The principle of subsidiarity is one of the key principles for undertaking intercountry adoptions (ICAs) clearly stipulated within international law, notably the UN Convention on the Rights of the Child (CRC) and the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993 Hague Convention). The principle of subsidiarity has a two tier approach summarised as follows:
1) Domestic adoption is subsidiary to keeping or returning the child to his or her family of origin and that there should be a priority given to preventing abandonment. For this first aspect, the 2015 ISS Manifesto for Ethical Intercountry Adoptions notes the first level of the principle of subsidiarity requires that priority be given to keeping the child in his or her environment of origin. In practice, this involves the implementation of a system based on the development of domestic family-type solutions for children separated from the family, making it possible to decrease the need for intercountry adoption. Specifically, such a system should set out family support programs so that they can raise their children, family reintegration programs for situations involving temporary separation, and alternative family placement in cases of permanent separation.
2) ICA is subsidiary to domestic adoption. The 2015 ISS Manifesto for Ethical Intercountry Adoptions “focuses on the subsidiarity of intercountry adoption with regard to family-type domestic protection measures. Consequently, intercountry adoption should only take place after a long term family solution has been actively sought in the child’s country of origin, particularly with domestic PAPs.”
Having the best interest principle and taking into account the individual needs of each child, this paper endeavours to promote the two tier approach of the principle of subsidiarity by examining the drafting spirit behind international standards (Section 1), providing examples of legislation and jurisprudence (Section 2) and identifying promising practices (Section 3) that reflect the principle.
