sou · GXB361 · 2009-07-02 00:00:00 — Utredningen har övervägt behovet av särskild företrädare för barn som kommer till i avsikt att adopteras. Utredningens bedömning är att gällande rätt ger tillräckliga förutsättningar för att tillvarata dessa barns rättigheter. Så länge barnet inte har fått uppehållstillstånd i är det möjligt att förordna en god man för barnet med stöd av lagen (2005:429) om god man för ensam- kommande barn. Berörda myndigheter (främst , socialnämnden och överförmyndaren) kan dock behöva uppmärksammas på detta. Från den tidpunkt barnet har fått uppehållstillstånd – och därmed normalt hemvist i – kan bestämmelserna i 6 kap. om särskild företrädare för barnet användas för att tillgodose barnets behov av representation. has been assigned to conduct a general review of the rules on adoption contained in Chapter 4 of the Children and Parents Code. is required to adopt a position on whether there is reason to amend the rules on the judicial consideration of adoption matters with a view to enhancing the child perspective. The information available to courts in adoption matters (decision information) is to be considered, including an investigation of the measures taken by the social welfare committee in the event of a request for a statement of views and the extent to which children are allowed to express their views. against the background of the findings made, the Committee is required to adopt a position on whether the rules need to be amended or supplemented to improve the decision information for courts and to ensure that the adoption is in the best interest of the child. Furthermore, the Committee shall pay particular attention to matters concerning the opportunity for cohabitees to adopt, consent for adoptions and the age limits for being allowed to adopt. The assignment also includes investigating certain issues of particular relevance to intercountry adoption. The need for measures to safeguard the best interests of the child in situations where adoption is not being conducted through the mediation of an authorised association (private adoption) shall also be investigated. Furthermore, the Committee shall consider the need to have representatives for children who come to for the purpose of adoption. Finally, a general review shall be conducted of the Act on International Legal Relations Concerning Adoption (1971:796) (the 1971 Act). Chapter 4 of the Children and Parents Code A clearer child perspective The key provisions on adoption are contained in Chapter 4 of the Children and Parents Code. These provisions apply to all adoption matters to be considered by Swedish courts; that is, also in the case of intercountry adoption. proposes that Chapter 4 of the Children and Parents Code is repealed and replaced with a new chapter. The new chapter will have a different rationale and will use more up-to-date language. In the opinion of the Committee, the legislation does not provide sufficient guidance concerning the assessment of adoption matters. With the aim of placing a clear emphasis on the child perspective, the Committee proposes that a fundamental provision be introduced into Chapter 4 of the Children and Parents Code, whereby the best interests of the child shall be decisive for all decisions concerning adoption involving children under the age of 18. This is in line with, among other things, the UN Convention on the Rights of the Child and the Hague Convention of 29 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption (the 1993 Hague Convention). The statutory wording also specifies certain circumstances that are to be taken into account in particular when assessing what is in the best interests of the child. One such circumstance is the will and capacity of the childs biological parents to provide the child with care, security and a good upbringing. Account should also be taken of the personal relationship in general between the child and the biological parents, and the capacity of the applicant to provide the child with a permanent and stable parent-child relationship. The current provision as regards taking account of the childs wishes shall be aligned with the provision on the best interests of the child. also proposes that a special provision on adoption be introduced for a person who has attained the age of 18 (adult adoption). In these cases, adoption should be allowed if there is special reason considering the personal relationship between the applicant and the person that the applicant wishes to adopt. When making this assessment, particular regard shall be taken of whether the applicant has brought up the person whom he or she wishes to adopt, or whether a permanent and stable parent- child relationship has developed between them in some other way. Minimum age of the adopter The Committee considers that the person who wishes to adopt should, as today, normally have attained the age of 25. Generally, different requirements are placed on adoptive parents than on biological parents, and parenthood requires a particularly high level of maturity. However, as today, the applicant may be younger than 25 in the case of a stepchild adoption. It should also be possible to make exemptions from the age limit of 25 in other cases where there is special reason to do so considering the best interests of the child; for example, if there is some other close personal link between the child and the applicant. proposes that it should be possible to consider cohabitees as adoptive parents in the same way as married couples and registered partners. This means that two cohabitees can jointly adopt a child and that one cohabitee can adopt the other cohabitees child. Through adoption, custody of the child automatically becomes joint for both cohabitees. also proposes to remove the possibility of a spouse adopting on their own if the other spouse suffers from a serious mental disorder. Even if the child were not to have any parent-child relationship with the adopters spouse, the child is at risk of being placed in an environment that may be very stressful. As today, the main rule should be that a person who has attained the age of 12 may not be adopted without their own consent. A right of veto for the child is important considering the very extensive legal effects that an adoption entails. The exemption from the requirement for consent currently applicable in certain cases when the child is between the ages of 12 and 16 shall be removed. As a main rule, it should not be permitted to adopt children under the age of 18 without the consent of their parents. In the opinion of the Committee, the exemption from the requirement for consent that applies to a parent who is not the person having custody of the child should be retained. It is unquestionably important for a parents opposition to an adoption to be considered in an adoption matter. Even a parent who is not involved in the custody of the child may mean a lot to the child. He or she may be well acquainted with the childs circumstances and have good contact with the child. However, the Committee considers that no special requirements should be included in the Act regarding adoption against the wishes of a parent who does not have custody of the child. This would further impede adoptions; for instance, when the child has been placed in a home and custody has been transferred. Stepchild adoptions would also be significantly impeded compared with today. has also made the assessment that the right of veto that the parent having care of the child normally has in an adoption matter ought to be retained. Here, the Committee has primarily taken into account the fact that there is no support for the view that the right of veto, specifically, is the reason behind the current low number of national adoptions. Considering the very extensive legal effects that adoption entails, there is particular reason to be cautious as regards elements of compulsion. With the aim of making national adoptions easier when such adoptions are in the best interests of the child, it is appropriate to develop methods of working that promote solutions involving mutual agreement on matters concerning adoption and also to provide support to local government staff whose work involves such matters. This should be the task of . The information available to the courts (decision information) has conducted a survey directed at social welfare committees and has also been in contact with, for instance, representatives of the social services, courts and adoption organisations. In light of the facts established, the Committee proposes that a number of measures are taken to ensure that courts are provided with better decision information in adoption matters. proposes the following: The social welfare committee should no longer be the body expressing views to the court. Instead the committee should appoint someone to conduct the study as is the case in custody investigations. The request should normally be addressed only to one municipality, which would be responsible for the entire investigation. The court must be able to provide guidelines for the study and determine a particular time within which the study is to be completed. If possible, the child shall within the framework of the study be provided with relevant information and offered such advice as may be required. If necessary, the caseworker appointed for the study should attempt to establish the position of the childs parents and the specially appointed person having custody. If possible, the caseworker shall provide information about the preconditions for and legal effects of the adoption and offer such advice as may be required. The caseworker shall also report on their findings to the court and submit a proposed decision. Secrecy shall not impede the caseworker from obtaining information from another municipality. A provision shall be introduced regarding a reserve forum for the social welfare committee. The court should have a more clearly defined obligation to enter into correspondence with, among others, the parents of the child whom the applicant wishes to adopt. also makes the assessment that caseworkers conducting studies regarding adoption matters need to have clearer support and guidance than is the case at present. Guidance is required on issues concerning how the study is to be conducted (for example, when and how discussions should take place with the child and the childs parents) and also to help the caseworker to assess what is in the best interests of the child. This should be the task of . Information about the childs origin proposes that a provision is introduced requiring a person who has adopted a child to, as soon as is appropriate, inform the child that he or she is adopted. If someone has adopted their spouses or cohabitees child, this is a joint obligation for the adopter and spouse or cohabitee. This provision is not subject to any sanction, but represents an important indicator that children are entitled to know about their origin. The main rule is that a person who wishes to adopt a child habitually resident abroad must engage an authorised association to mediate the adoption. However, the Swedish Intercountry Adoptions Authority () may grant permission allowing an adoption to take place without such mediation (private adoption). In the course of the work of the Committee, it has been established that private adoption is often associated with problems as regards documentation and investigation. Current law also allows the adopters to refer directly to a Swedish court with an application for adoption without the social welfare committee having granted its consent to the applicants being allowed to receive the child for the purpose of adoption and without having granted its permission for the adoption to take place without the mediation of an adoption organisation. The points of departure for the proposals made by the Committee are that it is better from the perspective of a child for an adoption to be mediated through an adoption organisation. It is desirable to establish a closer alignment of the system of rules of social welfare law with those of private law, so that there are not several routes open for those wishing to adopt. therefore proposes that the system of rules concerning private adoptions is tightened up and made more uniform. The opportunities for the grant of permission for a private adoption are restricted to apply to children related to the applicant or situations where there are otherwise special reasons taking account of the personal relationship between the applicant and the child. This consideration should not be made by , as currently applies, but by the social welfare committee. It should only be possible to obtain permission for a private adoption if the applicant has been granted consent to receive the child for adoption and it has consequently been considered that the adoption contemplated is in the best interests of the child. If the application refers to a child under the age of 18 who has been brought or is intended to be brought to for adoption, the Swedish court must only entertain the adoption application for adjudication if the adoption has been mediated by an authorised adoption organisation or permission has been granted for a private adoption. Consent to receive a child for the purpose of adoption Chapter 6, Sections 12 to 15 of the Act (2001:453) contains provisions on consent to receive a child habitually resident abroad for the purpose of adoption. proposes that an express provision be introduced governing the age of the applicant applying for consent. The main rule is that consent may not be granted if the applicant/s have attained the age of 43. However, this does not apply if the child has a personal tie to the applicant or there are otherwise special reasons. The period to which consent applies is extended from two to three years. It should be sufficient that the applicants have received the child into their care during this period even if the child has not actually been received into the applicants home. In some cases, the child whom the applicant wishes to adopt may already be known at the time of the application for consent. proposes that in such a case the social welfare committee should consider whether the adoption is in the best interests of the child. Consent should not be granted, for instance, if it transpires that the child has a functional family in their home country and for this reason is not in need of adoption. In this way, there will be a clearer child perspective when considering consent, and an adoption that is not in the best interests of the child may be prevented at an earlier stage than is currently the case. When consent has been granted for a particular child, it should not be necessary to conduct any further consideration of whether the adoption proceedings should be allowed to continue (Chapter 6, Section 14 of the Act), provided the adoption is not subject to the 1993 Hague Convention. consideration does not contribute any practical function in these cases, as the social welfare committee has already, in conjunction with the consideration of the grant of consent, made the assessment that the adoption contemplated is in the best interests of the child. In the event that a child habitually resident in is to be adopted by someone habitually resident abroad, the Committee proposes that it should not, as today, be , but instead the social welfare committee that performs the tasks referred to in Article 16.1 of the 1993 Hague Convention. The social welfare committee should thus compile a report including, among other things, details of the childs background and availability for adoption, ensure that the necessary consents have been granted and determine whether the placement contemplated is in the best interests of the child. International private law issues The 1971 Act contains international private law provisions relating to adoption. proposes that the 1971 Act is replaced with a new act. The proposed act is based on the principle of habitual to a greater extent than the 1971 Act. Swedish courts shall be competent if the applicant/s are habitually resident in or the person whom the applicants wish to adopt is habitually resident here. Furthermore, the courts shall be competent if an applicant or the person whom the applicant wishes to adopt is a Swedish national, provided the authorities of the state of habitual are not competent to consider the application. It should also be possible to consider applications in other cases where there are special reasons for the matter being considered in , for instance when there are links to several countries, but none of them are stronger than the link with . Under the proposed act, the main rule is also that an application for adoption should be considered according to Swedish law. However, the Committee proposes one exemption from this. If the application refers to a child under the age of 18 who is habitually resident abroad or who has been brought to for the purpose of adoption, the issue of the parents consent to the adoption should be considered according to the law of the childs state of origin. If the consent of the childs parents is not required under such foreign law (for instance, as a result of the parents having been deprived of their parental responsibility), consent will consequently not be required in the Swedish adoption matter either. This proposed choice of law rule should not be applied if there are no rules on adoption in the childs state of origin. It is in the interests of the child that an adoption that has been decided in a country to which the child and/or the adopters had a natural close link be recognised in . Dual proceedings can be avoided and the childs legal position made stronger by recognising such an adoption. With this point of departure, the Committee proposes that a determination regarding adoption that has entered into final legal force abroad should be recognised in if it has been made or if it is otherwise recognised in the state where the adopter was habitually resident when the determination was made. A determination should also be recognised if it has been made in or if it is otherwise recognised in the state where the party who has been adopted habitually resided when the adoption procedure commenced. In this case, if the person who has been adopted is under the age of 18 and the adopter was habitually resident in , it is required that the adoption be mediated by an authorised adoption organisation or that the adopter has received permission to adopt without the mediation of such an organisation. An approval from should be required if the party adopted was a Swedish national or was habitually resident in when the foreign determination was issued. should also be able to approve other determinations concerning adoption if there was reasonable cause to entertain the application in the other state, considering a partys place of habitual , nationality or other tie. The current possibility of appealing against MIAs decision to the Swedish Government should be removed and instead such appeals be made to a general administrative court. However, the Committee considers that, beyond the current rules on public policy, no other provisions are required concerning refusal of recognition, competing proceedings, or the judicial confirmation of foreign determinations. As a rule, a foreign determination that is recognised in should have the same legal effects as a Swedish adoption. However, the adoption should not be allowed to have such an effect in if the adoption, according to the law in the state where the decision was made, does not involve the cessation of the legal relationship between the person who has been adopted and her or his original relatives (weak adoption). It should be possible to change a weak adoption into a strong adoption. This transformation shall be decided by a general court upon application by the adopter or adopters. The need for representatives for children who come to for the purpose of adoption has deliberated on the need for special representatives for children who come to with the intention of being adopted. The assessment of the Committee is that current law provides sufficient opportunities to protect the rights of such children. A guardian ad litem can be appointed for the child pursuant to the Act on Guardians Ad Litem for Unaccompanied Children (2005:429) as long as the child has not received a permit in . However, the relevant authorities (primarily , social welfare committee and chief guardian) may need to have their attention drawn to this possibility. The provisions of Chapter 6 of the Children and Parents Code on special representatives for children may be applied to satisfy the childs need for a representative from the time that the child has been granted a permit, and thereby normally habitually resident in . 1Förslag till lag om internationella rättsförhållanden rörande adoption Härigenom föreskrivs följande. 1 § Denna lag är tillämplig på frågor om adoption när det finns anknytning till en annan stat. Lagen gäller inte om något annat följer av annan lag eller av förordningen (1931:429) om vissa internationella rättsförhållanden rörande äktenskap, adoption och förmynderskap. 2 § En ansökan om adoption får tas upp av svensk domstol, om 1.den eller de sökande har hemvist i , 2.den som sökanden vill adoptera har hemvist i , 3.en sökande eller den som sökanden vill adoptera är svensk medborgare, såvida hemviststatens myndigheter saknar behörighet att pröva ansökan, eller 4.det i annat fall än som avses i 1–3 finns särskild anledning att saken prövas i . 3 § En ansökan som gäller ett barn som har förts eller avses bli fört till för adoption, får tas upp till prövning endast om 1. adoptionen har förmedlats av en sammanslutning som är auktoriserad enligt lagen (1997:192) om internationell adoptions- förmedling, eller 2. sökanden eller sökandena har fått tillstånd att adoptera barnet utan förmedling av en sådan sammanslutning. 4 § En ansökan om adoption prövas enligt svensk lag. Om ansökan avser ett barn , ska domstolen vid bedömningen av om adoptionen är till barnets bästa särskilt beakta om en sökande eller barnet genom medborgarskap eller hemvist eller på något annat sätt har anknytning till en annan stat och det skulle medföra avsevärd olägenhet för barnet, om adoptionen inte blir gällande där. 5 § Om ansökan avser ett barn som har hemvist utomlands eller som har förts till i syfte att adopteras, ska frågor om föräldrarnas samtycke till adoptionen prövas enligt lagen i barnets ursprungsstat. Första stycket gäller inte om det saknas regler om adoption i barnets ursprungsstat. Det som har sagts om barnets föräldrar gäller även i fråga om den som får anses ha trätt i föräldrarnas ställe i barnets ursprungsstat. Erkännande av utländska avgöranden 6 § Ett lagakraftvunnet avgörande om adoption som har meddelats av en utländsk domstol eller annan myndighet gäller i 1.om det har meddelats eller annars erkänns i den stat där adoptanten eller adoptanterna hade hemvist när avgörandet meddelades, eller 2.om det har meddelats eller annars erkänns i den stat där den som har adopterats hade hemvist när adoptionsförfarandet inleddes. 7 § Om den som har adopterats var och adoptanten eller adoptanterna hade hemvist i när det utländska avgörandet meddelades, gäller avgörandet i det fall som sägs i 6 § 2 endast om 1.adoptionen har förmedlats av en sammanslutning som var auktoriserad enligt lagen (1997:192) om internationell adoptions- förmedling, eller 2.adoptanten eller adoptanterna har fått tillstånd att adoptera barnet utan förmedling av en sådan sammanslutning. 8 § Om den som har adopterats var svensk medborgare eller hade hemvist i när det utländska avgörandet meddelades, gäller avgörandet i endast om det godkänts av en myndighet.