Intercountry adoption and the best interests of the child: The Hague Convention 1993 and the importance of bonding

Intercountry adoption is a controversial method of providing a child with a home and a family. Critics including David Smolin and Ethan Kapstein have condemned intercountry adoption deeming it to be exploitive, pointing to unethical and illegal practices that continue to exist. Adopting a slightly different critique, Andrew Bainham has suggested that States use intercountry adoption as the “easy” alternative, so that they do not have to reform and restructure their national child welfare laws. In contrast others such as Peter Hayes and Elizabeth Ryan have argued that the legal framework involves too much State regulation and more flexibility is needed. These commentators all refer to the best interests of the child to support their arguments. The best interests of the child is a vague concept which is undefined by law, making these competing arguments possible. Each stance has some viability but these conflicting arguments, sometimes extreme, are difficult to reconcile because they are based on a loose sense of the best interests principle. Therefore a more developed understanding of the principle is needed to inform the analysis of the best interests of the child in intercountry adoption.