By Atty. Rita Linda V. Jimeno

It was reported last week that adopting children would now be made easier and faster. On March 12, the President signed Republic Act 9523 which requires the Social Welfare Department to certify that an abandoned, surrendered or neglected child is legally available for adoption before any judicial proceeding for adoption may begin.

Some lawyers reacted with doubt and skepticism saying that the new law may instead have unwittingly added a new layer of delay in the adoption process. Some even said that because the early stages of adoption had now been made a purely administrative proceeding, this could again be another trap for corruption.

I tried to find the full text of the new law; unfortunately, I found only media releases and sketches of the changes that were made from the old law on domestic adoption and inter-country adoption.

Under the old domestic adoption law, a child who was abandoned and is sought to be adopted must undergo the judicial process of first being declared a foundling by the court. In this process, the adoptive parents must report having in their custody a child who was abandoned to the barangay and the Social Welfare. Then they have to file a petition in court to have the child declared a foundling. The court then appoints the Social Welfare to be the child?s official and legal guardian. Thereafter, the second and the main, stage of the adoption process begins. The adoptive parents must then present evidence and witnesses in court about their capacity to provide for the economic, social and psychological development of the child and their readiness to take the child as their own legitimate child. Thereafter, the Social Welfare must officially give its consent to the adoption, being the foundling?s guardian. The court then decides whether to grant the adoption or not.

Under the new law, the first stage of getting the child officially declared as a foundling does not go through the judicial process anymore. It becomes an administrative proceeding. The law says that the declaration that a child is a foundling and that it is legally adoptable must be done by the Social Welfare and completed by it in three months. The proponents of the law say that from a judicial process of some three years, it will now only be about three months. This, of course, is somewhat exaggerating because the first stage in the judicial process of declaring an abandoned child a foundling normally did not take three years in court?no matter how slow the judicial process was perceived to be.

There are problem areas in the new law, however. Its objective of shortening the process and thus cutting the time when a child may be transferred to a nurturing environment may only remain on paper. Firstly, not all children who are adopted are foundlings. In fact, more adoption proceedings involve the adoption of a child who is related by blood or affinity to the persons adopting. In such situations, there is really only one stage in the adoption process because there is no need for a preliminary stage where the child has to be first declared a foundling. In such cases, the biological parents are called upon by the Court to declare their consent to the adoption. The Social Welfare?s role is limited to conducting a child study and a home study to ensure that the adoption will redound to the best interest of the child. In cases where the child to be adopted is not a foundling, but is in fact, a relative by blood or affinity of the prospective adopters, what is the logic in requiring the Social Welfare to issue a certification that the child is legally available for adoption? Is this not within the province of the courts to determine because this is a purely legal matter?

Secondly, with the new requirement that the Social Welfare issue certifications in all adoption cases stating that a child is legally available for adoption, does the agency have enough manpower, that is, enough social workers and necessarily, lawyers, to attend to this added task? In my experience in handling adoption cases in the past, when the new law was not yet even in the horizon, the social workers of the Social Welfare were so saddled with work that one had to wait in line when they could find the time to conduct home visits and prepare child study and home study reports. To their credit, the Social Welfare social workers must be among the most hardworking government employees around but with this new law, how in the world, could they cope?

Thirdly, a provision of the RA 9523 states that in the event the Social Welfare declares that a child is not legally available for adoption, then resort to the judicial system comes in. The would-be adopters would have to file an appeal with the Court of Appeals to reverse the decision of the Social Welfare secretary. Delay will clearly set in even in the first stage of the adoption proceeding alone.

The rationale and the objective of the new law are praiseworthy. They seek to shorten the waiting time before a child may join a family which will love and nurture it. After all, every child deserves a home and a family. My fear is that, as in most laws, this new law may be set back by poor implementation and enforcement. The crafting of its implementing rules must thus be carefully studied and all the stakeholders consulted.

E-mail: ritalindaj@gmail.com Web: www.jimenolaw.com.ph