The trend among US celebrities of adopting children in far-flung places has been in the news lately. Madonna’s bid to adopt a second child from Malawi generated controversy and sparked criticism from human rights groups. A court in Malawi eventually rejected her bid because Madonna has not been a resident of Malawi for at least 18 months (as required under the laws of Malawi). (see CNN, New York Times reports). Madonna has filed an appeal with Malawi’s High Court. (see San Francisco Chronicle report)
In the Philippines, adoption proceedings became easier. On March 12, 2009, the President signed into law Republic Act (RA) No. 9523, which amends RA 8552 (the Domestic Adoption Act of 1998), RA 8043 (the Inter-Country Adoption Act of 1995), and Presidential Decree (PD) 603 (the Child and Youth Welfare Code)
The law makes the process of adopting a child “administrative” in nature. In lieu of a court order, the Department of Social Welfare and Development (DSWD) may issue a certification that a child is legally available for adoption. Under the law, the DSWD certification is the primary evidence that a child is legally available in a domestic adoption proceeding or in an inter-country proceeding.
In case of abandoned or neglected children, the issuance of the DSWD certification is preceded by the filing of a petition, which must show the circumstances surrounding the neglect or abandonment of the child. The petition is filed by the head of an accredited or licensed child-caring or child-placement agency or a social welfare development officer.
In case of a child whose parent or legal guardian knowingly and willingly relinquished parental authority to the DSWD or other accredited child caring agency, the DSWD Secretary will issue the DSWD certification within 3 months from the execution by the parent(s) of a Deed of Voluntary Commitment. The parent(s) may recover legal custody and parental authority over the child within three months from the execution of the Deed of Voluntary Commitment, provided the parent(s) can show that they are in a position to adequately provide for the needs of the child. It is interesting to note that the DSWD has three months from the execution of the Deed of Voluntary Commitment to issue the DSWD certification and the parent(s) have the same period within which to change their mind. It would have been better for the law to provide that the DSWD Secretary may issue the certification if the parent(s) did not change their mind after the three-month period.
In case of an involuntarily committed child, the DSWD Secretary can issue the DSWD certification within three months from the involuntary commitment.
What is the remedy against a decision of the DSWD Secretary? Section 5 of the law provides that:
The decision of the Secretary shall be appelable to the Court of Appeals within five (5) days from receipt of the decision by the petitioner; otherwise, the same shall be final and executory.
The appeal process in Section 5 clearly applies to decisions of the DSWD Secretary on petitions involving abandoned or neglected children. The law is not clear with respect to the appeal process for decisions involving voluntarily or involuntarily committed children, i.e., whether the decision of the DSWD Secretary should be appealed to the Office of the President or whether a judicial remedy is immediately available.