ADA News (English)

ADA MEETING

Yesterday morning, ADA held a meeting to discuss different matters:

A. The Manual of Good Practices and the possible implications of its implementation.

There was no doubt among the attendants, that if it is enforced, we would have to press charges against whoever does it. It is illegal, unconstitutional and cannot be tolerated.

The announcement by the US DOS about the presentation of the Manual at http://travel.state.gov/family/adoption/intercountry/intercountry_3146.html is difficult to understand. Either the US DOS knows that there is no way the Manual is going to be implemented (most likely) or they do not get the part that states the suspension of all adoptions before the PGN, the need of all cases to go first through a process of declaration of violation of rights before the Court of the Childhood and Adolescence and then, the Secretary of Social Welfare of the Presidency would find a family for each child.
The statement of the announcement: The Manual sets forth rules that, once implemented, would be important steps toward better protecting children and both biological and adoptive parents in the adoption process in Guatemala, sounds as if they were talking of something entirely different, because the Manual, if implemented and while it is legally defeated, would be a roadblock, not an important step.

B. The PGN

The PGN is an entity that by Constitutional provision, is a consultant and adviser to the State entities, The Attorney General is the Legal Representative of the State. Other than that, they have no other powers. However, the Law of Integral Protection of the Childhood and Adolescence went beyond the limits set by the Constitution and created the Procuraduria of the Childhood and Adolescence (PCA), to act as a party in the processes of children whose rights have been violated or are threatened. The PCA, according to that law, has also the role of investigator in those kind of processes and legally represents the children who have no parents or legal guardians.

Even though the processes of adoption are of a different nature and the PCA has nothing to do with them, the PGN reviewers often send the adoption files for investigation to the PCA. That investigation could take several months and it is done without letting know the interested parties what the investigation is about. The director of the PCA is Josefina Arellano, who has been very vocal in her criticism of adoptions. She has been quoted by the press as saying that the children who are adopted should not have been born, that the adopted children are being bought by the adoptive parents, that the children are made for sale and similar hurtful remarks.

The processes of children who have been abandoned by their parents are treated by the PCA as if the main purpose of the processes were to locate the parents who do not want to be found or to delay as much as possible the final ruling of the cases, to prevent the children from being adopted. Among the guarantees that the law establishes is that no child can be taken away from his parents or people in charge of him, unless there is mistreatment or neglect, duly established by the Judge. Despite that provision, the lawyers of the PCA try very hard to remove the children from the private orphanages where the children are getting good care, to transfer them to overcrowded places without adoption programs, just to harm the lawyer or the hogar who is trying to get the child to have a loving and permanent family.

At the ADA meeting was discussed - again – the need to address the mistaken attitude of the PCA, beginning with the interviews of the under age birth mothers. There are no legal grounds to make the girls who decided to place their children for adoption, to submit to an interview along with her parents and to make things worse, it is also required that the baby be brought to the interview. The girl and her parents are mad to wait, in the same area as the baby and the caregiver, sometimes for hours, which causes pain to the birth mother and to her parents, who are forced to meet with the child that they cannot keep. There is nothing that justifies, legally or otherwise the pain that such meeting causes.

After the interview by the psychologist has taken place, the investigator takes over the case, investigating things that have nothing to do with the validity of the process, like the address where the grandparents of the child being adopted declared as their home. Any discrepancy is cause of suspicion and more delays.

The contractual nature of the adoption, is similar to that of marriage. The State has the power to oversee that the consent is free of coercion, but cannot prevent a young woman from placing her child for adoption just because she no longer lives where she used to live, or because she chose not to disclose where she actually lives, as a way to preserve the secrecy of the decision that she and her parents made about hr child.

To try to talk to the authorities of the PGN is very difficult The director of the PGN section that reviews adoptions is Victor Hugo Barrios Barahona, who refuses to talk to adoptions attorneys. Arellano talks to lawyers on Tuesdays, and by appointment only. The reviewers talk to lawyers only from eleven to twelve every morning, when they are at their desks, which is not always.

The attendants at the meeting agreed that it is necessary to address the negative attitude of the lawyers of the PGN, because it causes the files to be delayed unnecessarily and it hurts the children. Barrios has the strange idea that if a file is approved, it has to sit for at least a month before it is released. The reviewers do their work rather quickly. It is the review that is done at Barrios office and the actual signing by Barrios, what takes months. That kind of delay constitutes a felonies of neglect to perform their official duties and abuse of authority.

It is evident that the PGN is becoming more difficult every time and that the increase in their workload, increased by them, by rejecting the files for frivolous reasons, does not help to fix the problem. The ideal way to handle the problem would be to reach an agreement, stating rules that would expedite the review of the cases. But there is no political will to help children to be adopted and that places us at a crossroad: to press criminal charges or to keep doing everything the PGN or the PCA says, hoping that eventually they will grow tired of the game and release the files and let the children go.

Some of the attendants were in favor of moving forward with criminal lawsuits. Others were worried of retribution. The agreement was to consult with the parents and the agencies in order to take a decision.

C. The withdraw of the reservation to the Vienna Convention of the Law of Treaties.

The Vice President Eduardo Stein, who in 1997 was the Ministry of Foreign Affairs and made the reservation to some articles of the Vienna convention because they were unconstitutional, withdrew such reservations today, because they were in the way of Guatemala becoming bound by the Hague Convention on Intercountry Adoptions. The fact that it is still the same Constitution did not stop him from doing so. The Hague Convention would have to be approved by Congress in order to be restored internally. We do not see that happening any time soon. But anyway, the matter is irrelevant because Guatemala is still bound internationally by The Hague Convention and Congress is working on an adoption law that will implement the Hague Convention to allow adoptions to continue.

D. The need of an education campaign.

Everybody claims to support adoptions, but very seldom someone supports the adoption legal system of Guatemala, because the people believe the negative publicity of a slanted press. To educate the general public it is necessary to start an educational campaign to vindicate Guatemalan adoptions.

E. The Second DNA
We agreed to request the US authorities to set up a second DNA, after the adopted child gets his passport, to prove that the child who went to the first DNA with his mother is the same who is going home with his adoptive parents. We have nothing to hide and that simple process would simplify the investigations that the US authorities are conducting.

METTING WITH IGNACIO GOICOECHEA, OF THE HAGUE CONFERENCE OR INTERNATIONAL PRIVATE LAW

Mr. Ignacio Goicoechea is the Latin American liaison for The Hague Conference of International Private Law, who asked Dina Castro and Jorge Carrillo of the Institute of Family Law and Susana Luarca of ADA to meet with him yesterday afternoon at The Netherlands embassy.

The meeting took place at the office of the Ambassador, who kindly lent us a place to meet and discuss the implementation of The Hague Convention for Adoptions. The announcement of the United States that adoptions will no longer be possible if Guatemala has not implemented such convention has brought us to the table of negotiations and to see the Hague Convention under a different light. . We have changed our position and now we think that there could be adoptions after the Hague Convention.
Mr. Goicoechea is from Argentina, a country that does not believe in adoptions, requiring to foreigners a five year residence in Argentina before they can adopt, but he seemed fairly open to the continuance of adoptions in Guatemala, he told us about the help that The Hague Conference lends to countries who are implementing the convention, We explained to him the Hague fiasco of 2003 and its terrible consequences. We also explained to him the process of adoption and the safeguards it has to ensure that the birthmothers are not coerced and that the adoption is what they really want. Although time was short and many things were left unsaid, we left in good spirits. This is the first time that The Hague people talk to us, the adoption attorneys. Other times they talked only to the authorities http://www.minex.gob.gt/fotos2005/058/058.htm We want to believe that this time the implementation of the Hague Convention in Guatemala will allow the children of Guatemala to still have the option of being adopted.

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