Tuesday, 5 March 2013

When intercountry adoptions go wrong...

Various reports today from the US tell of the awful predicament of a South Korean baby and her adoptive parents.

At the centre of this intercountry adoption gone wrong is Baby Sehwa.  Born in South Korea in June 2012, she started living with her adoptive parents - Jinshil and Christopher Duquet - within days of her birth.

The Duquets – both US nationals – then sought to bring Sehwa into the USA and to their home in Chicago.

It was when Jinshil Duquet tried to enter the US with the baby that authorities at O'Hare International Airport found she lacked the required paperwork for an adoption.

Proceedings were then brought involving the South Korean government and US Department of Justice, running in parallel in both the local and federal courts.  The adoptive parents were accused of circumventing South Korean adoption laws.  For their part, the Duquets said they relied on bad legal advice and thought they were participating in a lawful private adoption.

Last Thursday came the decision that Sehwa must be returned to South Korea.  She will be placed with a foster family there for adoption locally (as opposed to being returned to an orphanage).  Her birth mother and grandparents relinquished parental rights to the Duquets, and are not seeking her return to them.  The court heard that the birth mother lives at a homeless shelter for unmarried mothers and has another child. 

Sehwa’s fate was sealed by the Duquets’ failure to observe South Korean law, which requires placement of a child through a licensed adoption agency.  Jinshil Duquet, a South Korea native who moved to the US as a child, told the US court she had learned about the baby through a pastor with ties to her family.  She contacted immigration lawyers in Chicago, who put her in touch with a South Korean lawyer who said he could arrange for a private adoption.  The Duquets had earlier adopted an older daughter from South Korea by going through an agency but were told they were too old under South Korean law to follow the same procedures again.

The Duquets argued unsuccessfully that, despite their mistakes, it was in Sehwa's best interests to remain with them as she had done for the first nine months of her life.

Sehwa is due to travel back to South Korea tomorrow.

Her case provides a stark demonstration of what can go wrong in transnational adoption cases, and (when they do) how potentially catastrophic the consequences for the adopters and child.

Applying the lessons learned from this US case locally, international adoption involves family law issues in parallel with questions of criminal law and immigration practice.  For example, it is a criminal offence in some circumstances for adopters living here to try to adopt a child abroad, or to bring a child to the UK to adopt him or her here.  The penalties for the offence may include a fine or up to a year in prison.  The immigration issues relate to obtaining entry clearance and nationality for the adoptive child.  

Failure to be aware of this complex interaction might have unexpected and disastrous consequences. 

There are several international treaties, obligations and mechanisms for determining whether an adoption order made abroad is capable of being recognised elsewhere.  The UK, for example, automatically recognises some countries’ adoption orders.  Other countries’ are not, and further court proceedings will be required to obtain recognition of the foreign order. 

One of these treaties is the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.  The US and the UK are both signatories to that agreement, which is intended to standardise the approach to transnational adoption to protect the rights and best interests of the children at the centre of the process.  South Korea is not a signatory.  Had it been, and had the Duquets adopted Sehwa in accordance with the Convention, she would not face the wrench of being separated from the only parents she has ever known. 

The moral of this cautionary tale is those considering intercountry adoption must take advice.  Take advice from a specialist in intercountry adoption both here and in the other country.  Take it early.  By doing so, situations like the Duquets can be avoided!

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