"( Information for families interested in an intercountry adoption)

Presentation


opuscolo This booklet is intended for those who intend to adopt a foreign child, a praiseworthy decision to offer a better future and a family to a child born into deprivation. The purpose of this booklet is to lead couples through the intercountry adoption process in each of its phases: the social services, the courts, Italian authorised agencies and foreign authorities. A dedicated pathway in which each party has specific roles and tasks, just as the prospective parents have specific rights in every phase of the procedure, with which they need to be familiar. We hope that the information in this booklet will prove of practical assistance and be easy to understand, to help families to undertake this great act of love of adoption with greater peace of mind.

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Who can adopt: eligibility to adopt

The eligibility criteria for intercountry adoptions are the same as for national adoptions, provided by article 6 of Law No 184/83 (as amended by Law No 149/2001) governing adoption and fostering, which we are reprinting here because these are the most relevant provisions for couples wishing to adopt.

"Couples may adopt if they have been married for at least three years, or have been a stable couple for at least three years taking into account the period of pre-matrimonial cohabitation, and who are not separated de facto, and are able to educate, instruct and maintain the children they intend to adopt."

With regard to age, the law provides that:
- there must be at least 18 years' difference in age between the adoptive parents and the adopted child;
- the maximum age difference between the adoptive parents and the child is 45 years for one of the couple and 55 for the other. An exception may be made to this if the couple adopt two or more siblings, and also if they already have a child of their own, whether natural or adopted.
This means that if the prospective mother is 47 years old and the prospective father is 56 the couple may adopt a child aged 2 years and above. If the prospective mother is 54 and the prospective father is 63 they may adopt a child who is at least 8 years old. If the prospective mother is 50 and the prospective father is 68, they may adopt a child aged 13 or above.
The purpose of introducing these age restrictions is to ensure that the parents are in a position to bring up and care for the child into adult age, under conditions that are the same as those of biological parenting.
This is what Italian law says. But since it is the foreign authority which decides which parents are eligible to adopt a child, the higher age limits permitted by Italian legislation to enable couples to adopt when they are no longer young are not actually effective, because most foreign countries prefer younger couples.
Accordingly, in order to adopt:
- the adoptive parents must be a couple;
- they must be married when they submit the statement of willingness to adopt;
- they must provide documentary or witness evidence, in the event that the marriage was contracted less than three years earlier, that prior to their marriage they had lived together on a stable and continuing basis long enough to reach the three-year eligibility period;
- the adoptive parents must not be in the process of separation, including de facto separation.
Lastly, the prospective parents must be able to educate and instruct, and to maintain the children they intend to adopt.
It is obvious that with regard to the latter requirements it is not simply a matter of formally checking to ensure that they are met, as is the case with the other requirements. For in this case, a more comprehensive examination is required "on their merits", that is to say, the substance and the type of relationship between the couple which is conducted by the Children's Courts throughout the local social services, in conjunction with the local health authorities; this is because an interdisciplinary approach is needed to ascertain the exact relationship that exists between the couple, and their genuine readiness to parent a child, and to ensure that they have adequate resources for dealing with any future problems that may arise with regard to enabling the child to settle in its new home.

The adoption procedure

1st STAGE: Declaration of availability
2nd STAGE: Enquiry by area services
3rd STAGE: Decree of suitability
4th STAGE: Search begins
5th STAGE: The “meeting” abroad
6th STAGE: Return to Italy
7th STAGE: Conclusion


Intercountry adoption is the adoption of a foreign child in its own country before the authorities and under the law operating there.

In order for this sort of adoption to have effect in Italy the special procedures laid down by Italian and international law must be followed. Otherwise the foreign adoption will not be considered valid and the child will not even be able to enter Italy. Additionally, in certain cases, failure to comply with the law on adoptions may constitute an offence.

These provisions may seem excessive, but they are necessary in order to guarantee abandoned children and their future adoptive parents a legally correct adoption that respects the rights of all those involved.

Intercountry adoption has seen vigorous growth in recent years. In 1982 adoptions of foreign children decreed by Italian juvenile courts totalled less than three hundred. In the same period over one thousand national adoptions were recorded. In 1991 over two thousand seven hundred foreign juveniles entered Italy for adoption purposes, whereas Italian children declared adoptable were less than one thousand.

The tendency to a rise in Intercountry adoptions has been constant, seeing the entry into Italy of 1999 of three thousand adopted foreign children, while requests for eligibility for Intercountry adoption numbered over seven thousand.

Such rapid growth in the phenomenon is met with not just in our country but in all economically developed countries. In these the improvement of social and economic conditions has had the consequence of reducing the number of children abandoned, while on the other hand the fall in birth rate has made the requests for adoption increase. These have thus turned in the only direction possible, the international one.

The Hague Convention of 29 May 1993 on protection of children and cooperation in relation to international adoption is the main instrument for guaranteeing both the rights of the children and the rights of those who desire to adopt them, and for opposing any trafficking in children for adoption purposes that might tend to arise. Italy acceded to this Convention by Law n° 476 of 31 December 1998, the provisions of which amended Law n° 184 of 4 May 1983 and now regulate international adoption procedure.

The spirit of the Convention and of the Italian law is based on the principle of subsidiarity of Intercountry adoption: that is, adoption must be the last path to pursue in order to secure the interest of a child where there has been no possibility of helping it within its own family (where it exists) and its own country of origin.

Intercountry adoption is accordingly of great civic importance and is a means for enriching the multicultural and multiracial aspect of our modern society. It also constitutes a type of option for solidarity towards abandoned children in the poorer countries. But it is not the only one: for the Italian law provides that the accredited bodies to handle cases of Intercountry adoption should engage practically also in other projects to assist and support children in the foreign countries where they operate.

1st STAGE: Declaration of availability 


TIMING: within 15 days of presentation of the declaration the Court must pass on the request to the competent area social service (see 2nd stage)
SUBJECTS: the couple
the Juvenile Court
PLACE: the Court in one’s Region of residence; ITALY

The first place for those desiring to adopt a foreign child to go is the Juvenile Court competent for the area of residence. In general there is one in the capital of each Region, and some Regions have more than one (see list of Juvenile Courts below).

In the case of Italian citizens resident abroad the competent court to approach in order to lodge the request is that in the couple’s last domicile, and failing previous domicile, the Rome Juvenile Court.

Once the Court is identified one should approach the Civil Affairs Office (cancelleria civile) to present the “declaration of availability” for Intercountry adoption. Those wishing to adopt have in fact no “right” to obtain a child but may only express their availability for adopting one. In fact the object of the institution of adoption is to meet the right of every child to have a family, and offer the possibility of having one to children who do not – not the other way around.


The declaration should be accompanied by the following documents, on ordinary paper:

  1. Birth certificates of the applicants;
  2. Registry Office certificate (stato di famiglia);
  3. Declaration of consent to adoption by the parents of the adopters, given in the form of a declaration substituting for a notarial act before the secretary; or, should they be dead:
  4. Death certificate of applicants’ parents;
  5. Certificate issued by own doctor;
  6. Economic certificates: form 101, or form 704, or pay slip;
  7. Police record of applicants;
  8. Notarial act, or substitute declaration, attesting that there is neither personal nor de facto separation between the adopting couple.


Aspirants must in the first place meet the requirements of Article 6 of Law n° 184/1983, meaning that the declaration of availability may be presented by:

  • married couples;
  • married for at least three years (not counting any previous period of cohabitation);
  • without any separation in being or in hand;
  •  with a maximum difference between either of 40 years (and a minimum of 18) from the child to be adopted;
  • in possession of the capacity to bring up, educate and maintain the adoptive child (requirements which will be the object of enquiry by the area services after the first check by the Court).


If the Juvenile Court finds a manifest lack of the above requirements it will immediately issue a decree of unsuitability.
However, should there be nothing to note, within 15 days of presentation of the declaration of availability the juvenile judge forwards the documentation relating to the aspirant couple to the services of the local authorities.

2nd STAGE: Enquiry by area services


TIMING: within 4 months of the documentation being sent out by the Juvenile Court
SUBJECTS: local authorities’ services
the couple
PLACE: the area service for one’s own city of residence; ITALY

The services of the local authorities have the important task of becoming acquainted with the couple and assessing their parental capacities, gathering information on their personal, family and social history. The work of the services leads to the drawing up of a report to be sent to the Court which will supply the judge with the elements for assessing the couple’s request.

It is clear that this is a very delicate aspect, and aspirant adoptive parents may feel as if they are being subjected to examination. The services must however seek to explore their capacity to take charge of a child, the openness of each to adoption, their social and economic position, in discreet fashion, placing themselves “alongside” and not “opposite” the aspirants for adoption. In this way they will be ready to supply the couple with any useful element for further preparation for adoption.

At this stage it is also the task of the services to inform the aspirant adoptive parents fully and correctly on the living conditions of children in their countries of origin and the lifestyles to which they are accustomed.

3rd STAGE: Decree of suitability 


TIMING: within 2 months of receipt of the report from the area services
SUBJECTS: the Juvenile Court
the couple
PLACE: the Court in one’s Region of residence; ITALY

Once the report has been received the Court calls in the couple and may if it considers it appropriate arrange for further investigations. At this point the judge decides whether to issue a decree of suitability or instead a decree attesting the absence of the requirements for adoption. It is clear that the Court takes its decision in reference to the findings made by the services, which constitute the basis for assessing suitability.

The decree of suitability may also contain, in the interests of the child, any element useful to complete the picture of a couple’s characteristics, in order to promote their encounter with the specific child or children to be adopted. Once issued the decree is sent to the Commission for Intercountry Adoptions and the  accredited body, if already chosen by the couple.

4th STAGE: Search begins


TIMING: the couple must start the procedure by approaching an accredited bodies within 1 year of issue of the decree of suitability
SUBJECTS: accredited body
couple
PLACE: one of the offices of the accredited bodies chosen by the couple; ITALY

The couple with the decree of suitability must within 1 year of its issue begin the Intercountry adoption procedure by approaching one of the accredited bodies by the Commission for the Intercounty adoption . At this stage the couple may opt for one of the countries where the agency operates. Almost all the accredited bodies organize meetings with the object of informing couples on procedures in the countries they are engaged in, on the facts of international adoption and on preparation, in collaboration with psychologists and other experts, for their future role as adoptive parents.

Approaching an accredited body is a COMPULSORY stage in order for a valid Intercountry adoption to come about. The agency follows the parents and handles the necessary steps throughout the procedure.

5th STAGE: The “meeting” abroad


TIMING: not predictable
SUBJECTS: accredited body
foreign central authority
Italian Commission for the Intercounty adoption
the couple
the child to be adopted
PLACE: the country indicated by the couple; ABROAD

This is the most delicate and important stage of the whole adoption procedure. In this stage the accredited body the couple has approached takes up the search for the child in the chosen foreign country. The agency, once a child eligible for adoption has been identified, accompanies the aspirant parents to a meeting with the child and follows them through the stage of initial contact. If the meetings lead to a positive opinion from the authorities of the foreign country, the agency forwards the papers and the reports on the combination between adoptee and adopters to the Commission for Intercountry Adoption in Italy, attesting the presence of the requirements laid down by the Hague Convention in Article 4.
If instead the meetings do not end positively the agency takes note and so informs the Italian Commission, also reporting the reasons why the combination did not prove to meet the child’s interest. This information is useful, indeed essential, to any possible subsequent combinations.
It may further happen that it is the agency that does not accept a particular adoption proposal by the foreign central authority. In this case the aspirant adoptive parents may appeal in Italy to the Commission for Intercountry Adoption, which may not confirm the agency’s refusal and proceed directly, standing in for the agency itself, or else entrust to another agency the job of completing the procedure.
The accredited body must forward all the documentation relating to the child along with the provision from the foreign judge to the Commission for Intercountry Adoption in Italy, who see to their conservation.

6th STAGE: Return to Italy

TIMING: not quantifiable
SUBJECTS: Commission for Intercountry Adoption
Accredited body
Couple
Child
PLACE: ITALY

Once the documentation on the meeting abroad and the assent to it by the couple has been received by the accredited body, the Commission for Intercountry Adoption authorizes the adopted child’s entry to Italy and stay there, having certified that the adoption conforms with the provisions of the Hague Convention.

7th STAGE: Conclusion

TIMING: not quantifiable
SUBJECTS: Juvenile Court
Couple
PLACE: Italy; Juvenile Court of one’s Region of residence.

Once the child has entered Italy and any period of pre-adoptive fostering has elapsed the procedure is completed with an order from the Juvenile Court to transcribe the adoption decision in the registries of civil status. The power to have this transcription done lies with the Juvenile Court of the place of residence of the parents at the moment of their entry into Italy with the child (even if this differs from the one that first issued the decree of suitability).
With transcription the child definitively becomes an Italian citizen and a member to all intents and purposes of the new “multi-ethnic” family that has just come into being.

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