Adoption in Cambodia

What is the status of inter-country adoption from Cambodia?
Adoption is currently a controversial issue in Cambodia. The United States, the United Kingdom, Canada, France, Australia and some other countries have banned adoptions in Cambodia since 2001 due to the fact that the Royal Government of Cambodia has not made the necessary reforms to ensure that child trafficking is eradicated. Such governments are urging the Cambodian Government to install necessary checks and balances in order to ensure that the processes are in line with the Hague Convention and Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption.
Although adoptions from the above countries are impossible to process (with some exceptions for those who are living in Cambodia), it is still possible to process adoptions for citizens of other countries. However, all possible steps must be taken to ensure that the child is a legitimate orphan in order to exclude any possibility that the child is part of a trafficking scheme.
Before 1979, the adoption was regulated by the 1967 Code Civil. After the Pol Pot Regime, adoption was governed by the Family Law dated 1989. This law contains only some provisions which do not cover all legal aspects of adoption. For example it is silent on the issue of adoption by those with foreign nationality, although before the passing of sub decree 29 Judges and Jurists have declared that this law is applicable to inter country adoption. The Civil Code which came into force in 2003 also gives some clarification to this process.
In 2001, Sub Decree 29 on Inter Country Adoption was passed. This sub decree is complementary to the provision of the Family Law. It seems that the adoption provisions contained in Family Law 1989 can be applied to adoptions by Cambodian citizens within Cambodia and the Sub decree is to be applied to inter country adoption. However, this distinction is not absolutely true because the inter-country adoption process through the Family Law 1989 is still applied in some cases. However, for inter-country adoption the authoritative legislation to be used is Sub Decree 29.
Adoption through the Family Law dated 1989
This law highlights the adoption process in Cambodia. Though this law does not refer to inter-country adoption, it can apply also if a foreigner wishes to adopt the child through the family law. In order to guarantee that the birth parent will not claim the child back, such an agreement should be endorsed by the courts. However the adoption certificate issued by the court of Cambodia is only recognized by the Cambodian jurisdiction If foreign nationals want the adoption to be legally recognized in their country, they must work with their lawyer or court in their country of citizenship to get it legitimized.
To adopt from the childs parents or guardians, the adoptive parents shall fulfill the conditions and procedure as follows:
A. Conditions
An adoptive mother or father must be more than 25 years of age and must be at least 20 years older than the adoptee who is less than 8 years of age. Only two adoptees may be adopted by an adopter.
A spouse may adopt an adoptee in agreement with the other spouse. In this case, the adoptee shall be the adoptee of both spouses.
There must be consent of the natural parents or guardians of the adoptee.
B. Procedures
Upon the request of an adoptive parent and consent of the natural parents or the childs guardian, a written contract must be established and certified under the auspices of a Commune/Sangkat chief. If there is a complaint by the adoptee, persons or other organizations for the adoptees interests, the Court may rescind the above contract.
The family name of the adoptee shall follow the line of the adopter, and has the same rights and duties as a natural child.
To adopt an adoptee, there must be consent of the parent or guardian of the adoptee. If a baby or child who will be adopted is an abandoned, the adoptive parent must seek the consent of the Commune/Sangkat Authority. An adoption contract must be in writing and certified by the Commune/Sangkat Council in the jurisdiction where an adopter or adoptee resides. The text of the adoption contract shall be recorded in the registrar. The above procedure requires the adopters to go through lower level of authority (Commune/Sangkat) and the court of law.
C. Documents Required
Consent from the adopter and the parents or guardian. This agreement must be in writing
The agreement has to satisfied the Khann/ Sangkat leader where the adopter or adoptee resides
The adoption agreement has to be registered in the registrar book
D. Practice
Under Cambodian Adoption Law, after the adoption, the child will bear the adoptive parents family name and she/he will have the new name endorsed by the court. The child will have equal rights like a natural child. However, practice has shown that it is difficult to obtain a passport in the new name. The first thing is to change the name of the child in the family book and this is a long process.
The recognition of the Adoption Paper by the foreign embassy poses a problem too as it depends on the particular Embassy on whether to issue the visa and recognize the adoption through the family court of Cambodia. There are some countries which have recognized the adoption papers from the family court and therefore issued the visa for the child. However, Cambodia has recently acceded to the Hague Convention and is in the process of changing their procedures for adoption in line with this convention. This is the reason Cambodia does not have such a defined adoption system at present. As a result, the treatment of adoption in this country both by the Cambodian government and foreign governments is in a state of change so what was true six months ago may not be true six months from now.
Therefore not many adoptive parents choose this way of adoption because there is no guarantee that their home country will acknowledge the adoption papers. Furthermore, through this option, the parties have to approach a lower level of commune and Sangkat which is sometimes difficult to process documents and lacks administrative power.
Adoption Under Sub Decree 29
A. Condition of the applicant
According to Sub-Decree No. 29, dated March 14, 2001 on Adoption of Orphans (Sub-Decree on Inter-Country Adoption) an applicant who is an citizen of a foreign country applying for the adoption of an orphan to be reared abroad must fulfill the following criteria to be eligible:
1. Criteria of Adopters
Based on Article 3 of Sub-Decree on Inter-Country Adoption, a concerned couple applicant must be married and between 25 and 55 years of age. A single person only between 40 and 50 years of age may adopt a child. An applicant may not adopt more than two children. Only applicants with no child or those who have no more than two children are permitted with adoption.
2. Criteria of Adoptee
According to Article 5 of Sub-Decree on Inter-Country Adoption an orphan permitted for adoption shall have following criteria:
An orphan is less than 8 years of age
Lives under a stewardship of a state orphanage or other centers managed by Ministry of Social Affairs, Labor, Vocation, and Youth Rehabilitation
Lives at orphanage for at least three months prior to an adoption request being made
Has a birth certificate issued by civil status official
Has a health certificate issued by a competent doctor who works in state hospital or other clinics recognized by the state.
Normally if an applicant (foreign citizen) wants to adopt a baby or a child through an orphanage in Cambodia, he/she can pick an adoptee from a center accredited by the Ministry of Social Affairs, Veterans and Youth Rehabilitation (MoSAVY). There, the applicant should contact the Director of the center in advance to check whether or not the child has his or her sponsor parents (in some orphanage some children usually have distant adoptive parents to support although they never come and see the sponsored adoptee).
3. Procedure
The above Required Documents must be submitted to the Ministry of Foreign Affaires and International Cooperation (MoFAIC) through his/her Embassy in the applicants place of residence. The Ministry will then examine all application documents within 15 days. If the application is incomplete, MoFAIC has a duty to reject or return the documents to the applicant for amendments. After a full examination, MoFAIC will prepare a letter of opinion to be attached with all related documents for submission to the MoSAVY. MoSAVY (normally the Department of Child Welfare plays a role as secretariat to process, investigate, and collect all information relevant to the case (as a ground for decision making). It will examine the conditions and formalities fulfilled by a concerned applicant within two months.

Following a complete examination, it must make an opinion letter of the Ministry and, attached with all relevant documents, submit it to the Office of Council of Ministers for a decision of the Royal Government of Cambodia. The Office of Council of Ministers (CoM) shall examine the documents and submit them to the Royal Government within 15 days for the approval and send a letter of the approval to MoSAVY to make a certified adoption letter and inform the MoFAIC which in turn, through a concerned Embassy attached to Cambodia, invites the applicant to come to Cambodia.
Upon receiving an approval notification from the Royal Government, MoSAVY shall issue a certifying letter on the adoption to a concerned applicant. Transferring of child custody shall be done formally in front of an official of MoSAVY as a coordinator. An adoptive parent must be present to receive a child personally at such time. Transferring of child custody to an intermediary agent is not permitted. An approval or rejection is the privilege of the Royal Government. CoM, MoFAIC, and MoSAVY shall continue to monitor the information in support of Cambodian born adopted child until such child reaches 18 years of age. The adoption through sub-decree 29 is full and completed.
The adoption process under sub-decree 29 is lengthy as it involves numerous ministries who each require a separate area of law to be analysed. Applicants need to be committed to ensuring that this process is thorough in order to ensure that there is no corruption involved and that the embassy of the applicants residence will issue a visa for the child.
REQUIRED DOCUMENTS FOR SUB DECREE 29 ADOPTION:
- Application form
- Adoption authorization letter from a competent authority in the applicants country;
- A report on the family situation of the concerned applicant specifying the number of family members. This shall be made by a responsible agent .
- A copy of a birth certificate of the concerned applicant;
- A copy of a marriage or divorce certificate or letter certifying the applicant is single;
- A letter certifying the health condition of the concerned applicant;
- A psychological report made by a psychotherapist recognized by the government of the concerned applicant;
- A certified letter of clearance issued by an authority in the country of origin or a place where the concerned applicant resides or a letter of clearance issued by the competent ministry;
- A letter certifying conduct at the work place and social life issued by a competent authority;
- A clarification on the financial situation and properties of the concerned applicant issued by a competent authority;
- An agreement to respect the childs rights as a son/daughter and provide education as well as the right to receive an inheritance;
- Photograph of the concerned applicant taken in the last two months;
- A contract signed by the concerned applicant on the provision of information relating to child rearing from time the adopted child leaves Cambodia once a year to MoSAVY until the child reaches 18 years of age. The report shall be reviewed and certified as correct by the competent ministry in charge of adoptions in the country of the concerned applicant and a copy shall be made to the Cambodian Embassy in the country of the concerned applicant;
- A copy of the passport of the concerned applicant;
- A letter from the Embassy of the country of the concerned applicant certifying that all documents above are correct.
ABOUT THE AUTHOR: Christopher McKenzie - BNG Advocates and Solicitors
BNG Advocates and Solicitors comprises of some of the brightest legal minds in Cambodia who have had much experience with family law related issues including inter-country adoption.
BNG acknowledges that child trafficking is a serious issue in Cambodia and advises against adoptions in the area until the Cambodian government has ensured that the adoption process is in line with international standards.
In exceptional circumstances BNG will help with the adoption process in Cambodia when it can be confirmed beyond all reasonable doubt that the child concerned is not a victim of a child trafficking scheme and your country of citizenship approves of the adoption.