Children can be adopted in accordance with the requirements of the country in which they live or have their habitual residence. If such an adoption is granted in the child's home country, it can be recognised as a so-called foreign domestic adoption in Germany after the Adoption Effectiveness Act (AdWirkG) can be recognised.

This is to be distinguished from the adoption placement within the framework of a international adoption procedure. This is the case if a child is brought to Germany from abroad in order to carry out adoption proceedings at the family court or if adoption proceedings have already been carried out abroad but the adopting parents have their habitual residence in Germany.

If, in accordance with the requirements of the AdWirkG, an adoption decision has been issued abroad that is to be recognised in Germany upon application, this decision must contain fundamental principles. German legal principles correspond. An important component of this is the Child welfare. It also plays a role whether the foreign court has dealt with a change of the child's centre of life.

Nepal was criticised many years ago because adoption decisions were allegedly not primarily based on the best interests of the child. As a result, Nepalese adoption decisions were also criticised in the Federal Republic of Germany and it was recommended that they should not be recognised. In 2010, fundamental restrictions were introduced worldwide, which are still upheld in many countries, for example in the United States of America. The main criticism is that the necessary infrastructure is lacking and that adequate protection is not guaranteed in international adoption procedures in Nepal. It is demanded that the Nepalese government should continue to endeavour to implement the Hague Adoption Convention (HAC) and reform its own legal requirements for adoption to protect children and families.

In proceedings for the recognition of a foreign adoption decision before the Munich Local Court (decision of 29 January 2024, ref. 52722 F 11756/22) was based on the fact that a married Nepalese couple adopted an orphan in Nepal. The child's mother works in Germany, the child's father looks after the adopted child in Nepal and works from his home office as part of his employment, also with a company based in Germany. Following its own examination of the merits, the Munich Local Court has ruled in favour of the Nepalese adoption decision. recognised. This will mean that the father can travel to Germany with the daughter. The adoptive parents are now also considered the parents of their adopted daughter in Germany.

The Federal Office of Justice, the Federal Central Office for Intercountry Adoption, has confirmed that the procedure carried out in Nepal was conducted properly. Due to Nepal's lack of participation in the Hague Apostille Convention, the German Embassy in Kathmandu examined the adoption documents submitted and confirmed that they were correct in terms of content and form. In the opinion of the Munich Local Court, the Nepalese court decision, which was reviewed in more detail no indications of procedural errors or non-compliance with the applicable substantive adoption law. The requirements for the adoption of the child were therefore fulfilled.

The local court also found no violations of German legal principles. In the present case, an unknown biological mother gave birth to a child in a hospital in Nepal without being registered by name, address or other information. Police enquiries about the mother were unsuccessful, and newspaper adverts etc. also failed to locate the child's mother. The child was therefore placed in the care of a orphanage and then, after the investigation, released for adoption.

A lawyer of trust appointed by the German Embassy in Kathmandu reviewed the procedures separately and confirmed the circumstances presented. With regard to the planned change of residence to Germany, the Nepalese court had not examined a special need for adoption abroad. However, the child was still so young that growing up in a different geographical and cultural environment did not constitute a fundamental obstacle to recognition. Furthermore, due to the difference in location, the Nepalese court had not recognised the child's need for adoption abroad, taking into account the findings of the reviews of the Children's aid organisation in Nepal obtained information about accommodation and care in Germany. The children's aid organisation had virtually checked the local housing and care situation and obtained extensive information about the adoptive parents, who were also interviewed in person in Nepal. The essential living conditions in Germany were therefore sufficiently known to the Nepalese court and could therefore be used as a basis for the positive adoption decision.

In addition, there has been a longstanding Parent-child relationshipas the adoptive father looks after and cares for the child in his own, Nepalese, household. In this respect, a parent-child relationship has already been established, there are already ties to the adoptive mother and it is to be expected that a further mother-child relationship will develop positively. The Munich Local Court therefore assumed that the Nepalese court had sufficiently examined the best interests of the child and rejected a violation of German ordre public, i.e. public policy.

For a foreign domestic adoption from Nepal, taking into account the special requirements of the adoption procedures in Nepal, the Requirements for eligibility for recognition in Germany and therefore applicable for future proceedings.

Dr Oldenburger advises you on all questions relating to foreign adoptions and their recognition in Germany

Dr Marko Oldenburger

Specialist lawyer for family law

Specialist lawyer for medical law



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