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Adoption Administration Act (Cap. 495) Consolidated

CHAPTER 495

ADOPTION ADMINISTRATION ACT

To make special provision for the administration of adoption proceedings.

ACT IV of 2008.

1st May, 2008
PART I
INTRODUCTION AND DEFINITIONS

1. The short title of this Act is the Adoption Administration

Act.

2. In this Act, unless the context otherwise requires:

"accredited agency" means an organisation which is accredited by the central authority, in accordance with the Hague Convention, to carry out local and, or intercountry adoption;
"adoption" means a local or an intercountry adoption made in accordance with the provisions of the Civil Code, the provisions of this Act and any regulations made thereunder;
"Ad option Board" m e ans the board estab lished by virtue of article 3;
"Board of A ppeal" m eans the board est a blished by v i rt ue of article 16 or such other administrative board or tribunal which the Minister may from time to time designate to carry out all or any of the functions as specified in this Act;
"central authority" means the Authority established by virtue of article 7;
"child" means a person under eighteen years of age;
"country of origin" in respect of intercountry adoption means the country from which a child is adopted;
"court" means the Civil Court (Voluntary Jurisdiction Section);
"Hague Convention" means the Conventi on on Protection of
Children and Co-Operation in Respect of Intercountry Adoption;
"in t ercoun try adop tio n" mean s an a d option ef fected in accordance with the pr ovisions of the Ci vi l Co de relati ng t o adop tio n, t h e p r o v isi ons of thi s Act an d t h e l a w of a foreign country:
(i) in accordance with the Hague Convention or any other
International Treaty to which Malta is a party; or
(ii) in Malta, in respect of a child not habitually resident in Malta, or in favour of any person not habitually resident in Malta;
"open adoption" means an adoption made in accordance with article 22 of this Act and article 119 of the Civil Code, whereby a

Short title. Definitions.

Cap. 16.

Cap. 16.

Cap. 16.

Cap. 468.

Establishment of the Adoption Board.

child maintains contact with his parents and, or natural family;
"the Minister" means the Minister responsible for social policy;
"social worker" shall have the meaning assigned to it by article 2 of the Social Work Profession Act.
PART II
ADOPTION BOARD

3. (1) There shall be a Board, known as the Adoption Board, wh ich shall be com posed o f a Chairpers o n and a minimum of anoth e r four mem b ers. This Board shall be com posed of the following:

(a) professionals representing different disciplines; and
(b) a person who, in the opinion of the Minister, has adequate knowledge and is proficient in the area of adoption.
(2) The Minister shall endeavour to have a person over the age of eighteen years who is adopted and a person who is or was an adoptive parent as part of the Adoption Board, and such persons may be appo inted at any ti me d u ring the term of office of th e Adoption Board.
(3) A person shall not be qualified to be appointed or continue to hold office as a member of the Adoption Board if that person is a Judge, a Magistrate, a member of the House or of a Local Council, or a candidate for election to the House or a Local Council.
(4) The members of the Adoption Board shall be appointed by the Minister for a minimum period of two years.
(5) Any member of the Adoption Board may be removed from of fice by the Minister on g r ounds of inabilit y to perform the functions of their office or of misbehaviour.
(6) In the event that any member of the Adoption Board vacates his office before completing his term, the member appointed in his stead shall be so appointed for the unexpired period of the original appointment.
(7) The Minister shall designate a person to act as Secretary to the Adoption Board and such person shall, as part of his duties, be responsible for the keeping of the relevant records and shall carry out such other work related to the functions of the Adoption Board as may be instructed by the Chairperson.
(8) Subject to the provisions of this Act and to any regulations m a de ther eund er, the Ado p ti on Boar d shal l r e gu late its o w n procedure:
Provided that any decision of the Adoption Board shall be taken by a majority of votes; however in the case of an equality of votes, the Chairperson shall have and exercise a determining vote. The Secretary to the Board shall not vote.
(9) The Adoption Board shall meet as and when necessary, provided it meets at least once every month. In the case of a written request by the Minister or by an accredited agency, which request
shall be transmitted through the Secretary of the Board, such Board shall meet by not later than forty eight hours following the request.
(10) The Adoption Board shall have the power to consult professio n al s o r ot he r person s h a vi ng rel e van t kn ow led g e and experience in the field of adoption.
(11) The members of the Adoption Board, the Secretary to such Board and any person in vo lved in th e pro c eedi ngs before the Adoption Board shall be bound by confidentiality and shall not disclose to any third party any information which may come to their knowledge during the proceedings. These persons shall also not distribute to any third party any document pertaining to the Adoption Board or any copies thereof, unless requested or duly authorised to do so by any court of law.
(12) The Adoption Board shall submit to the Minister an annual report of all its activities during the preceding calendar year by not later than the fifteenth April of each year.

4. (1) The functions of the Adoption Board shall include:

(a) examining Home Study Reports drawn up by a social worker of an accredited agency;
(b) determining eligibility and suitability or otherwise of a prospective adoptive parent;
(c) ensuring that the placement will be in the best interest of the child to be adopted;
(d) making recommendations to the court and, or to the central authority regarding a prospective adoptive parent;
(e) making recommendations to accredited agencies and, or the Minister on training programmes and counselling sessions for prospective adoptive parents;
(f) making recommendations to the Minister on the parameters to be established for the organisation of counselling sessions;
(g) making recommendations to the Minister for the more effective implementation of Title III of Book First of the Civil Code, the provisions of this Act and any regulations made thereunder.
(2) The Adoption Board shall have access to all documentation deemed relevant to the adoption procedure and it shall be unlawful fo r any p e rso n to hi nd er it i n the carryin g ou t of an y o f it s functions.

5. (1) The Adoption Board shall send a copy of its decision, contai ning its recom m end a tion s , b y r e gister ed m a il t o th e prospective adoptive parent an d to the accredited agency. The p r osp e ct ive ad op tiv e parent shal l h a ve th e ri ght t o ap peal i n accordance with article 6.

(2) Without prejudice to article 6, the Adoption Board shall give its final recommendations to the court regarding the eligibility and suitability or otherwise of the prospective adoptive parents.

Functions of the

Adoption Board.

Cap. 16.

Recommendations by the Adoption Board.

(3) In the case of intercountry adoptions, the recommendations of the Adoption Board shall be submitted to the central authority for its written approval prior to proceeding with the intercountry adoption. After the intercountry adoption has been authorised by the foreign competent authority, a prospective adoptive parent shall file an applic ation to the cour t req u esti ng r e co gn it ion o f th e intercountry adoption for all intents and purposes of the law. In reaching its decision the court shall take into consideration any recommendations of the Adoption Board.

Right of appeal from decisions of Adoption Board.

Establishment of the central authority.

Cap. 16.

6. (1) A prospective adoptive parent may appeal from a decision delivered by the Adoption Board, by filing an application in front of the Board of Appeal by not later than twenty days from the date of service of the decision by registered mail.

(2) Any recommendations made by the Adoption Board shall not be forwarded to the court:
(a) prior to the decision of the Board of Appeal; or
(b) prior to the lapse of the twenty days referred to in article 6 if no appeal has been filed in front of the Board of Appeal.
PART III
CENTRAL AUTHORITY
7. (1) There shall be a central authority designated by the Minister to perfo r m and fu lfil the functions, duties and responsibilities set out by Title III of Book First of the Civil Code,
th e Hag u e Co n v en ti o n , t h e pr ov is io ns o f th is Act and an y regulations issued thereunder.
(2) The central authority may delegate to an accredited agency any of it s functions, duties an d responsibilities which are not reg u latory an d wh ich do not inv o lve t h e grantin g, refusal or revo cation of accred itation. Th e acc re dited age n c y shall be resp onsibl e to exercise such fun c tion s , d u ties an d, or responsibilities in accordance with the provisions of this Act.
(3) The central authority shall keep a register, to be known as "the Reunion and Information Register", with the contact details of persons over the age of eighteen years who have been a party to adoption proceedings or who are relatives by consanguinity up to th e t h ir d deg r ee in cl usi v el y, o f a p e rs on w h o was a par t y t o ad opt io n p r oceed i ng s, and who requ est to be i n clu d ed i n t h is register by filling in the form approved and provided for by the central authority. No information found in this Register shall be given to any person without the prior written consent of the person whose details are requested.

Monitoring of inter-country adoption.

Receipt of applications for accreditation.

8. The central authority shall monitor all proceedings for an intercountry ad opti on wh ich shal l onl y be pro c essed up on th e approval in writing of the central authority in accordance with this Act.

9. (1) The central authority shall be the authority responsible for the receipt of applications for accreditation from organisations

that apply to carry out local and, or intercountry adoptions. The central authority shall have the power to grant, refuse or revoke accreditation in conformity wi th the Hague Convention, the provisions of this Act and any regulations made thereunder.
(2) The central authority shall be responsible to establish criteria for the granting, refusal or revocation of accreditation.
PART IV
ACCREDITATION

10. (1) Any organisation may apply to the central authority for accre d itation in the form a pprov ed and provided for by such authority, in order to be able to carry out local and, or intercountry adoption.

(2) The central authority may at any time during the processing of an application, require an organisation to provide any documents and information deemed necessary in order to ascertain whether accreditation should be granted.

Application for granting of accreditation.

11. The central authority may accredit an organisation if it is satisfied that the organisation:

(a) has sufficient experience and expertise in dealing with child and family matters; and
(b) has an adequate number of staff who are trained to carry out local and, or intercountry adoption; and
(c) has the administrative and legal competency to carry out the functions appertaining to adoption procedures; and
(d) complies with the accreditation criteria specified in the
Hague Convention.

Accreditation of an organisation.

12. (1) Upon granting accreditation to an organisation the central authority shall issue an Accredi tation Certificate which shall be valid for a period of two years from date of issue.

(2) The certificate referred to in subarticle (1) may be renewed by the central authority if the accredited agency applies for renewal by not later than two months prior to the expiration of its accreditation and renewal shall only be granted if the accredited agency is still in compliance with articles 10 and 11. The decision o f the cen t ral aut h o r it y on th e ren e wal of th e accred it at io n certificate shall be served on the accredited agency, by registered mail, within thirty days from the application for renewal.

Accreditation

Certificate.

13. (1) The central authority shall have the right to refuse an application for accreditation if it deems the organisation not fit to carry out adoption services. The refusal together with the reasons t h erefo r shall be serv ed in writi ng, b y regi st ered mail , to the organisation applying for accreditation within three months from the date of application.

(2) The organisation shall have the right to request a reversal of the decision of the central authority by filing an application in front

Refusal of an application.

of the Board of Appeal within twenty days from the date of service as specified in subarticle (1).
(3) The organisation shall have the right to re-apply to the central authority for accreditation if the reason for the refusal no longer subsists.

Revocation of accreditation.

14. (1) The central authority shall have the right to revoke accreditation of an agency at any time, if the agency:

(a) files a request in writing for revocation;
(b) ceases to comply with the criteria of eligibility for accreditation;
(c) is no longer deemed suitable to provide adoption services;
(d) is in breach of the conditions for accreditation in accordance with the provisions of this Act.
(2) The central authority shall serve the agency, by registered mail, with the written revocation together with the reasons therefor and such revocation shall have effect from date of service.
(3) If the accreditation is revoked on any of the grounds mentioned in subarticle (1)(b), (c) or (d), the agency shall have the right to file an applicatio n in front of the Board of Appeal, requesting a reversal of the decision of the central authority, within twenty days of the service specified in subarticle (2).
(4) If an appeal is filed in accordance with subarticle (3), the agency may request the Board of Appeal to suspend the decision of the central authority until the final decision.
(5) If the accreditation of an agency is revoked, the Accreditation Certificate and all the records and documentation relating to the pre-adoption and adoption services shall become the property of the central authority. The central authority may appoint another accredited agency to have cust ody of su ch records and docu m entation, continu e to m o nitor th e prospectiv e adoptiv e parents, and to carry out all th e functions that belonged to the agency whose accreditation was revoked, according to article 22.

Publication in the

Gazette.

15. (1) During the month of January of every year the central authority shall publish in the Gazette:

(a) a list of accredited agencies specifying their full name, registered address and other relevant contact details;
(b) a list of agencies whose accreditation has been revoked throughout the previous calendar year; and
(c) any changes in the conditions required for accreditation or renewal.
(2) The lists in subarticle (1)(a) and (b) shall also be communicated by the central authority to the Permanent Bureau of the Hague Conference.
PART V
BOARD OF APPEAL

16. (1) There shall be a Board of Appeal consisting of a

Chairperson and two other members. One of these shall be a person
who has held a warrant to practise the profession of advocate for at least seven years.
(2) The members of the Board of Appeal shall be appointed by the Minister for a period of three years, and may be removed from office by the Minister on grounds of proved inability to perform the functions of their office or of proved misbehaviour.
(3) A member of the Board of Appeal may be challenged or may abstain for any of the re asons for which a judg e may be challenged or may abstain in accordance with article 734 of the Code of Organization and Civil Procedure. In any such case, the Minister shall appoint another person to sit as a member on the Board of Appeal in substitution of the said member for the duration of the appeal in question.
(4) A person shall not be qualified to be appointed or continue to hold office as a member of the Board of Appeal if that person is a Judge, a Magistrate, a member of the Ho use or of a Local Co uncil , or a candidate for elec tion to the House or a Local Council.

Establishment of

Board of Appeal.

Cap. 12.

17. (1) The Board of Appeal shall be competent to:

(a) review decisions of the Adoption Board upon an appeal filed in accordance with article 6;
(b) review decisions of the central authority upon an appeal filed in accordance with articles 13 and 14;
(c) hear and decide an appeal filed in accordance with the provisions of this Act and any regulations made thereunder;
(d) undertake any other function as the Minister may designate by regulations made by virtue of this Act.
(2) In order to carry out its duties, the Board of Appeal shall have access to all doc u menta t io n pertaining to the adoption procedure and it shall be unlawful for any person to hinder it in the carrying out of its functions.
(3) The Board of Appeal shall have such powers as are, by the Code of O rganization an d Civil Pro c edu r e , v ested in the Civi l Court, First Hall.
(4) Without prejudice to subarticle (3), in the exercise of its functions, the Board of Appeal may summon any person to give evi d en ce and produ ce th e necessary d o cumen t ation . For t h is purpose the Chairperson shall have the power to administer the oath.
(5) The Board of Appeal shall decide an application for appeal by not later t han fou r m on ths fro m the date o f the fil ing of th e appl icatio n, unl ess in t h e opini on o f the Ch airp erson a l onger

Powers of the

Board of Appeal.

Cap. 12.

period is necessary for a valid reason which must be stated and registered in the proceedings of the case.
(6) A decision by the Adoption Board or by the central authority shall have immediate effect unless the Board of Appeal decides to suspend it until it has given the final judgement.
(7) The decision of the Board of Appeal, together with the reasons therefor, shall be sent by registered mail to the applicants, the Adoption Board and the central authority, by not later than three working days from the date of such decision.
Cap. 12. (8) In cases falling under the jurisdiction of the Board of Appeal in accordance with subarticle (1), there shall be a right of ap pe al on a po in t of l a w. Su ch appeal shall be made by an application to the Court of Appeal constituted in accordance with article 41(6) of the Code of Organization and Civil Procedure. Such application shall be filed by not later than twenty days from the date of the decision of the Board of Appeal.

Arrangements for adoption.

Policies and procedures.

Information to prospective adoptive parents.

PART VI
ACCREDITED AGENCIES

18. An organisation shall be deemed to make arrangements for the adoption of a child if it enters into any agreement or makes any arrangements for facilitating the adoption of a child.

19. An accredited agency shall develop, update and execute written policies, procedures and manuals which shall be subject to approval by the central author it y. These w r it ten po licies, procedures and manuals shall include training and assessme n t p rocedu res, and mat ch ing of prospectiv e ado ptiv e parents wi th children, in cases of local adoptions.

20. Before commencing the adoption process, the accredited agency shall:

(a) inform prospective adoptive parents of its objectives, powers and activities;
(b) make available a copy of its Accreditation Certificate to prospective adoptive parents as proof of its accreditation;
(c) inform prospective adoptive parents of any legal requirements;
(d) explain the written agreement that prospective adoptive parents must sign, with regard to the services that will be provided to them and the applicable fees.

Keeping of registers.

21. An accredited agency shall maintain one or more registers listing:

(a) the prospective adoptive parents registered with it; and
(b) the adoptions carried out by it, indicating the children who have been adopted by persons previously registered with it as prospective adoptive parents.

22. (1) An accredited agency shall be responsible to:

(a) provide a service according to the standards, criteria and procedures established by the central authority;
(b) receive and process applications from persons who would like to adopt a child;
(c) provide training to prospective adoptive parents;
(d) draw up a report, to be known as the "Home Study Report", on the situation of the prospective adoptive parent, including any recommendations on whether such prospective adoptive parent should be allowed to adopt and the reasons therefor;
(e) assess the suitability or otherwise of prospective adoptive parents;
(f) ensure that any adoption placement will be in the best interest of the person to be adopted;
(g) draw up agreements of open adoption and reviews thereof in accordance with subarticle (4);
(h) draw up reports, to be known as "Post Adoption Reports" on the situation of the adoptive parents and the adopted child in accordance with the provisions of this Act;
(i) grant the central authority access to any records and documentation dealing with the adoption procedure of any child and to any reports on an adoptive parent or a prospective adoptive parent, including the Home Study Reports and Post Adoption Reports;
(j) grant the central authority access to its financial accounts and audits;
(k) report to the central authority at the end of every calendar year on the performance of its functions;
(l) comply with any other duties and obligations as specified by the central authority or as a result of regular monitoring of the operations of the accredited agency by the central authority;
(m) act in accordance with Title III of Book First of the Civil Code, the Hague Convention and the provisions of this Act.
(2) In order to draw up the Home Study Report and the Post Adoption Reports, the social worker authorised by the accredited agency shall carry out the necessary home visits. These visits may be u nann oun ced and the prospect ive ado pti ve p aren ts sh all not refuse entry, shall co-operate with the social wo rker and shall provide correct information to the best of their knowledge.
(3) The Home Study Report shall be forwarded to the Adoption Board for it to issue the final recommendation to the court. This report shall be valid for a period of two years, following which a new Home Study Report shall be required.

Functions of accredited agencies.

Cap.16.

Cap. 16.

(4) In the case of a child who has attained eleven years of age, and if it is in his best interest, the accredited agency shall draw up an agreement of open adoption, either directly or through a family mediator, after hearing the child and obtaining the consent of the parents and the prospective adoptive parents. When the agreement is drawn up and signed, the accre d ited agency shall s eek the approval of the Adoption Board. Such agreem ent shall not be enforceable without the authorisation of the court in accordance with article 119 of the Civil Code.
(5) The accredited agency shall also be responsible to draw up any reviews to the a greement of open adoption and to seek the approval of the Adoption Board for such reviews.

Post Adoption

Reports.

23. (1) All adoptions shall be subject to Post Adoption Reports and the adoptive parents shall co-operate with the social worker in order for the report to be drawn up.

(2) In the case of a local adoption the Post Adoption Reports shall be drawn up for a period as specified by the accredited agency which in an y case shall not excee d tw o years from th e date of adoption.
(3) In the case of an intercountry adoption, the Post Adoption Reports shall be drawn up for a specified period in accordance with the re qu irements of the coun try of or igin and forwarde d to the relevant authority in the c o unt ry of origin, according to its requirements.

Matching. 24. In the case of local adoptions, an accredited agency shall make all reasonable efforts to match prospective adoptive parents w ith children wh o need an adoption placement. Th e accredited agency shall ensure that the matching shall be in the best interests of t h e child to be adopt ed and t h at all so ci al wor k er s who ar e assigned to carry out duties of matching with regard to the adoption proceedings are adequately trained to carry out this function.

PART VII OFFENCES
Hindrance. 25. Any person who, in any way hinders or obstructs the Adoption Board, the Board of Appeal, the central authority or an accredited agency in the performance of any of their functions shall b e gui lty of an o f fen ce and shall on co nvi ct ion be l i abl e to impri so nment fo r a term of not less than six mont hs and n o t exceeding one yea r or to a fine ( mu lta ) o f no t less tha n one thousand and one hundred and sixty-four euro and sixty nine cents (1,164.69) but not more than two thousand and three hundred and twenty-nine euro and thirty seven cents (2,329.37) or to both such fine and imprisonment.

Adoption by unauthorised persons or organisations.

26. (1) Any person or organisation that makes arrangements for the adoption of a child without the authorisation of the central authority shall be guilty of an offence and shall on conviction be liable to imprisonment for a term of not less than six months and not exceeding one year or to a fine (multa) of not less than one thousand and one hundred and sixty-four euro and sixty nine cents
(1,164.69) but not more than two thousand and three hundred and twenty-nine euro and thirty seven cents (2,329.37) or to both.
(2) Any conviction under subarticle (1) shall be notified by the Registrar of Courts to the court that made the adoption decree, and such court shall take any measures it considers expedient in the best interests of the child, including the revocation of the adoption decree if circumstances so warrant.
27. Without prejudice to article 25 or any specific penalty provided for under any other law, any person who acts in breach of any provision of this Act or any regulations made thereunder, shall be guilty of an offence and shall, on conviction, be liable to a fine (multa) of not less than two hundred and thirty two euro and ninety th ree cents (232 .93) but not more than two thousand and three hundred and twenty-nine euro and thirty seven cents (2,329.37).
PART VIII
REGULATIONS

28. The Minister may make regulations:

(a) for the accreditation, monitoring and control of refusal or revocation of such accreditation;
(b) to establish procedures to be followed by the Adoption
Board and, or the central authority;
(c) to lay down the rules on the powers of and the procedures to be followed by the Board of Appeal;
(d) for any incidental and supplementary matter which the Minister considers expedient to provide for, for the effective implementation of the provisions of this Act;
(e) to establish penalties for breach of the provisions of this Act.

Other offences.

Regulations.

PART IX*
APPLICABILITY

29.† The provision of this Act shall be applicable to adoption procedures initiated following the entry into force of this Act.

Applicability.

*this Part was originally numbered Part X.

†this article was originally numbered article 45.

Also note that the provisions of this article also apply to the consequential

amendments made by this Act to articles 113, 114, 115, 116, 117, 119, 120, 121, 122,

124, 127A, 128, 128A, 128B, 128C, 128D, 128E, 128F, 129 and 130 of the Civil Code

(Cap. 16).