According to the United Nations' Human Development Reports Australia ranks an equal second in the world for its human development index (HDI); meaning that is one of the most developed countries in the world. Countries with substantially lower HDI's, such as those in Africa, are unfortunately some of the least developed countries in the world and consequentially subject to political, social, and economic instability – the driving factors for child abandonment and loss of parental care for children (United Nations, 2016). Vietnam and Romania are two instances where instability of government and other turmoil caused the displacement of many children. On account of the instability in these countries, there is little that can be done domestically in the best interests of parentless children; there are however alternate options that are able to provide for the best interests of the child, such as intercountry adoption from unstable countries to stable countries with improved resources – like Australia.
While intercountry adoption is the most effective alternative from domestic solutions for the wellbeing of children, it has unfortunately declined significantly from 434 in 2004 to just 69 in 2015 (Australian Institute of Health and Wellfare, 2017). The issue with this is that there are some 130 million orphans internationally and consequentially do not have access to many of their fundamental rights outlined in the Convention of the Rights of the Child (CRC) such as the right to grow up into a family (United Nations, 1990). Providing parentless children with rights and adequate opportunity to develop with family is paramount because of the role that youth take on as future leaders of society, and without this opportunity it is likely that institutionalised children will reside in institutions much of their lives and therefore will be disadvantaged in the functional aspects of society for their adult lives. Current laws and conventions regarding intercountry adoption, both domestically and internationally, assume the philosophy of 'the best interests of the child', however, many of these laws are inadequate in securing this justice and many conventions are not enacted upon. It has actually become a reality that these current conventions and laws are responsible for the continual decrease in intercountry adoptions and therefore for the increase of children in institutions without many opportunities or rights. It is vital that these unfortunate children in developing countries be prioritised by developed countries to assist not only with the general wellbeing of youth and society, but also with the country as a whole. This essay will investigate the following hypothesis and will then proceed to recommend amendments that can be made as well as strategies that would improve the current situation of intercountry adoption: The laws relating to intercountry adoption in Australia are insufficient in terms of international scope, economic considerations, and efficiency of child placement – all of which negatively affect the wellbeing of the children concerned. A more streamlined approach to inter-country adoption must be enacted in favour of the prioritisation of children's wellbeing.
The current legislation that governs intercountry adoption in Australia is the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 which integrates Australian law with the Hague Convention on Intercountry Adoption 1993 – the principle document of intercountry adoption regulations internationally (Attorney-General's Department, 1998). The Hague Convention provides international minimum standards for intercountry adoption procedures; with its primary aim, "to establish safeguards… [and] prevent the abduction, the sale of, or traffic in children" stated in Article 1 of the Convention (HCCH, 1995). The Convention also regulates intercountry adoptions by allowing adoptions to occur only between countries who have ratified the Convention. There are in fact 83 signatories to the Convention, however, signatories only show intention to ratify the Convention but have no requirement to do so, meaning that they are not legally bound or obligated to enact upon anything and essentially demeaning the purpose of the Convention. As a result of this, Australia has active international adoption arrangements with only 13 countries, 11 of which are signatories to the Hague Conventions; the exceptions being Taiwan and South Korea – for they are compliant with the Convention, but not signatory (Department of Social Services, 2015). The lack of international scope which the Convention imposes is one of the major factors of the restriction of intercountry adoption, and if there is to be any change in the rate of international adoption this must be amended. Additionally, there is the Migration Restrictions 1994 which is governed by federal law and sets requirements of adoptees through character requirements, health requirements, age requirements, and costs for the child's visa. The CRC is also a critical convention to note when examining the faults of the adoption system. The CRC has the philosophy that society has an obligation to meet the fundamental needs of children; those obligations being not only basics like health care and education, but also a range of social, political, and civil rights for all children (Ryan, 2006). Considering that most of the fundamental regulations that govern intercountry adoption are conventions – meaning that there is no obligations unless ratified – it can be derived that the main issue with intercountry adoption is enforcement of law.
Unfortunately, conventions and legislation regarding intercountry adoption fail to address the major restrictions to the process. To begin, the institutionalisation of children is an aspect of the adoption procedure which is seriously hindering on children's development and best interests. This is described in an academic manuscript on Children in Institutionalised Care when the author reasons that, "Children exposed to institutional care do not receive the type of nurturing and stimulating environment needed for normal growth and healthy psychological development" (IJzendoorn, 2011). Noting this, if the Hague Convention is to act in the best interests of the child, they must minimise institutionalisation through procedures such as international adoption. However this is not the case, the Hague Convention instead encourages institutionalisation by excluding countries from the adoption circle, funding institutions instead of funding the liberation of children, and discouraging adoption with cost. Many countries that are in need of a solution to parentless children suffer from instability in government and/or economy, and are therefore unable to implement such an international adoption system in compliance with the Hague Convention (Healy, 2011). The dispersal of funds from the Hague Convention does nothing to help this but instead ignores the primary problem by allocating funds to improving institutions and to making the process stricter than it needs to be. On topic to funds, under the Australian government, there is no subsidies or tax benefits that would assist the adopter (Healy, 2011). Further, issues arise from the current practices of the Hague Convention, seemingly neglecting the some of the CRC's fundamental rights for children, such as the right to family and development.
If the current procedures of intercountry adoption are to be sufficient and act in the best interests of the child, reapplication and refinement of conventions and laws need to occur. Foremost, the Hague Convention's intention is most needed in unstable countries with large amounts of institutionalised children that would benefit immensely from intercountry adoption, however, the Convention is least likely to associate with these countries in economic or political discord – which inhibits them from implementing a system compliant to the Hague Convention. The Convention needs to introduce amendments into their documentation that focuses on helping these countries to implement the Hague Convention's mandates.