United Nations

A/RES/41/85


General Assembly

Distr. GENERAL  

3 December 1986

ORIGINAL:
ENGLISH



                                                   A/RES/41/85
                                                   3 December 1986
                                                   95th plenary meeting
 
41/85. Declaration on Social and Legal Principles relating to the
       Protection and Welfare of Children, with Special Reference
       to Foster Placement and Adoption Nationally and Internationally
 
     The General Assembly,
 
     Recalling its resolutions 36/167 of 16 December 1981, 37/115 of
16 December 1982, 38/142 of 19 December 1983 and 39/89 of 13 December 1984,
and its decision 40/422 of 11 December 1985,
 
     Taking note of the draft Declaration on Social and Legal Principles
relating to the Protection and Welfare of Children, with Special Reference to
Foster Placement and Adoption Nationally and Internationally, as submitted by
the Economic and Social Council by its resolution 1979/28 of 9 May 1979,
 
     Taking note with appreciation of the work done on this question in the
Third and Sixth Committees, as well as the efforts made by Member States
representing different legal systems, during the consultations held at
Headquarters from 16 to 27 September 1985 and early in the forty-first
session, to join in the common endeavour of completing the work on the draft
Declaration,
 
     Adopts the Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, with Special Reference to Foster Placement
and Adoption Nationally and Internationally, the text of which is annexed to
the present resolution.
                                    ANNEX
 
        Declaration on Social and Legal Principles relating to the
        Protection and Welfare of Children, with Special Reference
        to Foster Placement and Adoption Nationally and Internationally
 
     The General Assembly,
 
     Recalling the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant
on Civil and Political Rights, the International Convention on the Elimination
of All Forms of Racial Discrimination and the Convention on the Elimination of
All Forms of Discrimination against Women,
 
     Recalling also the Declaration of the Rights of the Child, which it
proclaimed by its resolution 1386 (XIV) of 20 November 1959,
 
     Reaffirming principle 6 of that Declaration, which states that the child
shall, wherever possible, grow up in the care and under the responsibility of
his parents and, in any case, in an atmosphere of affection and of moral and
material security,
 
     Concerned at the large number of children who are abandoned or become
orphans owing to violence, internal disturbance, armed conflicts, natural
disasters, economic crises or social problems,
 
     Bearing in mind that in all foster placement and adoption procedures the
best interests of the child should be the paramount consideration,
 
     Recognizing that under the principal legal systems of the world, various
valuable alternative institutions exist, such as the Kafala of Islamic Law,
which provide substitute care to children who cannot be cared for by their own
parents, 
 
     Recognizing further that only where a particular institution is
recognized and regulated by the domestic law of a State would the provisions
of this Declaration relating to that institution be relevant and that such
provisions would in no way affect the existing alternative institutions in
other legal systems,
 
     Conscious of the need to proclaim universal principles to be taken into
account in cases where procedures are instituted relating to foster placement
or adoption of a child, either nationally or internationally,
 
     Bearing in mind, however, that the principles set forth hereunder do not
impose on States such legal institutions as foster placement or adoption,
 
     Proclaims the following principles:
 
 
                     A.  GENERAL FAMILY AND CHILD WELFARE
                                  Article 1
     Every State should give a high priority to family and child welfare.
 
                                  Article 2
     Child welfare depends upon good family welfare.
 
                                  Article 3
     The first priority for a child is to be cared for by his or her own
parents. 
 
                                  Article 4
     When care by the child's own parents is unavailable or inappropriate,
care by relatives of the child's parents, by another substitute - foster or
adoptive - family or, if necessary, by an appropriate institution should be
considered.
 
                                  Article 5
     In all matters relating to the placement of a child outside the care of
the child's own parents, the best interests of the child, particularly his or
her need for affection and right to security and continuing care, should be
the paramount consideration.
 
                                  Article 6
     Persons responsible for foster placement or adoption procedures should
have professional or other appropriate training.
 
                                  Article 7
     Governments should determine the adequacy of their national child welfare
services and consider appropriate actions.
 
                                  Article 8
     The child should at all times have a name, a nationality and a legal
representative.  The child should not, as a result of foster placement,
adoption or any alternative regime, be deprived of his or her name,
nationality or legal representative unless the child thereby acquires a new
name, nationality or legal representative.
 
                                  Article 9
     The need of a foster or an adopted child to know about his or her
background should be recognized by persons responsible for the child's care,
unless this is contrary to the child's best interests.
 
                             B.  FOSTER PLACEMENT
 
                                  Article 10
     Foster placement of children should be regulated by law.
 
                                  Article 11
     Foster family care, though temporary in nature, may continue, if
necessary, until adulthood but should not preclude either prior return to the
child's own parents or adoption.
 
                                  Article 12
     In all matters of foster family care, the prospective foster parents and,
as appropriate, the child and his or her own parents should be properly
involved.  A competent authority or agency should be responsible for
supervision to ensure the welfare of the child.
 
                                 C.  ADOPTION
 
                                  Article 13
     The primary aim of adoption is to provide the child who cannot be cared
for by his or her own parents with a permanent family.
 
                                  Article 14
     In considering possible adoption placements, persons responsible for them
should select the most appropriate environment for the child.
 
                                  Article 15
     Sufficient time and adequate counselling should be given to the child's
own parents, the prospective adoptive parents and, as appropriate, the child
in order to reach a decision on the child's future as early as possible.
 
                                  Article 16
     The relationship between the child to be adopted and the prospective
adoptive parents should be observed by child welfare agencies or services
prior to the adoption.  Legislation should ensure that the child is recognized
in law as a member of the adoptive family and enjoys all the rights pertinent
thereto. 
                                  Article 17
     If a child cannot be placed in a foster or an adoptive family or cannot
in any suitable manner be cared for in the country of origin, intercountry
adoption may be considered as an alternative means of providing the child with
a family.
 
                                  Article 18
     Governments should establish policy, legislation and effective
supervision for the protection of children involved in intercountry adoption.
Intercountry adoption should, wherever possible, only be undertaken when such
measures have been established in the States concerned.
 
                                  Article 19
     Policies should be established and laws enacted, where necessary, for the
prohibition of abduction and of any other act for illicit placement of
children.
                                  Article 20
     In intercountry adoption, placements should, as a rule, be made through
competent authorities or agencies with application of safeguards and standards
equivalent to those existing in respect of national adoption.  In no case
should the placement result in improper financial gain for those involved in
it.
                                  Article 21
     In intercountry adoption through persons acting as agents for prospective
adoptive parents, special precautions should be taken in order to protect the
child's legal and social interests.
 
                                  Article 22
     No intercountry adoption should be considered before it has been
established that the child is legally free for adoption and that any pertinent
documents necessary to complete the adoption, such as the consent of competent
authorities, will become available.  It must also be established that the
child will be able to migrate and to join the prospective adoptive parents and
may obtain their nationality.
 
                                  Article 23
     In intercountry adoption, as a rule, the legal validity of the adoption
should be assured in each of the countries involved.
 
                                  Article 24
     Where the nationality of the child differs from that of the prospective
adoptive parents, all due weight shall be given to both the law of the State
of which the child is a national and the law of the State of which the
prospective adoptive parents are nationals.  In this connection due regard
shall be given to the child's cultural and religious background and interests.