by Dr Graziella Cricchiola – Junior Associate
Adoption is defined by Watson in Triseliotis et al. (1997:2)77 as “a mean of meeting the developmental needs of a child by legally transferring ongoing parental responsibility from birth parents to adoptive parents, recognizing that in the process we have created a new kinship network that forever links these two families together through the child who is shared by them both.”
Whereas in Roman times, adult adoption was predominant and parents used to adopt in order to ensure a successor’s line, nowadays the institute of adoption is mostly perceived as a service to a child.
Inter-country adoption became more common after World War II where a lot of orphans were left abandoned due to the war, political turmoil, natural disaster and poverty. Legislation increased state responsibility to safeguard the best interest of the child – the child being the centre of the adoption procedure. In fact, article 20 and 21 of the 1989 United Nations Convention on the Rights of the Child identifies adoption as one of a range of options for the alternative care of children who find themselves unable to live with their birth families.
In the adoption process the role of the State is essentially that of forming a new family. Domestically, the institute of adoption is mainly regulated by Chapter 495 of the Laws of Malta entitled Adoption Administration Act. The provisions of this enactment may be classified under 4 main categories– those dealing with the appointment and powers of the adoption board, those revolving around the central authority, those regulating the accredited agencies and the provisions with respect to the board of appeal.
This eligibility to adopt a child and the requirements for adoption will be discussed in detail later on.
During 2018, there were 54 Maltese couples who adopted children from foreign countries. It must be pointed out that during the last six years 154 children were adopted. This figure includes the adoption of 25 Maltese children by Maltese adoptive parents.
How does the adoption process work? Primarily, the accredited agency receives and processes the application forms from persons wishing to adopt. Subsequently it will provide training to the applicants and then prepares a home study report on prospective adopters in order to assist the suitability of the applicants. Once the adoption has gone through and a child has joined a family, the Adoption Services continues to provide the necessary support to ensure the well-being of the child.
The best interest of the minor is of paramount important and supersedes the rights of third parties, this was discussed in an interesting case decided by Court of Appeal on the 29th May, 2015, ‘A et vs C et.’. The facts of the case are the following, A were the parents of B (who passed away tragically). Before his death, B had a relationship with C; from this relationship the minor D was born. Nonetheless mother (C) registered her child under ‘unknown father’ and consequently B was not recognised as his father. The parents of B filed legal proceedings before the Civil Court (Family Section) to declare their deceased son (B) as the natural Father however, during these proceedings, it transpired that C got married and her husband adopted the minor D. To this effect, the parents of B filed legal proceedings to challenge the adoption decree. Interestingly, the Court of Appeal held, “il-Qorti ma jidhriliex li jkun fl-interess tal-minuri li d-digriet tal-addozzjoni jithalla jigi attakkat. F’kazijiet ta’ din in-natura, huwa l-interess tal-minuri li hu suprem u jipprevali zgur fuq kwalunkwe interess li jistghu jivvantaw l-atturi. Il-minuri ghandu madwar tmien snin, u ghamel dan iz-zmien kollu jghix ma’ ommu; l-ahhar erba’ snin ghamilhom ma’ zewg ommu li trattah bhala ibnu. Ma jkunx fl-interess tal-minuri li jinqala’ minn dak l-ambjent jew tpoggi f’konflitt is-sitwazzjoni prezenti mar-realta`. It-tifel qed jitrabba f’familja b’omm u missier, u fis-sitwazzjoni tieghu u fl-eta` li jinsab fiha, ma jkunx flinteress tieghu li jiccahhad minn din l-istabbilita`. L-atturi jista’ jkollhom interess jistabbilixxu l-vera paternita` tal-minuri, pero` mhux l-istess jista’ jinghad biex tithassar l-addozzjoni tal-istess minuri.” The Court of Appeal rejected their pleas.
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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@abalegal.eu.