“Please, can you help us bring over our daughter?” the couple asks.
They hand me a photo of the three of them together—parents and young daughter, all grinning for the camera. They hand me the adoption certificate from the country overseas that makes her legally their daughter. They tell me about the regular visits, the Skype calls, the repeated questions from their daughter wondering why she cannot come and live with Mommy and Daddy yet. And finally, they hand me the refusal letter from Immigration, Refugees and Citizenship Canada (IRCC) that informs them that their application to bring her to Canada has been refused.
I have had this heartbreaking first meeting with potential clients numerous times. Because Canada is a signatory to the international Hague Convention on Adoption, which is designed to protect children and families worldwide, international adoptions are complex and strict. Most international adoptions go smoothly, but in cases where the Hague Convention requirements aren’t properly followed, the adoption can go devastatingly wrong. By being informed and seeking appropriate advice before even starting the process, potential adoptive parents can avoid this anguish.
The Hague Convention is a written agreement between more than fifty countries, who promise to follow certain rules and procedures in a variety of areas, including international adoption. Under the Hague Convention, whenever a parent who is “habitually resident” in one signatory country wants to adopt a child who is “habitually resident” in another, the Central Authority in both countries must be involved in the process from the beginning, and the adoption must follow strict rules. Some types of adoptions are even prohibited.
The goal of the Hague Convention is to prevent the abduction, sale, and trafficking of children around the world, so it’s an important agreement to have in place. The challenge is that sometimes countries disagree on when the Hague Convention rules need to be followed.
This scenario usually arises when countries have different definitions of what “habitually resident” means. If you have been living in Canada for some time, Canadian officials will likely consider you to be habitually resident in Canada, even if you are not a citizen or permanent resident of Canada. If you go to another country to adopt a child, including to your country of citizenship or birth, Canada may still consider you to be habitually resident in Canada, which means Canadian officials expect your adoption to follow all the rules and procedures of the Hague Convention.
The country you are adopting from might see things differently. Officials there might say that because you are a citizen of their country and you are in their country, even if you’re only there for a short period of time, the adoption can be processed as a domestic adoption instead of an international adoption under the Hague Convention. They permit you to skip all the Hague Convention rules—and in fact, may not even tell you that these rules exist—and issue an adoption certificate that makes you the child’s legal parent in that country, but causes you problems in other countries.
In order to bring a child you’ve adopted from another country to Canada, you must satisfy IRCC that all of the rules of the Hague Convention have been followed. In most adoption cases, this means that you must provide proof that the Central Authority of both countries was involved in the adoption process from the very beginning and authorized the adoption before it proceeded. If any of those pieces are missing, IRCC will refuse your application to bring the child to Canada.
If you find yourself in this situation, you aren’t out of options. You can still make an application to IRCC for consideration on humanitarian and compassionate grounds. However, the application process will be lengthy and expensive, and there is no guarantee of success.
So if you are planning to adopt or thinking of adopting a child from a country other than Canada, and you’ve lived in Canada at any point in the past few years, you should speak to the relevant Central Authority in Canada and/or an immigration lawyer before taking any steps toward adopting the child in the other country. (In Alberta, the Central Authority is Alberta Adoption Services of the Ministry of Human Services.)
You should take this first step before any others even if you are not a Canadian citizen or permanent resident, and even if officials in the other country tell you that contacting the Central Authority in Canada isn’t necessary. Otherwise, instead of having a new child to love, you may find yourself with only heartbreak.
McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the March 2017 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.
