Adopting a child and the child (such as in the case of adopting the child of a spouse) is often a long and cumbersome process. It involves various entities that are all there to supervise the adoption process.
Who Can Adopt?
The law provides that a prospective adopter has to be at least 28 years and at least 21 years older than the child to be adopted. The prospective parent cannot be more than 45 years older than the child. The court may dispense with this rule is case when a person is adopting siblings. This rule may also be dispensed with in other circumstances.
The key institutions in adoption are 1) the Adoptions Board, 2) the Malta Central Authority, 3) the Adoption Agencies and 4) the Law Courts. Their functions are:
The Adoptions Board
has the duty to ensure that the parents are fit to adopt children. They will check whether they are psychologically sound enough to provide care for the children. They will see whether there is any physical issue which makes them incapable of doing so. They will also check whether they have the financial means to support an adopted child. The board is likely to consider the number of children that the couple wish to adopt and see the number of children they are capable or raising. Once the board determines that the prospective adoptive parents are suitable and eligible for adopting children they will certify them as such, so they could proceed with being matched with a child.
The Adoption Agency
is an independent private organisation, which usually has both lawyers and social workers. The adoption agency will also have contacts on the ground who will be aware that a child is free for adoption, whether in Malta or abroad.
The Central Authority
is a government agency which supervises the adoption process. It accredits the adoption agencies so that they are able to train prospective adoptive parents and match children free for adoption with prospective adoptive parents. The Central Authority may take measures to ensure that illicit practices do not happen in the course of an adoption. Such illicit practices could include payments that are inappropriate and ensure that there is no undue pressure on the parents of the child.
The Court
will have the final say on whether an application for an adoption is authorised or not. The court will examine whether all the paperwork is in order and decree accordingly. In particular, it will check whether there is the consent of the adoptions board and that of the central authority has been given. In case of foreign adoptions, the court may request to see the adoptions decree from abroad authorising the adoption.
The 1993 Hague Convention
The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption is a convention that is signed by over 100 countries from around the world. The convention increases the standards of inter-country adoptions by established central authorities who need to supervise the adoptions process to ensure that illicit practices do not take place.
The 1993 Hague Convention seeks to facilitate inter-country by ensuring children who are the subject of an inter-country adoption do not end up entangled in legal wrangling between the authorities in different states, remaining stuck in legal limbo. Article 23 of the Convention specifically provides that once an adoption decree is granted in a contracting state and the criteria established by the Convention are fulfilled, the other contracting state is duty-bound to recognise the foreign adoption decree. This removes the need for the process of recognising and enforcement of the foreign adoption decree, which is often a cumbersome legal process.
