The Portuguese Public Ministry classifies adoption as ‘a way of establishing a relationship of filiation between a child deprived of a family and a person or couple.’
The Social Security Institute, I. P., in turn, defines adoption as ‘a gradual process that leads to a person, individually considered, or a couple becoming the father, mother or parents of one or more children, allowing them to realise their fundamental right to grow up in a family environment, in a climate of love, security, care and understanding.’
Law no. 143/2015, of 8th September, in its current version, also known as the ‘Legal Regime of the Adoption Process’ (RJPA), although it does not provide a legal definition for adoption, defines the adoption process as the ‘set of administrative and judicial procedures, including preparatory and evaluative acts, with a view to the judicial decision constituting the bond of adoption, which occurs following a decision of adoptability or a favourable evaluation of the spouse’s intention to adopt a child;’ (Article 2(h) of the RJPA).
There is, however, an important distinction between national adoption and international adoption. The relevant criterion for this distinction is the habitual residence of the child(ren) compared to that of the adopter(s), regardless of their nationalities.
Thus, international adoption occurs when a child is transferred from their country of habitual residence to the country of habitual residence of the adopters, with a view to or following their adoption (art. 2, a) of the RJPA); and national adoption occurs when the child to be adopted and the candidate for adoption are habitually resident in Portugal (art. 2, b) of the RJPA).
In this article, we intend to address some general issues related to the national adoption process. If you would like to know more about international adoption, you can access our article on the subject from this link.
1. Who is involved in the adoption process?
In addition to adopters and adoptees, the national adoption process is managed by various competent bodies, as defined in Article 1(2) of the RJPA, and also includes the intervention of private social solidarity and similar institutions and other non-profit organisations of recognised public interest (Article 1(3) of the RJPA).
The bodies responsible for national adoption are the social security organisations, the Public Ministry and the courts.
- The social security organisations, also known as ‘adoption teams’, are the Instituto da Segurança Social, I. P., the Instituto da Segurança Social dos Açores, I. P. R. A., the Social Security Institute of Madeira, IP-RAM, or, in the municipality of Lisbon, the Santa Casa da Misericórdia de Lisboa (art. 7 of the RJPA).
These organisations are made up of a technical team that accompanies all the players and stages of the process, including duly qualified professionals with training in the areas of psychology, social work, law and even health and education professionals, all in accordance with the provisions of articles 8 and 9 of the RJPA.
The law also guarantees autonomy between the teams involved in the preparation, assessment and selection of prospective adopters and those that study the situation of adoptable children and realise their adoption plans (art. 9, paragraphs 3 and 4 of the RJPA).
- The Public Ministry intervenes throughout the adoption process, defending the rights and promoting the best interests of the child, in accordance with the provisions of articles 26 and 27 of the RJPA.
- Finally, the courts ‘exercise in the adoption process the functions conferred on them by the Constitution, guaranteeing compliance with the law, ensuring the promotion and defence of children’s rights and ensuring that their best interests prevail, without prejudice to the consideration due to the legitimate interests of biological families and adopters or candidates for adoption.’ (art. 28 of the RJPA), and have the competences in this matter set out in arts. 29 and 30 of the same statute.
It is also important to note that every adoption depends on the establishment of a filial bond between the adopter(s) and the adoptee(s) by a court judgement, handed down in the context of a proper process. This means that the courts have the ‘last word’ in formalising and completing the adoption process.
2. Who can adopt?
Article 1979 of the Portuguese Civil Code (CC), in conjunction with the provisions of Law no. 2/2016 of 29 February (the law that eliminated discrimination in access to adoption, civil sponsorship and other legal family relationships), defines the criteria to be met by adopters. They are, in short:
- Two people who have been married to each other and have not been legally separated for more than 4 years, if they are both over 25 and under 60.
- Two people who have been living together for more than 4 years, if they are both over 25 and under 60.
- One person over 25 and under 60;
- From the age of 60, adoption is only permitted if the child or young person was entrusted to you before you turned 60 or if they are your spouse’s child.
- The age difference between the adopter and the adoptee must not be more than 50 years (with a few exceptions, relating in particular to the best interests of the adoptee, when, for example, there is a sibling relationship in which only one or some of the siblings have an age difference greater than this).
In addition, the law leaves the preparation, assessment and selection of prospective adopters to the discretion of the adoption teams, but determines that it is mandatory to standardise and publicise criteria and procedures, in accordance with the provisions of article 14 of the RJPA.
Furthermore, publicising these same criteria and procedures is also mandatory, namely by publicising them on the official websites of all the entities involved, ‘so as to enable all interested parties to be aware of them.’ (Article 14(2) of the RJPA).
In December 2021, according to the ‘Activity Report of the Adoption Teams of the ISS, I.P. and the Central Authority for Intercountry Adoption 2021’ by the Social Security Institute, I. P. (henceforth, the Report), the adoption teams of the ISS, I.P. and the Central Authority for Intercountry Adoption 2021 (henceforth, the Report). (henceforth, Report), there were 1145 applications awaiting proposal, corresponding to 2046 applicants, of which 244 were single applicants and 1802 were joint applicants
In terms of the profile of applicants for adoption, the Report concludes that ‘the following profile of applicants awaiting a proposal in 2021 is evident: joint applicant, married, approximately 40 years old, with higher education and no children.’ (p. 21).
3. Who can be adopted?
It should be noted that, prior to the start of the adoption process, there must have been a communication from the Court to the adopting teams, under the terms of Article 39 of the RJPA, about the adoptability of a child.
As a rule, adoptability will have been determined through prior consent to adoption (art. 35 of the RJPA) or a final court decision in promotion and protection proceedings under Law no. 147/99, of 1st September, or the ‘Law for the Protection of Children and Young People in Danger’ (LPCJ).
In 2021, according to the aforementioned report, the adoption teams were called upon to intervene in adoption proceedings concerning 164 new children, and of these, ‘20 children received prior consent for adoption (under Art. 34(1)(b) of the RJPA); 19 children received prior consent for adoption (under Art. 34(1)(b) of the RJPA); and 20 children received prior consent for adoption (under Art. 34(1)(b) of the RJPA). 34 of the RJPA); 19 had a prior favourable assessment of the adoption of a spouse’s child (paragraph c) of the same legal rule) and the remaining 125 (76% of the total) benefited from a declaration of adoptability decided in the context of judicial promotion and protection proceedings, duly finalised (paragraph a) of the article in question)’ (p. 9).
The report also highlights the following statistical data, presented in the table supporting Session A of the PFA 2021, in Annex 1, (p. 21):
‘Approximately 70 per cent of applicants’ claims were for children aged 0 to 3, while children in this age group accounted for around 23 per cent of the total.
On the other hand, children aged 7 and over accounted for 60 per cent, while applicants’ claims for the respective age groups totalled 7 per cent.
Around 1/4 of the applicants’ wishes were for the adoption of siblings. Of those who wanted siblings, only 2% accepted 3 siblings, with no applications above that number. 31 per cent of the children had serious health problems and 30 per cent were disabled, while the applicants’ claims corresponded to 0.2 per cent and 1 per cent for these situations, respectively.’
And in its conclusion, it states that:
‘From a general perspective, the number of applications for adoption remains much higher than the number of adoptable children awaiting a proposal. At the same time, there is a discrepancy between the characteristics and needs of the children and the wishes of those who want to adopt.
In fact, around half of the children who are still waiting for an offer from an adoptive family have particular adoptive needs, which do not correspond to the candidates’ wishes. As this is a situation present in the world of adoption, there has been an investment in accurate knowledge of the characteristics of these children, the technical, institutional and cultural constraints that can hinder their placement and the resources available to promote their adoptability.’ (p.46)
4. How does the adoption process work?
In very simplified terms, the judicial adoption process is itself divided into three phases or stages, in accordance with the provisions of Article 40 of the RJPA, which are the (1) preparatory, (2) adjustment between children and candidates and (3) final phases. Let’s briefly summarise each one:
- Preparatory phase
The first phase, known as the ‘preparatory’ phase, is regulated in articles 40(a) and 42 to 47 of the RJPA and is essentially carried out by the so-called adoption teams.
These teams are responsible for the preparation, assessment and selection of prospective adopters, and carry out studies and interventions with these candidates with a view to realising the adoption project. These interventions include, among other things, training sessions and psychosocial interviews with adoption candidates (art. 44 of the RJPA) and complementary preparation actions (art. 47 of the RJPA).
Once the application for adoption has been accepted, a selection certificate is issued and the candidate joins the national adoption list (art. 10 of the RJPA) and must wait for a child to be offered for adoption.
On the other hand, the adoption teams also carry out what is known as a characterisation study of the child who has been decided to be adoptable, intervening with them in order to identify their entire life history, be it family, health, legal, etc., as well as their specific needs.
Once the diagnosis of the adoptable child’s needs has been finalised (a diagnosis that is submitted to the court and updated every three months or whenever supervening circumstances arise that justify it, under the terms of Article 42 of the RJPA), the second phase of the process begins, the adjustment phase.
- Adjustment phase
This phase is regulated in articles 40 b) and 48 to 51 of the RJPA. After the individual analysis of the adoptable children and the adoption candidates carried out in the first phase of the process, the adoption teams carry out activities to assess the correspondence between the child’s needs and the candidates’ abilities, organise the transition period and monitor and evaluate the pre-adoption period.
It should be noted that it is only during the transition period that mutual acquaintance is promoted, with a view to assessing the existence of favourable signs of an emotional bond between the adoptee and the prospective adopter (art. 49, no. 1 of the RJPA). Thus, by promoting meetings for a maximum of 15 days that are properly prepared, observed and sometimes even participated in by the competent teams, the proper emotional management and expectations of the child(ren) are ensured, promoting their Best Interests.
If there are no obstacles to continuing the process, the pre-adoption period begins, from which the child will be integrated into the adoptive family. The social security body or authorised private institution monitors this integration, assessing the viability of establishing a parental relationship, during a pre-adoption period of no more than six months (Article 50(1) of the RJPA).
The aim of this last period is to build and consolidate the family bond and, in a favourable case, it ends with the social security body or authorised private institution drawing up a report in which it concludes with an opinion on the implementation of the adoption project.
Final phase
The final stage of the adoption process begins with the application submitted by the adopter to the competent court (Article 52(1) of the RJPA), which must be submitted in accordance with the provisions of Articles 52 and 53 of the RJPA.
The judge will hear the adopter, the people whose consent is required by law and who have not previously given it or waived it, and the adoptee, under the terms and in compliance with the rules laid down for hearing children in civil guardianship proceedings; he will also order any steps that appear necessary, in accordance with the provisions of articles 54, 55 and 56(1) of the RJPA.
Finally, a judgement will be handed down which, if favourable to the adoption, will result in the termination of the link of biological filiation, which will be recorded on the adoptee’s birth certificate, under the terms of the Civil Registry Code.
Exceptionally, the judgement may establish the maintenance of personal contact between the adoptee and members of the biological family, provided that the conditions and limits laid down in Article 1986(3) of the Civil Code are met (Article 56(5) of the RJPA).
The report identified above reveals that ‘According to the Directorate-General for Justice Policy/Ministry of Justice, in 2021, 204 adoption cases were finalised nationwide (…)’ (p.33).
Carla Chibeni