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According to yesterday’s Cambodia Daily (“Gov’t to Restart National Adoptions,” offline only), foreigners will once again be allowed to adopt Cambodian children beginning in January 2013. Though the Law on Adoption was issued in 2009 as a result of widespread international criticism of abuses occurring in the Cambodian adoption system, the implementing regulations needed to put this law into practice have not yet been issued by the Ministry of Social Affairs, the ministry responsible for carrying out the law.

While this development is a positive sign that international adoptions may soon be permitted again in the Kingdom of Cambodia, would-be parents should temper their enthusiasm with caution and patience. Since 2009, there have been several dates announced for the revival of the international adoption process in Cambodia. Further, it remains to be seen how the US and other nations that have implemented bans on adoptions from Cambodia will react to the new policies and procedures. Even if Cambodia permits international adoptions, if the adoptive parents’ home countries fail to recognize the validity of the Cambodian adoption process, those parents and their adopted children may face years in legal limbo. Cautious optimism is the best attitude toward the recent announcement until more concrete policies and procedures are unveiled here and abroad.

Adoption is a confusing process at the best of times. But in Cambodia, it’s even more so. Most people are aware of the current ban on inter-country adoption, and are surprised to discover that foreigners living in Cambodia are frequently able to adopt Cambodian children.

How?

In Cambodia, as in most countries, there are two different types of adoption. The first is national adoption, where a person or couple living in the country adopts a child from the same country. The second is inter-country adoption, where a person or couple from one country adopts a child from a foreign country.

National adoption in Cambodia is governed by the 1989 Law on Marriage and Family, which provides that adoptions can actually take place within Cambodia’s borders, regardless of nationality. This is subject to the court’s discretion.

Inter-country adoption in Cambodia is currently illegal, after being banned in 2009 following a series of child trafficking scandals, the US deciding not to recognize Cambodian adoptions , and objections to Cambodia’s ratification of the Hague Convention on Inter-country Adoption in 2007. Determined to bring adoptions into line with the convention, Cambodia itself banned adoptions between Cambodia and any other state until its laws were reformed.

The law was meant to be in place by April this year, but is still very much in the drafting phase. The lack of clarity can create a nightmare scenario for adopting parents who want to take their family back to their home country with them, be it permanently or for a temporary visit. It can be difficult for foreigners to adopt if there are indications that they have moved to Cambodia for the sole purpose of using the national adoption process, when in reality it should be an inter-country adoption.

For those who do succeed in securing a national adoption, many countries, such as the USA, France, Germany and the Netherlands currently refuse to recognize a Cambodian national adoption. Expats with no long-term plans to stay in Cambodia would be advised to hold off considering an adoption until the new law is finalized and international adoption agencies are established here.

As for those parents who have gone through with national adoptions, it is still uncertain as to whether or not they will be able to convert them into inter-country adoptions under the new system.

UPDATE II [March 21, 2012]: The April 2012 goal has been pushed back again. According to a US government source, petitions won’t be accepted until January 1, 2013.

UPDATE [May, 5, 2011]: As expected, the Government has postponed until April 2012 the acceptance of foreign adoption applications.

An article in today’s Daily reports on the unlikelihood of the 2009 inter-country adoption law being fully implemented next month as originally indicated. Although the government plans to start accepting inter-country adoption applications next month, the law requires that before this can take place, the Inter Country Adoption Administration in Cambodia must conclude agreements with its foreign counterparts.

To date, no such agreements have been concluded. Many foreign governments may be waiting to see how successful the implementation will be. At least one government has indicated it is reluctant to initiate such an agreement until the registration procedure for adoption agencies has been clarified.

The law currently calls for adoption agencies to “apply for authorization and approval by and recognition of” the Ministry of Foreign Affairs, but no further information is available on how to instigate this application process. Approval may be automatic if the agency has recognized NGO status from the Ministry, but NGO status requires an address (including lease agreement) within Cambodia, both for the NGO office and for foreign and local staff.

This would require an agency to commit to a presence for NGO purposes in Cambodia well in advance of any certainty as to their chances of successfully applying for registration as an adoption agency. Until this issue is ironed out, the situation remains in a catch-22.

As the new Inter-Country Adoption Law is to be implemented in early 2011, many potential parents are wondering how it will affect them. One major change from the former adoption practice is that all inter-country adoptions must now be handled by authorized agencies. Unauthorized private companies and orphanages can no longer handle inter-country adoptions directly.

The Cambodian government has already begun to accept applications for inter-country adoption agencies. For more information on how to register as an inter-country adoption agency, please refer to this publication.

A common question that has arisen is ‘what about expats in Cambodia looking to adopt?’ They, too, are required to adopt through an inter-country adoption agency. For the agencies that open abroad, they are required to have a representative office in Cambodia. The expats in Cambodia will then apply with their home country’s office.

The use of inter-country agencies will surely cause the adoption process in Cambodia to take longer and be more expensive. However, it will also ensure that both parents and agencies are thoroughly screened and closely monitored to prevent child-trafficking. After all, the most important interests to look after are those of the children.

Important changes to the family laws are in the works, particularly if you’re a foreigner intending to marry a Cambodian. The April 27th Cambodia Daily (offline only) has two articles on the matter– one reporting on a draft Family Dispute Law, and another on new rules on marriages between locals and foreigners.

First, the Family Dispute Law was passed unanimously by the National Assembly on Monday, and now goes to the Senate for approval and the King for signature before becoming law. The law sets forth new procedures for divorces, child-support, alimony, and other family matters. Though I haven’t read the law myself, together with the new Civil Code, it should fill in quite a few gaps in the present law.

In a related development, a Foreign Ministry official announced new regulations for marriages between Cambodians and foreigners. While the regulations are described as “confidential”, the article reports that both husband and bride will need to be physically present through all stages of the marriage process. This new rule seems to be in response to the recent fiasco involving Korean marriage brokers and human trafficking violations.

Just a quick update on the implementation of the new Law on Foreign Adoptions – news reports say the government is aiming to reopen foreign adoptions by March 2011:

Cambodia plans to reopen the door to foreign adoptions by the end of March 2011, officials said Monday, meaning the Kingdom has one year to meet strict international guidelines put in place to prevent child trafficking.

The announcement comes after the National Assembly passed a law aimed at governing international adoptions last December. Observers say the law is crucial to ending the allegedly widespread practice of “baby-buying”, but some have raised questions about the government’s ability to enforce it.”

As explained in our previous post, adoption applications that were pending at the time of the new law have been allowed to go through under the old law. But since December 2009, no further applications are being accepted until the new law is implemented.

In recent years Cambodia has become a major source of inter-country adoption. Unfortunately, weak rule of law and institutional oversight has resulted in cases of child trafficking and other abuses. As a result, several western countries, such as France, the US, and Australia, have refused to recognize adoptions from Cambodia. The Royal Government of Cambodia then began working on reforms to comply with the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption.

On December 3, 2009, Cambodia passed the Law on Inter-Country Adoption, which makes clear that the government is cracking down on child trafficking. The law bans profit making in adoption, provides harsher penalties for lawbreakers, and also requires adoptions to only be handled by authorized and trained officials.

A few weeks before the law was passed, all pending adoption applications were put on hold. Prospective parents were told that once the new law was passed, their applications would be reviewed under the new law. Some applicants would be able to finish where they left off, some would have to start over, some would no longer be allowed to adopt. This caused great concern, as the adopters had often invested quite a bit of money and great time in the process. Many argued it was unfair to have to reapply under the new law when they had already initiated their applications under the old law. In response, the government permitted 108 pending applications to proceed under the old law, called Sub-Decree 29.

To comply with the Hague convention, the new adoption law made significant changes to Sub-Decree 29. First, adopters must be a married couple, which is defined as a man and woman. Second, they must be at least 30 years of age and between 22 to 45 years older than the child. Third, they must not have more than one child already under their burden, and cannot adopt more than one child from Cambodia, unless there are siblings. Last, they will have to go through an authorized inter-country adoption agency, which will cost significantly more than before.

Currently, a committee on inter-country adoption is formulating new procedures and training the relevant authorities that will be involved. The Ministry of Social Affairs Veterans and Youth Rehabilitation will soon be authorizing inter-country adoption agencies abroad to partner with the local authority to conduct adoptions. The government expects to start accepting adoption applications in 2011.

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The work of a handful of attorneys at BNG Legal, this blog's mission is to keep the world up-to-date on legal issues in the Kingdom of Cambodia.

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