Circular No. 08/2006/TT-BTP guiding the implementation of certain provisions on adoption involving foreign elements

CIRCULAR

Guidelines for Implementing Certain Provisions on International Adoption

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Pursuant to Decree No. 62/2003/NĐ-CP dated June 6, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 68/2002/NĐ-CP dated July 10, 2002 of the Government detailing and guiding the implementation of certain provisions of the Marriage and Family Law concerning marriage and family relations involving foreign elements (hereinafter referred to as Decree No. 68/2002/NĐ-CP);

Pursuant to Decree No. 69/2006/NĐ-CP dated July 21, 2006 of the Government amending and supplementing certain articles of Decree No. 68/2002/NĐ-CP dated July 10, 2002 of the Government detailing and guiding the implementation of certain provisions of the Marriage and Family Law concerning marriage and family relations involving foreign elements;

Pursuant to the Agreements on Cooperation in Adoption between Vietnam and other countries;

To ensure consistent implementation of provisions on international adoption, thereby enhancing the effectiveness of state management and resolving issues for Vietnamese children adopted by foreigners;

The Ministry of Justice hereby provides guidelines for implementing certain provisions on international adoption as follows.

I. GENERAL PROVISIONS

1. Scope of Guidance

This Circular guides the implementation of Articles 35, 36, 37, 41, 42, 43, 44, 45, 46, 47, 49, 51, and Clause 1 of Article 79 of Decree No. 68/2002/NĐ-CP dated July 10, 2002 of the Government detailing and guiding the implementation of certain provisions of the Marriage and Family Law concerning marriage and family relations involving foreign elements, which has been amended and supplemented by Decree No. 69/2006/NĐ-CP dated July 21, 2006 of the Government (hereinafter referred to as "Decree No. 68/2002/NĐ-CP (amended and supplemented)") and the Agreements on Cooperation in Adoption between Vietnam and other countries, with the aim of ensuring uniformity in the application of subjects, procedures, and formalities for foreigners seeking to adopt Vietnamese children.

2. Translation and Notarization, Authentication of Documents

Documents for adoption in a foreign language must be translated into Vietnamese; the translation must be authenticated by the Diplomatic Mission or Consular Office of Vietnam abroad.

Upon agreement with the Central Agency for International Adoption of the country that is a member of the bilateral or multilateral international treaty on cooperation in adoption along with Vietnam, the documents for adoption may be translated in Vietnam; the translation must be notarized and authenticated according to Vietnamese law.

3. Strictly Prohibited Activities in the Field of Adoption

3.1. Strictly prohibited are the activities of foreign adoption organizations, domestic and foreign individuals engaging in business or intermediary services for adoption with the purpose of profiting or exploiting the support for adoption for the purpose of child trafficking, labor exploitation, sexual abuse of children, or other profit-seeking purposes.

3.2. Strictly prohibited is the act of a person seeking to adopt a child requesting a specific child through the direct introduction of a foreign adoption office in Vietnam or paying money, property, or other material benefits to agencies, organizations, or individuals to act as intermediaries for adopting a child.

II. PERSONS SEEKING ADOPTION AND CHILDREN TO BE ADOPTED

ADOPTION

1. Persons Seeking Adoption

According to Article 35 and Clause 1 of Article 79 of Decree No. 68/2002/NĐ-CP (amended and supplemented), persons seeking to adopt Vietnamese children include:

1.1. Persons residing in a country that is a member of a bilateral or multilateral international treaty on cooperation in adoption with Vietnam (a list of such countries accompanies this Circular). Such persons may adopt any child specified in Clauses 2, 3, and 4 of Article 36 of Decree No. 68/2002/NĐ-CP (amended and supplemented).

1.2. Persons residing in a country that is not a member of a bilateral or multilateral international treaty on cooperation in adoption with Vietnam, if they fall under any of the following circumstances, may adopt any child specified in Clauses 2, 3, and 4 of Article 36 of Decree No. 68/2002/NĐ-CP (amended and supplemented):

a) Persons who have worked, studied, or lived in Vietnam for at least six months. The six-month period is calculated based on a single entry-exit from Vietnam; if both spouses seek to adopt a child, only one spouse needs to meet this condition.

b) Persons whose spouse, parent, or grandparent is a Vietnamese citizen or a Vietnamese descendant. Vietnamese descendants are defined according to Circular No. 2461/2001/TT-BNG dated October 5, 2001 of the Ministry of Foreign Affairs, as those who currently or previously held Vietnamese citizenship; or whose father, mother, grandfather, grandmother, great-grandfather, or great-grandmother currently or previously held Vietnamese citizenship.

c) Persons who have kinship or close relationships with the child to be adopted or who already have a sibling as their adopted child.

Kinship refers to the relationship between the person seeking adoption and the child to be adopted as aunt, uncle, niece, nephew, or cousin (through either the paternal or maternal side). In cases where the person seeking adoption is a grandparent adopting a grandchild or siblings adopting each other, such requests will not be processed.

Close relationship refers to the relationship between the person seeking adoption and the child to be adopted as husband and stepchild or wife and stepchild.

1.3. Persons residing in a country that is not a member of a bilateral or multilateral international treaty on cooperation in adoption with Vietnam and who do not fall under any of the circumstances specified in Points a, b, and c of Clause 3 of Article 35 of Decree No. 68/2002/NĐ-CP (amended and supplemented) may only adopt disabled, severely disabled, mentally incapacitated children, children affected by chemical warfare agents, children infected with HIV/AIDS, children suffering from other serious diseases living in families or legitimate care facilities in Vietnam, or orphaned children living in families.

1.4. Vietnamese citizens residing abroad may adopt any child specified in Clauses 2, 3, and 4 of Article 36 of Decree No. 68/2002/NĐ-CP (amended and supplemented), regardless of whether Vietnam and the country where they reside are members of a bilateral or multilateral international treaty on cooperation in adoption.

A Vietnamese citizen residing abroad refers to a person holding Vietnamese nationality who lives, works, and settles permanently overseas, regardless of whether they have acquired foreign citizenship or not.

2. Children eligible for adoption

According to Article 36 of Decree 68/2002/NĐ-CP (amended and supplemented), children eligible for adoption include:

2.1. Children living at legally established care facilities in Vietnam. Legally established care facilities refer to social welfare institutions established under the Regulations on the Establishment and Operation of Social Welfare Institutions issued together with Decree No. 25/2001/NĐ-CP dated May 31, 2001 of the Government (hereinafter referred to as care facilities). The People's Committee of provinces and centrally governed cities (hereinafter referred to as provincial People's Committee) shall direct the Department of Justice to coordinate with the Department of Labor, Invalids, and Social Affairs to notify the International Adoption Agency of the list of these care facilities and the list of children living there who meet the conditions for introduction as adoptees.

Introducing children living at care facilities for adoption must comply with the following regulations:

a) Prioritize introducing children for domestic adoption; introducing children for international adoption is only considered a last resort when it is impossible to find a family for the child domestically;

b) Only introduce children for adoption after thirty days from the date the child was admitted to the care facility; for abandoned newborns, only introduce them for adoption after sixty days from the date of discovery of the abandoned child;

c) Abandoned children living at care facilities can only be introduced for adoption by foreigners after thirty days from the date of announcement in provincial-level or higher mass media without any relatives coming forward to claim them and also not being adopted by anyone in the country (the content of the announcement follows the model attached to this Circular);

2.2. Children living in families who can be adopted by foreigners if they fall under the provisions of Clause 3 of Article 36 of Decree 68/2002/NĐ-CP (amended and supplemented).

For children who have kinship with the adoptive parent applicant, they can only be resolved for adoption by their aunt, uncle, cousin, or other collateral relatives abroad if the child is orphaned of both parents or orphaned of the mother or father, and the other parent is unable to work and does not have the conditions to raise the child; in cases where the child still has both parents but both parents are unable to work and do not have the conditions to raise the child, the child can also be resolved for adoption.

In cases where the child has kinship with the adoptive parent applicant, but the child still has both parents, the health of the child and parents is normal, and the parents still have the ability to work and have the conditions to ensure the care of their child in Vietnam, then international adoption will not be resolved.

2.3. Disabled, severely disabled, chemical warfare victims, HIV/AIDS patients, or those suffering from other serious diseases (previously living at care facilities or living in families) currently undergoing treatment abroad, if adopted by foreigners or Vietnamese citizens residing abroad, will be considered for resolution by the Diplomatic Missions and Consular Offices of Vietnam abroad as if the child no longer has a permanent residence registration in the country.

III. SOME GUIDELINES ON THE PROCEDURES FOR RESOLVING ADOPTION MATTERS ADOPTION

1. Documents of the adoptive parent applicant

The documents of the adoptive parent applicant include the papers stipulated in Article 41 of Decree 68/2002/NĐ-CP (amended and supplemented), noting the following points:

a) The application for adopting a child must be fully completed according to the prescribed form, and the adoptive parent's wishes regarding the child to be adopted (such as number, age, gender, health status) must be consistent with the permit or family and social background investigation report issued by the competent authority of the foreign country;

b) If the adoptive parent applicant does not yet have a passport when submitting the documents, only a certified copy of the identity card, travel document, or residence card is required, and all Vietnamese documents must state the name, date of birth of the applicant according to such documents, then when completing the adoption procedures at the Department of Justice, the adoptive parent applicant does not need to submit a copy of the passport;

c) For the adoptive parent applicant falling under Clause 3 of Article 35 of Decree 68/2002/NĐ-CP (amended and supplemented):

- If under point a, they must provide a copy of the Vietnamese entry-exit visa (one time) or other documents proving that they have stayed in Vietnam for six months or more.

- If under point b, they must provide appropriate documents proving (having a spouse, parent who is a Vietnamese citizen or of Vietnamese origin).

- If under point c, they must provide a confirmation letter from the People's Committee of the commune where the child usually resides confirming their kinship with the child to be adopted; a copy of the marriage certificate of the adoptive parent with the father or mother of the child to be adopted and the birth certificate of the child to prove the familial relationship; a copy of the decision of the competent authority of Vietnam to adopt a child, the birth certificate of the adoptive child, and the child to be adopted to prove that the adoptive parent already has a sibling of the child to be adopted;

d) In cases where the adoptive parent applicants are a married couple, but during the processing of the application, one of the spouses dies, if the surviving spouse wishes to continue the adoption process, they must reissue the documents mentioned in points a, c, and d of Clause 1 of Article 41 of Decree 68/2002/NĐ-CP (amended and supplemented).

2. Procedures for receiving and processing applications

The procedures for receiving and processing applications of adoptive parent applicants are carried out according to the provisions of Article 42 of Decree 68/2002/NĐ-CP (amended and supplemented), noting the following points:

2.1. Prior to accepting the dossier, the International Adoption Department must verify and be responsible for ensuring that the applicant for adoption falls within the categories specified in Clause 2 and Clause 3 of Article 35, Clause 1 of Article 79 of Decree 68/2002/NĐ-CP (amended and supplemented) and the guidance provided in Point 1 of Section II of this Circular.

2.2. The submission of the dossier shall be carried out as follows:

a) Applicants for adoption falling under Clause 2 of Article 35 of Decree 68/2002/NĐ-CP (amended and supplemented) shall submit their adoption application through the Overseas Adoption Office in Vietnam or the competent authority of the foreign country concerned.

The head of the Overseas Adoption Office, authorized staff of the Overseas Adoption Office, or representatives of the foreign competent authority must personally submit the adoption application at the International Adoption Department;

b) Applicants for adoption falling under Clause 3 of Article 35 and Clause 1 of Article 79 of Decree 68/2002/NĐ-CP (amended and supplemented) shall directly submit their adoption application at the International Adoption Department if they wish to adopt a child in Vietnam, or at the Diplomatic Agency or Consular Office of Vietnam abroad if they wish to adopt a Vietnamese child abroad.

2.3. After verifying that the dossier of the applicant for adoption is complete and valid, the International Adoption Department shall issue a Dossier Acceptance Certificate (according to the model attached to this Circular) to the applicant; the time for processing the dossier shall be counted from the date of issuance of the Dossier Acceptance Certificate.

3. Specific cases of named adoption

Named adoption of Vietnamese children as adoptive children shall only apply to the following cases:

a) Applicants for adoption falling under Clause 3 of Article 35 and Clause 1 of Article 79 of Decree 68/2002/NĐ-CP (amended and supplemented);

b) Applicants for adoption under Clause 2 of Article 35 of Decree 68/2002/NĐ-CP (amended and supplemented) who fall into one of the following situations:

- Having worked, studied, or lived in Vietnam for six months or more;

- Having a spouse, parent who is a Vietnamese citizen or a person of Vietnamese origin;

- Having a kinship or close relationship with the child to be adopted or having an adopted sibling of the child to be adopted.

4. Dossier of children introduced for adoption

The dossier of children introduced for adoption by foreigners includes the documents stipulated in Article 44 of Decree 68/2002/NĐ-CP (amended and supplemented), among which the following documents should be noted:

4.1. For the Birth Registration of the child, a copy from the original book or a notarized or certified copy from the original may be submitted.

4.2. For health certificates, a certificate issued by a healthcare organization at the district level or higher in Vietnam may be submitted; it is encouraged to submit a health certificate of the child issued by a high-quality healthcare organization or a healthcare organization at the provincial level or higher.

4.3. For children whose parents are unable to work or do not have sufficient conditions to care for and raise the child, a confirmation letter from the People's Committee of the commune where the parents reside must be provided.

4.4. For abandoned children, to ensure the clear origin of the child, the following must be provided:

a) A report from the person who discovered the abandoned child, clearly and fully detailing information about the discoverer (name, date of birth, place of origin, contact address, occupation, ID number) and the signature of the person; if the person cannot write, they must affix a fingerprint but their name, date of birth, place of origin, ID number, and the signature of the writer must be recorded;

b) A record of the abandonment of the child, clearly stating the date, location, gender, identifying features, property, and other items of the child (if any), signed by the discoverer, the recorder, and other relevant persons, confirmed by the People's Committee of the commune or the police station where the child was found;

c) Documents proving that the care facility has announced the abandonment of the child on mass media at the provincial level or higher at least thirty days prior;

d) A declaration from the head of the care facility confirming that after thirty days from the announcement on mass media at the provincial level or higher, no relatives have come to claim the child and no domestic individuals have adopted the child.

4.5. Regarding the consent for the child to be adopted, it must ensure that:

a) The consent of the head of the care facility, biological parents, or guardian for the child to be adopted by a foreigner must be entirely voluntary, in the best interest of the child; absolutely prohibited is any meeting or contact between the applicant for adoption and the head of the care facility, biological parents, or guardian of the child to make financial or material benefit agreements or any form of personal gain to obtain consent for the child to be adopted;

b) Before voluntarily giving consent for the child to be adopted by a foreigner, the head of the care facility, biological parents, or guardian of the child must clearly and fully understand the legal consequences of the consent for the child to be adopted in full/permanent form and potentially leading to the termination of the existing legal relationship between the child and the biological parents according to foreign law; such consent cannot be withdrawn;

c) In cases where the child is abandoned and the biological parents cannot be identified due to intentional concealment of addresses, provision of false addresses, or although there is an address of the parents, at the time of verification, the parents have legitimate reasons to request confidentiality of information or the parents have moved to an unknown address, only the voluntary consent of the head of the care facility for the child is required.

d) In the case where a child is placed in a care facility and the biological parents have not clearly expressed their willingness for the child to be adopted by a foreigner, but the address of the biological parents is known, there must also be a voluntary written consent from the biological parents for the child to be adopted by a foreigner; if the biological parents are under 18 years old, then written consent from the guardian of those parents is also required; if these individuals cannot read, they must affix their fingerprints on the voluntary written consent for the child to be adopted and clearly state their full name, date of birth, place of origin, identification number, and the signature of the person who wrote it on their behalf.

5. Procedure for introducing children for adoption in cases of non-specific applications

All cases of applying to adopt a child through the Overseas Adoption Office in Vietnam (excluding those specified in point 3.1, sub-item 3, section III of this Circular) shall be handled according to the provisions for non-specific applications as stipulated in Article 51 of Decree 68/2002/NĐ-CP. The procedure for introducing children for adoption shall be carried out as follows:

5.1. After receiving complete and valid application files from the applicant, based on the list of children living in care facilities, the characteristics and conditions of the children, and the wishes of the applicant, the International Child Adoption Bureau shall send a letter with a copy of the application receipt and the applicant's application form to the Department of Justice for the Department to guide the care facility to consider recommending a child.

5.2. Within fifteen days from the date of receipt of the letter from the International Child Adoption Bureau, the Department of Justice shall send a letter requesting the care facility to determine whether the child meets the conditions (listed in the reported list of children) and is suitable for the applicant's wishes to be recommended for adoption, and reply in writing to the International Child Adoption Bureau, accompanied by the documents specified in point 5.3, sub-item 3, section III of this Circular.

5.3. Within seven days from the date of receipt of the request letter from the Department of Justice, the care facility shall determine whether the child meets the conditions to be recommended for adoption and send a letter (according to the model attached to this Circular) to the Department of Justice, accompanied by the following documents:

a) A copy of the Birth Certificate (with two 9x12 or 10x15 photos) of the child;

b) A copy of the Handover Record when the child was admitted to the care facility; in cases where the child was abandoned at the care facility, only a report from the person who discovered the child is necessary;

c) A copy of the decision of the competent authority to admit the child to the care facility;

d) For abandoned children, the following must be provided:

- Documents proving that the care facility has announced the abandonment of the child at least thirty days prior on mass media at provincial level or higher (such as provincial newspapers or confirmation of broadcasting on provincial radio or television);

- A written statement from the head of the care facility (according to the model attached to this Circular) confirming that after thirty days from the announcement on mass media at provincial level or higher, no relatives came to claim the child and the child was not adopted domestically.

5.4. Within seven days from the date of receipt of the reply letter from the Department of Justice, the International Child Adoption Bureau shall notify the applicant about the result of recommending the child for adoption (through the Overseas Adoption Office in Vietnam).

5.5. Within thirty days from the date of receipt of the notification from the International Child Adoption Bureau, the applicant must reply in writing to the International Child Adoption Bureau regarding acceptance or rejection of the recommended child for adoption (through the Overseas Adoption Office in Vietnam).

5.6. Only after receiving the written consent from the applicant for the recommended child, will the International Child Adoption Bureau issue a letter to the Department of Justice to guide the care facility to prepare the adoption file for the recommended child (Letter 1); at this point, the care facility will officially prepare the adoption file for the child.

In cases where the applicant refuses to accept the recommended child, the International Child Adoption Bureau shall send a letter to the Department of Justice for the Department to notify the care facility to recommend another child; the applicant may only be recommended another child twelve months after the refusal letter.

6. Procedure for reviewing the child's file

6.1. After receiving four sets of the child's file transferred by the care facility, the Department of Justice shall review all documents in the file, verify the legality of the documents, and clarify the origin of the child according to the provisions of Article 45 of Decree 68/2002/NĐ-CP, particularly paying attention to the documents mentioned in point 4, section III of this Circular.

If it is necessary to request the Public Security Agency to verify according to the provisions of Clause 2, Article 45 of Decree 68/2002/NĐ-CP, the Department of Justice must send a copy of the verification results of the Public Security Agency along with one set of the child's file to the International Child Adoption Bureau.

6.2. The International Child Adoption Bureau shall review the entire file of the child according to the provisions of Article 46 of Decree 68/2002/NĐ-CP and only send a letter expressing agreement to process the application for adopting a child by a foreigner (Letter 2), accompanied by one set of the applicant's file to the Department of Justice for submission to the Provincial People's Committee for decision, if the child's file is deemed complete and valid according to the regulations of Decree 68/2002/NĐ-CP (amended and supplemented) and the guidance in this Circular.

7. Completion of the adoption application procedure

The completion of the adoption application procedure shall be carried out according to the provisions of Article 47 of Decree 68/2002/NĐ-CP (amended and supplemented), noting the following points:

In cases where the applicant for adoption has a legitimate reason to be unable to be present in Vietnam within thirty days from the date of receipt of the notification from the Department of Justice to complete the adoption application procedures, the applicant must submit a written request to the Department of Justice for an extension. If the extension is granted, the Department of Justice shall notify the Overseas Adoption Office in Vietnam to inform the applicant; the extension period shall not exceed sixty days from the date of the Department of Justice's approval letter.

In cases where there are valid reasons preventing the person seeking to adopt from being present in Vietnam within the specified period, such person must authorize in writing the Overseas Adoption Office to submit the fee and the commitment statement (according to the prescribed form) to the Department of Justice for filing every six months for three years from the date of adoption, thereafter once a year until the adopted child reaches eighteen years of age; in the authorization document, the person seeking to adopt must affirm that they will not refuse to accept the child who has been introduced; the authorization document must bear the signature of the person seeking to adopt, without the need for notarization or certification.

8. Completion of departure procedures from Vietnam Male who are members of ethnic minorities before entering first grade

8.1. After receiving the decision of the Provincial People's Committee allowing foreigners to adopt children and the adoption process has been carried out at the Department of Justice, relevant agencies shall facilitate the completion of departure procedures for the child to leave Vietnam, enter and reside in the receiving country.

8.2. In cases where the child to be adopted lives in a care facility, the application for issuing a passport for the child must be confirmed by the Director of the Department of Justice; in cases where the child to be adopted lives in a family, the application for issuing a passport for the child must be confirmed by the Police Station, Ward, or Town where the child has their permanent residence.

9. Adoptive parents request cancellation of the decision to adopt

In cases where there is a decision of the Provincial People's Committee allowing foreigners to adopt children and the adoption process has been carried out at the Department of Justice but the child has not yet left Vietnam, if the adoptive parents submit a request to cancel the adoption decision due to valid reasons (such as the adoptive parents suddenly contracting a serious illness, unable to care for the adopted child; the adopted child contracting a serious illness making it impossible to leave Vietnam due to danger to life; the adopted child being unable to integrate with the adoptive parents and requesting to stay in Vietnam or for other valid reasons), the International Adoption Agency shall be responsible for reporting to the Ministry of Justice's leadership to coordinate with the Provincial People's Committee to consider and resolve the matter.

If the reason for requesting the cancellation of the adoption decision is deemed valid and in the best interest of the child, the Provincial People's Committee shall proceed to cancel/revoke the decision allowing foreigners to adopt Vietnamese children and direct the return of the child to the care facility or back to the family for continued care in accordance with the law.

IV. IMPLEMENTATION

1. In cases where a bilateral or multilateral international agreement on intercountry adoption to which Vietnam is a party provides different provisions than those set forth in this Circular, the provisions of the international agreement shall apply.

2. This Circular shall take effect fifteen days from the date of publication in the Official Gazette.

3. Abolish the guiding provisions at points 3.1, 3.2, and 3.3 sub-item 3 item II of Circular No. 07/2002/TT-BTP dated December 16, 2002 of the Ministry of Justice guiding the implementation of certain articles of Decree No. 68/2002/NĐ-CP dated July 10, 2002 of the Government detailing the implementation of certain articles of the Marriage and Family Law regarding marriage and family relations involving foreign elements.

4. During the implementation process, if there are difficulties or new issues arise, the Provincial People's Committee and the Department of Justice shall send a letter to the Ministry of Justice for timely guidance./.