Thông tư 21/2011/TT-BTP

CIRCULAR

ON THE MANAGEMENT OF FOREIGN ADOPTION OFFICES IN VIETNAM

Pursuant to the June 17, 2010 Adoption Law;

Pursuant to the Government's Decree No. 19/2011/ND-CP of March 21, 2011, detailing a number of articles of the Adoption Law;

Pursuant to the Government's Decree No.93/2008/ND-CP of August 22, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

The Minister of Justice issues this Circular on the management of foreign adoption offices in Vietnam:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular details a number of articles of the Adoption Law and the Government's Decree No. 19/2011/ND-CP of March 21, 2011, detailing a number of articles of the Adoption Law (below referred to as Decree No. 19/2011/ ND-CP) on procedures for grant, extension or modification of licenses for inter country child adoption operation in Vietnam of foreign adoption organizations; rights and obligations of foreign adoption offices; examination, inspection and handling of violations of foreign adoption offices in Vietnam.

Article 2. Foreign adoption organizations to be licensed to operate in Vietnam

1. Under Article 37 of Decree No. 19/2011/ ND-CP, based on the number and needs of Vietnamese children wishing to seek overseas substitute families and conditions and capacity of foreign adoption organizations wishing to operate in Vietnam, after discussing with central agencies in charge of international adoption of concerned foreign countries, the Department of Adoption shall annually coordinate with functional units of the Ministry of Foreign Affairs and the Ministry of Public Security in considering and fixing the number of foreign adoption organizations to be licensed to operate in Vietnam (below collectively referred to as foreign adoption organizations).

2. Foreign adoption organizations shall be licensed to operate in Vietnam in the form of foreign adoption offices.

A foreign adoption office may have its own bank account and seal as provided by law.

3. Foreign adoption organizations shall take responsibility for all operations of their foreign adoption offices in Vietnam.

Article 3. Participation in carrying out procedures for intercountry adoption settlement

Foreign adoption offices may participate in carrying out procedures for Vietnamese children to be adopted overseas under the Adoption Law and Decree No. 19/2011/ND-CP.

Chapter II

GUIDANCE ON A NUMBER OF PROCEDURES FOR GRANT, EXTENSION OR MODIFICATION OF INTERCOUNTRY ADOPTION OPERATION LICENSES

Article 4. Dossiers of application for grant, extension or modification of operation licenses

1. A foreign adoption organization's dossier of application for grant, extension or modification of a license for intercountry adoption operation in Vietnam must comply with Articles 31, 34 and 35 of Decree No. 19/ 2011/ND-CP and the following guidance:

a/ The copy of the license of the foreign adoption organization specified at Point c, Clause 1, Article 31 of Decree No. 19/2011/ ND-CP must be certified, stating that this organization is allowed to operate in the field of intercountry adoption in Vietnam or the field of international adoption activities;

b/ For a foreign adoption organization that has operated in intercountry adoption in Vietnam, the written report on its operation in Vietnam specified at Point d, Clause 1, Article 31 and Clause 2, Article 34 of Decree No. 19/ 2011/ND-CP must bear the signature and seal of its head.

2. A foreign adoption organization's dossier of application for grant, extension or modification of a license for intercountry adoption operation in Vietnam must be made in two sets and translated into Vietnamese. Vietnamese translations must be certified under Vietnamese law before being submitted to the Department of Adoption.

Article 5. Order of grant, extension or modification of operation licenses

1. The order of grant, extension or modification of a license for intercountry adoption operation in Vietnam of a foreign adoption organization complies with Articles 33, 34 and 35 of Decree No. 19/2011/ND-CP and the following guidance:

a/ After receiving a written reply of the Ministry of Public Security or upon the expiration of the time limit specified in Clause 2, Article 33, Clause 4, Article 34 and Clause 2, Article 35 of Decree No. 19/2011/ND-CP the Department of Adoption shall complete and submit the dossier to the Minister of Justice for consideration and decision;

b/ In case the foreign adoption organization is licensed by a competent foreign authority to operate in Vietnam for a duration shorter than the maximum duration specified in Clause 4, Article 33 of Decree No. 19/2011/ND-CP a license for intercountry adoption operation in Vietnam shall be granted or extended for a duration equal to the validity duration of the license granted by the concerned foreign competent authority to the foreign adoption organization.

2. Foreign adoption organizations that have actively assisted with seeking for substitute families for children with disabilities or children infected with HIV or other dangerous diseases and fully satisfy the law-prescribed conditions will be prioritized for being licensed for intercountry adoption operation in Vietnam.

Chapter III

RIGHTS AND OBLIGATIONS OF FOREIGN ADOPTION OFFICES

Article 6. To carry out procedures for settling adoption in Vietnam on behalf of adopting persons

1. Under Point b, Clause 2, Article 43 of the Adoption Law, a foreign adoption office may carry out, on behalf of an adopting person, the" following activities for carrying out adoption procedures in Vietnam:

a/ Completing the adopting person's dossier under the Vietnamese law;

b/ Filing the adopting person's dossier with the Department of Adoption and pay the fee for registration of intercountry adoption under regulations;

c/ Adding documents and papers to the adopting person's dossier at the request of the Department of Adoption;

d/ Sending photos of and information on the child to the adopting person after obtaining a competent Vietnamese authority's consent to introduction of the child for adoption;

e/ Bringing the child introduced for adoption to medical examination or additional health checkup after obtaining a consent of the head of the children-nurturing establishment;

f/ Sending to the Department of Adoption the written consent of the adopting person to the introduced child and the written permission of the concerned competent foreign authority for continued completion of adoption procedures;

g/ Paying expenses for the intercountry adoption settlement under regulations;

h/ Assisting the adopting person in entry, exit, travel, residence procedures and interpretation when he/she enters, leaves or stays in Vietnam for completion of adoption procedures;

i/ Coordinating with the children-nurturing establishment in organizing meetings for the adopting person to meet and get acquainted with the child introduced for adoption;

j/ Assisting the adopting person in the ceremony for handover and receipt of the adopted child;

k/ Assisting the adopting person in procedures for obtaining a passport and visa for the adopted child's exit from Vietnam and entry into and settlement in the concerned foreign country.

2. Foreign adoption offices may not act as legal representatives for foreign adoptive parents.

Article 7. Assistance in seeking substitute families for children with disabilities and children infected with HIV or other dangerous diseases

1. A foreign adoption office that has a special program on assistance for children with disabilities and children infected with HIV or other dangerous diseases in seeking substitute families shall send a detailed report on such program to the Department of Adoption, clearly describing the capacity of the staff member(s) in charge of the program, preparations for adoptive parents and supervisory measures after the adoption.

2. In providing assistance for children with disabilities and children infected with HIV or other dangerous diseases in seeking substitute families under Point c, Clause 2, Article 43 of the Adoption Law, a foreign adoption office may conduct the activities specified at Points a thru f and Points h thru k, Clause 1, Article 6 of this Circular and the following activities:

a/ Taking the initiative in selecting and notifying the Department of Adoption of a list of adopting persons who wish to adopt children with disabilities and children infected with HIV or other dangerous diseases and have all conditions for adoption of these children;

b/ Providing assistance in additional health checkup, medical examination, testing or assessment for completing health records of children and in taking care of children with disabilities and children infected with HIV or other dangerous diseases at the request of the Department of Adoption;

c/ Providing adequate and detailed information on health records of children with disabilities and children infected with HIV or other dangerous diseases to adopting persons so that they can consider the possibility of adopting these children after obtaining written approval of the Department of Adoption.

Article 8. Rent of offices and employment of Vietnamese

Foreign adoption organizations may rent offices and employ Vietnamese to work at foreign adoption offices in Vietnam according to Point e, Clause 2, Article 43 of the Adoption Law and the following guidance:

1. A foreign adoption organization shall send to the Department of Adoption a written notice of the address, telephone number, facsimile number and mail address of its foreign adoption office in Vietnam and an office rent contract (if any).

2. If employing Vietnamese to work at its foreign adoption office in Vietnam, a foreign adoption organization shall sign employment contracts under the Vietnamese law and notify in writing the Department of Adoption of a list of staff members working at the office, contact addresses and one copy of each employment contract. Staff members working at foreign adoption offices must be professionally qualified and experienced and have good ethics.

Article 9. The obligation to report on development of adopted children

1. Foreign adoption offices shall urge adoptive parents to strictly perform the obligation to promptly report on the development of Vietnamese children adopted overseas within 3 years after they are adopted. Reporting periods are as follows:

a/ For reports for the first six months, the reporting period is counted from October 1 of the preceding year to the end of March 31 of the current year;

b/ For reports for the last six months, the reporting period is counted from April 1 to the end of September 30 of the year.

2. Based on reports of adoptive parents, foreign adoption offices shall send to the Department of Adoption summarized reports on development of Vietnamese children adopted overseas under Point g, Clause 2, Article 43 of the Adoption Law and the following guidance:

a/ Before October 31 every year, a foreign adoption office shall send to the Department of Adoption a general report on development of Vietnamese children who have received its assistance for adoption overseas. Such general report must be made according to form No. 1 attached to this Circular, summarizing adequate and truthful information on development of these children.

b/ A general report on development of Vietnamese children must bear the signature and seal of the head of be foreign adoption organization and the translated into Vietnamese. Vietnamese translations must be certified under the Vietnamese law before being sent to the Department of Adoption.

3. Apart from sending their annual general reports under Clause 2 of this Article, foreign adoption offices shall also send extraordinary reports on specific Vietnamese children who are adopted overseas at the request of the Department of Adoption.

4. Proper performance of the obligation to report on development of Vietnamese children adopted overseas is regarded as a ground for the Department of Adoption to receive dossiers of application for adoption of Vietnamese children through foreign adoption organizations.

Article 10. The obligation to report on operation

1. Before April 15 and October 15 every year, a foreign adoption office in Vietnam shall send to the Department of Adoption a biannual and an annual report on its operation, made according to form No. 02 attached to this Circular. The method of counting the reporting period complies with Points a and b. Clause 1, Article 9 of this Circular. A report sent to the Department of Adoption must bear the signature and seal of the head of the foreign adoption office.

2. Proper performance of the obligation to report on operation of foreign adoption offices in Vietnam is regarded as a ground for considering the extension of their operation licenses.

Chapter IV

EXAMINATION, INSPECTION AND HANDLING OF VIOLATIONS OF FOREIGN ADOPTION OFFICES

Article 11. Examining agencies

1. The Department of Adoption shall manage and examine foreign adoption offices in Vietnam; and annually report to the Minister of Justice on operation of these offices.

2. In case of necessity or at the request of related ministries and sectors, the Ministry of Justice may form an inter-disciplinary team to examine foreign adoption offices in Vietnam.

Article 12. Contents of examination

1. The examination of operation of a foreign adoption office covers:

a/ The observance of the principle of non-profit operation of the office; financial revenues and expenditures and the book-keeping regime to monitor financial revenues and expenditures of the office in Vietnam;

b/ The observance of the Ministry of Justice-granted license for intercountry adoption operation in Vietnam;

c/ Results of settlement of child adoption with its assistance;

d/ The observance of professional regulations, guidance and direction related to its operation;

e/ The performance of the reporting obligation specified in Articles 9 and 10 of this Circular;

f/ The performance of other obligations by the office under the Adoption Law, Decree No. 19/2011/ND-CP and other relevant laws.

2. The examination of personnel of a foreign adoption office covers:

a/ The satisfaction of the criteria for heads of foreign adoption offices specified in Article 32 of Decree No. 19/2011/ND-CP;

b/ The signing and performance of employment contracts and the satisfaction of the criteria for personnel of foreign adoption offices specified in Clause 2, Article 8 of this Circular;

c/ Other matters related to the organization and personnel of the office.

3. The examination of the observance of relevant regulations on office rent (if any).

Article 13. Order of examination

1. The examination of foreign adoption offices in Vietnam shall be conducted annually or extraordinarily.

2. For annual examination, the Department of Adoption shall notify a foreign adoption office of the time, composition of the examination team, contents, plan and place of examination at least 5 working days in advance. For an extraordinary examination, the Department of Adoption shall notify it at least one working day in advance.

3. When conducting examination, a written record of examination contents must be made. Such written record must be signed by the head of the examination team and the head of the foreign adoption office. In case a violation of the foreign adoption office is detected through the examination and must be promptly handled, the head of the examination team shall promptly propose a competent authority to apply provisional preventive measures or remedies for consequences of the violation and recommend a direction for handling the foreign adoption office.

4. Within 30 days after an examination is completed, the Department of Adoption shall report in writing examination results to the Minister of Justice and concurrently notify them to the concerned foreign adoption office in Vietnam and foreign adoption organization.

Article 14. Inspection of operation of foreign adoption offices

1. The Inspectorate of the Ministry of Justice may inspect all foreign adoption offices in Vietnam.

2. The order and procedures for inspecting the operation of foreign adoption offices comply with the law on inspection.

Article 15. Commendation and handling of violations

1. Foreign adoption offices that strictly comply with this Circular and other relevant regulations and record outstanding achievements in assisting children in special circumstances in seeking substitute families or helping children with disabilities and children infected with dangerous diseases in Vietnam shall be commended and rewarded.

The director of the Department of Adoption shall commend or reward foreign adoption offices or propose the Minister of Justice to do so.

2. Foreign adoption offices, their heads and staff members that violate this Circular and other relevant regulations on adoption shall, depending on the nature and severity of their violations, be administratively handled or examined for penal liability under law.

Chapter V

IMPLEMENTATION PROVISIONS

Article 16. Annulment of relevant legal documents

To annul the Minister of Justice's Decision No. 09/2006/QD-BTP of November 30. 2006, promulgating the Regulation on management of foreign adoption offices in Vietnam.

Article 17. Effect

This Circular takes effect on January 5, 2012.

Article 18. Organization of implementation

1. The Department of Adoption shall organize the implementation of this Circular and coordinate with functional units of the Ministry of Public Security, (he Ministry of Foreign Affairs and provincial-level Justice Departments in managing foreign adoption offices in Vietnam.

2. Any problems or new matters arising in the course of implementation shall be reported by the Department of Adoption to the Minister of Justice for timely guidance.-