I have had multiple requests for legal advice from adoptive families concerning adoption of the children from foster homes. They applied for adoption of such children and were denied with such possibility at the very first appointment. With frustration and sadness they sought legal help as the children they wanted to adopt had international adoption status.
How come they are not available for international adoption then?
Adoption in general and from foster homes in particular is governed by Constitutions of Ukraine, the laws of Ukraine and other by-laws, with Constitution and the laws being superior. Any by-law is to be written according to the law and the Constitution of Ukraine and is subordinate to the law.
To be adoptable a child needs to have a status of an orphan (a child with no parents) or status of a child, deprived of parental care (those, whose parents lost their rights for the child due to child neglect, abuse, etc.).
Secondly, to become available for international adoption the child with such status needs to be registered at the National Data Bank for adoption at the Ministry of Social policy of Ukraine.
Ministry of Social Policy, Department for Protection of the Rights of the Child and Adoption (SDA) is in charge of International adoption. It acts strictly according to the laws of Ukraine and to the Order of the Cabinet of Ministries of Ukraine #905 of 10/08/2008 with amendments (which is a sub-law).
Paragraph 53 of order #905 of Cabinet of Ministries of Ukraine states that foreign adoptive parents receive information about the children who:
- live (reside) at the children’s institutions of any type and form of ownership and subordination;
- reached the age of 5 years old and,
- are registered at the National Data Bank for more than a year, besides other cases foreseen by the law.
The question is why international adoptive parents are NOT given permission to get a referral for the child with international adoption status that lives in a foster home.
The answer is simple.
The SDA does NOT consider Foster Home an Institution for Children. It is considered a family, not an institution, thus international adoptive parents do not get to see the files of children who live in foster homes.
Is that violation of the child’s rights? I think it is, and my professional opinion is that it needs to be regulated. The children need to regain the possibility to be adopted into the foreign families as adoption into a family is always a preference. Since Foster Homes, no matter how you call them are institutions, not families. The children do not become or remain members of the families, they do not inherit anything from these foster parents and, what is the most frustrating, they have to leave such family being only 18 and when they needs this family the most.
You may ask whether it is achievable at all.
Currently we are working with a Supreme Council Deputy in order to pursue these changes in the sub-law. But each particular adoptive family needs to get legal professional and take this case to the Court of Civil Law to establish the right of each particular child for international adoption, for a forever family. These children deserve a forever (not temporary) family as much as we all do.