從寄養到收養──以日本法檢視我國制度

From Foster Care to Adoption: A Review of Taiwan’s System from the Perspective of the Japanese Law

本文以日本法檢視我國寄養、收養、寄養轉收養制度，認為寄養家庭既已取得寄養資格，又因實際照顧寄養童，雙方可能已產生依附關係，按繼續性原則、主要照顧者原則及尊重未成年人之意思，寄養家庭應優先與該童進行收養媒合，惟機構評估與法院審理仍應依兒童最佳利益，故其未必能收養寄養童，不得謂享有優先收養權。再者，收養前寄養制度的好處在於，政府有計劃地安排寄養並全程參與、監督，收養人除機構媒合外多一收養途徑，被收養人又因收養人（即寄養家庭）已經篩選，增加收養的成功率。本文贊成新設此制，惟吸取日本經驗，應於制度之始即明確區分提供一時性照顧的「養育型寄養家庭」與提供永久性照顧的「收養型寄養家庭」，避免有受養育型寄養必要的兒少，卻因父母恐子女被收養而不願申請，害及兒少之權益。

By reviewing Taiwan’s foster care, adoption and transfer system from the perspective of the Japanese law, this paper concludes that, based on the principle of continuity, the principle of the primary caregiver, and respect for minors’ wishes, foster families should be given priority for adopting children, as they may already have an attachment relationship due to the fact that the foster families have actually taken care of the foster children. However, institutional assessments and court judgments are based on the best interests of the children. Therefore, foster families may not be able to adopt the foster children and cannot have priority for adoption. The advantages of the pre-adoption foster care system are that the government can arrange foster care in a planned way, as well as participate in and supervise the whole process. Adopters have one more channel to adoption, in addition to institutional matchmaking. For adoptees, the success rate of adoption is increased because adopters (namely, foster families) have already gone through screening. This paper supports the new system. However, by learning from the Japanese experience, a clear distinction should be made between “raising-type” foster families that provide temporary care and “adopting-type” foster families that provide permanent care, in order to avoid the fact that parents are reluctant to apply to foster children in need of being raised out of fear that they will be adopted, which undermines the rights of the children.