Thông tư 04/2001/TT-BTP của Bộ Tư pháp hướng dẫn thi hành một số quy định của Quy chế thực hiện Hiệp định hợp tác về nuôi con nuôi giữa nước Cộng hoà xã hội Chủ nghĩa Việt Nam và nước Cộng hoà Pháp

CIRCULAR

GUIDING A NUMBER OF PROVISIONS OF THE REGULATION ON THE IMPLEMENTATION OF THE AGREEMENT ON CHILD ADOPTION COOPERATION BETWEEN THE SOCIALIST REPUBLIC OF VIETNAM AND THE REPUBLIC OF FRANCE

Pursuant to the Prime Minister’s Decision No.142/2000/QD-TTg of December 11, 2000 promulgating the Regulation on the implementation of the Agreement on Child Adoption Cooperation between the Socialist Republic of Vietnam and the Republic of France;

Pursuant to the Government’s Decree No.38/CP of June 4, 1993 on the functions, tasks, powers and organization of the Justice Ministry;

After reaching agreement with the Ministry for Foreign Affairs and the Ministry of Public Security;

The Justice Ministry hereby guides a number of provisions of the Regulation on the implementation of the Agreement on Child Adoption Cooperation between the Socialist Republic of Vietnam and the Republic of France as follows:

I. GENERAL PROVISIONS

1. This Circular provides for dossiers and guides in detail a number of provisions on the settlement of dossiers of application for the adoption of Vietnamese children by French citizens and foreigners residing in France under the Agreement on Child Adoption Cooperation between the Socialist Republic of Vietnam and the Republic of France (hereinafter referred to as the Agreement) and the Regulation on the implementation of this Agreement (hereinafter referred to as the Regulation); and prescribes the dossiers and procedures of application for permits for French adoption organizations’ operation in Vietnam.

2. Children recommended for adoption are those living at the child-rearing establishments designated by the presidents of the People’s Committees of the provinces and centrally-run cities (hereinafter called the provincial-level People’s Committees) for the implementation of the Agreement. The number of designated child-rearing establishments shall depend on the situation and practical conditions of localities. Copies of the provincial-level People’s Committees’ documents on the designation of child-rearing establishments must be sent to the Justice Ministry together with the addresses and names of the heads of such establishments.

The adoption of children from families shall be permitted only for humanitarian reasons prescribed in paragraph 2, Article 3 of the Regulation. Cases of application for adoption of children from families for other humanitarian reasons must be approved in advance by the Justice Ministry. The procedures for the Justice Ministry’s advance approval of these cases shall comply with the provisions at Point C.4, Section II of this Circular.

II. A NUMBER OF PROVISIONS ON CHILD ADOPTION APPLICATION DOSSIERS AND PROCEDURES FOR HANDLING THEREOF

A. THE CHILD ADOPTER’S DOSSIER

1. Pursuant to the provisions at Clause 3, Article 4 of the Regulation, a child adopter’s dossier shall include the following papers:

a/ The French International Mission for Child Adoption’s official dispatch to the Vietnamese Justice Ministry;

b/ The child adoption application made according to the set form;

c/ The copy of the child adopter’s valid passport with certification of the Vietnamese Embassy in France;

d/ The valid permit for child adoption issued by a provincial-level council of France, attached with a report on the results of social and psychological surveys on the child adopter and his/her judicial record;

e/ The written certification that the child adopter is healthy and not affected by mental or contagious diseases, issued by the competent medical establishment of France within 6 months before the time the Justice Ministry receives the dossier; this paper must be affixed with certification stamp of the French International Mission for Child Adoption;

f/ The written certification of the child adopter’s annual income (the income tax notice of the previous year), which must be sufficient for rearing the adopted child.

2. The French International Mission for Child Adoption’s official dispatch to the Justice Ministry mentioned at Point 1.a above shall contain the following details:

a/ The child adopter’s name, date of birth, passport number, place of residence, profession and address;

b/ The state of the child adopter’s capacity for civil acts;

c/ The child adopter’s capability to ensure the rearing of the to be-adopted child (his/her financial capability, personal status, family conditions, health and social environment);

d/ The reasons for child adoption application;

e/ The aspiration regarding the to be-adopted child (the child’s age, sex and other characteristics which the adopter deems appropriate); if the adopter wishes to adopt a particular child in a child-rearing establishment or a family, such child’s full name, date of birth and place of residence must be stated clearly;

f/ The commitment to continue completing the child adoption procedures in France, aiming to protect the interests of the Vietnamese child, who has already obtained the decision on his/her adoption.

3. The child adopter’s dossier shall be compiled in two sets. All such dossier’s papers in foreign languages must be translated into Vietnamese with authentication of the translation by the Vietnamese Embassy in France.

B. DOSSIER OF THE CHILD RECOMMENDED FOR ADOPTION

1. According to the provisions at Point a, Clause 2, Article 6 of the Regulation, the dossier of a child recommended for adoption shall include the following papers:

a/ The copy of his/her birth certificate;

b/ The written agreement on letting the child be adopted;

c/ The written certification of the child’s health, issued by the district- or higher-level medical establishment (if there’s any particularity in the child’s health condition, it must be stated clearly);

In cases where the child recommended for adoption is an abandoned child, the copy of the record certifying the child’s abandonment is also required; if the child is an orphan, the copies of his/her parents’ death certificates are required.

In cases where the child is recommended from a child-rearing establishment, there must also be the establishment’s official dispatch, clearly stating: the duration of the child’s stay in the rearing establishment; his/her family conditions; his/her special demand and likings, if any; attention on his/her health, if necessary. The child-rearing establishment’s official dispatch must confirm that no one in the country has applied for adoption of the child and the adoption of such child by a foreigner is the most appropriate measure for the sake of the child.

2. The written agreement on letting the child be adopted as mentioned at Point 1.b above must be signed by the head of the child-rearing establishment, for cases where the child recommended for adoption is living in a child-rearing establishment; if the child has natural parent(s) or guardian, such persons’ agreement is also required.

In cases where the child recommended for adoption is from a family, the written agreement must be signed by his/her natural parents; if his/her father or mother has died, lost civil act capacity, been declared dead or missing by a court’s effective decision, only the signature of the alive parent who has civil act capacity is required.

Where the child’s natural parents have died, lost their civil act capacity or been declared dead or missing by a court’s effective decision, his/her guardian shall have the competence to sign the written agreement.

The guardian mentioned at this Point must be the person who has registered the guardianship according to the provisions of the civil status legislation.

3. If the child recommended for adoption has reached full 9 years of age or older, his/her consent of adoption by the foreigner is required, which must be inscribed directly on the written agreement on child adoption.

4.The child’s dossier shall be compiled in two sets.

C. A NUMBER OF PROVISIONS ON THE PROCEDURES FOR HANDLING THE CHILD ADOPTION APPLICATION DOSSIERS

1. Right after receiving a child adoption application dossier, the Department for Management of Public Notary, Legal Assessment, Civil Status, Nationalities and Judicial Records (hereinafter called the Civil Status Management Department) shall have to examine and consider the entire dossier; if deeming such dossier complete and valid, it shall proceed with the child recommendation procedures according to the provisions at Article 5 of the Regulation and take responsibility for the compliance of the adopter’s dossier with all the provisions of the Agreement, the Regulation and this Circular when it is sent to the provincial-level People’s Committee.

Where the Civil Status Management Department deems that the dossier is incomplete or invalid, it shall notify such to the French International Mission for Child Adoption for supplement and completion.

2. Right after receiving a child’s dossier from a child-rearing establishment, his/her natural parents or guardian, the provincial/municipal Justice Service shall have to examine and consider the entire dossier; if deeming such dossier complete and valid, it shall transfer such dossier to the Justice Ministry according to the provisions at Point b, Clause 2, Article 6 of the Regulation and take responsibility for such dossier’s compliance with all the provisions of the Agreement, Regulation and this Circular when it is sent to the Justice Ministry.

Where the provincial/municipal Justice Service deems that the child’s dossier is incomplete or invalid, it shall notify such to the child-rearing establishment, the child’s parents or guardian for supplement and completion.

3. While examining and considering the dossier, if deeming that the child’s background is unclear or suspecting that there’re signs of law violation in the child recommendation or that the dossier or papers are unauthentic, the provincial/municipal Justice Service shall send a written request to the provincial/municipal Service of Public Security for verification according to the provisions at Point b, Clause 2, Article 6 of this Regulation. The written request for verification must clearly state the requested verification contents. The written verification request as well as the notice of verification results of the provincial/municipal Service of Public Security must be sent to the Justice Ministry together with the child’s dossier.

4.Procedures for adoption of children from families for humanitarian reasons in cases other than those mentioned at paragraph 2, Article 3 of the Regulation are stipulated as follows:

The adopter must, first of all, file an application to the Vietnamese Justice Ministry (through the French International Mission for Child Adoption), clearly stating the child’s full name and place of residence as well as the humanitarian reasons for which he/she wants to adopt such child.

Right after receiving the application, the Civil Status Management Department shall send it to the Justice Service of the province or city where the child resides so that the latter may examine and verify the authenticity of the humanitarian reasons stated by the adopter; if deeming that such humanitarian reasons are trustworthy and preliminarily accepted by the child’s natural parents or guardian, the provincial/municipal Justice Service shall report such in writing to the Justice Ministry for a reply to the child adopter.

Only after receiving the Justice Ministry’s written approval of the humanitarian reasons, can the child adopter submit the child adoption application dossier according to the provisions of the Agreement.

D. ADOPTED CHILD HAND-OVER AND RECEIPT CEREMONY

1.The adopted child hand-over and receipt ceremony shall be organized in accordance with the provisions of law. In cases where the child adopter is a couple, both of them, in principle, must be present, receive the adopted child and sign the Child Adoption Register. Where one of them, due to health condition or other objective reasons, cannot come to Vietnam at the time already fixed for the child hand-over and receipt, the absentee’s authorization for his/her partner may be accepted.

2. At the child hand-over and receipt ceremony, the provincial/municipal Justice Service shall hand over to the child adopter the following papers:

a/ The original of the decision to permit child adoption;

b/ The original of the record on the hand-over and receipt of the adopted child;

c/ The original of the adopted child’s birth certificate; in cases where the original of such birth certificate is lost or damaged to the extent that it cannot be used, it shall be substituted by a copy of the child’s birth certificate, based on the Birth Register;

d/ The copy of the written agreement on letting the child be adopted;

e/ The copy of the child’s natural father and/or mother death certificate(s), if they have died;

f/ The copy of the record certifying the child’s abandonment if he/she has been abandoned.

III. DOSSIERS AND PROCEDURES OF APPLICATION FOR PERMITS FOR FRENCH ADOPTION ORGANIZATIONS’ OPERATION IN VIETNAM

A. DOSSIERS OF APPLICATION FOR PERMITS FOR OPERATION IN VIETNAM

1. French adoption organizations (hereinafter referred to as adoption organizations) that wish to operate in the field of child adoption in Vietnam shall have to file applications according to the set form to the Vietnamese Justice Ministry for permits for operation in Vietnam (hereinafter called operation permits).

The application must be enclosed with the following papers:

a/ The authenticated copy of the Statute of the child adoption organization;

b/ The authenticated copy of the operation permit in Vietnam, issued by the French International Mission for Child Adoption;

c/ The report on the child adoption activities in the two latest years, enclosed with the French International Mission for Child Adoption’s certification, which clearly states the organization’s financial revenues and expenditures related to the child adoption activities; if the child adoption organization has been operating in Vietnam, there must be a report on its activities in Vietnam with certification by the Vietnamese management agency;

d/ The plan on operations in Vietnam and the plan on technical assistance or humanitarian support for the child-rearing establishments;

e/ The judicial record of the person, who may be nominated by the child adoption organization as its representative in Vietnam;

f/ The list and judicial records of the persons, who may be recruited to work for the child adoption organization in Vietnam.

2. The application for operation permit and enclosed papers shall be made in two dossier sets. The dossier’s papers in French must be translated into Vietnamese with authentication of the valid translation.

B. PROCEDURES FOR THE GRANTING OF OPERATION PERMITS

1. Within 5 days after receiving a complete and valid dossier, the Civil Status Management Department shall have to examine the dossier and consult in writing with the concerned ministries and branches as well as the provincial-level People’s Committee of the locality where the child adoption organization plans to locate its office.

Right after receiving opinions from the above-mentioned agencies, the Civil Status Management Department shall coordinate with the International Cooperation Department in submitting the dossier to the Minister for consideration and decision of the granting of an operation permit.

Within 5 days after the decision on the granting of an operation permit is issued, the Civil Status Management Department shall have to hand over the operation permit to the concerned child adoption organization.

In case of refusal to grant the operation permit, the Civil Status Management Department shall notify such in writing to the child adoption organization, clearly stating the reasons therefor.

The operation permit shall be made in two originals: one to be granted to the child adoption organization and the other to be kept at the Justice Ministry. The operation permit shall be valid for not more than 2 years and may be extended for not more than 2 years for each time of extension.

2. Within 30 days after receiving the operation permit, through the provincial/municipal Justice Service, the child adoption organization must report on the operation permit granting and submit a copy of the operation permit, to the People’s Committee of the province where its office is located.

C. RESPONSIBILITIES OF CHILD ADOPTION ORGANIZATIONS

Child adoption organizations which have been granted operation permits by the Vietnamese Justice Ministry shall, in addition to the rights and obligations prescribed at Clause 1, Article 18 of the Regulation, also have the following rights and obligations:

1. To contact the Justice Ministry, the provincial-level People’s Committees, the provincial/municipal Justice Services and the child-rearing establishments in order to perform jobs under authorization of the French International Mission for Child Adoption or the child adopters;

2. To provide technical assistance or humanitarian support for child- rearing establishments on the basis of written agreements concluded with the latter. The conclusion of such agreements must be approved by the People’s Committees of the provinces where the child-rearing establishments are located;

3. To be subject to the inspection and examination of the Justice Ministry and the People’s Committees of the provinces where their offices are located;

4. Other rights and obligations prescribed by law.

D. PROCEDURES FOR EXTENSION AND ALTERATION OF THE OPERATION PERMITS’ CONTENTS

1. Extension of operation permits

Child adoption organizations that strictly comply with Vietnamese law, the provisions of the Agreement, Regulation and this Circular may have their operation permits extended.

At least 60 days before the expiry of its operation permit, a child adoption organization shall have to file a permit extension application to the Justice Ministry. The application must be enclosed with a document of the People’s Committee of the province where the child adoption organization’s office is located, which comments on the organization’s operation and states the opinions on the permit extension.

Within 30 days after receiving the application for operation permit extension, the Civil Status Management Department shall have to consider the application and coordinate with the International Cooperation Department in submitting it to the Justice Minister for consideration and decision.

In case of refusal to extend the operation permit, the Civil Status Management Department shall notify such in writing to the concerned child adoption organization, clearly stating the reasons therefor.

Within 10 days after receiving the decision on the extension of its operation permit, the child adoption organization shall, through the provincial/municipal Justice Service, notify the permit extension and submit a copy of the decision thereon to the People’s Committee of the province where its office is located.

2. Alteration of the operation permits’ contents

In cases where a child adoption organization changes its name, its head, head office in France or its office in Vietnam, it must notify such in writing to the Vietnamese Justice Ministry so that the latter may take note on such changes in its operation permit.

In cases where the child adoption organization wants to change its representative, operation contents or operation location in Vietnam, it shall have to file an application to the Justice Ministry for permission. The application must clearly state the contents of changes and the reasons therefor.

Within 30 days after receiving an application for changes in the content of an operation permit, the Civil Status Management Department shall have to consider the application and coordinate with the International Cooperation Department in submitting it to the Justice Minister for consideration and decision.

In case of refusal to permit the changes in the contents of an operation permit, the Civil Status Management Department shall notify such in writing to the concerned child adoption organization, clearly stating the reasons therefor.

Within 10 days after receiving the decision permitting changes in its operation permit’s contents, the child adoption organization shall, through the provincial/municipal Justice Service, notify such changes and submit a copy of the decision to the People’s Committee of the province where its office is located.

E. PROCEDURES FOR TERMINATION OF OPERATION IN VIETNAM

1. A child adoption organization shall terminate its operation in Vietnam in the following cases:

a/ Its operation permit, which was issued by the Vietnamese Justice Ministry, expires without extension;

b/ It has terminated its operation in France;

c/ Its permit for operation in Vietnam is withdrawn;

d/ It terminates the operation in Vietnam at its own will.

For cases prescribed at Points b and d above, 60 days before the time projected for operation termination, the concerned child adoption organization shall have to report in writing the plan on the termination of its operation in Vietnam to the Justice Ministry and the People’s Committee of the province where its office is located.

2. Within 60 days after terminating its operation in Vietnam, the child adoption organization shall have to pay all debts, if any, to concerned organizations and individuals, and settle all matters related to the termination of its operation, then send the report thereon to the Justice Ministry and the People’s Committee of the province where its office is located.

IV. FORMS OF PAPERS AND ARCHIVE OF CHILD ADOPTION DOSSIERS

1. To issue together with this Circular the following forms of paper (not printed herein):

a/ The Justice Ministry’s official dispatch to the provincial-level People’s Committee requesting the recommendations of children for adoption (used for cases of applying for adoption of children not by their names);

b/ The Justice Ministry’s official dispatch to the provincial-level People’s Committee requesting the recommendation of children for adoption (used for cases of applying for adoption of children by their names);

c/ The Justice Ministry’s official dispatch to the provincial-level People’s Committee on the transfer of the child adopters’ dossiers;

d/ The Justice Ministry’s official dispatch to the provincial/municipal Justice Service requesting the verification of the humanitarian reasons of application for adoption of children by their names from families;

e/ The provincial-level People’s Committee’s written reply to the Justice Ministry on the recommendation of children for adoption;

f/ The provincial/municipal Justice Service’s written notice to the child adopters on the recommendation of children for adoption (used for cases of applying for adoption of children not by their names)- Appendix I.6;

g/ The provincial/municipal Justice Service’s written notice to the child adopters on the approval of child adoption (used for cases of applying for adoption of children by their names);

h/ The written agreement on letting children be adopted;

i/ The child adoption application form (used for cases of applying for adoption of children not by their names);

j/ The child adoption application form (used for cases of applying for adoption of children by their names);

k/ The application form for the child adoption organizations’ operation permits.

2. The child adoption dossiers (including the child adopters’ dossiers and dossiers of adopted children) shall be archived at the Justice Ministry and the provincial/municipal Justice Services according to the current provisions on archive.

V. IMPLEMENTATION PROVISIONS

1. The application for adoption of Vietnamese children by French citizens residing outside France shall not be governed by the Agreement and the Regulation; the order and procedures for the settlement of child adoption in this case shall comply with the general law provisions on child adoption between Vietnamese citizens and foreigners.

2. This Circular takes effect as from April 1, 2001.

In the course of implementation, if any problems arise, they must be reported by the provincial-level People’s Committees and provincial/municipal Justice Services to the Justice Ministry for guidance.