ADA News (English)

During 2008, many things happened in Guatemala, but none of them were good for the children. Even though there is a very clear and explicit sentence of the Constitutional Court dated August 13, 2003, ruling unconstitutional the approval by Congress of the Hague Convention, the new and politically oriented magistrates of such court, which may also be called “Office of Political Affairs of the Government”, instead of forcing the president of Guatemala to obey the sentence of the court and to denounce the Hague Convention, to disengage our country from such evil treaty, supported a position of “it is within the presidential powers to deal with international treaties”, that the Berger administration quickly translated into “The Hague convention is still valid and binding for Guatemala” and passed an adoption law that took effect on December 31st, 2007 that thus far has succeeded in preventing adoptions from happening.

After a year without new adoptions, the situation of the children in Guatemala is far from better. Fifty per cent of the children in the country suffer of malnourishment and many babies have died abandoned in public places. The situation is not getting better, as there is no social infrastructure in place to take care of the children who no longer will be adopted. Their alternative is not to languish in public orphanages, because there are no public orphanages to take care of them. It is worse than that.

THE HAGUE CONFERENCE FOR INTERNATIONAL PRIVATE LAW

The Hague Conference for International Private Law is an international entity that promotes treaties to uniform the legislation of the different countries. According to this entity:

“Personal and family or commercial situations which are connected with more than one country are commonplace in the modern world. These may be affected by differences between the legal systems in those countries. With a view to resolving these differences, States have adopted special rules known as "private international law" rules.

The statutory mission of the Conference is to work for the "progressive unification" of these rules. This involves finding internationally-agreed approaches to issues such as jurisdiction of the courts, applicable law, and the recognition and enforcement of judgments in a wide range of areas, from commercial law and banking law to international civil procedure and from child protection to matters of marriage and personal status.

Over the years, the Conference has, in carrying out its mission, increasingly become a centre for international judicial and administrative co-operation in the area of private law, especially in the fields of protection of the family and children, of civil procedure and commercial law.”

Those statements are not quite true, as many of their conventions have been agreed to by just a handful of countries and even some of them have no countries to support them. It seems that the main focus of The Hague Conference is to convince the authorities of the countries of origin of adopted children that it is in the best interest of the children to prevent their children from leaving their less developed countries, through international adoption. The jewel of the Hague Conventions is their convention about inter country adoption, known as the CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION, concluded on 29 May 1993, entered into force 1 May 1995, which has 76 countries as members. The general result of becoming a member to the convention is to thwart international adoptions, either by setting up a central authority whose agenda is to stop any possible adoptions or to give the countries of destiny (First World Countries) a legal tool to deny entrance to their territories to the children of the sending Hague Countries, by arguing that “they are not Hague compliant”. Since the term “Hague compliant” is an elastic one that stretches out as much as they want, it is very easy to establish requirements of impossible fulfillment in order to prevent any attempt to approve adoptions by any of their citizens.

PROCURADURIA GENERAL DE LA NACION (PGN)

According to the Adoptions Law, to be grandfathered an thus finished according to the old laws, an adoption must have been registered at the National Council of Adoptions, within the thirty days of the law becoming effective. To register the processes with the NCA was an ordeal, because the Colom administration fired two of its three directors and appointed new people, but the appointees by Berger refused to leave their jobs to them, and after a month of legal actions before the courts, they gave up and left, giving only a few days to the new appointed directors to organize the registration of three thousand adoption processes, that was successfully done working around the clock.

Once the registration was done, we thought that the children would be leaving in the first half of 2008, since the then Attorney General was not talking to the NCA and the grandfathered adoptions were being approved without further delay. However, the plan was not to allow the children to leave the country so easily, and that is why the NCA, an entity that has nothing to do with the grandfathered adoptions, unable to show any accomplishments to justify their jobs, got fired Attorney General Gordillo, and appointed in his place Baudilio Portillo Merlos, one of their people. The new Attorney General came to the PGN with the express agenda of collaborating with the NCA and that is why they came up with the idea of interviewing the birthmothers and even the legal guardians of children already ruled abandoned and ordered to be placed for adoption by the courts of minors. Failure to comply with that illegal requirement rendered the adoption as a case that should be sent to the court of minors, for the protection of the children. The interviewers of the mothers were ruthless most of the times and treated them without respect. Indigenous mothers who did not speak Spanish were deemed incapable of giving a proper consent and their children were whisked away and sent to the court of minors to be protected. From May to August 31st. many interviews took place and even though a great deal of the children whose mothers were interviewed were approved, there are still many others whose adoptions are stalled.

The chief of the section of the PGN that gives the required opinion about the legality of the process, is Floricelda Polanco de de Leon, who has no qualms in sending the cases to the section of Childhood and Adolescence of the PGN, with instructions to run an investigation to establish the origin of the child, to locate the birth mother and to find a member of the extended family who would want the child, even after the same section of the PGN ran such investigation during the judicial abandonment process ins those cases that have a declaration of abandonment, and during the course of the process exhausted the possibility to return the child to the birthmother or to any of her relatives. The investigators assigned to the cases are allowed to keep the files in drawers that are never checked for progress, and nobody gives information about the status of the investigation.

Some of the Courts of Minors have been ruling that the birth mother interviews are illegal and that a child being adopted is not a child at risk, and therefore it does not need the protection of a legal process, ordering the PGN to issue the required opinion. Thus far, the PGN has been slow to respond to such order, mainly because the chief of the section of Childhood is still on vacation, but the PGN officers will have to comply with the court orders or face charges for disobedience. They should know that they are in power today and brought to justice tomorrow, like Gordillo, for instance, so they should be careful and do not abuse their power and approve the grandfathered adoptions without further delay.

The bureaucracy will always find a way to make things more difficult in order to justify their jobs, but what it is unacceptable is their refusal to do what they are meant to do, as Flory De Leon, chief of the section of Procuraduria is doing, by either holding up as many files as possible or by sending them to the section of Childhood and Adolescence to be investigated, which may take many months, depriving the child of the love of the love of their families.

It will be necessary to force the PGN to stop playing games and to do their work. The courts support our arguments that the birthmother interviews have no legal grounds and cannot be used as a reason to institutionalize a child, derailing his adoption process. The faster an adoption process is finalized, the better it is for the child. Bruce Harris sold the media the idea that clear, problem free and fast adoptions were the same as illegal adoptions, without proof to support his allegations. The Convention for the Rights of the children, a human rights treaty ratified by Guatemala establishes that the children need to be raised by permanent, loving families. Even a foster family is not a proper substitute for a permanent and loving family, so it is for the benefit of the children that the process of adoption should be as fast and as an easy as possible.

THE NATIONAL COUNCIL OF ADOPTIONS

A year later, ten million quetzals spent and only a handful of adoptions to show for, describe the so-called work of this entity that prides itself, not in the adoptions they accomplished, but how they have convinced the birthmothers wanting to place their children for adoption, to keep their children, regardless of the conditions the children will live in, forgetting that the best interest of the child is to be with a family who really wants the child and who can properly satisfy all the needs of such child. To keep a child just because adoptions are no longer possible is not the best for a child whose mother cannot provide for him.

Some days ago, the directors of some of the private orphanages who still have children, got an invitation to a seminar at Casa Ariana, a conventions place at Reforma Avenue, from eight in the morning to five in the afternoon, including coffee breaks and lunch. The purpose of the seminar was to explain to the orphanage directors, the steps that must be filled out to register their orphanages at the NCA.

The first speaker was the new director of the NCA, Wendy Cuellar, who introduced herself and presented a woman from the Ministry of Education who explained in detail the requirements to register a school at such Ministry, which implies to have teachers and the necessary staff to run a regular school There was also someone from the Ministry of Health, who explained that an orphanage must have the necessary staff to run a health center in order to be registered at their Ministry. The orphanage directors asked the NCA if they could expect financial help from the State and the answer was that there is no budget for that, and that the private orphanages must fulfill all the explained requirements and be registered at the NCA before the end of January, which is totally unrealistic. The last speaker was Jaime Tecu, legal advisor of the NCA who told the hogar directors that there is no way that the private orphanages may place their children with families, as all the placements will be done only by the NCA, and that the income of the international adoptions will belong to the NCA, and not a cent will go to pay for the stay of the children at the orphanages. Some of the private orphanages are funded by churches or by private citizens who may or may not continue funding such places. The situation of the abandoned children is the least of the concerns for the current government, because it is oriented to build the political platform to promote Alvaro Colom's wife as presidential candidate in the next term, and since the children do not vote, they do not have a place in their agenda.

Casa Alianza is a private entity funded by Covenant House, a catholic entity based in New York, whose directors in Latin America have opposed and criticized the adoption legal system of the Latin American countries, especially its regional Bruce Harris, who was very vocal in his criticism of the Guatemalan legal system, saying that it was very weak and allowed all kind of abuses, which he only talked about but never was able to prove. Bruce Harris was fired by Casa Alianza when he was found out to have paid for sex to a male teenager in Honduras. The media news have reported this week that Casa Alianza is closing down its operations in Guatemala, due to lack of financial resources. About 99 children will be presented to the courts to be transferred to other orphanages, and all the employees will be fired, with severance payments that amounts to ten million quetzals.

According to the secretary of one of the Courts of Minors, they have no place to send any more children. She said that the workers of Casa Alegría, the only state orphanage for young children, have asked the court not to send them any more children, as they are very short of everything and the place is full. The entity in charge or running the public orphanages in Guatemala, the Secretaria de Bienestar Social de la Presidencia, far from enlarging its facilities to accommodate all the children who are not being adopted, is firing half of its staff due to lack of funds. Only three private orphanages are taking in children lately, said the court secretary, but it is unlikely that they will take all those children that Casa Alianza is abandoning.

The United States, after literally forcing Guatemala to become a Hague Convention member and to pass an anti adoption law, it is now saying that the US will not approve adoptions from Guatemala, because our new system is not according to the Hague Convention. Since no adoptions have been authorized thus far, how can the United States say that the system is not Hague compliant? If they new that the system was no Hague compliant, why did they push it so hard, in the first place? Many questions come to mind, because Instead of working closely with the Guatemalan authorities to make the system work, the US DOS authorities are totally disregarding it as unacceptable, forgetting their arguments to push for new legislation, when they stated that it was necessary to pass the adoptions law to prevent the children from being deprived of a family. We knew that the result would be the opposite and the lack of new adoptions has proven us right.

THE NATIONAL REGISTRY OF PERSONS (RENAP)

To complicate things even more, the RENAP started last year taking over the role of the Civil Registries of the Municipalities and that has created a bottleneck in many cases, although in some cases it has ended the abuses of some of them, like the Santa Catarina Pinula Civil Registry, that according to an agreement of the Municipal Council, established that the cost of a birth certificate that normally is of fifteen quetzals, if it was of an adopted child, it was of two thousand quetzals, a very steep amount that penalized something constitutionally protected, as it is the adoption and discouraged the locals from adopting a child that was born there.
The RENAP is playing along the PGN, by requesting the act of the interview to the birthmother in order to approve the recording of the adoption, as if that interview had any legal grounds. The process of recording an adoption is very complicated, but with diligence, it is being done and many children have left the country with their adoptive parents.

The Hague Convention is guilty of being the tool used to obstruct adoptions. With so appalling results, the Hague Convention should be denounced by all the countries as a total failure, but instead of that, The Hague Convention is advertised as a success based on the number of countries that became members to the convention, disregarding entirely that the children in the countries of origin are not being adopted and in many cases, the governments are unable to provide adopting parents for them in the way that it was done when international adoptions were possible.

The government of Guatemala is totally neglecting its obligation to provide mental and physical health to the needy children as well as their right to be fed, to be educated and to have social security, as none of those needs are being addressed by the Colom administration and to expect that the private sector will do it without the income of adoptions, is unrealistic and absurd. The problem now is that the children are being tossed in the garbage dumps when their mothers do not have the alternative of an adoption. The newspapers do not report abut those deaths, only the radio news programs do.

Talking to a congressman about the possibility of a change in the law, that would provide an income to the private orphanages, he said that by express orders of President Colom and his very powerful wife, Sandra Torres, adoptions must be stopped, because they give a poor image to the country. We believe that much worse the image of Guatemala will be when the mortality rate of the children and their mothers increase, because formerly many of the mothers who placed their children for adoption got medical care at private hospitals and were less exposed to infections or delivery complications. The rate of crime will increase too, as it has happened in Honduras and El Salvador, just to mention two neighboring countries where adoptions are extremely difficult and their children become hit men at eleven or twelve years old, taking advantage that at their age, they are not judged as criminals, but as children with behavioral problems.

Legal resources were filed by ADA last year and now the Constitutional Court must rule on them. When that happens, we will know if the Constitutional Court made a serious effort to recover the prestige of that institution or continues to be the arm of the people in power to do as they please, disregarding the law and most of all, that the children who are not wanted or cared for, need families and that they need them since the moment their mothers took the decision to give their children the chance to have families who really want and love them, not years later, after the bureaucracy gets tired of playing power games with their lives, or even worse, when they die of any easy or curable disease before their first birthday, as it is happening now.

The adoptions already registered with the National Council of Adoptions will be finalized according to the old rules, regardless of the birthmother interviews not having taken place, and despite what the deputy Attorney General says and does.

Those foreign families who have the authorization of their government to adopt, (for the US citizens, to have a valid i-600 filed before April 1st., 2008) are eligible to adopt a child from Guatemala according to the Adoptions Law. It is just a matter of making the NCA to understand that it is not in the best interest of the children to prevent them to have a family, regardless of where that family lives. It is not a matter of territory. It is a matter of life and death.

Susana Luarca, ADA.