THIS GUIDANCE HAS BEEN WITHDRAWN AS OF AUGUST 26, 2021 - PLEASE SEE NOTICE OF WITHDRAWAL.

Guidance on “Soft Referrals”

A soft referral describes the act of matching a child to a family before confirmation of the child’s eligibility to be adopted through the intercountry process and/or approval of the prospective adoptive parents’ (PAP) home study and associated background checks, as further explained below.

Soft Referral involving a child not yet determined to be eligible for intercountry adoption:

This type of soft referral involves the adoption service provider (ASP) informing a PAP about a specific child before the country of origin has determined that the child is eligible for intercountry adoption. This includes scenarios in which the ASP communicates to the PAP that a child has been identified for them, even if the ASP does not communicate the name of the child to the PAPs. In general, this action means that the ASP has provided the PAP with information about the child before the Central Authority or competent authority has determined that the child is eligible for intercountry adoption or found intercountry adoption to be in the child’s best interests. This type of practice is often harmful to both the child and the PAP, as illustrated in two recent examples.

In one example, the ASP identified a child to the PAP for adoption when, in fact, the child had not been determined to be eligible for intercountry adoption, and the birth parent had not consented to the child’s adoption. The ASP did not disclose that the child had not been determined to be eligible for intercountry adoption, and instead led the PAP to believe that she could adopt the child. The PAP paid adoption fees, lost time in her adoption process, and experienced emotional repercussions when the child was subsequently determined not to be eligible for intercountry adoption.

In the second example, an ASP provided the PAP the profile of a child immediately after the orphanage learned that the child might enter the orphanage. The child had not yet been legally placed with or accepted into the facility, and no social worker had reviewed the child’s background. After the PAP expressed interest in the child, the ASP took steps to make the child appear eligible for intercountry adoption. Local officials working with the ASP and its supervised providers created social background documentation on the child that contained false information and which was relied on by the local court to place the child in the custody of the orphanage. After the child had been adopted by the U.S. family and was residing in the United States, the adoptive parents learned that the birth mother had been told the child was being taken into care temporarily to receive an education. The birth mother did not consent to the adoption. The child eventually returned to the birth mother.

Referring a child who is not yet eligible for intercountry adoption is inconsistent with the Hague Adoption Convention, the Intercountry Adoption Act of 2000, the Universal Accreditation Act of 2012, and accreditation regulations. This practice carries serious risks for children, birth families, and adoptive families. Adoptive families who are told that the child’s social-medical report is not yet available, or that additional information about the child’s eligibility for intercountry adoption will be developed, should report such practices to the accrediting entity via the Complaint Registry.

Soft Referral that occurs before a PAP completes a home study:

This more common type of soft referral involves ASPs matching an eligible/adoptable child to a PAP who does not have an approved home study, in a manner that removes that child from consideration by other families that the Central or competent authority may wish to consider. This is sometimes referred to as “holding” the child.

Country of Origin Activities:

Generally, country of origin authorities will only approve referrals of a child deemed eligible for intercountry adoption to a PAP who has been found eligible and suitable to adopt. In exceptional circumstances, those authorities may determine that it is in the best interests of the child to “hold” the child for adoption by a PAP who has not yet completed a home study, even when other PAPs with valid home studies are waiting for a referral. This may occur when, for example, the PAP is the child’s relative or has specific experience with a child’s unique special need.

The Department of State has no role in determining what the Central or competent authorities of the other country should or should not do in this situation. This guidance, however, relates to the roles of U.S. ASPs in the use of soft referrals. Regardless of the actions of a foreign country, some actions by U.S. ASPs may be incompatible with U.S. laws and regulations for accredited or approved ASPs.

Example of Special Focus children from China:

The issue of ASPs making soft referrals to PAPs who do not yet have an approved home study recently came to the forefront in China. We are aware, however, that the issues are not unique to China, and this guidance is applicable for every country.

Recently, several ASPs approached the Department to share their experiences related to soft referrals in China. Home study agencies report that some ASPs have pressured them to approve families who have already received soft referrals of special needs children in cases where the home study agency concludes that the PAP may not be suited for the child they wish to adopt. At least one home study agency has reported that it chose to withdraw from preparation of home studies for intercountry adoption from China to avoid this pressure.

In addition, the Chinese Central Authority (CCCWA) allows ASPs to request that a Special Focus child’s file be added to an ASP’s individual list for advanced child recruitment. Under China’s procedures, ASPs may engage in recruitment activities for up to three months when searching for an appropriate prospective adoptive placement for that child. Once the CCCWA grants a Special Focus child’s file to an ASP for recruitment, other agencies cannot view the child’s file on the CCCWA system; they and prospective adoptive parents can only learn about the child through photolistings and other similar recruitment strategies undertaken by the ASP whose has the file on their individual list. China has clarified, however, that even though a child’s file is placed on one ASP’s individual list, any ASP who has an interested family can propose a match to CCCWA and request the file be moved to their individual list.

ASPs should not reserve Special Focus children’s files for their clients if a suitable family is ready to proceed with a child’s intercountry adoption with another ASP. The Department has received reports indicating that some agencies are restricting referrals of Special Focus children to their current or prospective clients only. If another ASP approaches them with a family that may be a suitable match for that child, the ASP who has the child’s file should not prevent or discourage the other ASP from requesting that CCCWA transfer the file. The Department has received reports that some ASPs have been requiring families to change agencies instead of working within the CCCWA system to transfer the file, or to wait until the recruiting ASP’s three month timeframe has passed. These actions are improper, even if the recruiting ASP has proposed a match for the child, as they prevent CCCWA from considering referring the child to other families and may result in children remaining in institutional care longer than they otherwise would.

“Holding” Files:

While the Special Focus system might be unique to China, the issue of “holding” children’s files is apparently not. Numerous reports indicate that, in several countries, ASPs working with families to adopt special needs children are “holding” children for PAPs who have yet to complete a home study. This practice effectively deprives the Central or competent authority of the opportunity to make the decision to place that child with another PAP when such placement may be in the child’s best interest.

In short, U.S. accredited or approved ASPs should not take any action to “hold” children for PAPs who have not yet been found suitable in any way that prevents other agencies from referring the child to other families, that prevents or dissuades other suitable families from adopting the child, or that prevents a Central or competent authority from either learning of other eligible families or considering alternative placements. Such actions place the interests of the ASP and PAPs ahead of the interests of children.

The accrediting entity (AE) may request any and all records from an ASP that can be used to determine whether an ASP is engaging in activity designed to prevent intercountry adoption by suitable clients of other ASPs or that prevent foreign governments from matching the children to other families. The AE may take adverse action for conduct it believes is not in the best interest of children.

Photolistings:

The mere sharing of information about a child eligible for intercountry adoption on an online photolisting is not considered a referral in and of itself.

As some have noted, the use of limited information on children eligible for domestic adoption in the United States is one of the primary means of advocacy for waiting children. However, the Department of Health and Human Services notes that “AdoptUSKids allows only families with a completed home study to register with them. Only families that fit this requirement may see more detailed information about children who are photolisted and be linked with the caseworkers for those children.”

An ASP’s use of a photolisting or similar information sharing practices must comply with the laws of the foreign country and the regulations at 22 CFR 96.39(f).  Some countries allow limited photolisting similar to that used by AdoptUSKids, where a child’s full information is only available to those PAPs who have approved home studies. A limited number of countries may allow ASPs to share additional information on waiting children with PAPs who do not yet have an approved home study.

Where photolistings or other information sharing practices are allowed, ASPs should not take actions to remove a child from other ASP or PAP consideration, such as directing a photolisting to indicate the child’s file is on “hold” based on a soft referral to a PAP who does not yet have an approved home study.