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Agreement between Canada and the Socialist Republic of Vietnam on Mutual Cooperation concerning Adoption [2005] CATSer 22 (15 December 2005)

E105038

AGREEMENT BETWEEN CANADA AND THE SOCIALIST REPUBLIC OF VIETNAM ON MUTUAL COOPERATION CONCERNING ADOPTION

CANADA AND THE SOCIALIST REPUBLIC OF VIETNAM (hereinafter referred to as the Contracting States):

RECOGNIZING that, for the full and harmonious development of his or her personality, the child must grow up in a family environment, in an atmosphere of happiness, love and understanding;

RECOGNIZING that each Contracting State should take appropriate measures to enable the child to remain in the care of his or her family of origin;

RECOGNIZING that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of Origin;

CONVINCED of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction of, the sale of, or traffic in children;

RECOGNIZING that, in Canada, adoption is a provincial and territorial jurisdiction;

DESIRING to establish common provisions to this effect, taking into account Canadian bijuralism and the principles set forth in international legal documents, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989;

HAVE AGREED as follows:

CHAPTER I - GENERAL PROVISIONS

ARTICLE 1

Objects of this Agreement

The objects of this Agreement are:

(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

(b) to establish a system of cooperation between the Contracting States to ensure that those safeguards are respected and thereby prevent the abduction of, the sale of, or trafficking in children;

(c) to secure the recognition in the Contracting States of adoptions made in accordance with this Agreement.

ARTICLE 2

Definitions

In relation to Canada, a federal State which has various systems of law with regard to adoption applicable in its provinces and territories:

a) a reference to habitual residence in Canada shall be construed as referring to habitual residence or domicile in a province or territory of Canada;

b) a reference to the law of Canada shall be construed as referring to the law in force in the relevant province or territory of Canada;

c) a reference to the competent authorities or to the public authorities of Canada shall be construed as referring to federal, provincial or territorial government authorities, or any other authority, that are authorized to act on matters of intercountry adoption in the relevant province or territory of Canada;

d) a reference to the accredited bodies of Canada shall be construed as referring to bodies accredited in the relevant province or territory of Canada.

ARTICLE 3

Scope of Agreement

This Agreement shall apply where any child, habitually resident in one Contracting State (“the State of Origin”) has been, is being, or is to be moved to the other Contracting State (“the Receiving State”), either after his or her adoption in the State of Origin by a couple or a person habitually resident in the Receiving State, or for the purposes of such an adoption in the Receiving State or in the State of Origin. The child must be eligible for adoption pursuant to Article 8 of this Agreement.

ARTICLE 4

Protection of Children

1. The Contracting States shall take measures in accordance with their domestic laws and regulations, to prevent the abduction, the kidnapping, the smuggling, the sexual exploitation or the sale of, or trafficking in children, for the purposes of adoption.

2. The designated Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of this Agreement.

ARTICLE 5

Language of communication

The Central Authorities of the Contracting States shall communicate with each other in the or an official language of the State of Origin of the child or in the or an official language of the Receiving State, to which communication, wherever necessary, a translation into the or an official language of the State of Origin of the child shall be attached.

CHAPTER II - CENTRAL AUTHORITIES AND ACCREDITED BODIES

ARTICLE 6

Central Authorities

1. The Contracting States shall designate Central Authorities to discharge the duties that are imposed by this Agreement upon such authorities. With respect to Canada, a federal State, it shall designate both a federal Central Authority and a Central Authority for each of its provinces and territories to which this Agreement shall apply. The designated Central Authorities for Canada will be communicated to the Socialist Republic of Vietnam by diplomatic note. With respect to the Socialist Republic of Vietnam, the designated Central Authority is the Intercountry Adoption Department of the Ministry of Justice.

2. In implementing this Agreement, the Central Authorities of the Contracting States may seek assistance from relevant competent authorities of each Contracting State, or accredited bodies that have been approved by the competent authorities to facilitate adoptions in accordance with the laws of the Contracting States.

ARTICLE 7

Accredited Bodies

1. An accredited body shall pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation.

2. A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorized it to do so.

CHAPTER III - THE LAW TO BE APPLIED AND AUTHORITY TO MAKE DECISIONS ON ADOPTIONS

ARTICLE 8

Determination of the adoptability of children

An adoption within the scope of this Agreement shall take place only if the competent authorities in the State of Origin have established that the child is adoptable in accordance with its applicable laws.

ARTICLE 9

Determination of eligibility to adopt children

An adoption within the scope of this Agreement shall take place only if the competent authorities of the Contracting States have determined that the adoptive parents are eligible and suited to adopt.

ARTICLE 10

Legal authorization for an adopted child to enter and reside in the Receiving State

An adoption under this Agreement shall take place only if the competent authorities of the Receiving State have determined that the child is or will be authorized to enter and reside permanently in the Receiving State.

ARTICLE 11

Recognition of an adoption

Subject to the laws and regulations of the Receiving State, the recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to public policy, taking into account the best interests of the child.

ARTICLE 12

Legal effects of an adoption

1. The legal consequences of an adoption completed in accordance with the provisions of this Agreement shall be comparable to those consequences that would result from an adoption taking place in the jurisdiction of the Receiving State.

2. The aforementioned legal consequences shall have effect from the pronouncement of the adoption.

3. In this Agreement, the term "law" means the law in force in a State other than its choice of law rules.

CHAPTER IV - COOPERATION

ARTICLE 13

Cooperation obligations for protecting children

1. The Contracting States shall take appropriate measures to protect children who are adopted in accordance with this Agreement.

2. The Contracting States shall ensure that the adopted child shall enjoy in the Receiving State where the adoption is recognized, rights equivalent to those resulting from adoptions in the Receiving State. The adopted child shall, upon acquiring the citizenship of the Receiving State, enjoy the same rights and privileges as those that are accorded to children who are nationals of the Receiving State.

3. The Central Authorities of the Contracting States shall keep each other informed about the adoption process and the measures taken to complete it.

ARTICLE 14

Exchange of Information

1. The Central Authorities shall keep each other informed about the operation of this Agreement and the identity of the accredited bodies, as well as taking measures to resolve any difficulties that might arise with respect to its implementation. A competent authority that finds that a provision of this Agreement has not been respected or that there is a possibility that it may not be respected, shall immediately inform the Central Authority of its State. The Central Authority shall be responsible for ensuring that appropriate remedial measures are taken.

2. All personal data gathered or transmitted under this Agreement shall be used only for the purposes for which it is gathered or transmitted or as required by law.

ARTICLE 15

Assistance in implementing this Agreement

1. The Contracting States may, according to their capacity, cooperate with and support each other in matters of training and technical assistance relating to matters of intercountry adoption.

2. The Contracting States shall also exchange information regarding their experiences in the area of intercountry adoption.

CHAPTER V - FINAL CLAUSES

ARTICLE 16

Entry into Force

1. Each Contracting State shall notify the other by an exchange of diplomatic notes that its legal requirements for the entry into force of this Agreement have been met. This Agreement shall enter into force thirty days after the date of the last notification of the completion of the legal procedures required in Canada and the Socialist Republic of Vietnam.

2. The provinces and territories of Canada and the Socialist Republic of Vietnam may enter into Understandings relating to the subject-matter of this Agreement that is within provincial and territorial jurisdictions.

3. The Annex to this Agreement shall contain the names of the provinces and territories, as agreed upon by Canada and the Socialist Republic of Vietnam, that have decided to negotiate Understandings, as described in paragraph 2, and the effective date of these Understandings. Canada and the Socialist Republic of Vietnam may amend the list by agreement.

4. This Agreement shall remain in force for five years from the date upon which it enters into force. Thereafter, it shall continue in force for successive periods of five years. It shall be renewed automatically unless either Contracting State gives written notice to the other State at least six months before the conclusion of any such period, of its intention to terminate it.

5. Either Contracting State may terminate this Agreement at any time by giving notice to the other State to that effect. This Agreement shall thus terminate six months from the date of the notice.

6. The lapse or decision to terminate this Agreement referred to in paragraphs 4 and 5 above, shall not affect the completion of adoptions that are already being processed at the time the notification to terminate is given as long as the adoptions satisfy the laws of both Contracting States. Adoptions falling into this category shall be decided by mutual consent of the Contracting States. No new adoptions shall be initiated after the notice of termination has been given under Article 16.5.

ARTICLE 17

Amendment to this Agreement

This Agreement may be amended by mutual consent of the Contracting States hereto. Such amendments shall be effected by an exchange of diplomatic notes between the States and shall enter into force on the date of the second note.

ARTICLE 18

Relationship between this Agreement and the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption

This Agreement shall terminate when the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption of 29 May 1993 enters into force between Canada and the Socialist Republic of Vietnam.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in duplicate, at Ottawa, this twenty-seventh day of June 2005, in the English, French and Vietnamese languages, each version being equally authentic.

Pierre S. Pettigrew

FOR CANADA

Uong Chu Luu

FOR THE SOCIALIST REPUBLIC OF VIETNAM

ANNEX

(The Annex does not contain the names of any provinces or territories yet.)