Amparos, CA, Etc.

I know that on several boards, there has been a rumor that the CA was shut down. Susana confirmed that this is just a rumor. There is some political backlash against the director of CA, Eizabeth de Larios from FRG party (Rios Montt's party). She is still there, but the PGN/FRG took away resources away from the CA.

The Court of Appeals (or Court of Amparo) made the ruling that the *"Hague Convention does not apply to the petitioners because it violates their constitutional rights."

If your lawyer was NOT on the list, then his/her cases are NOT covered by the ruling. Pressure your agency to have your lawyer file, if he/she has not already done so.

I am also aware that some agencies are *interpretting* this news as "Everything is back to normal". Legally, the amparos require that an opinion is given within 3 days. But whether they will comply is another story.

(With permission from Hannah Wallace, I am reposting her clarification. Please note that these are the "general principles". Hannah has stated that she is expecting an exact translation of the 27 page Amparo. I will provide a link when we have it)

Dear Listmates, Some of yeou have written about the fact that SOME agencies
are still recruiting families... despite the DOS website warning and the
pronouncements from the PGN/ Central Authority. There is current information to
support cautious optimism about adoptions in Guatemala.

The AMPARO granted to 97 attorney/notaries on August 5, 2003 upheld certain
principles:

1. The Hague Treaty is not a Human Rights Treaty and can't supercede the laws
of the country (internal laws). *Remember that the C.A. says on their website
that they can enforce new procedures announced on July 1, because as a HR
Treaty, the HT supercedes the Internal laws. NOT SO SAYS THE COURT.

2. The PGN does not have the right to develop regulations which deviate from
the current Law, only Congress does. * Without legislation, none of the
procedures pronounced by the PGN can be put into effect. Applying the HT without
legislation is not permitted.
This means that "arbitrary dates" like pre or post March 5, or post July 1 to
apply "new procedures" are not legal.

3. The Notarial Process is protected by the Constitution. *This means that
Notaries can continue to take Relinquishments/Consents and process the adoption
as is stated in the Law. It also means that adoptions of abandoned children,
with legal abandonment decrees, can be processed.

This AMPARO covers all the cases of the 97 Notaries who presented it. There
is an identical AMPARO being entered this week with many more Notaries signing
on.

This AMPARO is like a Court Order and stays in effect while it is being
challenged, until or unless it is overturned by a Higher Court. (It is believed
that this is unlikely to be overturned though likely that it is being appealed.)

There is some legal justification for agencies making referrals, even of post
July 1 children born and relinquished. To be absolutely safe, some agencies
are asking for small retainer fees to care for the children and begin the
process; some agencies are waiting for the results of the Appeal. But there is
this window of "'opportunity" which each family faced with the choice will have
to make. There is also a possibility that adoption legislation would be passed
by Congress. If this legislation differs greatly from the current legislation
and requires Constitutional changes, without perceived benefit to adoptions,
then that legislation can be challenged. According to attorneys, the
legislation cannot be retroactive... however, I don't recommend that families pay a
full adoption fee or even half, until we know that the Amparo is upheld under
appeal.

We should be asking our DOS to change the web site information. We should be
asking BCIS to resume DNA testing. We should be asking that our government
respect the Laws of Guatemala, not the authority assumed by the Central
Authority, who doesn't have the Law behind it in applying certain rules. We should be
asking our government to mediate between the Central Authority and adoptive
families and to stop sending us to the C.A. for information. The PGN has a role
within the current Law to process adoptions within a certain time period.
Cases are being returned to the PGN. If they don't comply with the "court order"
they can be charged criminally.

While we don't have complete security by any means, August 5 was a good day
for the children of Guatemala who need families.

Hannah Wallace, Adoptions International