National Adoption of Children and Adolescents in Our Legal System and its Vicissitudes

In human history, approximately in 1770 BC, traces of the legal figure of adoption were recorded, namely, records on the rights and responsibilities of adoptees and adopters in the “code of Hammurabi“, originating from Mesopotamia. Having the institute of adoption consolidated during Ancient Rome and the Roman Imperial Period.

However, during the Middle Ages until the beginning of the 19th century, the legal institute of adoption fell into decay, due to numerous historical events of various orders.

Later, with the end of World War II, adoption gained global acceptance and took shape as a model of family formation more quickly for both infertile couples and single people, as well as for neglected and abandoned children by their biological parents.

In Cape Verde, the legal institute of national and international adoption are both regulated, the first in the Civil Code and in the Statute of Children and Adolescents, Law No. 50/VIII/2014, of 26 December, while the the second is regulated in Law No. 57/VIII/2014, of 3 February and in Resolution 105/VII/2009, of 26 June – The Hague Convention on the Protection of Children in Matters of International Adoption.

Further on, for a correct understanding and framing of the subject in question, it is necessary to distinguish two legal concepts, that of adoption and that of adoption, which can currently be confused.

Adoption is the bond that is constituted by a court decision, as parentage is the kinship relationship that links the child to each of the parents and configures a personal and free act.

Adoption:

According to the normative provisions of the Statute of the Child and Adolescent, adoption is the constitution, by court ruling, of a legal bond established between the child or adolescent and other persons, similar to natural parentage, but independently of blood ties.

Purposes of adoption:

Pursuant to the provisions of the Civil Code, adoption is intended to protect the interest of the adoptee and the general interest of childhood.

Types of adoption:

In addition to national adoption, the Legislator regulated international adoption through the ratification of the Hague Convention for the Protection of Children and Cooperation in International Adoption Matters and Resolution n.º 105/VII/2009, of 3 February.

It is necessary to distinguish between national adoption and international adoption, the first is characterized as the adoption of children in Cape Verde, made by a person or couple residing in Cape Verde, which does not imply the transfer of the child from one state to another. Therefore, the international means the movement of the child from their country of habitual residence to another country, as a result of their adoption or with a view to being adopted by a person or by a couple habitually resident there.

Who can adopt:

All persons who meet, cumulatively, the following requirements may be adopted: a) be aged between twenty-five and sixty years old; b) be in full enjoyment of their civil and political rights; c) have moral integrity and economic means that guarantee the full development of the adoptee; d) have no criminal record in crimes whose nature is against the personal, moral or sexual self-determination of children or adolescents.

It should be noted that, in the context of the adoption process, the age difference between the adopter and the adopted person cannot be less than sixteen years old or more than forty years old;

Furthermore, they can adopt people who are married to each other, who are not de facto or judicially separated from persons and goods, and/or people who live in a legally recognizable de facto union.

Furthermore, they may adopt the guardian or legal administrator of assets, however, only after approval of the accounts of the guardianship of assets administration and settlement of the accounts;

Who can be adopted:

Our legal system, especially the Civil Code, definitively identifies who can be adopted, namely, a) non-emancipated minors, b) the children of the spouse of the adopter, c) children of unknown or deceased parents; d) children whose parents abandoned them; e) children whose parents are still in parental authority, but who have given prior consent for adoption, f) children whose parents have seriously endangered the safety, health, training, education or development of the minor.

However, in order to proceed with the adoption judicial process, it is necessary to fulfill the so-called general requirements, which will be discussed below.

Of the general requirements in the adoption court process:

In order for the Court to decree the required adoption, it is imperative that those fulfilled the requirements below cumulatively: a) present the adoption with a real advantage to the adopting party; b) It is based on legitimate and reasonable reasons; c) it is reasonable to assume that a relationship similar to that of biological parentage is established between the adoptee and the adopter; d) does not involve unjust sacrifices for the adopter’s children.

n order to initiate a process for the national adoption of a child or adolescent, the adopter must communicate his intention to the ICCA services and to the Municipal Committees for administrative processing and, subsequently, to file a Civil Protection Action for Adoption before the competent court.

With the decree of adoption, by court order, this is subject to registration in the birth certificate of the adopted person. And, it produces legal effects, namely, the kinship of the adoptee with the consanguine family is extinguished and, a bond is created with the adoptive family as that existing between parents and consanguineous children, the adoptee loses the previous surnames and acquires the surnames of the adopters.

On the other hand,

However, being prohibited in Cape Verde and in most countries in the world, it is worth addressing the figure of homoparenthood – which deals with the adoption by same-sex or bisexual couples, of the other’s biological or adoptive child, in parallel with our legal system.

In our legal system, homoparenthood is contrary to legal precepts. As a result of our Constitution of the Republic of Cape Verde and our Civil Code the concepts, respectively, of marriage and family, that is, the first is the voluntary union of two people of different sex, while the family results from the union above to the constitution of the family (latu sensu) through communion of life.

In this way, the bond of adoption can only be established, by court decision, if the adopter is the spouse of the mother and/or father of the adopted person, or if the spouses – adopt jointly, provided they are a heterosexual couple.

In short, it should be noted that in addition to the above requirements, the judicial adoption of a child and adolescent will only be decreed by the competent court, if it is in the “best interests of the child and adolescent”, that is, whenever an administrative or judicial decision to prove necessary, in order to ensure the physical and psychological well-being of the child and, to prove essential to the harmonious development of the child and adolescent.

Furthermore, in addition to the legal effects, adoption is a definitive act of making a child, someone who was conceived by other people, it is creating between two people legal relationships identical to those that result from a blood filiation, finally, it is an act of love to the next.