Adoption is very often looked upon in different ways. Some might see it as benefiting a couple and others might argue that it benefits the child. Some might see it as a complicated and long process while others might think that only people of certain wealth can adopt.
... the best environment for a child to be brought up in is a family...- Ann Marie Mangion
Is this really true and are there any aspects of adoption that might not be so well-known?
Adoption is the act of legally bringing into one’s family another person, with the couple, or single person, adopting the child becoming the adoptive father and/or mother.
Not everyone is free to adopt. People eligible to adopt must fulfil certain criteria, such as, for example the age criteria. According to the Civil Code, the adoptive parent must have “attained the age of 28 years and is at least 21 years older but not more than 45 years older than the person to be adopted”.
The age requirement is obvious because the child who is to be adopted needs to have a person who is physically and emotionally capable of taking care of him/her.
Is this discriminating against more mature persons? Maybe but, at the end of the day, the best interests of the child prevail in all legal situations and adoption is no exception.
Cohabiting couples cannot adopt, only married couples can. However, single persons have the faculty to adopt. Is this discriminating against cohabiting couples?
There are couples who have been cohabiting for a considerable period of time and who do not want to get married any time soon. Should this act as a barrier against adoption?
Why does the law specifically state that adoption is only available to married couples? Article 114 (3) of the Civil Code lays down that “save in the case of two spouses living together, an adoption decree shall not be made authorising more than one applicant to adopt a person”.
The law specifically prohibits cohabiting couples from adopting together. The crucial word is “together”, that is cohabiting couples cannot adopt jointly as a married couple would. One of them can adopt as a single person but would this lead to further complications if the cohabiting partners were to eventually get married? Would it be easier for the cohabiting couple to be allowed to adopt together as well?
When a child is being adopted, it is not for the benefit of the couple or single person adopting.
The child being adopted is not an accessory, is not a pet, is not something to steer away loneliness and/or boredom and it is definitely not a thing.
When a child is adopted, this must always be in the best interests of the child. It is irrelevant whether it is in the best interests of the prospective parents or not. Therefore, when it comes to cohabiting couples adopting, an argument that might be raised against them adopting jointly is the solidity and permanence of the union.
Without the legal marital bond that brings two persons together, a cohabiting couple might seem less permanent. But is this really so?
Presently, if a cohabiting couple decides to separate and the two go their own ways, there would not be any prolonged proceedings, if any at all, provided they did not have any properties in common, if both were financially independent and, more so, if they did not have any children together.
The same scenario cannot be said to apply when the couple is married. Unless they separate de facto, they would still have to separate amicably and draw up a separation agreement.
Traditionally, marriage signifies permanence and since adoption is in the best interests of the child and since the best environment for a child to be brought up in is a family, then it makes sense to have the child adopted in an environment that is projecting permanency.
However, given that marital breakdown is a reality, are there any valid arguments against cohabiting couples from adopting?
Adoption is always carried out in the best interests of the child to be adopted and this is not a concept relegated to the Maltese scenario but is a human right recognised by the European Court of Human Rights in the landmark case of Pini & Others v Romania, decided on June 22, 2004.
In this case, two Romanian children who were going to be adopted by an Italian couple started proceedings to have the adoption orders revoked because they did not want to leave Romania and did not want to live in Italy with an Italian couple unknown to them. It was noted that in adoption the best interests of the children are paramount and go beyond that of the prospective parents because adoption meant “giving a family to a child and not the child to a family”.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.