Recognition of adoption is based on the consideration of the voluntary will of the parties involved, the examination of the necessary conditions on the part of the adopter and the adopted child, as well as the purpose of the adoption. For the adoption event to take effect, there must be necessary and sufficient conditions. In which, fully satisfying the conditions on the subject, the conditions on the will of the parties involved are only necessary conditions, not sufficient for the adoption to have legal value. Adoption is only legally valid when it is recognized by a competent state agency according to the prescribed procedures. The recognition of the competent state agency is demonstrated through the registration of adoption and the issuance of a decision to recognize adoption. The decision to recognize adoption is the legal basis for the emergence of the legal relationship between the adopter and the adopted child, and the rights and obligations of the parties in the adoption relationship. Therefore, in the process of implementing adoption registration, the conditions of adoption must be considered fully and comprehensively. If the parties do not meet the conditions prescribed by law, the registration agency has the right to refuse this registration.
2.4. Registration of adoption
Adoption registration is the verification of the parties' compliance with the conditions for adoption and is a procedure to recognize the legal validity of adoption. Only when the adoption is registered will the parent-child relationship between the adoptive parent and the adopted child arise. At that time, the adopted child will enjoy the basic rights of a child in the adoptive parents' family, which are: the right to care, nurture, the right to education, the right to own property, the right to inherit property... Proper registration will help the authorities manage the population well, ensuring the rights and legitimate interests of the subjects in adopting children. Therefore
Therefore, adoption registration is also considered an important condition for adoption to be legally valid.
Adoption registration includes: domestic adoption registration and foreign adoption registration. Accordingly, the registration procedures for each type of work are also different.
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2.4.1. Registration of domestic adoption
* The authority to register domestic adoption belongs to the People's Committee of the commune, ward or town where the adoptee or the adoptive parent resides. According to this regulation, the adoptive parent can submit the application for adoption to the People's Committee of the commune level in either of the two places.
In the case of abandoned children who have not been transferred to a foster care facility and have not registered their permanent residence, the People's Committee of the commune where the record confirming the abandoned child is made has the authority to register the adoption (Clause 1, Article 2, Decree 19/2011/ND-CP). In the case of children living in a foster care facility, the People's Committee of the commune where the foster care facility is located has the authority to register the adoption.
To facilitate adoption registration, in particular in cases where a stepfather or stepmother adopts their spouse's child or a biological aunt or uncle adopts a nephew or niece, or there is an agreement between the adoptive parent and the biological parent or guardian of the adoptee, the adoption is registered at the People's Committee of the commune where the adoptive parent permanently resides.
* Adoption registration procedures: The adoptive parent needs to prepare an adoption application and a profile of the child to be adopted. The profile of the adoptive parent is stipulated in Article 17 of the Law on Adoption and detailed in Decree 19/2011/ND-CP. The profile includes: Application for adoption; Copy of Passport, Identity Card or other relevant documents
replacement value; Judicial record; Document confirming marital status; Health certificate issued by a health facility at district level or higher; Document confirming family circumstances, housing status, and economic conditions issued by the People's Committee of the commune where the adoptive parent permanently resides. Thus, compared to Article 28 of Decree 158/2005/ND-CP, the Law on Adoption and Decree 19/2011/ND-CP stipulate more complete and stricter regulations on the adoptive parent's records. The adoptive parent must submit many important documents that were not previously required, such as: a judicial record issued by the Department of Justice; a health certificate; a document confirming family circumstances, housing status, and economic conditions. In particular, the provision of a judicial record is to prove the adoptive parent's moral character. In case the adoptive parent falls under the provisions of Clause 3, Article 14 of the Law on Adoption, there is no need for a document confirming the family circumstances, housing situation, and economic conditions. The confirmation of the family circumstances, housing situation, and economic conditions of the adoptive parent is carried out as follows: If the adoptive parent submits an application for adoption registration to the People's Committee of the commune where the adoptive parent permanently resides, the document on the family circumstances, housing situation, and economic conditions of the adoptive parent shall be confirmed by the People's Committee of the commune where the adoptive parent permanently resides; If the adoptive parent submits an application for adoption registration to the People's Committee of the commune where the adoptive parent permanently resides, the judicial-civil status officer shall verify the family circumstances, housing situation, and economic conditions of the adoptive parent.
The profile of a child introduced for domestic adoption is stipulated in Article 18 of the Law on Adoption, including many important documents such as: Confirmation record made by the People's Committee or the Commune-level Police where the abandoned child is found for abandoned children; Death certificate of the biological father or mother or Court decision declaring the biological father or mother of the child dead for children
Orphans; Court decision declaring the biological father or mother of the person being introduced for adoption missing for the person being introduced for adoption whose biological father or mother is missing; Court decision declaring the biological father or mother of the person being introduced for adoption to have lost civil act capacity for the person being introduced for adoption whose biological father or mother has lost civil act capacity; Decision on acceptance for children in foster care facilities. These documents are intended to identify the person with the right to adopt the child and disclose the child's status, avoiding turning children into abandoned children with unknown origins.
The profile of the person being introduced for adoption living in the family is prepared by the biological parents or guardian of that child. For children living in foster care facilities, the profile of the child is prepared by the foster care facility of those children.
* Procedure for registering for adoption: The adoptive parent must submit his/her application and the application of the person being introduced for adoption to the People's Committee of the commune where the person being introduced for adoption is a permanent resident or where the adoptive parent is a permanent resident. The time limit for handling the adoption is 30 days from the date the People's Committee of the commune receives a complete and valid application. This time limit has been increased, compared to the regulation in Article 27 of Decree 158/2005/ND-CP, this time limit is only a maximum of 10 days. This regulation is very reasonable because if the time limit is only 10 days, there will not be enough time for the commune judicial officer to carefully check and verify the application and get the opinions of the relevant people, so it is easy to lead to errors in the adoption registration process.
According to Article 20 of the Law on Adoption and Articles 8 and 9 of Decree 19/2011/ND-CP, within 10 days from the date of receiving a complete and valid dossier, the People's Committee of the commune where the dossier is received is responsible for checking the dossier and completing the process of obtaining opinions from: the biological parents or guardians of the adopted person.
adopted child, adoptive parent and adoptee if the adopted child is 9 years old or older. The consultation is directly carried out by the judicial and civil status officer of the People's Committee at the commune level where the adoptee is a permanent resident and must be made in writing and signed or fingerprinted by the person whose consultation is being conducted. When examining the records, the judicial and civil status officer must study and understand the thoughts, wishes and circumstances of the relevant persons. In case the adoptee has biological parents, the judicial and civil status officer shall check whether the biological parents have agreed with the adoptive parents to retain the rights and obligations towards the child and how to exercise those rights and obligations after the adoption. When consulting the relevant persons as prescribed in Articles 20 and 21 of the Law on Adoption, the judicial and civil status officer must advise so that the child continues to be cared for, raised and educated in accordance with the actual conditions and capabilities of the family. Adoption is the last resort in the best interests of the child, so the judicial and civil status officer must fully advise the relevant persons on the purpose of adoption; the rights and obligations arising between adoptive parents and adopted children after adoption registration; and that biological parents will no longer have the rights and obligations towards their children as prescribed in Clause 4, Article 24 of the Law on Adoption, if the biological parents and adoptive parents do not have another agreement. This consultation is very necessary because the relevant persons may not be fully aware of, do not fully understand the issues being consulted, or are influenced or impacted by psychological or health factors and have agreed to adopt the child. Therefore, Clause 3, Article 9 of Decree 19/2011/ND-CP stipulates that within 15 days from the date of consultation, if the biological parents or guardian of the child want to change their mind, they must notify in writing the People's Committee of the commune where the adoption dossier is being processed. After this period, if the child's biological parents or guardians have no objections, the adoption registration will continue.
However, in the case that these people, due to objective reasons such as illness, being on a business trip abroad, cannot express their will within 15 days. After 15 days, they come to express their will that they no longer agree to let the child be adopted, how will it be resolved? In my personal opinion, the expression of the will of the biological parents or guardians of the child to be adopted is a mandatory condition for the adoption to be legally valid. This expression of will is completely voluntary and throughout the adoption registration process. Therefore, the regulation that the biological parents or guardians can change their mind about letting the child be adopted within only 15 days is inappropriate. Adoption registration will be against the will of the biological parents or guardians of the child if they do not agree to let the child be adopted but the 15-day period to express their opinion has expired. Therefore, the Law should stipulate that at any time during the adoption registration process, if the biological parents or guardians of the child change their mind and do not agree to the adoption, the adoption registration will be stopped.
Within 20 days from the date of consent from the relevant persons, if the adoptive parent and the person introduced for adoption meet the legal requirements, the People's Committee at the commune level shall organize the adoption registration (Article 22 of the Law on Adoption). Adoption registration shall be conducted at the headquarters of the People's Committee at the commune level. When registering for adoption, the adoptive parents, biological parents, guardians or representatives of the foster care facility and the adoptee must be present. The People's Committee at the commune level shall issue the Adoption Certificate to the adoptive parents, biological parents or guardians or representatives of the foster care facility, organize the handover of the adopted child and record it in the household registration book. The adoption shall be effective from the date of issuance of the Adoption Certificate.
In case the People's Committee at the commune level refuses to register, it must respond in writing to the adoptive parent, biological parents or guardian or representative of the foster care facility and state the reasons within 10 days from the date of receiving the opinions of the biological parents or guardian, adoptive parent and adopted child (Clause 2, Article 22 of the Law on Adoption).
2.4.2. Registration of adoption involving foreign elements
According to the provisions of Vietnamese law, handling adoptions involving foreign elements includes the following four types of work: registration of adoption at a competent state agency of Vietnam; registration of adoption in border areas; registration of adoption between Vietnamese citizens temporarily residing abroad and recognition of adoptions conducted abroad. Corresponding to those cases, adoption registration has different procedures, contents and authorities.
2.4.2.1. Registration of adoption involving foreign elements in Vietnam
Registration of foreign-related adoption in Vietnam includes cases where Vietnamese people residing abroad, foreigners permanently residing abroad, foreigners permanently residing in Vietnam adopt Vietnamese children or Vietnamese citizens permanently residing in Vietnam adopt foreign children and are registered with a competent authority of Vietnam.
According to the provisions of the Law on Adoption and Decree 19/2011/ND-CP, Vietnamese children adopted by foreigners come from two sources: foster care facilities and families.
Article 11 of Decree 19/2011/ND-CP stipulates that foster care facilities that are allowed to adopt children abroad are foster care facilities that are legally established and operating in Vietnam; have sufficient conditions to care for, nurture and educate children according to the provisions of law; have qualified staff.
standards of ethics, expertise in the field of child care, nurturing, education and understanding of the field of international adoption and must be designated by the provincial People's Committee to allow children to be adopted abroad. Thus, not all foster care facilities are allowed to allow children to be adopted by foreigners, but depending on the situation of each locality, the provincial or municipal People's Committee will designate one or several foster care facilities that are allowed to introduce children at that facility for international adoption.
The authority to register foreign-related adoptions in Vietnam is the Department of Justice of the province or centrally-run city where the person being introduced for adoption permanently resides (Clause 2, Article 9 of the 2010 Law on Adoption). However, the decision to recognize foreign-related adoptions is under the authority of the People's Committee of the province or centrally-run city.
Procedures for registering foreign adoption in Vietnam: According to Article 17 of Decree 19/2011/ND-CP, the procedures for submitting and receiving dossiers of foreign adopters include 2 cases:
In normal cases, the adoptive parent needs to prepare an application for adoption according to Article 31 of the Law on Adoption. The application for adoption is prescribed in Article 32 of the Law on Adoption. The application for adoption is prepared by the biological parents or guardians of the adoptive parent living in the family and the foster care facility prepares the application for adoption of the child living in the foster care facility.
Vietnamese children can only be adopted abroad after all measures to find a replacement family for the child in the country have been taken without success. The search for a replacement family for the child is carried out according to the procedures specified in Clause 2, Article 15 of the Law on Adoption. The search for a home is carried out at three levels: commune, province and central. At the commune level, the search for a replacement family is carried out by posting a notice at the headquarters of the People's Committee in the