foreign element farming
In carrying out this function, as presented above on the process and procedures for adoption, the International Adoption Department plays a very important role in resolving the adoption of Vietnamese children by foreigners. That role is shown in the largest circle and closest to the issue of adoption with foreign elements in the diagram above (see box 1.6). This role is also shown in the functions and tasks of the Department as prescribed by the Ministry of Justice, which are:
- The Department receives, examines, and processes applications for children from foreigners and applications for children to be adopted. In addition, the Department also handles cases of Vietnamese people applying to adopt foreign children.
- Manage records and documents on foreign adoption. This management activity is carried out in parallel with the management of documents by the Provincial People's Committee (Department of Justice). In case of problems arising, based on the archived records, the Department proposes a solution.
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- Monitor the child's development through reports from adoptive parents and the Central Authority of the receiving country. This is a condition for the Department to help the state protect the rights of Vietnamese children adopted by foreigners. Based on receiving full information about adopted children, the Department conducts statistics and reports on all issues of adoption involving foreign elements, including foreign adoption offices.
3.1.5.2. Local authorities
In addition to the role of the Central Agency, the International Adoption Department, local agencies (Provincial People's Committee, Department of Justice, foster care facilities, etc.) also play an important role in resolving adoptions involving foreign elements. According to the above diagram and according to the provisions of law, for local agencies, the Provincial People's Committee has a larger circle, showing a greater role than other agencies in the issue of adoption involving foreign elements because the Provincial People's Committee performs State management of marriage and family involving foreign elements in general and the issue of adoption involving foreign elements in particular. However, the gap between the Provincial People's Committee and the issue of adoption
further than the Department of Justice. Although the Department of Justice is only an agency assisting the Provincial People's Committee in State management of the issue of adoption involving foreign elements, the Department of Justice has a smaller circle than the Provincial People's Committee, but the distance is very close to the settlement of adoption, just after the Department of International Adoption. However, considering the reality and the entire process of settling adoption involving foreign elements as presented above, perhaps the role of the Department of Justice must be more important than the role of the Provincial People's Committee, because the Provincial People's Committee actually only signs the Decision to adopt a child after completing the procedures performed by the Department of Justice. The role of the foster care facility is completely passive in this matter, only resolving on the basis of the request of the Department of Justice, so the smallest circle represents the lowest role when resolving the adoption of Vietnamese children by foreigners.
Also according to the above diagram, in the issue of resolving adoption involving foreign elements, the Department of Justice has a very close relationship with the Department of International Adoption of the Ministry of Justice rather than with the Provincial People's Committee, because in the process of resolving any issue related to adoption, the Department of Justice must have the obligation to report and ask for the opinion of the Department of International Adoption, while for the Provincial People's Committee, the Department is only responsible for submitting the child's file after it has been completed for the Chairman of the Provincial People's Committee to sign the decision to accept the child.
3.1.5.3. Other agencies
During the settlement process, there is also coordination with other agencies such as diplomatic agencies and police agencies. Coordinate with diplomatic agencies and Vietnamese Consulates in issues such as legalizing documents in adoption records, coordinate in inspection, monitoring, and implementation of measures to protect the rights and legal interests of Vietnamese children adopted abroad. Coordinate with central and local police agencies when it is necessary to clearly verify the origin of children, coordinate in preventing acts of introducing children for adoption for the purpose of profiteering, trafficking, labor exploitation, sexual abuse, etc.
3.1.6. Foreign adoption offices in Vietnam
According to Decree 68/CP, the activities of foreign adoption organizations in Vietnam are regulated from Article 58 to Article 64, accordingly, foreign organizations wishing to establish an Office in Vietnam must meet the following conditions:
- Licensed by the competent authority of the country where the organization is established to operate in the field of adoption in Vietnam
- Have a humanitarian or charitable program, plan or project to support the adoption of Vietnamese children.
- Have a head office location in Vietnam to ensure its operations
- The person expected to head the foreign adoption office in Vietnam must be a person of good moral character, passionate about humanitarian and charitable activities, and have no criminal record.
All applications are submitted to the Ministry of Justice. After being licensed to operate for a period of 05 years, foreign adoption offices are allowed to support their citizens in some stages of the adoption application process such as: submitting initial applications to the Ministry of Justice, performing medical examinations on children on behalf of the adoptive parents (if requested by the adoptive parents) or informing the adoptive parents about the children introduced for adoption after receiving notification from competent Vietnamese authorities...
3.2. International treaties on adoption involving foreign elements that Vietnam has signed or participated in.
Along with the opening of the market and international economic integration, there is also the issue of international integration in the legal field. To do this, Vietnam's signing or participation in multilateral and bilateral international treaties is one of the shortest ways to integrate with the developed world, playing the same rules on a large playing field. In the field of family in general and foreign adoption in particular, it is no exception. International cooperation agreements on adoption are sharp and important weapons in protecting the rights and interests of children when adopted by foreigners.
In Vietnam, in addition to bilateral agreements on cooperation in the field of adoption involving foreign elements signed with countries such as France, Italy, Sweden, the US, Germany, Canada, Quebec... there are also Judicial Assistance Agreements that Vietnam has signed with countries since the 1980s, which include provisions on adoption such as Article 28 of the Mutual Legal Assistance Agreement between Vietnam and the Soviet Union signed on October 20, 1981 (today inherited by the Russian Federation), Articles 26 and 27 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia signed on October 12, 1982 (currently inherited by the Czech Republic and Slovakia), Article 28 of the Mutual Legal Assistance Agreement between Vietnam and Cuba dated November 30, 1984, Article 41 of the Mutual Legal Assistance Agreement between Vietnam and Hungary dated January 18, 1995, Article 25 of the Mutual Legal Assistance Agreement between Vietnam and Bulgaria dated October 3, 1986, Article 26 and 27 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia dated October 12, 1982, ...6 and 27 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia dated October 12, 1982, Article 26 and 27 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia dated October 12, 1982, Article 26 and 27 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia dated October 12, 1982, Article 26 of the Mutual Legal Assistance Agreement between Vietnam and Czechoslovakia dated October 12, 1982, Article 26 of 31. The Agreement on Trade and Investment between Vietnam and Laos dated July 6, 1998, Article 30 of the Agreement on Trade and Investment between Vietnam and the Russian Federation dated August 25, 1998 (not yet in effect), Article 29 of the Agreement on Trade and Investment between Vietnam and Ukraine dated April 6, 2000 and Article 29 of the Agreement on Trade and Investment between Vietnam and Mongolia dated April 17, 2000.
3.2.1. Basic content of civil arbitration councils
Firstly, the TPTTCP Councils all thoroughly understand the principle of resolving the adoption issue, which is that it is necessary to apply appropriate measures so that children are cared for in the best family environment and ensure that children of the other signatory country's citizens adopted in their country's territory are protected and fully enjoy the rights of children residing in their country's territory. This is also completely consistent with the objectives of international conventions, including the 1989 Convention on the Rights of the Child to which Vietnam has participated: "States that recognize or permit the adoption regime must ensure that the best interests of the child are the paramount concern."
Second, these TPPAs mainly address the issue of choosing the applicable law to regulate adoption relationships and determine the competence of the agency handling adoptions. Adoption and cancellation of adoptions are applied according to the laws of the signatory countries of which the adopter or the person requesting the cancellation of adoption is a citizen. If the adopter is a citizen of one country but is permanently residing in the territory of the other country, the law of the country where the adopter is permanently residing shall apply.
Residence. In the case of a couple adopting a child, where the husband is a citizen of one signatory country and the wife is a citizen of the other signatory country, the adoption must comply with the laws of both signatories. However, the Vietnam – Russian Federation Agreement also stipulates that the law of the place where both spouses reside is the law of the place where both spouses reside. The Vietnam – Poland Agreement allows the application of the law of one signatory country or the other. If the husband and wife reside in the territory of one country, the law of the country where they reside will be applied [4].
Regarding the competent authority for settlement, the TPTP stipulates that the competent authority for settlement is the authority of the signatory country of which the adoptive parent is a citizen. In case the adoptive parent and child are of different nationalities, the authority belongs to the authority of the signatory country where the spouses currently have or had a common permanent residence.
In particular, the Vietnam - Laos Agreement applies the law regulating the adoption relationship, applying the principle of the Law on the nationality of adopted children. That means that the adoption will apply the law of the signatory country of which the child is a citizen; regarding the rights and obligations between adoptive parents and adopted children, the change and termination of adoption must comply with the law of the signatory country of which the adoptive parents are citizens. In case the adoptive parents are citizens of two different countries, the law of the signatory country where the adopted child resides must be followed. Regarding the competent authority to resolve adoption issues such as: adoption, change, termination of adoption, the judicial authority of the country of which the adopted child is a citizen at the time of application for adoption. If the adopted child is a citizen of this country but permanently resides in the territory of the country where the adoptive parent permanently resides, the authority of the country where the adoptive parent permanently resides is also competent to resolve [5].
3.2.2. Cooperation agreements on adoption that Vietnam has signed
Unlike the above-mentioned TPTPs, the Cooperation Agreements on Adoption between Vietnam and other countries provide comprehensive and complete provisions on adoption. In general, these Agreements are relatively consistent in structure and content. The provisions in the Agreement are relatively complete and consistent with
provisions of the 1993 Hague Convention. In addition to the preamble, the Agreements include the following basic contents:
Firstly, regarding applicable law and authority to resolve adoption, the Agreements stipulate: conditions for children to be adopted and the determination of individuals and organizations with the right to consent to the adoption of children as well as the form of such consent must comply with the law of the country of origin.
Conditions for adoptive parents, in addition to complying with the conditions prescribed in the laws of the receiving country, must also comply with the provisions on conditions in the laws of the country of origin.
The authority to decide on adoption belongs to the competent state agency of the country of origin. The recognition of adoption according to the provisions of the Agreements and Decisions of the People's Committees of provinces and centrally-run cities of Vietnam allowing foreigners to adopt children in accordance with the provisions of Decree 68/CP and the corresponding Agreement shall be recognized in the receiving country.
Regarding the legal consequences of adoption, according to the provisions of the Agreement, this issue will be determined according to the law of the signatory country where the adoption takes place. After a Vietnamese child is adopted by a foreigner, the child will have the nationality of the receiving country but will still have the nationality of the country of origin (Vietnam); Vietnamese children have the right to choose their nationality (Vietnamese nationality or nationality of the receiving country) when they reach the age that the law of the receiving country stipulates the right to choose nationality. According to the laws of countries around the world, including countries that have signed the Adoption Cooperation Agreement with Vietnam, the form of full adoption is often applied to adoption. Accordingly, adoption often gives rise to the following legal consequences:
- Parent-child relationships arise, including legal inheritance relationships between adoptive parents and adopted children.
- Completely terminate the legal relationship between biological parents and the adopted child, including the legal inheritance relationship.
- The consent of the biological parents or those with the right to consent to the adoption of a child is permanent and irrevocable.
Second, regarding the procedures for settling adoptions, most agreements stipulate issues such as:
- Confirming the profile of the person applying to adopt a Vietnamese child, accordingly, the profile of the person applying to adopt must be confirmed by the Central Authority for International Adoption of the receiving country in the form of a Note, stating clearly that the person applying to adopt meets the conditions for adoption according to the laws of the receiving country and ensuring that the adopted child will be allowed to enter and reside permanently in the territory of the receiving country. In case the Agreement stipulates that the Central Authority for International Adoption of the receiving country authorizes this confirmation to the adoption organization of that country, the confirmation of the profile of the person applying to adopt the child will be carried out by the adoption organization. This authorization must be notified in writing by the Central Authority for International Adoption of the receiving country to the Department of International Adoption of the Ministry of Justice of Vietnam.
- Procedures for submitting documents: Application for adoption is prepared according to the laws of the receiving country and the country of origin. The application is sent to the Central Authority of the country of origin through the Central Authority of the receiving country or through an authorized organization on adoption. In case the applicant does not know clearly about the child to be adopted, the Department of International Adoption of the Ministry of Justice will contact the locality to carry out procedures to introduce the child under the category of anonymous adoption. The applicant is not allowed to directly contact the child care facility, family or medical facility to find the child to be adopted, except in cases where the application for adoption is for a child with a family relationship, close relatives or other cases prescribed by law.
- The decision to adopt a child and the handover of the adopted child are carried out in accordance with the laws of the country of which the child is a citizen.
Third, regulations on central agencies: The central agency (competent agency) according to the provisions of the Agreements is the Department of International Adoption, Ministry of Justice on the Vietnamese side; and on the other signatory countries' side: The International Adoption Agency under the Ministry.
Foreign Affairs (France) [6], Department of Private Law, Ministry of Justice (Denmark) [7], International Adoption Committee located in the Office of the President of the Council of Ministers (Italy) [8], International Adoption Agency of the Ministry of Health and Children (Ireland) [9], National Committee for International Adoption (Sweden) [10].
The Central Authority for International Adoption is the focal point in resolving international adoptions and is the agency implementing the agreement to manage, inspect and supervise the activities of organizations licensed to operate in the field of adoption; monitor the order and procedures for resolving adoptions and other activities according to the provisions of the Agreement and the laws of each signatory country.
Fourth, regulations on licensed organizations: Licensed organizations are organizations legally established under the regulations of the countries that have signed the Agreement. Licensed organizations operate as authorized organizations to carry out certain tasks in the adoption process. Authorized organizations can only operate within the scope of authorization by the competent State agencies of the home country as well as the receiving country. Authorized organizations that have been licensed to operate under the laws of the receiving country, after being licensed by the competent authorities of the home country, will operate in the territory of the home country as a humanitarian and non-profit organization to help citizens of the receiving country adopt children residing in the home country. Up to now, authorized organizations have operated very effectively in Vietnam, contributing significantly to the field of adoption with foreign elements.
In addition, the Agreements also stipulate a number of other issues such as document translation and notarization, cooperation obligations, etc.
In short, in the current situation of Vietnam when it is not yet qualified to join the Hague Convention 1993, the above Agreements are an important legal basis in protecting the rights and interests of children when adopted by foreigners. At the same time, these Agreements are also the initial stepping stone to create favorable conditions for joining the Hague Convention 1993 in recent times.
3.3. Some regulations of some countries on adoption with foreign elements