This week has jumped to the media a heartbreaking case, Joan's, a four-year-old boy who was returned to his biological mother after having stayed for three years with a family in Sueca (Valencia) on a pre-adoption basis. A tremendously difficult situation for both families, and in the middle, the child, protagonist of a drama that is unable to understand. The birth mother gave her version in an open letter and so did the pre-adoptive father in her name and in that of his wife, after having delivered the child they cared for since he was 18 months old.
We have talked with Benedict Garcia, coordinator of CORA (Coordinator of Associations in Defense of Adoption and Reception) who explains some interesting questions about this case and about adoptions in our country. He, in turn, has two adopted children, an Indian girl and a child born from a national adoption.
-What legal differences are there between foster care, pre-adoption and adoption?
Reply: He foster care can be residential or family. In the residential area the child is an institution and the guardianship is of the administration. In a foster care, custody is in the family, but guardianship is always the administration.
In the adoption It is the parents who have the guardianship, guardianship and custody of the child. They have the same obligations as with any biological child. There's no difference.
Pre-adoption does not exist as a legal figure. There is preadoptive foster care, which with the new Child and Adolescent Protection Law (approved in July 2015), and to avoid conflict situations, is called “Saves for adoption purpose”.
Guardianship always depends on the administration, but the guardian is in a family or in the administration itself. In these cases the goal is always adoption. In foster care it is not always. There are temporary and permanent foster care until the minor becomes of legal age.
- How is the process of preadoptive foster care? What can happen during that process?
Reply: Pre-adoptive foster care takes place while the judicial adoption procedure is resolved. A family welcomes a child in order to adopt it. During that time the adopters have guard and custody but the child is supervised by the State. The process can take between six and 18 months, although in practice sometimes the adoption sentence takes longer to arrive.
When there are ongoing processes, such as the biological family claiming the child, the case will continue its legal path and in the end there will be a judicial ruling in favor of one of the two parties. In most cases (more than 90%) adoption is achieved. It has not been the case of the Swedish boy.
The boy from Sueca (Valencia) has been an atypical and very rare case. In this case, for the moment, the adoption was not achieved. The sentence is a disparity of criteria, the judges have had one criterion and the administration, at the time, had another. That is why there is an appeal before the Supreme Court and we will see how it is solved.
In more than 90 percent of cases, after a pre-adoptive foster care, definitive adoption is achieved. This was not the case of the Swedish boy.
-How long do biological parents have to claim?
Reply: An express waiver by the biological family is currently needed so that the child can be given up for adoption. If it does not occur at any time in the child's life, until the age of 18, the family can claim it. If he is in foster care, justice dictates as he considers.
To avoid conflicts like this, one of the things contemplated by the new Law on Childhood and Adolescence Protection when a child is in foster care, From the two years that goes on to foster care, an adoption process can be initiated with full guarantees.
If the biological family has not expressed any type of interest in the child, it is abandoned by the family, even if it has not formally expressed it, the administration itself can initiate an adoption process. The reasonable thing is that the child continues in the foster family or is promoted to an adoption family that takes care of him.
Regardless, every adoption process involves a judicial adoption ruling, which will depend on the interpretation of a judge, he says. Thus, we must give them tools so that this interpretation of the law is given in an appropriate manner for the best interests of the minor.
An express waiver by the biological family is currently needed so that the child can be given up for adoption.-What other improvements does the new Law on the Protection of Children and Adolescents regarding adoptions include?
Reply: The main spirit of the new law is the interest and the superior good of the minor.
Based on that spirit it is intended that, if possible, the child is always in a family, that is, that the residential care is as small as possible. The best thing for a child is always a family.
On the other hand, it establishes that the procedures to be followed are regulated in the processes of international adoption. Better coordination between administrations with more shared objectives among all.
It establishes the possibility of open adoption, in which the adopted children may, in some cases, maintain contact with the biological family. The decision will be made by a judge after hearing the three interested parties (the minor and / or who fears guardianship, adoptive family and biological family).
The time dedicated to compulsory preparation and training courses in the preadoptive process (similar to the permits that currently exist for childbirth preparation sessions) will be considered computable for the purposes of parental leave.
The adopted persons will have the right to know their origins, and for this the Public Administrations must keep records for at least 50 years.
Less and less adoptions
We also talked with Benedict Garcia about the decrease in the number of adoptions in Spain. According to data from the Ministry of Health, Social Security and Equality, between 2010 and 2014 New adoption requests in Spain were reduced by more than half, from 3,376 to 1,431.
"There are few minors in a situation of adoptability. There is a popular myth to try to avoid: not all abandoned children are adoptable. Unfortunately there are many abandoned children, but for different situations, they are not adoptable. Because despite being abandoned they continue to have ties with their family, with their country, with their situation ... they are usually very particular considerations in each case. The condition of adoptable is very few children. As there are few, the requests are many "
As for international adoptions, after the boom that occurred about a decade ago, adoptions outside the country have also dropped. In just five years they have dropped from 3,000 adoptions in 2009 to 824 in 2014.
"First, what is attempted is to integrate the child into their own biological nucleus, but they are intended to be welcomed in their own country (national adoption), and if not, international adoption. The minors adoptable for international are less and less. Countries are increasingly promoting national adoption at source. A cluster of cases in which adoptable minors are few, "Garcia explains.
Adoption deadlines
Just as adoptions are reduced, deadlines are increasing. "The deadlines have been increasing greatly in recent years. On average we could put a strip between 4 and 8 years old, being 8 years more and more habitual ", assures.
Maximum age 40-45 years
One of the limitations posed by the adoption law in Spain is an age limit of 45 years to request an adoption. "If when you are assigned the child you exceed the average of 40-45 years, you do not enter the waiting list. So at 35 you should be considering adoption. In the current situation, who has his life stabilized with 35 years? If you have one, you have to have decided to start a family. And also, at first you don't consider adoption, you try to have a biological child or you turn to assisted reproduction before. "
The new law recommends a maximum age, but still each community has its competence and applies what it deems appropriate. In Valencia, the maximum stipulated age is 45 years and in Madrid 40 years.
The work of CORA
CORA de CORA (Coordinator of Associations in Defense of Adoption and Reception) is a federation that has been in operation for 15 years and of which 24 associations are currently part. It provides help to families, intervenes with adoptive social agents, exchanges information, but never intervenes in adoption processes.
They fight for a smaller number of institutionalized minors, to go out to families, and another important issue they are working on a lot is in the postadoption.
"We have had an international adoptive boom in Spain about a decade ago. We become the first country in number of international adoptions. Those children have grown up, now they are teenagers and young people, and there is much to work in post-adoption," Benedict explains.
We thank Benedicto García, coordinator of CORA, You have kindly agreed to answer our questions.
