Bản dịch văn bản 08/2006/TT-BTP
thong-tu-08-2006-tt-btp
Cơ quan ban hành: Bộ Tư pháp
Ngày ban hành: 2006-12-09

CIRCULAR Guiding the implementation of a number of provisions on child adoption involving foreign elements Pursuant to the Government's Decree No. 62/2003/ND-CP of June 6, 2003, defining the functions, tasks, powers and organization of the Ministry of Justice; Pursuant to the Government's Decree No. 68/2002/ND-CP of July 10, 2002, detailing the implementation of a number of articles of the Law on Marriage and Family regarding marriage and family relations involving foreign elements (hereinafter referred to as Decree No. 68/2002/ND-CP for short); Pursuant to the Government's Decree No. 69/2006/ND-CP of July 21, 2006, amending and supplementing a number of articles of Government's Decree No. 68/2002/ND-CP of July 10, 2002, detailing the implementation of a number of articles of the Law on Marriage and Family regarding marriage and family relations involving foreign elements; Pursuant to the agreements on cooperation on child adoption between Vietnam and other countries; In order to ensure the consistency of provisions on child adoption involving foreign elements, to raise the effectiveness of state management and settle the adoption of Vietnamese children by foreigners; The Ministry of Justice hereby guides the implementation of a number of provisions on child adoption involving foreign elements as follows: I. GENERAL PROVISIONS 1. Scope of guidance This Circular guides the implementation of Articles 35, 36, 37, 41, 42, 43, 44, 45, 46, 47, 49 and 51 and Clause 1, Article 79 of the Government's Decree No. 68/2002/ND-CP of July 10, 2002, detailing the implementation of a number of articles of the Law on Marriage and Family on marriage and family relations involving foreign elements, which were amended and supplemented under the Government's Decree No. 69/2006/ND-CP of July 21, 2006 (hereinafter referred to as Decree No. 68/2002/ND-CP (amended and supplemented)), and the agreements on child adoption cooperation between Vietnam and other countries, in order to ensure their consistent application with regard to different categories of applicants, the order and procedures for settling the adoption of Vietnamese children by foreigners. 2. Translation, notarization and authentication of dossiers Foreign-language dossiers of application for child adoption must be translated in Vietnamese; their Vietnamese translations must be authenticated by overseas Vietnamese diplomatic missions or consulates. According to the agreement between the central international adoption agency of the country which, together with Vietnam, is a contracting party to an agreement on child adoption cooperation, dossiers of application for child adoption may be translated in Vietnam and their Vietnamese translations must be notarized or authenticated in Vietnam. 3. It is strictly prohibited to deal in and act as intermediary for self-seeking purposes in the domain of child adoption 3.1. Domestic and foreign organizations and individuals are strictly prohibited from dealing in and providing intermediary services in child adoption for self-seeking purposes or abusing the adoption to traffic in, exploit or sexually abuse children or for other self-seeking purposes. 3.2. Adopters are strictly prohibited from adopting particular children through the direct introduction of Vietnam-based foreign child adoption offices or making payments in cash or in kind or offering other material interests to agencies, organizations or individuals for acting as intermediaries in the application for child adoption. II. ADOPTION APPLICANTS, CHILDREN TO BE ADOPTED 1. Adoption applicants Under Article 35 and Clause 1, Article 79 of Decree No. 68/2002/ND-CP (amended and supplemented), applicants for adoption of Vietnamese children include: 1.1. Foreigners permanently residing in a country which, together with Vietnam, is a contracting party to a bilateral or multilateral agreement on child adoption cooperation (the list of these countries is enclosed with this Circular). Foreigners of this category may apply for adoption of any children defined in Clauses 2, 3 and 4, Article 36 of Decree No. 68/2002/ND-CP (amended and supplemented). 1.2. Foreigners permanently residing in a country which, together with Vietnam, is not a contracting party to a bilateral or multilateral agreement on child adoption cooperation. If falling into one of the following cases, they may apply for adoption of any children defined in Clauses 2, 3 and 4, Article 36 of Decree No. 68/2002/ND-CP (amended and supplemented). a/ Having worked or studied in Vietnam for six months or more. The six-month period is counted as per entry into and exit from Vietnam; if both husband and wife apply for adoption, only either of them is required to meet this condition; b/ Their wives, husbands, fathers or mothers being Vietnamese citizens or of Vietnamese origin. Foreigners of Vietnamese origin are understood, according to the provisions of Circular No. 2461/2001/TT-BNG of October 5, 2001, as those who have or used to have Vietnamese nationality or who have their natural fathers, mothers, parental grandfathers, parental grandmothers, maternal grandfathers or maternal grandmothers have or used to have Vietnamese nationality; c/ Having blood or close relations with to be-adopted children or having their current adopted children being natural siblings of to be-adopted ones. Blood relations are understood as relations between adoption applicants who are (parental or maternal) aunts or uncles of to be-adopted children. Adoption shall not be allowed between those who have blood relations as between grandfathers, grandmothers or siblings and to be-adopted children. Close relations are relations between adoption applicants who are stepfathers and their wives' children or stepmothers and their husbands' children. 1.3. Foreigners permanently residing in a country which, together with Vietnam, is not a contracting party to a bilateral or multilateral agreement on child adoption cooperation. If not falling into one of the following cases specified at Points a, b and c, Clause 3, Article 35 of Decree No. 68/2002/ND-CP (amended and supplemented), they may only apply for adoption of handicapped or disabled children, children having lost their civil act capacity, children being victims of toxic chemicals or affected by HIV/AIDS or infected with other dangerous diseases who are living with families or in nurturing establishments lawfully set up in Vietnam or orphaned children living with families. 1.4. Overseas Vietnamese may apply for adoption of any children defined in Clauses 2, 3 and 4, Article 36 of Decree No. 68/2002/ND-CP (amended and supplemented) irrespective of whether or not Vietnam and the country where they reside are contracting parties to a bilateral or multilateral international agreement on child adoption cooperation. Overseas Vietnamese are understood as Vietnamese nationality-bearing persons who reside, work or live permanently in a foreign country, irrespective of whether they have been naturalized in that country. 2. Children to be adopted Under Article 36 of Decree No. 68/2002/ND-CP (amended and supplemented), children who may be adopted include: 2.1. Children living in nurturing establishments lawfully set up in Vietnam. Lawfully set up establishments are understood as social relief establishments set up under the Regulation on establishment and operation of social relief organizations promulgated together with the Government's Decree No. 25/2001/ND-CP of May 31, 2001 (hereinafter referred to as nurturing establishments). People's Committees of provinces and centrally run cities (hereinafter referred to as provincial-level People's Committees) shall direct provincial-level Justice Services to coordinate with provincial-level Labor, War Invalids and Social Affairs Services in notifying the International Child Adoption Agency of the list of these establishments and the lists of children living in these establishments who are eligible for introduction of adoption. The introduction of children living in nurturing establishments for adoption must comply with the following provisions: a/ Priority shall be given to introducing children for adoption by persons in the country; the introduction of a child for adoption in a foreign country shall be regarded as the last resort when it is impossible to find in the country a family wishing to adopt the child. b/ Only after 30 days from the date of being sent to a nurturing establishment may a child be introduced for adoption; for abandoned newborns, only after 60 days from the date of their discovery may they be introduced for adoption; c/ An abandoned child living in a nurturing establishment may be introduced for adoption by a foreigner only when after 30 days from the date of announcement on the provincial-level mass media there is no relative coming to claim the child and no person who lives in the country adopting him/her. 2.2. Children living with families may be adopted by foreigners if they fall in the case specified in Clause 3, Article 36 of Decree No. 68/2002/ND-CP (amended and supplemented). For a child who has a blood relation with the adoption applicant, the adoption shall be allowed only when the adoption applicant is the (paternal or maternal) aunt or uncle living in a foreign country and the child's mother and father are dead or either of them is dead while the other has no working capacity and conditions to rear the child or the child's mother and father are still alive but they have no working capacity and conditions to rear the child. For a child who has a blood relation with the adoption applicant, if his/her mother and father are still alive, the child's and his/her parents' health is in normal conditions and his/her parents still have working capacity and conditions to take care of their child in Vietnam, his/her adoption by a foreigner shall not be allowed. 2.3. For handicapped or disabled children, children being victims of toxic chemicals, children affected by HIV/AIDS, children suffering from other dangerous diseases (used to live in nurturing establishments or with families) who are receiving medical treatment in a foreign country, if there are foreigners or overseas Vietnamese applying to adopt them, their adoption shall be considered and settled by overseas Vietnamese diplomatic missions or consulates as for children who have no domestic residence status. III. GUIDANCE ON THE ORDER AND PROCEDURES FOR SETTLING ADOPTION 1. Dossiers submitted by adoption applicants An adoption applicant shall submit a dossier comprising papers as stipulated in Article 41 of Decree No. 68/2002/ND-CP (amended and supplemented), paying attention to the following points: a/ The application must contain all information according to the set form, stating the applicant's expectations on the child he/she wishes to adopt (number of children, age, gender and health conditions), which must be suitable to the permit or the survey report on the applicant's family and social circumstances granted by a competent foreign agency; b/ If, when submitting the dossier, the applicant does not yet have a passport but only a notarized copy of the people's identity card, the laisser passez or residence card and Vietnam's papers all use the name of the applicant according to that paper, the applicant, when coming to the provincial-level Justice Service to complete adoption procedures, is not required to submit a copy of his/her passport; c/ For an applicant who falls into one of the cases in Clause 3, Article 35 of Decree No. 68/2002/ND-CP (amended and supplemented): - If falling into the case at Point a, the applicant must have a copy of the visa of Vietnam entry and exit (single) or another paper to prove the stay of at least 6 months in Vietnam. - If falling into the case at Point b, the applicant must have an appropriate paper of proof (proving that the applicant has a spouse or parent who is a Vietnamese citizen or of Vietnamese origin). - If falling into the case at Point c, the applicant must have a written certification of the commune-level People's Committee of the place where the child resides certifying the applicant's blood relation with the to be-adopted child; a copy of the marriage certificate of the applicant and the father or mother of the to be-adopted child and the child's birth certificate to prove the close relation; a copy of a competent Vietnamese agency's decision allowing the adoption, the birth certificate of the adopted child and the to be-adopted child to prove that the applicant currently has an adopted child who is the blood sibling of the to be-adopted child. d/ For the applicants who are husband and wife, if in the course of processing their dossier either of them dies and the other still wishes to adopt the child, the papers mentioned at Points a, c and d, Clause 1, Article 41 of Decree No. 68/2002/ND-CP (amended and supplemented) must be re-made. 2. Procedures for receiving and processing dossiers The procedures for receiving and processing dossiers of adoption applicants shall be carried out in accordance with Article 42 of Decree No. 68/2002/ND-CP (amended and supplemented), with attention paid to the following points: 2.1. Before receiving a dossier, the International Child Adoption Agency shall check and take responsibility for the eligibility of the adoption applicant as stipulated in Clause 2 and Clause 3, Article 35 and Clause 1, Article 79 of Decree No. 68/2002/ND-CP (amended and supplemented) and as guided at Point 1, Section II of this Circular. 2.2. Dossiers shall be submitted as follows: a/ Adoption applicants falling into the case specified in Clause 2, Article 35 of Decree No. 68/2002/ND-CP (amended and supplemented) shall submit dossiers of adoption application through a Vietnam-based foreign child adoption office or concerned competent foreign agency. The head or a duly authorized staff of the foreign child adoption office or the representative of the competent foreign agency shall submit dossiers of adoption application directly to the International Child Adoption Agency. b/ Adoption applicants falling into the cases specified in Clause 3, Article 35 of Decree No. 68/2002/ND-CP (amended and supplemented) shall submit dossiers of adoption application directly to the International Child Adoption Agency, if applying for adoption of children in Vietnam, or to through an overseas Vietnamese diplomatic mission or consulate, if applying for adoption of Vietnamese children in foreign countries. 2.3. After checking and finding that the adoption applicants' dossiers are complete and valid, the International Child Adoption Agency shall issue dossier receipt cards (according to a set form) to the dossier submitters; the time of processing a dossier shall be counted from the date of issue of such a dossier receipt card. 3. Case of application for adoption of specified children The application for adoption of a specified child may be allowed only in the following cases: a/ The adoption applicant falls into a case specified in Clause 3, Article 35 and Clause 1, Article 79 of Decree No. 68/2002/ND-CP (amended and supplemented); b/ The adoption applicant falls into the case specified in Clause 2, Article 35 of Decree No. 68/2002/ND-CP (amended and supplemented) and: - Has a working duration in Vietnam for at least six months; or - His/her spouse, father or mother is a Vietnamese citizen or of Vietnamese origin; or, - Has the blood or close relation with the to be-adopted child or currently has an adopted child who is the sibling of the to be-adopted child. 4. Dossiers of children introduced for adoption Dossiers of children introduced for adoption by foreigners must comprise the papers specified in Article 44 of Decree No. 68/2002/ND-CP (amended and supplemented), with attention paid to the following papers: 4.1. For the child's birth certificate, a duplicate from the original book or a notarized or authenticated copy of the original certificate. 4.2. For the child's health certificate, it may be issued by a Vietnamese health agency of the district or higher level; it is encouraged to submit a heath certificate issued by a high-quality health agency or a health agency of the provincial or higher level. 4.3. For a child whose mother and/or father no longer has/have working capacity or adequate conditions to take care and rear the child, a written certification of the commune-level People's Committee of the place where the father or mother resides is required. 4.4. For an abandoned child, in order to ensure the clear origin of the child, the following papers are required: a/ A report of the person who discovered the abandoned child, containing clear and full information on the discoverer (full name, date of birth, native place, contact address, occupation and identity card number) and his/her signature; if the discoverer is illiterate, the report must be pressed with his/her fingerprint and contain the full name, date of birth, native place, identity card number and signature of the report writer; b/ A written record on the abandonment of the child, indicating the date and place of discovery of the child, his/her gender and identification marks, property and other articles (if any) and containing the signature of the discoverer, the record maker and other concerned persons and the certification of the commune People's Committee or police of the place where the child was abandoned; c/ A paper proving that the nurturing establishment already announced on the mass media of the provincial or higher level on the child's abandonment at least 30 days ago; d/ A written commitment of the head of the nurturing establishment that after the expiration of a 30-day period counting from the date of announcement on the mass media of the provincial or higher level there was no relative coming to claim the child or no person in the country wishing to adopt the child. 4.5. For the written agreement to let the child be adopted, it must be ensured that: a/ The agreement of the head of the nurturing establishment, the natural parents or the guardian to let the child adopted must be absolutely voluntary and in the best interest of the child; the adoption applicant is strictly prohibited from meeting and contacting the head of the nurturing establishment, the natural parents or the guardian of the child to offer financial arrangements, material benefits or for any self-seeking purposes so as to get the agreement to let the child be adopted; b/ Before voluntarily agreeing to let the child be adopted by a foreigner, the head of the nurturing establishment, the natural parents or the guardian of the child must be clearly and fully aware of the legal consequences of their agreement to let the child be adopted in a complete/permanent manner, which would possibly result in the termination of the previous legal relations between the child and his/her natural parents according to foreign laws; this agreement cannot be withdrawn; c/ For an abandoned child, if his/her natural parents are unidentified because they deliberately conceal their address, supply a bogus address or, though having the address of the parents, at the time of verification, the parents have a plausible request for keeping secret information on them or the parents have moved to an unknown place, only the voluntary agreement of the head of the nurturing establishment of the child is required; d/ For a child reared at a nurturing establishment and whose natural parents have not yet expressed their agreement to let the child be adopted by a foreigner, if the address of the natural parents is available, their written agreement to let their child be adopted by a foreigner is required; if the natural parents are less than 18 years old, the written agreement of their guardian is also required; if these persons are illiterate, the written voluntary agreement must be pressed with their fingerprints and contain the full name, date of birth, native place, identity card number and signature of the agreement writer. 5. Order of introduction of children for adoption in case of adoption of unspecified children All cases of application for adoption through Vietnam-based foreign child adoption offices (not defined at Point 3.1., Item 3, Section III of this Circular) shall be handled as the case of application for adoption of unspecified children defined in Article 51 of Decree No. 68/2002/ND-CP. The order of introduction of a child for adoption is as follows: 5.1. After receiving the complete and valid dossier of the adoption applicant, on the basis of the lists of children living in the nurturing establishment, their characteristics and conditions and the expectations of the adoption applicant, the International Child Adoption Agency shall make an official letter and send it together with a copy of the dossier receipt card and the application of the adoption applicant to the provincial-level Justice Service so that the latter can guide the nurturing establishment to consider and introduce children. 5.2. Within 15 days after receiving the official letter of the International Child Adoption Agency, the provincial-level Justice Service shall make an official letter requesting the nurturing establishment to identify an eligible child (on the reported lists of children) who meets the expectations of the adoption applicant for introduction for adoption and issue a written reply to the International Child Adoption Agency, enclosed with the papers mentioned at Point 5.3, Item 3, Section III of this Circular. 5.3. Within seven days after receiving the official letter of the provincial-level Justice Service, the nurturing establishment shall identify a child eligible for introduction for adoption and make an official letter in response to the provincial-level Justice Service (according to a set form), enclosed with the following papers: a/ A copy of the birth certificate (enclosed with two 9 cm x 12 cm or 10 cm x 15 cm photos) of the child; b/ A copy of the written record on the delivery of the child to the nurturing establishment; for children abandoned at the nurturing establishment, the report of the discoverer is required; c/ A copy of the decision on admission of the child to the nurturing establishment, issued by a competent agency or organization. d/ For abandoned children, the following papers are required: - A paper proving that the nurturing establishment already announced on the mass media of the provincial or higher level on the child's abandonment at least 30 days ago (such as a provincial newspaper or a written certification of the broadcasting of the announcement on the provincial radio or television station). - A document of the head of the nurturing establishment confirming that after the expiration of a 30-day period counting from the date of announcement on the mass media of the provincial or higher level there was no relative coming to claim the child or no person in the country wishing to adopt the child. 5.4. Within seven days after receiving the written reply of the provincial-level Justice Service, the International Child Adoption Agency shall inform the adoption applicant of the result of introduction of a child for adoption (through the Vietnam-based foreign child adoption office). 5.5. Within 30 days after receiving the notice of the International Child Adoption Agency, the adoption applicant shall give a written reply to the International Child Adoption Agency that he/she agrees or disagrees to adopt the introduced child (through the Vietnam-based foreign child adoption office). 5.6. Only after receiving the adoption applicant's written agreement to adopt the child introduced according to the above procedures shall the International Child Adoption Agency send an official letter (official letter 1) to the provincial-level Justice Service for guiding the nurturing establishment to prepare a dossier for the child; only then shall the nurturing establishment compile an official dossier for the child. If the adoption applicant refuses to adopt the introduced child, the International Child Adoption Agency shall send an official letter to the provincial-level Justice Service so that the latter informs the nurturing establishment to introduce another child; the adoption applicant may be introduced another child only after 12 months from the date of sending a written refusal. 6. Procedures for checking dossiers of children 6.1. After receiving four sets of the dossier of the child from the nurturing establishment, the provincial-level Justice Service shall check all papers in the dossier, examine the legality of these papers and conduct verification to clarify the origin of the child according to the provisions of Article 45 of Decree No. 68/2002/ND-CP, paying special attention to the papers mentioned at Point 4, Section III of this Circular. When it has requested the police to conduct the verification according to the provisions of Clause 2, Article 45 of Decree No. 68/2002/ND-CP, the provincial-level Justice Service shall send a copy of the document on the police's verification result together with one set of the child's dossier to the International Child Adoption Agency. 6.2. The International Child Adoption Agency shall check all the dossier of the child according to the provisions of Article 46 of Decree No. 68/2002/ND-CP and shall send an official letter (official letter 2) expressing its approval of the adoption by the foreigner of the child, enclosed with one set of the dossier of the adoption applicant, to the provincial-level Justice Service for submission to the provincial-level People's Committee for decision only when it sees that the child's dossier is complete and valid according to the provisions of Decree No. 68/2002/ND-CP (amended and supplemented) and the guidance in this Circular. 7. Completion of procedures for adoption application The procedures for adoption application shall be completed under the provisions of Article 47 of Decree No. 68/2002/ND-CP (already amended and supplemented), with attention paid to the following points: If the adoption applicant can not be present in Vietnam for a plausible reason within 30 days after receiving the notice of the provincial-level Justice Service in order to complete the procedures for adoption application, the applicant shall send a written request to the provincial-level Justice Service for an extension. If approving of the extension, the provincial-level Justice Service shall notify its approval to the Vietnam-based foreign child adoption office for notification to the adoption applicant; an extension duration must not exceed 60 days as from the date the provincial-level Justice Service issues an written approval of the extension. If the adoption applicant cannot be present in Vietnam for a plausible reason within the above time limit, he/she shall authorize in writing the foreign child adoption office to come to the provincial-level Justice Service to pay a fee and submit a written commitment (made according to a set form) on sending to the provincial-level People's Committee and the International Child Adoption Agency biannual notifications on the development of the adopted child within the first three years and annual notifications till the adopted child reaches full eighteen years of age; the applicant shall express his/her commitment not to refuse to adopt the introduced child and sign in the written authorization, which is not required to be notarized or authenticated. 8. Completion of exit procedures for children 8.1. After the provincial-level People's Committee issues a decision permitting the adoption of the child by the applying foreigner and the child has been delivered and received at the provincial-level Justice Service, functional agencies shall create favorable conditions for the completion of procedures for the child to leave Vietnam, enter and reside in the host country. 8.2. For an adopted child living in a nurturing establishment, the declaration form for the grant of a passport to the child must be certified with the signature of the director of the provincial-level Justice Service for certification; for an adopted child living with a family, this form must be certified with the signature of the commune, ward or township police of the place where the child's permanent civil status is registered. 9. Adoptive parents' request for cancellation of adoption decisions When the provincial-level People's Committee has issued a decision permitting the adoption of the child by the applying foreigner and the child has been delivered and received at the provincial-level Justice Service but the child has not yet left Vietnam and the adoptive parents file a written request for cancellation of the adoption decision for a plausible reason (such as they suddenly suffer a dangerous disease and are unable to take care of the adopted child; the adopted child suffers a dangerous disease and is unable to leave Vietnam as this would endanger his/her life; the adopted child cannot integrate with the adoptive parents and insists to stay in Vietnam, or for other plausible reasons), the International Child Adoption Agency shall report their request to Justice Ministry leaders for coordinating with the provincial-level People's Committee in considering and settling this request. If seeing that the reason for cancellation of the adoption decisions is plausible and in the best interest of the child, the provincial-level People's Committee shall cancel or withdraw the decision permitting the adoption of the child by the foreigner and direct the return of the child to the nurturing establishment or the family for continued rearing in accordance with law. IV. ORGANIZATION OF IMPLEMENTATION 1. If a bilateral or multilateral agreement on child adoption cooperation to which Vietnam is a contracting party contains provisions different from those of this Circular, the provisions of that agreement shall be applied. 2. This Circular takes effect 15 days after its publication in "CONG BAO." 3. To annul the provisions of Points 3.1, 3.2 and 3.3, Item 3, Section II of the Justice Ministry's Circular No. 07/2002/TT-BTP of December 16, 2002, guiding the implementation of a number of articles of the Government's Decree No. 68/2002/ND-CP of July 10, 2002, detailing the implementation of a number of articles of the Law on Marriage and Family regarding marriage and family relations involving foreign elements. 4. In the course of implementation, if arise any problems or new issues, provincial-level People's Committees and Justice Services shall send official letters thereon to the Ministry of Justice for timely guidance.