Reservations and Declarations for Treaty No.058 - European Convention on the Adoption of Children
Nature of declaration : Declarations, Denunciations, Derogations
Status as of 16/07/2019
RomaniaDeclaration contained in the instrument of accession, deposited on 18 May 1993 - Or. Fr.
Pursuant to the terms of Article 2 of the Convention, empowering Contracting Parties to decide which provisions of Part III will be given consideration, Romania declares that it will give effect to Articles 18, 19 and 20.
Period covered: 19/08/1993 -
Articles concerned : 2
Declaration contained in a Note Verbale from the General Consulate of Romania, date 18 May 1993 handed over to the Secretary General at the time of deposit of the instrument of accession - Or. Fr.
Pursuant to Articles 1 and 2 of the Convention, the Ministry of Justice will notify the Secretary General of the Council of Europe of the measures taken to ensure the conformity of Romanian legislation with the provisions of the Convention.
Period covered: 19/08/1993 - 17/09/1993
Articles concerned : 1, 2
Declaration contained in a Note Verbale from the Consulate General of Romania dated 16 September 1993 registered at the Secretariat General on 17 September 1993 - Or. Fr.
Romania acceded to the European Convention on the Adoption of Children by virtue of Act No. 15 of 25 March 1993 (published in the Official Gazette, No. 67, of 31 March 1993).
In accordance with Section 2 of Act No. 15/1993, accession was made subject to a reservation in respect of the application of Article 7 of the Convention concerning age limits for the adopter, the minimum age being 18 years in Romania, with no maximum limit.
Under Article 11 of the Constitution, the Romanian State undertakes to fulfil scrupulously and in good faith the obligations imposed upon it by the treaties to which it is party, treaties which become part of the domestic law following ratification by the Parliament.
Pursuant to Section 3, second paragraph, of Act No. 15/1993, and in accordance with the provisions of Article 1 of the European Convention, the Secretariat of the Council of Europe is hereby notified, in point III of this Declaration, of the state of Romanian legislation concerning the adoption of children, with specific reference to the provisions of the European Convention.
Romanian legislation contains no provisions contrary to those of the European Convention on the Adoption of Children. The regulations on this subject are consistent with the provisions of principle contained in the Constitution, namely safeguards and respect for fundamental rights concerning, respectively, personal, family and private life (Article 26) and the family (Article 44). Adoption is governed by the Family Code and by Act No. 11/1990 on authorisation for adoption.
The position of Romanian legislation in relation to the provisions of the Convention is as follows:
Article 67 of the Family Code lays down the rule that "only minor children may be adopted". The form of words used subsequently in the same article ("an adult person may also be adopted if, during his minority, he had been brought up by the person who wishes to adopt him") is not at variance with the provisions of the European Convention, since it exceeds their scope, as defined in Part I.
Act No. 11/1990 on authorisation for adoption attributes competence in respect of adoption to the judicial authorities (Section 1).
1. The conditions laid down by Romanian law in respect of authorisation for adoption (Section 4 of Act No. 11/1990) include "the certified declaration of consent to adoption by the parent (mother or father) or the legitimate parents, the statutory guardian or guardians or, where appropriate, the opinion of the guardianship authority".
With regard to consent expressed by other institutions, mention should also be made of the provisions of Section 7 of Act No. 11/1990.
Section 7: "In cases where adoption concerns a child for whom placement in the care of a guardian is necessary but has not yet been carried out, the judicial authority shall give its authorisation for adoption on the basis of the opinion of the guardianship authority empowered to conduct the social inquiry.
In the situations covered by Article 109 of the Family Code, when the child is in a social welfare institution or a medical centre, the application for deprivation of parental authority may be drafted by the governing board of the institution or the medical centre.
If the child is in a social welfare institution or, as the case may be, in a medical centre, the parents may officially declare in writing, six months after the date of the declaration, their consent to the adoption of the child by the person appointed by the Romanian Committee on Adoptions, no further form of consent to the adoption being necessary".
Article 69, second paragraph, of the Family Code requires the consent of the spouse, if the adopter is married. This requirement is waived in cases where the spouse is declared legally incapable, if he/she is deprived of parental authority or if he/she is in any other situation preventing him/her from manifesting his/her will.
2. In the absence of an express provision in the legislation concerning adoption, a person harmed by action on the part of the competent authority, which runs counter to the provisions of Article 5 of the Convention, may adduce the provisions of Article 21 of the Constitution, as well as Section 1 of Act No. 29/1990 concerning administrative disputes.
Article 21 of the Constitution:
1. "Every person is entitled to defend his rights, freedoms and legitimate interests in legal proceedings.
2. No law may limit the exercise of this right."
Article 1 of Act No. 29/1990:
"Any natural or legal person who considers that his legally recognised rights have been harmed by an administrative act or by the unjustified refusal of an administrative authority to respond favourably to an application concerning a right recognised by law, may appeal to the competent judicial authority to have the act set aside, for recognition of the right in question and for compensation for the damage caused to him."
3. With regard to Article 5 para. 3 of the Convention, see the comments set out below; the relevant situations are specified in the legislative texts referred to.
4. Romanian legislation does not expressly provide for cases where, for purposes of adoption, the consent of the mother should be given only after the birth of the child. However, from an examination of the texts governing this matter, it appears that such consent could only be given after the birth of the child.
Arguments: Consent to adoption is given in the form of an officially recorded declaration (Section 4, Act No. 11/1990). For this purpose, the person making the declaration must go to a notary's office. In pursuance of Decree No. 377/1960 on the organisation and functioning of notaries offices, the notary confirms the authenticity of the declarations made before him, certifying that the person in question has full possession of his mental faculties and is freely expressing his will. In practice, a parent who consents to the adoption of his/her child, presents the child's birth certificate to the notary, and this document certifies the identity of the child in the officially recorded declaration.
Under the terms of Article 69 of the Family Code, "the adoption of a child by several persons is not authorised, except in cases where it is carried out by the two spouses simultaneously or successively". Romanian legislation envisages the possibility of adoption by one spouse of the (legitimate or adopted) child of the other spouse (Articles 69 and 78 of the Family Code), and does not prohibit the adoption of a child who had previously been adopted, following the death of the adoptive parents or in the event of the annulment or revocation of the adoption.
Under the terms of the reservation made by Romania, the statutory provisions concerning the age of the adopter are governed by the Family Code. Article 68 provides that "adoption may be authorised only in the case of persons of full age who fulfil the conditions required for guardianship and who are at least 18 years older than those whom they wish to adopt". For well-founded reasons, the judicial authority may authorise adoption even if the difference in age is less than the one prescribed above. The provisions of paragraph 2b of Article 7 of the Convention are drafted along the same lines.
Romanian legislation provides for no upper age limit for adopters.
Articles 8 and 9
In accordance with Section 5 of Act No. 11/1991, adoption is authorised by the judicial authority, subject to observation of the essential conditions stipulated by the Family Code, and the authority has the possibility of taking any evidence authorised by law. A social inquiry is compulsory in such cases.
Article 66 of the Family Code stipulates that adoption can only be implemented in the interest of the adopted person. Under Article 72 of the same code, adoption is made conditional on the finding that the adopter can ensure the normal physical and moral development of the adopted person, and it is specified that adoption cannot have as its aim the exploitation of the adopted person or other unlawful interests. At the same time, in the case of international adoption, under the conditions laid down by Section 9 of Act No. 11/1990, the court shall come to a decision on a request for authorisation with a view to adoption, so that the minor child may enjoy the benefit, in a foreign country, of similar guarantees and standards to those applicable in a case of national adoption.
Section 6 of Act No. 11/1990 expressly refers to situations where the adopter or the adopted person is an alien: "with regard to the essential conditions governing adoption, everyone is subject to his national law, if the foreign law does not infringe Romanian public order under private international law.
In addition, Section 4b of Act No. 11/1990 stipulates that adopters are required inter alia to submit the following documents: a police record certificate, a medical certificate concerning their state of health, a document issued by the competent foreign authorities certifying that they are qualified to adopt a child, in accordance with the legislation of the country in question, and the social inquiry carried out by the competent foreign authorities in the country of residence of the adopters, expressing their opinion on the adoption.
In order to obviate any situation which could convey an impression inconsistent with the actual facts, the Romanian Act authorises intervention in the adoption proceedings, under the conditions laid down by law, by anyone who shows proof of a legitimate interest (Section 8 of Act No. 11/1990).
At the same time, in the regulations relating to the consent required with a view to adoption, Romanian law - under Article 70 of the Family Code - also includes the consent of the minor child, if the latter is over 10 years old.
The rights conferred on the adopter by the judicial authorities:
Under Romanian legislation (Family Code, Articles 75 to 79), adoption may take the following forms:
a. adoption with limited effect;
b. full adoption.
Together with the application for adoption, the adopter must present a certified declaration mentioning the form of adoption requested (Section 4b).
a. The legal effects of limited adoption are specified in Articles 75 to 78 of the Family Code, as follows:
- the adopted person shall have the same rights and obligations with regard to the adopter as a legitimate child may have with regard to his parents;
- the descendants of the adopted person shall have the same rights and obligations with regard to the adopter as the descendants of a legitimate child may have with regard to the latter's ascendants;
- both the adopted person and his descendants shall maintain all the rights and obligations derived from natural descent and family ties;
- parental rights and obligations shall be transferred to the adopter. If the adopter is the spouse of the legitimate father or mother of the adopted person, he/she shall acquire parental rights and obligations on the same basis (adopter and legitimate father or mother married to the adopter);
- adoption shall not create family ties between the adopted person and the members of the adopter's family;
- the adopted person shall acquire the name of the adopter; if the adoptive spouses do not bear the same name, they are obliged to mention in the adoption application the family name to be borne by the adopted person. The court may authorise the adopted person to add his family name to the name acquired by adoption.
b. The legal effects of full adoption (or, under the terms of the Family Code, adoption with all the effects of natural descent) are governed by Article 79 of the Family Code:
- the adopted person shall be bound by family ties to the adopter and to the members of the latter's family, as if he were the legitimate child of the adopter;
- the rights and obligations derived from affiliation between the adopted person and his legitimate parents and the members of the latter's families shall cease to be applicable. However, the prohibition of marriage, up to and including the fourth degree of kinship, shall be applied as between the adopted person and all the members of his legitimate family;
- in cases of full adoption, the effects with regard to family name are the same.
The provisions of Romanian law dealing with the legal status of the child (rights and obligations) make no distinction between legitimate children, illegitimate children and adopted children.
1. Under Section 9, last paragraph, of Act No. 11/1990, "the citizenship of the adopted person is subject to the law on Romanian citizenship". Among the methods for obtaining citizenship (Section 4b), the Act on Romanian citizenship (No. 21/1991) includes adoption, as regulated by Section 6 of the same Act:
Section 6: "Romanian citizenship may be acquired by a child who is a foreign citizen or has no citizenship by means of adoption, if the adopters are Romanian citizens and if the adopted person is not aged over 18. In cases where only one of the adopters is a Romanian citizen, the citizenship of the adopted minor person shall be decided by mutual agreement between the adopters. If the adopters fail to reach an agreement, the judicial authority empowered to authorise adoption shall decide on the citizenship of the minor, taking into account the latter's interests. If the child is aged over 14, his consent is required."
2. A minor child of Romanian citizenship who is adopted by a foreign citizen loses Romanian citizenship if the adopter or adopters expressly so request and if the law of the adopter's country stipulates that the adopted person shall acquire the citizenship of the adopter. If the adoption is declared void or annulled, a child aged under 18 is considered never to have lost Romanian citizenship.
No regulation under current Romanian legislation limits the number of children who may be adopted by the same adopter, and the fact of not having children is not a required condition for fitness to adopt.
With regard to paragraph 3 of this article, the law is applicable to all children - as was mentioned above - without discrimination on the basis of their legal status (legitimate children, illegitimate children or adopted children). All children enjoy the same rights.
The Family Code stipulates the possibility of revoking adoption, but this measure can only be taken by the judicial authority, at the request of one of the parents (mother or father), in the absence of his/her consent to the adoption, or at the request of the adopted person, the legitimate parents, social welfare institutions, the guardianship authority or the administrative organs, if this is in the interest of the minor child. If the adopted person is aged over 14, his consent is also required.
The Romanian Committee on Adoptions was set up by Romanian Government Order No. 63 of 22 January 1991. This governmental body is intended to contribute to the protection of adopted minor children and to international co-operation in the field of adoption (Article 1). Moreover, in accordance with Article 5, the Romanian Adoptions Committee is empowered to request and to transmit to ministries, to specialised central organs of the State administration and to other public bodies, the documentation, data and information needed for the fulfilment of its functions.
Section 11 of Act No. 11/1991 imposes a prison sentence ranging from 1 to 5 years on any parent, guardian or statutory guardian who claims or receives financial or material benefits for the adoption of a child, whether for his own benefit or for the benefit of others. The same sentence is imposed on anyone who, with a view to obtaining undeserved material advantages, facilitates or acts as an intermediary for the adoption of a child.
By virtue of the options provided for in Article 2 of the European Convention, Romania has declared, in accordance with Section 2, second paragraph, of Act No. 15 of 25 March 1993 concerning Romania's accession to this Convention, that it gives effect to Articles 18, 19 and 20 of Part III of the Convention.
Articles 18 and 19
With a view to the implementation of the provisions contained in these articles, the National Committee for Child Welfare, a governmental body, was set up by Romanian Government Order No. 103 of 18 March 1993. Its functions include the following:
- preparation of draft government strategies and programmes aimed at improving living conditions for children placed in child welfare institutions, as well as other categories of children;
- preparation of proposals for standard-setting instruments, with a view to improving the legal rules concerning the protection of children;
- co-operation with the Ministry of Education with a view to preparing vocational training and further training programmes for staff in the field of child welfare.
Specific functions are assigned to the Romanian Adoptions Committee, in accordance with Section 3 of Government Order No. 63/1991.
The situations referred to in paragraphs 1, 3 and 4 are feasible; requests by adopters for these purposes must be assessed by the authority which authorises adoption, and which in all cases takes a decision solely in the interests of the adopted child.
By virtue of the provisions of Article 79 of the Family Code, in the case of full adoption and when the adopted person's family ties with all the members of his legitimate family cease to be effective, a new birth certificate will be drawn up for the adopted person, in which the adopters will be registered as his legitimate parents. The previous birth certificate will be preserved and will carry a note to the effect that a new birth certificate has been drawn up.
The provisions of Section 9, third paragraph, of Act No. 11/1991 are drafted along the same lines. The same particulars are contained in Section 20 of Decree No. 278/1960 concerning civil status records, which also indicates that the place of residence of the adopters will be entered as the place of birth.
In accordance with Article 26 of the Constitution, the public authorities respect and protect personal, family and private life. Thus, the registry authorities called upon to respond to an application for the adoption of a person are required to analyse the interest of the person who has submitted the application, while respecting the fundamental rights guaranteed by the Constitution. Consequently, the provisions of the decree governing civil status records are applied from the standpoint of Article 150 of the Constitution which states that laws and all other standard-setting instruments shall remain in force in so far as they do not infringe the Constitution.
The case provided for in paragraph 2 is covered by the provisions of Section 5 of Act No. 11/1990.
As the court hearings are not public, the competent authority deals with the application for the authorisation of adoption in the context of a sitting in judge's chambers rather than in a court room open to the public.
In addition, Article 121 of the Code of Civil Procedure permits the judicial authority to deliberate in secret.
Period covered: 17/09/1993 -
Articles concerned : 1