The rules can therefore be complicated, and a number of requirements apply to adoption applicants and to the process. The overriding consideration in all decisions concerning adoption is the best interests of the child.
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The overriding consideration in all forms of adoption is the best interests of the child. That the child’s best interests must be the overriding consideration in adoption follows from both section 4 of the Norwegian Adoption Act and Article 21 of the UN Convention on the Rights of the Child. For intercountry adoptions it also follows from the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention).
That the best interests of the child is the overriding consideration in adoption means that the child’s best interests are not merely a “primary consideration”, as worded in the general provision in Article 3 of the Convention on the Rights of the Child, but the decisive consideration in all decisions concerning adoption. The child’s best interests therefore carry even greater weight in adoption than in other decisions concerning children. As stated in the preparatory works to the Adoption Act, adoption is “a legal institution for children, and must therefore be designed with children’s interests in mind, without the balancing of competing considerations that may otherwise be necessary”.
Furthermore, the Adoption Act, the UN Convention on the Rights of the Child and the Hague Convention all use the phrase “the best interests of the child” in the definite singular. It is thus the best interests of the individual child that must be decisive in all decisions and all case handling in the field of adoption. This means that each individual case requires a concrete assessment of what will be best for the child affected by the decision. This best-interests assessment must build on knowledge of the past and present, but also on prognoses for the future, as the adoption authority must make a forward-looking assessment of the care situation the child will have if the adoption is carried out.
Since the legal effects of adoption are so far-reaching – all legal ties to the child’s biological family are severed with irreversible effect – the adoption authority must not be in doubt that adoption is best for the child. Section 4 of the Adoption Act expresses this by providing that adoption may only be decided when it is “clearly probable” that it is in the child’s best interests. The law thus imposes a strict standard of proof for the best-interests assessment, as it is not sufficient that adoption is most likely in the child’s best interests.
Perhaps the best-known form of adoption is intercountry adoption, where a child is adopted from one country to another. In addition, there are various forms of national adoption.
Stepchild adoption means that the child is adopted by the spouse or cohabitant of one of the child’s original parents. As a general rule, this can only take place if the applicant has raised the child for at least five years and wishes to continue raising the child.
Infant adoption can only take place if the parents have relinquished actual care of the child at birth. This form of adoption is rarely used, but has many similarities with intercountry adoption, among other things in that it is the child’s biological parents who have released the child for adoption and thereby initiated the process.
The Adoption Act also has separate rules on the adoption of persons over the age of 18, known as adult adoption. Here the purpose is somewhat different than for the adoption of children, as this form of adoption is intended to confirm existing legal ties.
In addition, there is adoption of foster children – typically children placed in foster homes under the rules of the Child Welfare Act as part of a care order – which is governed partly by the Child Welfare Act and partly by the Adoption Act. In such cases, the child welfare and health board makes the decision. In this connection it may be noted that the Child Welfare Act also provides a legal basis for adoption without parental consent.
Adopting a child entails an extensive, lifelong commitment that demands a great deal of the adoptive parents. The Adoption Act and the Adoption Regulations therefore impose several requirements on adoption applicants, the purpose of which is to safeguard the best interests of the child and ensure that the child has a secure upbringing in the adoptive family. The requirements apply both to national adoption and to advance consent for intercountry adoption.
Firstly, it follows from section 8 of the Adoption Act that, as a general rule, only persons over the age of 25 may adopt or be granted advance consent to adopt from abroad. The Act sets no upper age limit, but practice applies an indicative upper limit of 45 years.
Secondly, it follows from section 6 that spouses and cohabitants must, as a general rule, adopt together. As a starting point, spouses and cohabitants must also have lived together for the past two years.
Thirdly, it follows from section 5 of the Act that only a person who is capable of being a good caregiver for children may adopt or be granted advance consent to adopt. Under the same provision, the applicant must also wish to raise a child or have raised the child in question.
What it means for adoption applicants to be capable of being a good caregiver is regulated in more detail in section 1 of the Adoption Regulations. It states that weight shall be given to, among other things, the following factors:
The list is not exhaustive. Several other factors may thus be relevant to the assessment. Whether the applicant is “capable of being a good caregiver” depends in all cases on a discretionary assessment, in which the best interests of the child is the overriding consideration.
Although it is common for spouses or cohabitants to adopt together, section 7 of the Adoption Act also allows single persons to adopt. The condition, however, is that the person is capable of having sole care of a child. Section 1 of the Regulations specifies that the assessment shall give weight to whether the applicant has a stable and good network of family and friends available in everyday life, and whether the child will be ensured contact with both sexes while growing up.
A further factor in the assessment is whether the single applicant has particular knowledge of or experience with children, for example from caring for children through work, having been a foster home or the like. It is also worth noting that only applicants who live alone are considered single. As mentioned, this means that spouses and cohabitants must adopt together.
In addition to the above requirements, applicants must have completed an adoption preparation course before the adoption application is submitted. The purpose of the course is to give applicants insight into what is required of them as adoptive parents, and to prepare them for receiving a child and for meeting any challenges. For intercountry adoption, applicants must have a placement confirmation from an approved adoption organisation before they can attend such a course. The first step in the process will therefore be to contact one of the approved adoption organisations.
In summary, adoption applicants must meet the following conditions:
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