 Introduction

o 3 conventions on inter country adoption –

 Hague convention on aspects of int child abduction, 1980
 Hague convention on protection for children and for co-operation in respect of inter-
country adoption 1993
 The Hague convention on jurisdiction, applicable law, recognition and enforcement
and co-operation in respect of parental responsibility and protection of children 1996:
 Hague convention on protection for children and for co-operation in respect of inter-country
adoption 1993
o Only covers adoptions which create permanent parent-child relationship
o An adoption can only take place after:
 The competent authorities of the ‘state of origin’ have determined that the child is
adoptable.
 That inter-country adoption is in the best interests of the child
 Necessary permissions from the competent authorities have been secured
 Consent of the mother has been given only after ‘birth’ of the child
 Child, if mature and old enough, has been consulted and its opinions considered
 The competent authorities of the ‘receiving state’ have stated that parents are
eligible to adopt.
 Parents have been consulted
 Child will be authorise to enter and reside permanently in that state
o Can only take place if : formalities have been completed before the child attains the age
of 18
o Adoption in accordance with these rules will be recognised by operation of law in all the
contracting states.
o Recognition of adoption includes recognition of:
 The legal parent child relationship
 Parental responsibility of the adoptive parents for the child
 The termination of the pre-existing legal relationship b/w mother-father and the
child

 The Hague convention on jurisdiction, applicable law, recognition and enforcement and co-operation
in respect of parental responsibility and protection of children 1996:

o object is to determine
 which state has jurisdiction to take measure to protect the person or property of the
child
 which law is to be applied in exercising jurisdiction
 to provide for recognition and enforcement of measure for the protection of children
in all states
o applies to children from birth till they attain the age of 18
o measures to be taken include:
 attribution and termination of parental responsibility
 rights of custody
 guardianship
 placing the child with foster parents
 o does not deal with:
 establishing or contesting the parent-child relationship, adoption or trusts
o in cases of proceedings of divorce etc. court may pass orders for custody of the child
o courts have powers to :
 pass interim measures or provisional measures for the protection of the child
o no court shall entertain the matter or protection of child if for the same purpose have already
been adopted in the courts of another contracting state
o courts will apply:
 their own law
 in exceptional cases may take into consideration the law of the state which has a
substantial connection
o Exercise of parental responsibility is governed by law of habitual residence of child. Straight
application of law of habitual residence in case of choice of law.
o Order passed by the courts in accordance with the convention will be recognised in all
countries unless
 No jurisdiction according to the convention
 If the child has not been consulted
 Parent was not given opportunity to get heard
 Recognition is contrary to public policy

 England
o English courts apply English law as long as child present in England
 Disregards domicile, nationality.
o Legitimacy – child presumed legitimate if born out of wedlock
 Can also be legitimised
o Adoption
 Creation of statute
 Same status as that of natural children
 Foreign adoption orders recognised if person adopting is domicile of that country
 India
o Parens Patriae
o Guardianship
 Hindu Guardianship and minority act
 Father = guardian for boy or unmarried girl and after him, the mother.
 Illegitimate – mother
 Married girl – husband
 Hindu adoption and maintenance act – adopted child – guardianship of adoptive
parents
 Muslim personal law – guardianship of boy till 7 + girls till puberty = mother.
Guardianship of property of minor = father
 Guardians and ward’s act
o Legitimacy
 Hindu sucession act
 Hindu marriage act
 Out of wedlock (non void marriages)
 Illegitimate children can inherit
 Muhammadean law
 Hanafi school – illegitimate children cannot inherit but can from mother. Shais
– they cannot inherit at all.
 112 IEA – presumption of legitimacy – duration of marriage to 280 days from
dissolution of marriage
 Presumption of marriage
o Adoption
 HAMA
 Both should have capacity to do so
 Married couple with each other’s permission
 Minor/unsound cant adopt