ROMANIA
PUBLIC MINISTRY
PROSECUTOR’S OFFICE ATTACHED TO THE HIGH COURT OF CASSATION AND JUSTICE
Consideration on the proposed amendments to Law no. 273/2004 regarding the legal status of adoptions
Currently, on the roll of the standing committees of the Senate is a major project initiated by the Government to amend Law no. 273/2004 on the legal status of adoption, republished[1] .
This initiative aims on the one hand, from future time perspectives, the linking of national legislation with the Strasbourg Convention provisions on the Adoption of Children revising the Hague Convention, preparing a legal framework in terms of uniform application of the new Civil Code[2] and on the other hand, it responds in short term, to the need of succeeding, by way of settling, of situations of fact and law as revealed in the work of the Romanian Office for Adoptions, and also to the imperative of adapting the legislation to the social contemporary realities.
The bill was registered in the Senate (as a first notified Chamber) no. L250/2011 being submitted for approval, within the emergency procedure provided for in art. 76 para. (3) of the Constitution.
According to the Legislative Council, the legislative proposal falls into the category of ordinary laws.
On March 21, 2011, the project was submitted for examination, to the Judicial Committee, of appointments, discipline, immunities and validations, to the Committee of Human Rights, Religions and Minorities, to the Committee on Equal Opportunities and to the Foreign policy Committee, the deadline for the submission of the report being March 27, 2011.
I The changes proposed aim at the following aspects:
I.1. Redefining the concepts of domestic and international adoption.
Compared to the current definition of international adoption in the content of art. 3 letter. d) of Law no. 273/2003, in relation exclusively to the national adoption elements as defined by lit. c) of the same article[3], legislative amendment brings a plus of legislative precision and meets current social realities that were discussing on the legal nature of the adoption of a child residing in Romania by Romanian citizens who have obtained permanent residence in other states and keep their residence in Romania or reestablish their residence in Romania (though they actually live on the territory of a foreign state).
Thus, art. I point 1 of the bill proposes to amend Art. 3 letter c) of Law no. 273/2004, rep., within the meaning of defining the domestic adoption as "the adoption in which the adopter or adoptive family and adoptee have the habitual residence in Romania" and the provisions of art. 3 letter d) of the same law for the purposes of defining the international adoption, as follows: "the adoption where the adopter or the adopting family and the child to be adopted have their usual residence in different states and after the consent of adoption, the child will be moved to the state where the adopters have the habitual residence ".
Likewise there are changes proposed on the depositions of Article 3 paragraph p) of Law no. 273/2004, rep. and which, in a future regulation would define the receiving state as "the state of habitual residence of the adopter or adoptive family in case of international adoption and where the adoptee will be moving after the consent of the adoption ".[4]
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The draft legislation submitted to the Senate debate brings an important legislative solution to identify the elements on which to define habitual residence in Romania, and in this meaning there are relevant the provisions of art. I point 2 of the project that introduces art. 3 1 within Law no. 273/2004[5] .
In our opinion, this way it is aimed to provide a legislative solution for the controversial situations arising in practice that calls into question the legal nature of the adoption (domestic or international) where the adopter / adoptive family were Romanian citizens residing abroad or foreigners with permanent residence in Romania. In this regard, reporting also to the Hague Convention, above mentioned, citizenship of the adopters is not a defining element in determining the legal nature of adoption, the essential element is the habitual residence, respectively, moving of the child in another state, as effect of the consent, for the identification of its legal nature is defining.
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In this regard, the notice issued under the provisions of art. 2. par.(1) letter a) of Law no. 79/1993, the Legislative Council has made some proposals in order to match the terminology used - "permanent residence" with the terms used in art. 13 of Decree no. 31/19546[6], art. 26 para. (1) of the Government Emergency Ordinance no. 97/2005 regarding record, domicile, residence and identity documents of the Romanian citizens, approved with amendments and additions by Law nr.290/2005, as previously amended[7] and with the provisions of art. 29 para. (1) of the same ordinance[8], art. 87ºi art. 88 of the New Civil Code[9].
According to the Legislative Council, it shows that domicile, towards residence, is characterized by uniqueness and stability and has the usual meaning of a person's home, so that "introducing a new attribute to identify the natural person, Romanian citizen, is likely to create confusion between domicile and residence, as it was normatively established, confusion that would make difficult to determine the competence of various administrative authorities and, especially, of the court instance in matter of adoption. "
The approval of the Legislative Council expressed on this aspect therefore proposes, that, instead of the term "habitual residence", to use the term "domicile", when defining the internal adoption as well as the use of other terms, in addition to the term "habitual residence" likely to emphasize the main and constant character of the address chosen, when defining the concept of international adoption.
Also, the Legislative Council has proposed replacing the phrase "in the state of residence of the adopters," by "in the state of origin of the adopters' .[10]
With respect to the proposed additions by art. 3 1, the Legislative Council seized on a situation of discrimination against Romanian citizens from foreigners, in that, that to the first category is required a condition of permanent residence on the territory of Romania in the last 12 months preceding the application for certification, as there are allowed only interruptions not exceeding three months, and absences due to the stay in another member state in diplomatic purposes, to foreign citizens with permanent residence and Romanian citizens restoring their domicile in Romania, which were not imposed any condition of continuity.
I.2. The amendment and addition of some provisions regarding the substance conditions of the adoption, in order to make the legislative association with the New Civil Code, approved by Law no. 287/2009.
I.2.1. By amendments to provisions of art. 5 par. (2) and (3) of Law no. 273/ 2004[11] there are assumed literally the provisions of art. 455 of the New Civil Code[12], removing, in our opinion, the ambiguity of some terms currently used by the present amendment[13].
I.2.2. The minimum age difference between the adoptee and adopter and the possibility of its reduction up to 16 years, is a difference that could correspond to a normal lineage tie[14].
According to the explanatory memorandum, the chosen legislative solution is designed to ensure compliance with art. 9 of the Strasbourg Convention, revised[15], increasing the age difference between the adoptee and adopters[16].
I. 2.3. Regulating some assumptions of adoption dissolution.
The bill regulates the possibility of dissolving, as well as the one of cancellation or finding the adoption invalid.
Adoption and cancellation conditions, respectively, finding it invalid are assumed as they were established by the New Civil Code.
Regarding the dissolution of the adoption, there were taken the two cases brought in the New Civil Code, namely the dissolution of adoption on the request of the adoptive family[17] or on the request of the adopter[18].
At the same time, it was regulated the possibility of dissolution of the adoption on request of the Directorate if the adopted child reaches back into the protection system and it is considered that it would be in its best interest to find a new adoption, because the current regulation, according to the initiator, does not cover situations like this, and in practice, some children were adopted and later abandoned for various reasons, so that, without having the possibility to be adopted again, they remain in state’s care(protection system).
Regulation of the adoption dissolution on request of the General Directorate of Social Assistance and Child Protection is only incident during the child’s minority and only in situations where the child reaches back into the protection system, measure that was intended to ensure compliance with the provisions of Art. 14 of the Strasbourg Convention which provides that adoption may be revoked or canceled only by decision of the competent authority, taking into account the superior interest of the child which is to be primarily assessed, as well as when there are serious grounds, prescribed by law, in the case of the child that has not reached age of adulthood.
On the other hand, the Convention recommends the formulation of cancellation requests within the legal period of time, so that it would not perpetuate for a long time the state of legal insecurity on a person's civil status.
The recommendation of the Convention was taken over by the initiator of the regulating bill in the content of art. 62 of Law no. 273/2004 on the cases of relative nullity of the adoption and the period of time when this may be invoked[19].
I. 3. Clarification of the fund conditions of the adoption
I.3.1. Terms of giving consent to the adoption in case the biological parents are minors.
According to the bill[20], there may be able to consent to adoption only biological parents older than 14 years, thus having limited exercise capacity, under the assistance of their legal representatives.
In cases where biological parents have not attained the age of 14, their children may not become adopted but only after reaching this age by their natural parents.
The proposed formula comes to meet the New Civil Code, under Law. 273/2004, with the proposed changes, will become a special law in the matter [21].
I.4. Introduction of new background conditions (obstacles) for adoption.
I.4.1. Express prohibition of adoption by two persons with the same sex as well as the implied prohibition of adoption for two people of different sex living in cohabitation[22] solution that is provided in the New Civil Code[23].
Proposed legislative changes bring into question the position of contemporary society, externalized in the letter of the law against consensual unions between persons of different sex or same sex, with special reference to adoption, regarded as a legal link that substantiates a future family life between the adopter/ adopters and the adopted person.
Even in conditions in which Romania signed on March 9, 2009, the consolidated version of the European Convention on the Adoption of Children, adopted in Strasbourg on November 27, 2008, document subject to ratification by the Parliament[24], the proposed legislative changes come to state once more the outspoken position taken by the national legislature in these sensitive areas, precisely with a view to the margin of appreciation conferred by Art. 7 of the revised Convention[25], but also by art. 8 of the European Convention on Human Rights.
It is established that these materials whose regulation, the margin of appreciation which the States have is extremely generous, the Romanian legislature has placed at least on adoptions by homosexual couples, on the same line of thinking developed by the European Court of Human Rights in the case Fretté c / of France[26], by which it was observed that a right to adopt is not guaranteed by the Convention itself.
Therefore, the margin of appreciation the States have and the inexistence of a well-defined trend on the possibility of adopting a child by a person who is a declared homosexual led the Court to the conclusion that the refusal of the national authorities to grant this person the agreement required under the law for adoption does not represent a violation of art. 8 nor of art. 14 which prohibits any discrimination on the exercise of the rights stipulated in the Convention in conjunction with art. 8.[27]
On this occasion, the Court mentioned “although there is no such thing as a common policy of the European countries in the matter, the authorities reasonably justified why the superior interest of the child does not allow his adoption by a homosexual”.[28]
As for the adoption of a child by couples formed in fact, the jurisdiction of the Strasbourg Court is by no means that trenchant, and oftentimes the right to have children by adoption, as a component of the right to family life, guaranteed by art. 8 of the Convention is related to the right of the person to get married, enshrined by art. 12 of the Convention.
The Strasbourg Court has already stated that “The notion of family, as understood within the meaning of the provisions of art. 8 is not limited to relations based on marriage and may encompass other types factual family ties, where the parties cohabit outside marriage”.[29]
In the case of Christine Goodwin v. the United Kingdom[30], the Court set out that States have a margin of appreciation in regulating the adoption and marriage conditions, taking into account the very diversity of practices within the Member States of the Council of Europe and the imperative to find a fair balance between the general interests of the community and the individual interests (par. 72).
Also, in the case Abdulaziz, Cabales and Balkandali v. the United Kingdom[31], the Court stated that the right to the observance of family life implies by itself the existence of a family, regardless of how it is conceived, as a lawful liaison or a factual relation, single-parent or without children, but does not protect the mere desire to have children.
Thus, even if in the light of the European Court of Human Rights jurisprudence, the couples are in fact considered as being in a marriage, the Commission decided that the founding of a family may be accomplished by adopting a child in accordance with the national legal provisions on adoption, as the Convention guarantees the right to adopt[32].
I.4.2. Introduction of new background conditions (obstacles) for adoption.
In the proposed legislative solution, the persons with mental illness and disabilities will not be able to adopt, nor will the persons who wish to adopt alone or whose spouses are mentally ill, the persons who were definitively convicted for an offense against the person or against the family, perpetrated deliberately, as well as for the offense of trafficking in human beings or trafficking in and consumption of illicit drugs or whose spouse was definitively sentenced for the same offenses, the person or family whose child benefits from a special protection measure or who fallen from parental rights[33].
At present, although these obstacles to adoption were taken into consideration during the evaluation conducted by the social workers, there wasn’t any express provision that should enshrine them as basic conditions for the adoption.
In our opinion, the proposed legislative solution is meant to provide additional guarantees for the adoption to achieve its desired social and moral effects.
I.5. Legislative measures introduced to eliminate elusion practices, arisen during the adoption procedure
I.5.1. The recognized child born outside marriage may be adopted by the wife of he who recognizes him only if paternity was established or is confirmed through the result of the experts’ examination of the filiation established through the DNA serological method[34].
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The legislative solution proposed on the adoption by the wife of the child outside marriage, recognized by the husband, was received with a critical eye by the Legislative Council which specified that the provision proposed was likely to discourage the adoption of the child recognized by the husband, and on the other hand, the measure was not in the interest of the child.
In support of this view, arguments were brought that consisted in the effects of paternity recognition as well as in the actions that can rebut an eventual recognition of paternity that does not correspond to reality.
Thus, paternal lineage is also established, according to art. 56 of the Family Code by voluntary recognition, which is an irrevocable legal act, and the appeal against paternity recognition may be done only by judicial trial under the provisions of art. 58 of the Family Code, text which can also be found in art. 420 of the New Civil Code.
Even admitting the idea that, from the desire not to elude the sometimes cumbersome procedure of adoption, a person acknowledges a child whose father he is not, the Legislative Council considers that such cases are exceptions, so that the institution of recognizing the child born outside marriage would become extremely fragile.
It is also argued that the institutions involved in the adoption procedure, to the extent in which they would consider that paternity recognition does not correspond to the reality, and raises suspicions, might rebut the presumption of validity of the recognition in the procedure referred to in art. 58 of the Family Code.
I.5.2. The compulsoriness to go through the procedure of entrustment for adoption. The introduction of the methodology for the evaluation of the suitability between the child and the adopting person/family
By art. I section 24 of the draft a new section is introduced - Section 21 – Suitability between the child and the adopting person/family - art. 291-294.
The establishment of the suitability between adoptee and the adopter/adopters qualifies as a step prior to the entrustment for adoption by which they identify and select the most suitable person/family attested as being capable to adopt or which corresponds to the identified needs of the child and then they determine the compatibility between the child and the adopting person/family.
The procedure includes a theoretical and a practical component, it is initiated by the Romanian Office for Adoptions, through the identification and selection from the National Adoption Register of the attested persons/families that meet to the greatest extent the needs of children and it is conducted according to a methodology drafted by the Office, and approved by Decision of the Government.
At the end of the suitability procedure, the department for adoptions and post-adoptions within the General Directorate of Social Assistance and Child Protection shall make a matching report mentioning the conclusions on the compatibility between the child and the adopting person/family, as well as the proposal for the notification of the court so as to entrust the child for adoption.
Subsequent to this report, the directorate on the territorial circumscription of which the residence of the child is shall notify the court within 5 days for entrustment of the child for adoption.
In the context in which the provisions of art. 31 and 32 of the Law no. 273/2004[35] would be expressly abrogated by the new draft regulation, and the provisions of art. 34 of the current wording of the Law no. 273/2004[36] would be modified in the sense of extending the periods of observation in which the entrustment for adoption is no longer necessary because of the already established relations between the child and the future adopter and of the period of at least 2 years for which the child lived in the house of the future adopter[37], on can notice that the intention of the legislator is to make the entrustment for adoption effective, preceded by a prior evaluation of the compatibility between the adoptee and adopters, so that the measure of entrustment be exploited for the very purpose it was conceived for.[38]
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In terms of the legislative innovation consisting in the introduction of this procedure, we would like to draw your attention to the opinion of the Legislative Council which proposes the amendment of the terminology used in identifying this judicial institution, considering that it does not meet the semantic requirements of the Romanian language and proposes the establishment of a title for the institution compatible with the judicial style.[39]
Also, the Legislative Council rules that the extension of the period of 90 days to 2 years, during which time it should observe if the adoptee and the adopter are compatible, is excessive.[40]
I.6. Changes standing for procedural safeguards so as to achieve the superior interest of the child and/or filling of legislative gaps
I.6.1. Reduction of the period in which the child is declared adoptable and, implicitly, reduction of the period the child stays in the protection system.
To this end, explicit deadlines were established in which the child may be declared adoptable, i.e. 30 days from the issuance of the birth certificate, when the parents of the child are unknown or 1 year after taking the protection measure for children who have parents, parents who do not provide them with care.
The legislative[41] solution is justified, according to the explanatory memorandum, by the fact that the current regulation[42] does not stipulate an explicit period within which the specialists who handle the cases of the children included in the protection system must require the court to declare the adoptability, which led in practice to the extension of the uncertain situation of the child for whom the integration into his biological family is not accomplished nor are the necessary steps taken for finding an adopting family.
I.6.2. Extension of the evaluation period for the issuance of the certificate of person/family able to adopt, from 60 days, under the current regulation[43], to 120 days.
I.6.3. Creation of a mechanism to appeal the decision for non-issuance or revocation of the certificate.
According to the regulation draft, the complaints in this regard shall be settled by the Romanian Office for Adoptions by issuance of recommendations to the General Directorate of Social Assistance and Child Protection, leaving the possibility that, if an unfavorable result in terms of certification is received, candidates may finally address a court of law.[44]
By comparison to the current regulation[45], one can observe the preoccupation for a careful regulation of the procedure for the settlement of the complaint against the unfavorable result of given by the directorate issuing the certificate for the adopter/adopting family.
I.6.4. Insertion of a new chapter on monitoring and post-adoption activities.
By means of the proposed regulation, the concrete ways in which the post-adoption monitoring, laid down under the law, can be accomplished, are detailed and the post-adoption activities that can be conducted to the benefit of the adopters and the adopted children are regulated.
The legislative measure is justified, according to the explanatory memorandum, by the intention of the lawmaker to fill a regulation gap in this field.
For instance, the Law no. 273/2004 introduces a whole chapter VIII1 setting out: the purpose of this activity consisting in following the evolution of the adopted child and of the relations between him/her and the adopting parents for a full integration into the adopting family and a precocious identification of eventual difficulties that can arise throughout this period; the competent organisms that shall conduct the activity (the directorate from the child’s domicile); the mandatory nature of the post-adoption monitoring; the period of time it takes (at least 2 years after the approval of the adoption); the obligations of the adopters throughout this period (obligation to collaborate and facilitate the draft of the reports); the principles governing the procedure of post-adoption monitoring and the modalities in which it is accomplished, consisting in: information and counseling for parents and children; organization of courses for development of parental capacities; constitution of support groups for parents and children; supporting the adopters with a view to informing the child about his/her adoption.
I.6.5. Legislative modifications brought to the manner of information of the adoptee about his/her natural parents. Resuming ties with natural parents.
According to the explanatory memorandum, so far, the Romanian domestic law did not offer viable solutions on this largely debated issue in the field of adoption.[46]
The draft law aims to change this rule, in the following way:
- art. 571 enshrines the right of the adopted persons to know their origins and their own past and to benefit from support in taking steps for contacting their natural parents and their biological relatives;
- the adopters are required to inform the child that he/she is adopted, gradually, starting from an early age, with the support of specialists within the post-adoption department;
- the disclosure of the adoption can only be made in the case of persons who acquired full capacity of exercise;
- the identity of the natural parents of the adoptee can be disclosed before acquiring full capacity of exercise only for medical reasons, by the Office, upon the request of each of the adopters, of the adoptee, of the husband or of his/her descendants or of the representative of a medical institution or of a hospital.
- art. 572 enshrines the right of the adopted persons to request and obtain information attesting the adoption, as well as general character information aiming at the institutional trail and the personal history which does not disclose the identity of the natural parents;
- disclosure of the identity of the natural parents of the adoptee may be obtained, as a rule, only after acquiring full capacity of exercise, on the basis of the request filed by the adoptee and addressed to the tribunal in the territorial circumscription of which he/she resides, and the requested information shall be disclosed, as in the current regulation, only if it does not have a deleterious effect over the mental integrity and emotional balance of the applicant and if the adoptee received adequate counseling.
- the persons adopted who hold information on the identity of the natural parents will address directly to the Office so as to take the necessary steps in contacting the natural parents and the biological relatives;
- the natural parents or the biological relatives of the adopted persons will be able to get general information related to the person adopted only upon express written agreement of the latter or, according to the case, of the adopting person or family;
- the methodology on the access of the adoptee to the information referring to his/her own origins and past, as well as on the access of the natural parents or of the biological relatives of the adopted persons to general information on the person adopted are to be drawn up by the Office and approved by Decision of the Government;
- the relevant information on the adoption, on the origin of the child, especially that concerning the identity of the natural parents, as well as the data on the medical history of the child and of his family shall be stored for at least 50 years from the date the decision to approve the adoption stays final;
According to the initiator of the normative draft, the legislative solutions proposed are justified, on the one hand, by the need to establish an appropriate legal framework, so as to make this element of the private life more efficient, as so far, such information was obtained exclusively by informal means, the state authorities not having any obligation to sustain the efforts of the parties, and lately, at international level, one can see a trend to widen the access right of the adoptee to information referring to his/her natural parents.
The values weighed are the right to information of the adoptee, on the one hand, and the right to a private life, on the other hand, and from this viewpoint, the legislative solutions of other states are as different as they come: some presume that, in the absence of other stipulations, the natural parents might have wanted to remain anonymous, while other legislations, on the contrary, consider that, if they desire anonymity, natural parents should state it in an explicit manner.
It is considered that the proposed legislative solution is designed to ensure an appropriate equilibrium between the right of the biological parents to keep their identity confidential and the right of any person to have access to information about their past, their origins, in the case of adopted persons these aspects being particularly essential to the development of their self-identity and their definition as a person.
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The opinion of the Legislative Council in this respect, calls the possibility to extend the right to information about the identity of the natural parents and with the authorization issued by the court of law and in the case in which the adoptee does not have full capacity of exercise, for identity of judicial treatment.
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In this regard, we believe that the reference to the European Convention on the Adoption of Children, revised, as well as to the jurisprudence of the Strasbourg Court in this matter is essential.
For instance, the Convention, in consolidated form, states at art. 22 that States may adopt provisions by which they authorize the completion of adoptions without disclosing the identity of the adopter to the members of the child’s family of origin.
The Convention guarantees the adoptee the access right to the information held by the competent authorities, concerning his/her own origins. When the natural parents of the adopter benefit from the legal right of not having their identity disclosed, the competent authorities shall decide over the right to determine if their identity can or not be disclosed and to decide if, apart from this right, their identity can be disclosed, taking into account the concrete circumstances of the case, as well as the rights of the child and of the members of the family of origin.
The Convention recommends the adoption of relevant regulations on the adoptee who has not reached age of majority.
The Convention also guarantees the right of the adopter and of the adopted child to obtain documents that contain excerpts of the public records attesting the birth place and date of the adopted child, but do not expressly disclose the adoption or the identity of the natural parents.
According to art. 22 par. 4, the final sentence allows the Member States not to apply these provisions for the adoptions stipulated under art. 11 par. 4 of the Convention, which refers to the adoptions with restricted effects. [47]
As for the period of storage of the documents containing relevant information on the adoption, for a period of at least 50 years after the adoption became final, it appears that the legal provision which is submitted for adoption is an ad literam translation of the provisions of the Convention.
The Convention requires that public records be stored in a manner that should prevent unauthorized persons or persons who do not have a legitimate interest from finding out if a person was adopted or not, or the adoptee from learning the real identity of his/her parents, once the information about the adoption has been revealed.
Therefore, it appears that, in principle, the proposed national legislation is much more permissive than the Convention as regards the acknowledgement of the right of the adoptee to learn the identity of his/her natural parents, but also as regards the right of the natural parents to be informed about the history of the adopted child.
In our view, any extension of the regulation over the already identified margins, and to the adopted child who does not have full capacity of exercise is not recommendable, except for medical cases, in which the identification of and acquaintance with the natural family members are necessary.
In fact, the European Court of Human Rights also ruled in the sense that the information referring to the birth of a person and to his/her relatives is information relative to his/her private life, so that art. 8 shall apply. The Court noted that in this respect there are two interests linked to the exercise of the right to a private life: that of the natural parent and that of the adoptee, the State having the obligation to protect them both, equally. As long as the solutions of the European States in this area are far from being uniform, the Court recognized the States a broad margin of appreciation for dealing with this issue.[48]
I.6.6. From the procedural point of view, the mandatory participation of the prosecutor in settling the cases resulted from the enforcement of this normative act is maintained, and short terms of 14 days are settled for the trial and elaboration of the judicial decisions pronounced in court.
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As a general conclusion, we consider that the proposed project meets the current legal and social needs and aims at the legislative harmonization with the provisions of the recent European Convention on the Adoption of Children, in consolidated form, which is to be ratified by the Romanian Parliament and with the provisions of the New Civil Code, from the perspective of its enforcement.
[1] Law no. 273/2004 was republished in the Official Gazette, Part I, no. 788 of 19 November 2009, pursuant to art. III of the Emergency Ordinance no. 102/2008, published in the Official Gazette, Part I, no. 639 of September 5, 2008, approved with amendments by Law no. 49/2009, published in the Official Gazette, Part I, no. 190 of 26 March 2009, giving the texts a new renumbering;
[2] The new Civil Code was adopted by Law no. 287 of July 17, 2009, published in the Official Gazette, Part I, no. 511 of 24 July 2009, and according to Art. 2664 par. (1) to be enforced on the date to be established by law for its implementation;
[3] Article 3 lit. c) of Law no. 273/2004, republished in the Official Gazette, Part I, no. 788 of 19 November 2009 defines domestic adoption in relation to the criterion of domicile of the adopter / adoptive family and the adoptee, stating that domestic adoption is "the adoption in which the adopter or adoptive family and adoptee reside in Romania" and the definition stated for the International adoption is set out in a per a contrario manner in the content of art. 3 letter. d) of the same bill showing that international adoption is "the adoption, that in compliance to the current law is not a domestic adoption."
The criteria of different habitual residence of the adopter / adopters and adoptee (which, by consent adoption involves a movement of the adoptee in the State of residence of the adopter / adopters, n.ns.) is used and the Convention on Protection of Children and Cooperation in the matter of international adoption, concluded at Hague on 29 May 1993, ratified by Romania by Law no. 84 of October 18, 1994, published in the Official Gazette no. 298 of 21 October 1994, which in the content of Chap. IV - Art. 14-22 – reports the International adoption to the criteria of different habitual residence of the adoptee and of the adopters.
[4] The current wording of Law no. 273/2004, the receiving state is defined by art. 3 letter. p) as "State where the adopter or adoptive family is residing in the case of the international adoption and where the adoptee is moving proceeding to the consented adoption";
[5] The text reads: "The purpose of this law, by permanent residence in Romania of the adopter / adoptive family means the situation:
a) Romanian citizens residing in Romania who effectively and continuously lived in Romania in the last twelve months preceding the application for certification. In establishing the continuity, there are not considered interruptions the temporary absences that do not exceed three months neither the ones imposed by the stay on the territory of another state in diplomatic purposes;
b) the citizens of EU/ EEA or foreigners who have permanent right of residence or, where appropriate permanent right of stay on the territory of Romania;
c) Romanian citizens who have restored the residence in Romania with at least twelve months before the date of application for certification. "
[6] According to art. 13 of Decree no. 31/1954, "residence of an individual is where he has constant and main home";
[7] According to art. 26 para. (1) of the Emergency Ordinance no. 97/2005, “domicile of an individual is at the address on which he declares to have the main home ";
[8] For the purposes of art. 29 of Government Emergency Ordinance no. 97/2005, "residence is the address where the individual claims to have secondary residences other than the domicile."
[9] According to art. 87 of the New Civil Code, approved by Law no. 287/2009, "Domicile of the individual, for the purpose of exercising his civil rights and freedoms, is in the place where he has the main settlement";
According to art. 88 of the New Civil Code, approved by Law no. 287/2009, "residence of an individual is the place where the individual has his second home."
[10] In this regard, we expresses some reservations about the proposal made, for reasons of terminological unit, related to the terms and concepts used by the Hague Convention using the term "state of origin" only when referring to the adoptee and "receiving state " when referring to the state where the adopters are habitually resident and where the adopted would be moved [eg preamble of the Convention -" International adoption may offer the advantage of a permanent family for children who can not find a family appropriate in his state of origin ", art. 2 - "The Convention shall apply where a child habitually resident in a Contracting State (origin state) was, is or will be moved to another Contracting State (receiving state) or after its adoption in the of origin by spouses or a person habitually resident in the or to such adoption in the receiving state or in the state of origin; art. 14 of Chapter IV of the Convention dedicated to procedural requirements of the international adoption provides that: "Persons habitually resident in a Contracting State (state of origin) wishing to adopt a child whose habitual residence is situated in another Contracting State (receiving state), be it after his adoption in the origin state by the spouses or by a person with habitual residence in the receiving state, be it for such an adoption in the receiving state or in the origin state; art. 14 from Chapter IV of the Convention, dedicated to the procedural conditions of the international adoption provide that: “The persons habitually residing in a contracting state wishing to adopt a child of who’s habitual residence is situated in another contracting state, following to be addressed to the central authority of the State where the habitual residence is"; art. 15 sections 1 and 2 of the same chapter shows: "(1) If the Central Authority of the receiving state is satisfied that the applicants are qualified and able to adopt, it prepares a report containing information on their identity, legal capacity and skills to adopt, their personal situation, family and medical, social environment, reasons, ability to undertake an international adoption, as well as the children they would be able to take in their care;
(2) It shall send the report to the Central Authority of the state of origin "art. 16 of the same chapter indicates the duties of the central authorities of the state of origin which must decide whether a child is adoptable, the report on the child, proof of required consents and reasons for its determination on the placement, will be sent to the receiving state "art. 18 - "The Central Authorities of both states shall take all necessary measures so that the child receive permission to leave the state of origin and to enter and reside permanently in the receiving state" art. 21 which refers to the duties of the central authority from the receiving state, where it is considered that the adoption is not in the interest of the child and the possible return of the adoptee in the state of origin, art. 27 of Chapter V - "recognition and adoption effect" which refers to the recognition of adoptions in the receiving state with limited effect acquiesced in the state of origin];
[11] According to art. I Section 3 of the bill: "the (2) and (3) par. of Art. 5 are amended and will be read as follows:
(2) The child can be adopted until he acquires full legal capacity.
(3) the person which has acquired full legal capacity may be adopted only if the adopter or adoptive family raised him during his juvenile life ";
[12] Article 455 of the New Civil Code - "Age of the adoptee"
"(1) The child can be adopted until he acquires full legal capacity.
(2) However, it can be adopted under the law, the person who acquired full legal capacity, if he was raised during the juvenile life by the person wishing to adopt "
[13] According to the current formula of the provisions of art. 5. (2) and (3) of Law no. 273/2004:
"(1) The child can be adopted until the age of civilian adulthood.
(2) An adult person may be adopted only if the adopter or adoptive family raised him during his juvenile life ";
[14] According to art. I, section 9 of the project: "Paragraph (2) Art. 9 shall be amended as follows:
(2) For good reasons, the court may approve adoption even if the difference in age between the adopter and the adoptee is less than 18 years, but in no event no less than 16 years ";
The same legislative solution is contained in art. 460 of the New Civil Code:
"(1)The adopter must be at least 18 years older than the adoptee.
(2) For good reasons, the tutorial court may approve the adoption even though the difference in age between the adopter and the adoptee is less than 18 years but no less than 16 years. "
[15] According to art. 9 of the Strasbourg Convention, revised "A child may be adopted only if the adopter is the minimum age prescribed by law for this purpose, the minimum age may not be less than 18 years and not more than 30 years. There must be an appropriate age difference between the adopter and the child, considering the interest of the child, it is preferably an age difference of at least 16 years ";
[16] According to current regulations, contained in art. 9 of Law no. 273/2004:
"(1) Only those who have full legal capacity and are at least 18 years older than the adoptee, may adopt.
(2) For good reasons, the court may approve adoption even if the difference in age between the adopter and the adoptee is less than 18 years, but in no case less than 15 years ";
[17] According to Article 477 of the New Civil Code - Dissolution of the adoption on the request of the adopter:
"(1) Adoption may be dissolved at the request of the adopter or adoptive family, if the adoptee threatened their lives or their descendants’ as well as when the adoptee has been guilty towards the adopter of criminal acts punishable by deprivation of liberty of at least two years.
(2) If the adopter has died as a result of facts adoptee, the adoption can be dissolved at the request of those who had come to inherit together with the adopted or in his absence. "
The current legislation does not contain this solution and the solution of the New Civil Code is proposed to be included in art. 61 1 par. (2), which will be introduced by art. I, section 50 of the bill;
[18] According to art. 478 of the New Civil Code - "Dissolution of adoption at the request of the adoptee": "Adoption can be dissolved at the request of the adoptee if the adopter has been guilty to the adoptee of the facts mentioned in art. 477 ".
Likewise there are art. 611 par. (3), which would be introduced in Law no. 273/2004 by art., I, section 50 of the bill;
[19] Article 62 of Law no. 273/2004, as it is proposed for amended by art I, section 51 of the bill reads as follows:
"(1) Adoption may be canceled at the request of any person asked to consent to its conclusion and whose consent was vitiated by error of adoptee identity, fraud or violence.
(2) action may be brought within six months after the discovery of error or fraud or from the cessation of violence, but no later than two years ";
[20] According to art. I Section 4 of the bill: "After paragraph. (3) Art. 5 is a new paragraph, "para. (4) which reads as follows:
(4) can not be adopted the child whose biological parents have not attained the age of 14 "
[21] According to art. 468 of the New Civil Code - "the conditions of express consent":
"The conditions where people called to express their consent towards the adoption, give their consent shall be governed by a special law";
[22] The solution, the same solution implicitly, but explicitly and in the current form of Law no. 273/2004.
According to the
provisions of art. I Section 6 of the project: "Art 7 is amended as
follows:
art. 7 - (1) Two people can not adopt jointly or simultaneously or in
succession unless they are husband and wife.
(2) However, a new adoption may be permitted when:
a) the adopter or adopters wife died, in this case, the previous adoption shall be deemed dissolved on the date of the irrevocable decision of the court for consent of the new adoption;
b) the previous adoption has ceased for any other reason.
(3) Two persons of the same sex can not adopt together ";
[23] According to art. 462 of the New Civil Code - "Simultaneous or successive adoption"
"(1) Two people can not adopt jointly or simultaneously or in succession, unless they are husband and wife.
(2) However, a new adoption may be permitted when:
a) the adopter or adopter spouses died; in this case, the previous adoption shall be deemed dissolved on the date of the irrevocable decision of the court for consent of new adoption;
b ) the previous adoption has ceased for any other reason.
(3) Two persons of the same sex can not adopt together "
[24] Decree no. 314/2011, published in Official Gazette no. 162/2011, the President of Romania sent to Parliament for ratification, the Convention on the Adoption of Children revised, adopted in Strasbourg on 27 November 2008 and signed by Romania in Strasbourg on March 4, 2009. According to the press release of the institution of the Presidential Administration, the Convention represents an international instrument of the European Council revised, regarding the adoption of children, meant to provide statutory best practices in adoption where prevails the superior interest of the child and effective amendment to the Hague Convention of 1993. The Convention adequately reflects in the European Court of Human Rights jurisprudence and modernizes the national standards in the matter of adoption registered in the instrument on the same topic of the Council of Europe in 1976. The main objective of the Convention is to promote the interests of adopted children and to reduce difficulties caused by differences between national laws yet existing. Also, the regulations contained in this judicial instrument are designed to prevent adoption of a child by private contract without any intervention by the state authority in order, to ensure that adoption is in accordance with the best interests of the child.
[25] According to Article 7 Consolidated version of the Convention on the adoption of children, signed in Strasbourg, settling general fund conditions to complete the adoption, stating that Member States shall establish by law that a child to be adopted by two people of opposite sex who are married to each other or are in a partnership relationship, registered, when such an institution is legally regulated or by one person. Article 7 par. 2 of the Convention gives States Parties the opportunity to extend its application on couples of the same sex who are married to each other or are in registered cohabitation. Also, the states are free to extend the provisions of the Convention also regarding couples of different sex or of the same sex cohabitating in a relationship.
[26] CEDO, Section III, Decision from February 26, 2002;
[27] C. Bîrsan – “European Convention on Human Rights. Comment on articles,” Vol. I., House C.H. Beck, Bucharest, 635-636;
[28] Idem;
[29] ECHR, Grand Chamber Decision Elsholz v. Germany, 13th July 2000, 25735/94;
[30] Decision of July 11th 2002;
[31] Decision of May 28 th 1985;
[32] X v. the Netherlands, the Commission, 10th March 1981;
[33] According to art. I section 7 of the project:
“Paragraph (3) of article 8 is amended as follows:
(3) People with mental illness and mental disabilities can not adopt. The interdiction also applies to persons who wish to adopt alone and whose spouses are mentally ill.”
The current regulation, included in art. 8 par. (3) of the Law no. 273/2004 contains this requirement only for the persons who adopt, and not as regards the spouse of the adopter. However, in practice, this element was not at all neglectable and brought up the protection of the superior interest of the child.
According to art. I section 8 of the draft:
"After par. (3) of art. 8 three new paragraphs are introduced, par. (4) - (6) as follows:
(4) The person who was definitively convicted for an offense against the person or against the family, perpetrated intentionally, as well as for the offense of trafficking in human beings or illicit trafficking and consumption of drugs or whose spouse was definitively convicted for the same offenses, cannot adopt.
(5) The person or family whose child benefits from a special protection measure or who is fallen from their parental rights cannot adopt.
(6) The child recognized born outside marriage can be adopted by the wife of he who recognizes him/her only if paternity was established or if it is confirmed through the result of the expertise of filiation done through the DNA serological method.”
[34] According to the explanatory memorandum, the legislative solution started from the observations formulated by O.R.A. (Romanian Office for Adoptions) who noted that an ever increasing number of families resort to the procedure based on the provisions of art. 20 letter b) of the Law 273/2004, republished, i.e. the adoption of the child by the spouse of the natural or adopting parent, as a result of the fact that the parents from these families recognized the paternity of children coming from the extramarital relations of the husbands within the families abovementioned. In drafting the counseling reports, the specialists within the directorates expressed their distrust in many cases on the reality of the declarations given by the husband, by which he had acknowledged paternity of the child. It was mentioned that acknowledgement of paternity in the case of children born outside marriage and the subsequent and very fast advancement of various adoption actions conducted by the wives of those who had recognized the paternity of these children may give birth to a series of suspicions linked to the legality of the conditions in which these acknowledgements took place. The initiator of the draft of law considers that these practices are designed so as to circumvent the provisions of Law no. 273/2004, republished.
[35] The provisions of art. 31 of the Law no. 273/2004, under the current regulation, read as follows:
“(1) Within 30 days from the date the judicial decision by which the initiation of the internal adoption procedure was approved stays final and irrevocable, the directorate on the territorial circumscription of which the domicile of the child is shall take the steps necessary to the identification of the most suitable adopter or adopting family for the child.
(2) Within the period stipulated under par. (1), the directorate on the territorial circumscription of which the domicile of the child is shall analyze with priority the possibility of entrusting the child for adoption to a relative belonging to the extended family except for the case stipulated under art. 8 par. (1), to the professional caregiver in whose care the child is or to another person of family where the child is in placement.
(3) If there aren’t any requests from the individuals or families stipulated under par. (2), the directorate on the territorial circumscription of which the domicile of the child is shall take the necessary measures with a view to the identification in its administrative-territorial circumscription of a person or family certified and listed in the records of the Office.
(4) If after expiration of the deadline stipulated under par. (1), the directorate on the territorial circumscription of which the domicile of the child is did not identify an adopting person or family among the persons referred to in par. (2) and (3), they shall ask the Office to send within 5 days the nationally-centralized list of adopting persons or families, certified and registered with the National Registry for Adoptions.
(5) The selection of the suitable adopter or adopting family for the child shall be done within 60 days from the receipt of the centralized list, by the directorate on the territorial circumscription of which the domicile of the child is, taking into account the superior interest of the child, the information contained in the certificate of the adopter and, respectively, the evolution of the situation of the child up to that date.
(6) The selection of the adopter or adopting family shall be notified within 3 days to their domicile.”
Art. 32 of Law no. 273/2004, reads in the current wording:
“(1) Following the selection process, the directorate on the territorial circumscription of which the domicile of the child is shall verify and establish his/her compatibility with the adopter or adopting family.
(2) The establishment of compatibility shall be done taking into account the needs of the child, the wishes and opinions he/she expresses, giving them due weight. The superior interest of the child must be considered with priority.
(3) If, after the verification stipulated under par. (1) and (2), the directorate on the territorial circumscription of which the domicile of the child is shall determine his/her compatibility with the selected adopting person or family, they shall notify the court of law for entrusting the child for adoption.”
[36] According to the provisions of art. 34 of the current regulation:
“(1) Entrustment for adoption is not required for the following cases:
a) for adoption under art. 5 par. (3);
b) for adoption under art. 20 letter b);
c) for the adoption of the child for whom the internal adoption procedure was opened and who was placed to the adopter or adopting family, and the measure of the placement takes at least 90 days;
d) for the adoption of the child by his/her tutor, if at least 90 days passed from the establishment of the tutorship,
(2) In the situations referred to in par. (1) letters a) and b) the person or family wishing to adopt will be able to directly request the court of law the approval for adoption, under the dispositions of the current law.”
[37] Under the dispositions of art. I section 28 of the draft law: “Art. 34 par. (1), letters c) and d) is amended and reads as follows:
c) for adoption of the child for which the internal adoption procedure was opened and the child has been in placement to one of the spouses of the adopting family or with the adopting family for at least 2 years;
d) for adoption of the child by his/her tutor if at least 2 years passed since the establishment of the tutorship”
[38] Moreover, according to the explanatory memorandum, the legislative measure was adopted to discourage the practices whereby certified individuals or families used the exception in art. 34 letter c) of the Law, taking the adoptable child in placement or under tutorship, eluding the suitability procedure and then starting the adoption procedures. In order to discourage such practices, the proposed regulation establishes the condition that, for the child in placement of under tutorship, the entrustment procedure for adoption be mandatory, the exception referring only to the situation in which the measure of placement or the tutorship has lasted for at least 2 years.
[39] In this regard, the Legislative Council proposes the following name for the legal institution: “Establishing the compatibility between the child and the adopting person or family”;
[40] The Legislative Council considers that, if prior to the entrustment by the court of law, the child was placed to the adopter, as a special protection measure of the child, or if a tutorship was established and the tutor wants to adopt him/her, and the period of placement or tutorship equals at least the period of 90 days of judicial entrustment, the degree of compatibility between the adopter/tutor and child may be determined and does not create any discriminations between these persons and other persons who wish to adopt, but had not been tutors nor did they have the child in placement prior to the initiation of the adoption procedure;
[41] The solution identified by the legislator is enshrined by:
A) Modification of the provisions of art. 22 of the Law no. 273/2004, which will therefore read as follows:
“(1) The individualized protection plan as regulated by Law no. 272/2004, on the protection and promotion of child’s rights, with subsequent amendments, aims at the internal adoption, if:
a) a year passed after establishment of the special protection measure and the biological parents of the child or, according to the case, his/her relatives up the to the 4th degree cannot be found or manifestly refuse to collaborate with authorities in taking measures for the reintegration of the child in the family;
b) after establishment of the special protection measure, the parents and relatives of the child up to the 4th degree shall state in writing that they do not wish to raise and take care of the child and if within 60 days they do not withdraw their statement, the Directorate has the obligation to register these statements as well as those by which the parents and the relatives up to the 4th degree make amendments to the initial statements;
c) the child was recorded as having unknown parents. In this case, the adoption as finalization of the individualized protection plan is settled within 30 days from the issuance of the child’s birth certificate.
(2) Within the period referred to in par. (1) letter a), the Directorate is bound to take the necessary steps so as to identify and contact the biological parents/relatives up to the 4th degree of the child as well as to send them a periodical report as to the place the child actually finds him/herself in, and as to the concrete modalities in which personal relations with the child may be maintained and the necessary steps necessary for reintegration.”
For the same purpose, art. 221 and art. 222 are introduced as follows:
Article 221 – “(1) If the child was placed to a relative up to the 4th degree, the individualized protection plan may result in the internal adoption only when at least 1 year passed from the date of the establishment of the protection measure and the case manager deems the initiation of the procedure for internal adoption to be in the interest of the child.
(1) If the child reached the age of 14, the individualized protection plan may result in the internal adoption if there is the explicit consent of the child in this respect and the interest of the child justifies the opening of the internal adoption procedure.
Article 222 – “(1) The file of the child for whom the internal adoption was established, as a goal of the individualized protection plan, is sent to the department of adoptions and post-adoptions within the Directorate, which registers the case and notifies the court of law from the child’s domicile, so that it opens the internal adoption procedure.
(2) The directorate on the territorial circumscription of which the domicile of the child is will seize the court of law from the domicile of the child, for the approval of the opening of the internal adoption procedure, within 30 days from the date the case is registered by the department of adoptions and post-adoptions.
(3) The trial of the request referring to the opening of the child internal adoption procedure shall be done after summons of the natural parents of the child or, according to the case, of the tutor and of the directorate on the territorial circumscription of which the domicile of the child is.””
[42] The current regulation, detailed under art. 22 of the Law no. 273/2004, reads as follows:
“(1) Based on the individualized protection plan, as it is regulated under the Law no. 272/2004 on the protection and promotion of children’s rights, the directorate on the territorial circumscription of which the domicile of the child is shall take the steps for the reintegration of the child in the family or, according to the case, for the placement of the child in the extended or substitute family.
(2) The individualized protection plan may finally result in internal adoption, if the steps taken for the reintegration of the child in the family or extended family have failed.
(3) The directorate on the territorial circumscription of which the domicile of the child is shall seize, within 30 days from the finalization of the measures referred to in par. (2) the judicial court, from the domicile of the child, for approval of the opening of the internal adoption procedure.
(4) The trial of the request referring to the opening of the child internal adoption procedure shall be done after summons of the natural parents of the child or, according to the case, of the tutor and of the directorate on the territorial circumscription of which the domicile of the child is.”
[43] According to art. 19 par. (2) of the Law no. 273/2004 (in the current regulation): “Based on the results of the evaluation under par. (1), the directorate on the territorial circumscription of which the domicile of the adopter or adopting family is shall decide, within 60 days from the date the evaluation request is filed by the adopter or adopting family, whether he/she or they are or are not able to adopt. In case of a favorable result of the evaluation, the directorate shall issue the certificate for the person or family able to adopt.”
[44] Therefore, by art. I section 19 of the draft, art. 191-197 are introduced, detailing the certificate issuance procedure for adopters. It regulates the competence to conduct the verifications and issue the certificate when the adopter/adopting family lives at another address than the domicile, showing that, in the situation in which the applicant actually lives at his/her residential address, the settlement of the evaluation request shall be done by the directorate on the territorial circumscription of which he/she resides, the directorate the residence being subsequently requested to provide the information necessary for evaluation to the directorate from the domicile of the applicant.
The results of the evaluation are recorded in a final evaluation report of the applicant’s capacity to adopt which also contains the proposal to issue or not the certificate. The report is drawn within 120 days from the date the request is filed. In case the result of the evaluation is favorable, the directorate shall issue of disposition for the issuance of the certificate, and in case the result is unfavorable, the adopter or adopting family may file a complaint within 5 working days from the communication of the report. The complaint is filed and registered with the directorate which conducted the evaluation, and the latter will send it to the Office, for settlement, within 5 days from its registration. The Office will resolve the complaint within 30 days from its registration, analyzing the documents sent by the directorates involved, requesting the directorate, the person who raises the objection or any other natural or judicial persons any other acts/documents relevant to its settlement, and may order its own verifications. If the Office considers the complaint as justified, they can adopt one of the following solutions: a) recommend the directorate to complete the process of evaluation with new and relevant information and documents; b) conduct new social and/or psychological evaluations; c) issue the certificate in the situations in which they find out that the legal conditions for its issuance are not met, and the proposal of the directorate is manifestly unlawful and ungrounded. Also, the Office may dismiss the complaint as ungrounded, belated or for having been filed by a person without the quality to do so or without authorization. The conclusion of the Office is communicated to the applicant and to the directorate, and after the Office communicates the result of the settlement of the complaint, the directorate may decide: a) to maintain the proposal formulated in the report of the directorate and the issuance of the disposition on the non-issuance of the certificate; b) to complete the evaluation process with new and relevant information and documents; c) to conduct a new social and/or psychological evaluation; d) to issue the certificate.
In case a new evaluation is conducted, the expenses are borne by the applicant.
The dispositions on the failure to issue/withdrawal of the certificate of person/family capable of adoption may be appealed within 15 days from the date of the communication to the competent court of law in the field of adoption, from the domicile of the adopter;
[45] The current procedure for obtaining the certificate and for the appeal against an unfavorable outcome is detailed under the provisions of art. 19 of the Law no. 273/2004;
[46] The right of the adoptee to be informed about the adoption, as well as the correlative obligation of the adopters to inform the adoptee are enshrined in the dispositions of art. 58 of the current wording of the Law no. 273/2004, which reads as follows:
“(1) The adopter shall inform the child that he/she is adopted, as soon as his/her age and degree of maturity allow it.
(2) The adopters and the adoptee are entitled to obtain from the competent authorities excerpts of the public records showing the fact, date and place of birth, but which do not explicitly disclose the adoption nor the identity of the natural parents.
(3) The identity of the natural parents of the adoptee may be disclosed before his/her acquiring full capacity of exercise, only for medical reasons, with authorization of the judicial court, upon the express request of any of the adopters, of the adoptee, husband or his descendants or of the representative of a medical institution or of a hospital.
(4) After acquiring full capacity of exercise, the adoptee will be able to request the tribunal on the territorial circumscription of which his/her domicile is or, in case he/she does not have a domicile in Romania, to the Bucharest Tribunal, to give him/her access to the information existent in the possession of any public authority about the identity of his/her natural parents.
(5) The court of law summons the directorate on the territorial circumscription of which the domicile of the child is, the Office, as well as any other person whose hearing may be useful for resolving the request and shall allow the request if, according to the administered pieces of evidence, it considers that the access to the requested information in not deleterious to the mental integrity and emotional balance of the applicant and if the respective adoptee benefited from counseling provided by the directorate.”;
[47] In these situations, the effects of adoption do not lead to a full rupture of the kinship relations with the members of the natural family, so that the institution of a special procedure for disclosing the identity of the natural parents of the adoptee would be superfluous;
[48] ECHR, Grand Chamber, Decision Odievre vs. France, 13 February 2003, 42326/98;