Adoption of unaccompanied or separated children should only be considered once it has
been established that the child is in a position to be adopted. In practice, this means,
inter alia, that efforts with regard to tracing and family reunification have failed, or that
the parents have consented to the Adoption. The consent of parents and the consent of
other persons, institutions and authorities that are necessary for Adoption must be free
and informed. This supposes notably that such consent has not been induced by
payment or compensation of any kind and has not been withdrawn.
Unaccompanied or separated children must not be adopted in haste at the height of an
emergency.
Any Adoption must be determined as being in the child's best interests and carried out
in keeping with applicable national, international and customary law.
The views of the child, depending upon his/her age and degree of maturity, should be
sought and taken into account in all Adoption procedures. This requirement implies
that he/she has been counselled and duly informed of the consequences of Adoption and
of his/her consent to Adoption, where such consent is required. Such consent must have
been given freely and not induced by payment or compensation of any kind.
Priority must be given to Adoption by relatives in their country of residence. Where this
is not an option, preference will be given to Adoption within the community from which
the child came or at least within his or her own culture.
Adoption should not be considered: i) where there is a reasonable hope of successful
tracing and family reunification is in the child's best interests; ii) if it is contrary to the
expressed wishes of the child or the parents; iii) unless a reasonable time has passed
during which all feasible steps to trace the parents or other surviving family members
have been carried out. This period of time may vary with circumstances, in particular,
those relating to the ability to conduct proper tracing; however, the process of tracing
must be completed within a reasonable period of time.
Adoption in a country of asylum should not be taken up when there is the possibility of
voluntary repatriation under conditions of safety and dignity in the near future.270
1.5.
Right to identity
157.
The Court has understood that, on the basis of said provision, the right to identity "can be
conceptualized as the collection of attributes and characteristics that allow for the individualization of the
person in a society, and, in that sense, encompasses a number of other rights according to the subject it treats
and the circumstances of the case.”271 Among the latter, nationality, name and kinship ties are of the utmost
importance.272 In that regard, on the basis of a joint review of various provisions of the American Convention,
for example, Articles 11, 17, 18 and 20, it is evident that the right to identity is recognized.
158.
As for Article 8 of the Convention on the Rights of the Child, it provides for the following:
1. States Parties undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity,
States Parties shall provide appropriate assistance and protection, with a view to reestablishing speedily his or her identity.
270 United Nations Committee on the Rights of the Child, General Comment No. 6. Treatment of unaccompanied and separated
children outside their country of origin. September 1, 2005, para. 91.
271
122.
I/A Court H.R. Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No. 221, para.
272I/A Court H.R. Case of Contreras et al. v. El Salvador. Merits, Reparations and Costs. Judgment of August 31, 2011. Series C
No. 232, para. 112.
33