The 1960s were a dark time for intercountry adoptions. Although there were many well-intentioned parties, the absence of regulation and oversight opened the door to a wide range of questionable practices and dishonest behavior.

As Deann Borshay Liem’s film poignantly illustrates, those most frequently hurt were highly vulnerable children. Like all adoptees, these children struggled with issues of identity, love, loss, and belonging – issues that were compounded because their adoptions crossed international borders.

At ISS-USA, we understand these issues because we encounter cases of
international separation every day. Each story is unique, but the common thread is
the brokenness that comes with loss of family, loss of heritage, and loss of connection to the fundamental underpinnings that make us all what we are. No caring person can watch Deann’s film without feelings of sadness, anger and betrayal.

There is good news, however. Much has changed since the 1960s, and I am very proud to report that ISS – through a network of social workers, lawyers, psychologists, mediators and volunteers operating in 120 countries – has been at the center of the groundswell which has fostered meaningful reform and a burgeoning international acceptance of a set of principles and practices that are grounded in defending the best interests of the child. While we handle all types of cases of international separation, our outreach in advocacy and training are making transformative differences.

For more than eight decades, International Social Service (ISS) has been the lead agency practicing and refining intercountry casework. It was founded in 1924 under its original name, the International Migration Service, by representatives from the United States, the United Kingdom, Czechoslovakia, France, Greece, Poland and Switzerland in response to increased migration from Europe between the 19th and the 20th centuries. Our network gradually expanded to re-establish family links, and protect and defend children deprived or separated of their family across borders. Renamed International Social Service in 1946, we at ISS have provided psychosocial and legal expertise in child and family matters in an international context. To see some of our many success stories, please visit our website or that of our international federation.

Over the years, we have learned a great deal from the people we have served, and have translated that knowledge into providing better services; developing and advocating for best practices; and providing training and capacity building. As a network, we can provide and advocate for the best possible care of children separated from their families across borders around the globe. These efforts are aimed at protecting the rights of the children involved so that situations like those in Korea in the 1960s are not repeated.

One of the tenets of our advocacy work is the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. As an organization, we were instrumental in shaping, writing and promoting the ratification of the Hague Adoption Convention, a groundbreaking document that guides the protection of the best interests of children involved in intercountry adoptions. According to the Hague Conference on Private Law’s website, there are now 83 countries signed on to this convention – a convention that has transformed intercountry adoption dogma from finding children for families to finding families for children. In the last few years, ISS, through our international offices in Switzerland, has worked closely with states such as Kazakhstan, Viet Nam, Kyrgyzstan and Côte d’Ivoire to reform their intercountry adoption practices and assist them on their path to ratification of the Hague Adoption Convention.

Hague has created many safeguards to protect children throughout the adoption process, including developing central authorities in each country, reducing the likelihood of the abduction, sale and trafficking of children via intercountry adoption, ensuring that children are clearly without family and that no suitable domestic options exist before an intercountry adoption can be finalized, requiring adoption agencies to operate with transparent procedures and to obtain accreditation. Most important in the context of Deann’s film is that the Hague Adoption Convention establishes a strict framework for clearly identifying the origins of the child and establishing his/her adoptability prior to the proposal of an adoption for the child. This is wholly consistent with the U.N. Convention on the Rights of the Child, which together with Hague Adoption, guides our casework throughout the world.

The ISS General Secretariat International Reference Centre for the Rights of Children Deprived of their Family (IRC) is a division within ISS specifically dedicated to the questions linked to adoption and children without parental care. It is a service-provider for twenty inter-country adoption central authorities in receiving countries, provides its services freely to all central authorities in countries of origin and serves a network of over 3000 professionals worldwide. Through this center, the ISS IRC has developed many important documents with other key stakeholders such as UNICEF and SOS Children’s Villages that promote best practices in the care and protection of children, including the Guidelines on the Alternative Care of Children recently approved by the United Nations General Assembly (UNGA) as well as tools for adoption of older children and those with special health needs.

Our advocacy work takes on many forms. When a devastating earthquake hit Haiti in January, many questions surfaced about international adoptions originating there. ISS had to determine how international standards applied to expediting adoptions already in process. ISS recently released: Expediting inter-country adoptions in the aftermath of a natural disaster … preventing future harm. The report includes a signed Forward written by Mr Hans van Loon, Secretary General of the Hague Conference on Private International Law. This report examines intercountry adoption practices in the aftermath of the earthquake in Haiti. Its principal objective is to identify lessons to be learned from our experiences in Haiti and to provide an objective analysis of the fast-tracking measures implemented against the backdrop of international norms.

Our efforts have also spawned new opportunities to build on the successes of recent years. Just last year, ISS-USA was awarded a Fostering Connections Discretionary Grant from the U.S Department of Health and Human Services, Administration for Children and Families, Children’s Bureau. The three-year grant, which exceeds $1.4 million, will fund the work of ISS-USA and its partners in New Jersey to improve permanency placement options for children in the New Jersey foster care system by developing and implementing intensive family finding services for all children who have potential kinship placement outside the United States. It is hoped that the Demonstration Grant will result in more family placement options for children, and a training and best practices model that will be replicated throughout the United States.

We sincerely appreciate the opportunity POV has provided us to bring some additional perspective on international adoptions and the work that we at ISS do. To that end, we invite any adoptee or family member searching for relatives to contact us through our website, by email, iss-usa@iss-usa.org or by calling 443-451-1201. We have connected a great number of people by providing information, closure and reunions for people around the globe. We also welcome contact from anyone who would like more information about how to access historical information about ISS for the purpose of scholarly research at the Social Welfare History Archives at The University of Minnesota. The records document a wide range of ISS-USA’s international social services, including services to refugees and migrants and, particularly, international adoptions by families in the United States.

While heart wrenching and sad, Deann’s film will bring important attention and hope to the issues surrounding international adoption. While there is still much work to do, the film underscores how far we have come since the 1960s. We at ISS are gratified that we have played a role in these advances and remain committed to the continued care for the best interests of children.

About The Film
In the Matter of Cha Jung Hee will be broadcast this evening, September 14, 2010 on PBS.  It is the third of POV’s series on adoption, which has included Wo Ai Ni Mommy ( http://www.pbs.org/pov/woainimommy/) and Off and Running ( http://www.pbs.org/pov/offandrunning/).  Check your local listings for the exact time of the broadcast in your area.  The film can be viewed online at (http://www.pbs.org/pov/chajunghee/) from September 15, 2010 through October 15, 2010.

Synopsis
Her passport said she was Cha Jung Hee. She knew she was not. So began a 40-year deception for a Korean adoptee who came to the United States in 1966. Told to keep her true identity secret from her new American family, the 8-year-old girl quickly forgot she had ever been anyone else. But why had her identity been switched? And who was the real Cha Jung Hee? In the Matter of Cha Jung Hee is the search to find the answers, as acclaimed filmmaker Deann Borshay Liem (First Person Plural, POV 2000) returns to her native Korea to find her “double,” the mysterious girl whose place she took in America. A co-production of ITVS in association with the Center for Asian American Media and American Documentary/POV.

In the May 10^th, 2010 edition of the New Yorker, John Seabrook wrote an article entitled “The Last Babylift” chronicling his adoption of a Haitian child. In it, Seabrook cites International Social Service as being anti-international adoption. (“…International Social Service emphasize (sic) improving social conditions within sending countries, rather than facilitating international adoption.”). This statement is misleading. ISS was a key participant in the drafting of the 1993 Hague Convention on Intercountry Adoption.

ISS, an international social service Federation, is not opposed to intercountry adoption. The ISS Federation has been involved in educating about, and facilitating, international adoptions for decades.   Every year, ISS-USA arranges for several hundred international home studies for kinship and adoptive placements. However, based on our more than 85 years of providing social work services between more than 140 countries, we know that far more must be done to increase the capacity of social service agencies to care for children in their home countries. This includes the development of legal frameworks, policy, procedure and protocol on domestic and international adoption.

ISS-USA is opposed to the lack of support and infrastructure in many countries for social service providers to ensure the safety, permanency and well-being of their children. We believe more must be done to support biological and prospective domestic-adoptive parents in countries from where large numbers of children are adopted. It is crucial that all countries have laws, procedures and policies, and legal and social service professionals trained in these practices, to ensure that the child’s best interest are represented. More must be done to prevent the “social orphan” crisis. However, when an international kinship or adoptive placement is in the best interest of the child, ISS-USA advocates for the safe movement of that child across borders.

Seabrook also overlooks the fact that there are over 120,000 American children who are freed for adoption, and awaiting placement with a permanent family.  ISS-USA believes, consistent with our endorsement of the Hague Convention, that the U.S. must adhere to the principles outlined between countries, and, America must encourage her citizens to consider adopting domestically!  Those who are charged with caring for orphaned or abandoned children must explore domestic options first. International adoption by non-kin is the final alternative (the principle of subsidiarity). All countries who are signatories to the Hague Convention on Intercountry Adoption must follow this principle. The thousands of American children waiting to find a family are in need of that family just as much as “social orphans” in other countries. The emotional largesse of those American families in the aftermath of the Haitian disaster who want to “…just go and get some of them babies” need not look any further than the borders of our own country.

If our citizens really want to help they should demand that aid be made available to improve the social work capacity of all countries to provide for the safety and well-being of their children, and to work towards appropriate permanent homes for them. If a child cannot find a family there must be safe alternative domestic care options. PLease see the UN Guidelines on the Alternative Care of Children at:

http://www.iss-usa.org/uploads/file/The%20Guidelines%20for%20Alternative%20care.pdf

Second, we must adhere to the safeguards in place to protect children and their biological families both here and abroad (e.g. the Hague Convention on Intercountry Adoption). There must be a strong partnership between government, law and social work to protect children’s best interests. The plight of orphaned and abandoned children around the world will not be resolved by international adoption. Their future will be determined by the level of support for social service institutions and agencies that promote the welfare and well-being of all children.

In the best interest of the child: More questions than answers….

Julie Gilbert Rosicky, Executive Director ISS-USA

Recently, at the Joint Council on International Children’s Services National conference, I examined the process by which we answer the question, “What is in the best interest of a child, locally, globally and in between?”  I used a chapter from Norval Morris’ The Brothel Boy and Other Parables of the Law entitled, Best interest of the Child as anallegorical model.

A Junior Magistrate sent from London to Burma in 1926 must decide the fate of Ji Han, an 8 year old child of Burmese-European descent.   The Cunningham’s are a well-off, British, couple soon to be relocating from Burma to Kenya.  Ji-Han’s mother is the Cunningham’s maid.  The Cunningham’s have been raising Ji Han as their own child since his birth (although he is not biologically related to either of them). The magistrate must decide between two good but very different outcomes.

If Ji Han is to leave Burma for Kenya with the Cunningham’s he will have access to the best education and career opportunities. He will likely never see his mother or extended family again.

If Ji Han is to remain in Burma with his mother, as she desires, he will live in a prosperous (by Burmese standards) fishing village, become an expert fisherman, and likely become a leader in his village. He will probably never see the Cunningham’s again.

How will the young magistrate decide? I have listed eight key questions that are as apropos to today’s permanency decisions as they were in the last century.

1)     What legal guidance and legal precedent exists? Burma was colony of England.  Three sets of laws needed to be considered; English, Indian and Burmese.  English adoption law, in its infancy in 1926, provided little guidance other than to say the determination should be made in the best interest of the child balanced against the rights of the natural parents.  Indian law was limited to the adoption of boys to pray for their fathers after their father’s death. Burmese customary law pertained to adoption for property rights, and required consent of the parent and child (depending on age of the child).  However, it was unclear whether this was an adoption or custody case. The Cunningham’s were not specifically asking to adopt Ji Han. They wanted to take custody of him and move to Kenya, with an implied adoption later. We must consider the following questions: What are the local laws and practices of both countries? Are there any international conventions to which both countries are party? Do such conventions provide guidance on how to respond, or which country’s laws to follow? Are there immigration laws that must be considered? Do these interact, or conflict, with child welfare laws? Is there legal precedent?

2)     What do other experts have to say? In the story, the magistrate consults with the family doctor.  In the U.S. family court judges rely on feedback from social workers, child advocates, guardians ad litem, and attorneys representing each party.  Sometimes a child is in a situation where there are no social workers, lawyers, or even a legal framework to guide the case. In the absence of a formal system, panels of experts can be enlisted to contribute to decision making in crisis situations. http://www.unicef.org/violencestudy/pdf/BID%20Guidelines%20-%20provisional%20realease%20May%2006.pdf.   Model courts in the U.S. utilize alternative dispute resolution practices to shift the decision making from one person, the Judge, to the concerned parties themselves.  Permanency mediation and family group decision-making are used to empower those concerned about the child to generate their own solution in the best interest of the child.

3)     Is there such a thing as cultural neutrality? The decision to place the child with the Cunninghams or with his mother required consideration of two very different lifestyles- British expatriate versus small town Burmese fishing village.  Can we evaluate one culture over another? How does our own cultural lens affect our ability to be neutral or objective? These questions are not easily answered, but MUST be considered in every case.  It is very difficult for us to conceptualize what life could be like living in a place unfamiliar to us.  We are also susceptible to stereotypes about other countries that may, or may not, have any bearing on the child’s future.

4)     How do you consider the desires and wishes of the parents? First, do both families love the child? Is it possible to determine who might love the child more and why? It’s important to understand what motivates parents to want to have children.  In the case of the Cunninghams, we learn they had a child who died just after birth, and were never able to have more.  Could Ji-Han be their surrogate child? We also learn that Ji Han’s mother will have a better status in her village if she has a son. As he grows older will support his family with fishing income.  Having children in rural villages is insurance in old age.  While these wishes should not dictate the final outcome, they are important to understand.  Adoptive parents are always screened for “why they want to adopt” and while there are no right or wrong answers, there are certainly some responses that might cause an adoption agency to turn down an application.

5)     How do you consider the desires and wishes of the child? While there are many things to consider in these cases (please see the UK model below), we often overlook what the child wants? Children don’t always want what’s best for them, but they do have thoughts and opinions.  What children think and feel can inform decision- making.  In every case, children should be consulted, to understand how they view what is happening in heir lives.  Ji-Han wanted to remain with both families by having his mother come to Kenya.

6)     What constitutes a happy life? Does a happy life involve sustaining oneself, and one’s family, and one’s community?  Or is a happy life discovering and developing your talents, learning to reach or exceed your potential?  Are the two paths mutually exclusive?  Based on our own experiences in life, are we predisposed, to view one lifestyle as more ideal than the other?

7)     The role of politics? Does it matter where we live? Are some countries better than others in which to raise children?  Do decisions get made based on  relations between countries? Are child welfare professionals ever compelled by cases not because of the case itself, but because of the exposure it will bring them? If you are in doubt Google Elian Gonzalez.  Good or bad, politics weighs in often more than we realize in matters that concern children “between” countries.  We must understand the political forces at work, how they might affect the outcome, and remind all parties to remember to focus on what’s best for the child, NOT what’s best for a country.

What’s best for a child in any adoption, custody, immigration or other situation involves a complex decision making process.  If key questions are NOT asked we are not fulfilling our duty to protect the best interest of children.  In the parable, Ji-Han was sent with the Cunningham’s, who adopted him. Ironically he died an early death, a world war II hero, at the age of 25.  Lawyers and social workers would see this outcome very differently, but the key is that we must continue to discuss each and every child’s case from all angles, every child’s life depends on it.

Jrosicky@iss-usa.org

www.iss-usa.org

The US annually conducts the largest number of domestic and in-bound intercountry adoptions of any country in the world. In 2008, approximately 150,000 children were adopted in, or to, the US. (en.wikipedia.org/wiki/Adoption) However, there are 129,000 children with no permanent solutions languishing in our public child welfare system, and 24,000 children age out of care annually. (Youth Aging Out of Foster Care: Identifying Strategies and Best Practices: NACO, February 2008) It is essential that we take a hard look at our domestic and intercountry adoption practices to ensure that everything is being done to promote solutions that protect the permanency, safety and well-being of all children. This requires that the principle of subsidiarity be at the center of all discussions about best practice in child welfare.

The principle of subsidiarity, as applied to child welfare, states that it is in the best interest of children to be raised by family or kin. If immediate family/kin is unable, or unavailable, domestic placement with a foster or adoptive family is the next best option. Finally, if neither of these alternatives is viable, then permanent placement with an appropriate family in another country through intercountry adoption is best.

This article describes the origin of the principle of subsidiarity, discusses the two multilateral treaties that include language about the principle, and explores what subsidiarity means for the practice of child welfare in America.

The principal of subsidiarity was the result of a landmark judgement: Laxmikant Pandey v. Union of India in 1984. The Supreme Court of India found that preference must be given to finding homes in India for orphaned children before considering intercountry adoption. Supreme Court lawyer Laxmikant Pandey initiated this case. Pandey wanted to alert the judiciary to alleged fraudulent practices and illegalities involving intercountry adoptions. He petitioned the government to investigate current practices and develop standards for when it is appropriate for Indian children to be adopted by foreigners. The decision reflected a revolutionary approach to intercountry adoptions. It would be another five years before the principle was present in multilateral treaties. (http://csa.org.in/SC1984Feb06.htm).

The principle of subsidiarity was introduced in 1986, in the UN “Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement Nationally and Internationally.” Article 17 states: “If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.” In 1989, Article 21(b) of the United Nations Convention on the Rights of the Child stated, “Intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.” The US has signed, but not ratified, this treaty.

In 1993, text regarding the principle of subsidiarity was included in Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (THC-93). The preamble of the THC-93 was drafted to emphasize the benefits of a permanent solution for the child: first domestically, and then internationally. Specifically 4(b) THC-93 states “an adoption within the scope of the convention shall take place only if the competent authorities of the state of origin have determined, after possibilities for placement of the child within the state of origin have been given due consideration, that an intercountry adoption is in the child’s best interests.” The US ratified this treaty on April 1, 2008. (International Reference Centre for the Rights of Children Deprived of their Family (ISS/IRC) Monthly Review N° 3-4/2009 March-April 2009: 4)

The principle of subsidiarity has serious implications for child welfare practice in the US. If we fully adhered to this principle then we would expect that the number of permanent solutions for children in the US should be increasing and the number of inbound intercountry adoptions should be decreasing. Also, the number of outbound intercountry adoptions should be increasing only if permanent solutions cannot be found within the US. Unfortunately, this is not the case. A number of barriers still exist that preclude this ideal outcome.

First, finding and evaluating families/kin is still a challenge, particularly when inter-jurisdictional issues are involved. The implementation of the Fostering Connections Act may alleviate some of these problems. However, there are real budget, resource and technical constraints that make this an ongoing challenge. We must work harder to find more families and to place more children with them.

Second, concerns about the placement of US children across state and international borders sometimes prevent creative solutions to permanency: Fear, prejudice and negative stereotypes are obvious barriers to placing children with kin or adoptive parents in other jurisdictions. There must be a radical shift in attitude in order to embrace a definition of permanency that includes families, kin and adoptive families across state and international borders. We can increase the number of domestic children placed in permanent homes by thinking outside the box—and beyond our borders.

Third, negative attitudes about domestic adoptions still have many families turning to intercountry adoption. We must encourage families to adopt domestically. In order to find more domestic permanency solutions there needs to be a decrease in intercountry adoptions and more incentives and encouragement to adopt domestically. The ratification of Convention on Intercountry Adoption by the US will begin to combat the first barrier. The second will only be eliminated through an increased commitment on the part of federal, state and local government and private agencies to support domestic adoption.

The principle of subsidiarity has direct bearing on our goal to find more domestic permanency options for children. However, there must be shifts in thinking and practice to make this happen.

Editor’s Note: Julie G. Rosicky has been working in the child welfare field for the past 20 years as a child/adolescent therapist, a CASA volunteer and an alternative dispute resolution center director. Her passion for international work is inspired from her experiences working with Native Americans, refugees and immigrants in upstate NY.

Felicity Sackville Northcott is an anthropologist by training. She comes to ISS-USA after 20 years teaching, conducting field research and running institutes at Johns Hopkins University.

EARTHQUAKE IN HAITI: INTERCOUNTRY ADOPTION CASES
Posted January 18, 2010 by Fearless Leader. Filed under Annual Meeting

EARTHQUAKE IN HAITI: INTERCOUNTRY ADOPTION CASES

As in every dramatic event that affects a country, the question about the intercountry adoption of children arises again in the Haitian context.

In this regard, ISS / IRC first recalls that, in general, international adoption should not take place in a situation of war or natural disaster, given that these events make it impossible to verify the personal and family situation of children. Any operation to adopt or to evacuate children that are victims of the earthquake to another country must be absolutely avoided, as was the case during the 2004 tsunami.

However, the intercountry adoption situation in Haiti highlights a new problem: what response should be given to the multiple adoption dossiers which were in the process of being finalised before the earthquake? As of today, some receiving countries have announced their intention to ‘freeze’ all pending adoptions due to the present incapacity of the Haitian authorities to follow the required procedures. Yet other receiving countries have already planned to launch evacuation missions for children as quick as possible and in this situation, ISS/IRC would like to reiterate the following points.

Given the actual state of the country, the transportation of relief supplies of basic necessities is extremely difficult due to the congestion of different channels of communication and transportation (in particular, the airport at Port au Prince). Mobilising forces in this emergency context should focus on meeting the needs of the greater majority. All initiatives that involve an additional burden to the existing relief efforts should take place later, to give priority to current operations focusing on basic needs.

Regarding the adoption of children, a difference must obviously be made between those who have been declared adoptable and those for whom an adoption order (judgment) has been delivered. For children where matching has occurred and there is an adoption order (judgment), the transfer of these children to their adoptive families could be considered under the following conditions:

1. identification of the child and his/her location is secured by the necessary safeguards, particularly through copies of his/her dossier lodged in the receiving country, personal data is stored appropriately;
2. the psycho-social adoptability of the child (ie ability to be adopted) is re-evaluated, considering the trauma s/he might have suffered (emotional shock, physical injuries, etc.).
3. it is established that the child’s dossier is complete and that the adoption order (judgment) has been delivered;
4. the diplomatic representatives of the concerned receiving countries are able to verify the actual identities, adoption dossiers and alternative care conditions of the children;
5. the Haitian authorities are duly informed and involved in the finalisation of the adoptions in question.

For children who do not meet these conditions, no action should be undertaken at this point to accelerate the adoption procedure. It is important to remember that for sometime, intercountry adoption in Haiti has been subject to numerous serious concerns owing to the lack of guarantees and transparency. Where the necessary safeguards are not available, intercountry adoption should be suspended until the reinstallation of the administrative and judicial systems in Haiti.

The ISS / IRC, stresses that the abovementioned conditions require time to be fulfilled and they can not be undertaken in an urgent manner. Moreover, these children are currently experiencing extreme stress so that a sudden shift to a new country and a new family can have a psychological impact that is impossible to measure. According to the Guidelines developed by the United Nations High Commissioner for Refugees (UNHCR), the evacuation of such children or their temporary placement in families abroad is also traumatic. It is considered as an added disruption to the injury already suffered by the child. In the emergency phase, the efforts of the authorities of affected countries, international organisations and NGOs should focus on providing basic protection to the child (eg: accommodation, food, medical, emotional and psychological attention, education) that is as close as possible to the daily living conditions and any regrouping should be with other familiar children or adults.

Finally, ISS / IRC reminds receiving countries in charge of intercountry adoptions to consult each other as well as UN agencies and NGOs in order to develop a unified approach to this problem in order to avoid conflicting decisions and poor initiatives.

Well aware of the difficulties and suffering that the earthquake has caused, ISS / IRC presents its deepest sympathy to the Haitian community and acknowledges, the difficult situation of parents involved in an ongoing adoption. Nevertheless, we invite various actors involved in intercountry adoption to exercise restraint and reflection in managing the current crisis and avoid giving emotional responses to a sensitive issue such as the adoption of these children.

ISS / IRC January 18, 2009

Quai du Seujet, 32 .
1201 Geneva .
Switzerland
Tel : +41 (0)22 906 77 00 .
Fax: +41 (0)22 906 77 01 .
E-mail : irc-cir@iss-ssi.org .
www.iss-ssi.org