The Adoptions with a Foreign Element (Scotland) Regulations 2009

• (1) The Central Authority may notify the CA of the receiving State that it is prepared to agree that the proposed adoption should proceed provided the CA of the receiving State has confirmed that–

• (a) the Convention prospective adopter has agreed to adopt the child and has received such counselling as may be necessary;

• (b) the Convention prospective adopter has confirmed that–

• (i) the Convention prospective adopter will accompany the child to the receiving State unless, in the case of a relevant couple, the adoption agency and the CA of the receiving State have agreed that it is necessary for only one member of the relevant couple to do so; or

• (ii) in exceptional circumstances, the child will be accompanied to the receiving State by a nominee of the Convention prospective adopter who has been approved by the adoption agency;

• (c) it is content for the proposed adoption to proceed;

• (d) in the case where a Convention adoption is to be effected, it has explained to the Convention prospective adopter the need to make an application under section 59(1) of the Act; and

• (e) the child is or will be authorised to enter and reside permanently in the Convention country if a Convention adoption is effected or a Convention adoption order is made.

• (2) The Central Authority may not make an agreement with the CA of the receiving State under Article 17(c) of the Convention unless–

• (a) confirmation has been received in respect of the matters referred to in paragraph (1);

• (b) the adoption agency has confirmed to the Central Authority that–

• (i) it has met the Convention prospective adopter and explained the requirement to make an application under section 59(1) of the Act before the child can be taken or sent out of Great Britain;

• (ii) the Convention prospective adopter or, where the Convention prospective adopter is a relevant couple and there are exceptional circumstances, one member of the couple has visited the child; and

• (iii) the Convention prospective adopter is content for the proposed adoption to proceed.

• (3) The adoption agency may not place the child for adoption with the Convention prospective adopter unless the agreement under Article 17(c) of the Convention has been made; and the Central Authority must advise the agency when the agreement has been made.

Requirements for order under section 59 of the Act prior to proposed Convention adoption

50

• (1) This regulation prescribes, for the purposes of subsection (3) of section 59 of the Act (preliminary order where child to be adopted abroad), the requirements to be satisfied before an order under that section may be made in the case where the prospective adopters (within the meaning of that section) intend to adopt a child under a Convention adoption.

• (2) This regulation applies in the case of a child placed for adoption with the prospective adopters by an adoption agency.

• (3) The requirements are that–

• (a) the competent authorities of the receiving State have–

• (i) prepared an Article 15 report;

• (ii) determined and confirmed in writing that the prospective adopters are eligible and suitable to adopt;

• (iii) ensured and confirmed in writing that the prospective adopters have been counselled as may be necessary; and

• (iv) determined and confirmed in writing that the child is or will be authorised to enter and reside permanently in the receiving State;

• (b) the report required for the purposes of Article 16(1) of the Convention has been prepared by the adoption agency;

• (c) the adoption agency confirms in writing to the court that it has complied with the requirements imposed on it under Parts IV and V of the Adoption Agencies Regulations;

• (d) the adoption agency has obtained and made available to the court–

• (i) a copy of the recommendations of the adoption panel under regulation 46(1);

• (ii) a copy of the report on the health of the child mentioned in regulation 18(1)(d) of the Adoption Agencies Regulations and any report obtained in accordance with regulation 18(2) of those Regulations;

• (iii) a copy of the report and information mentioned in regulation 18(1)(i) of those Regulations; and

• (iv) a copy of the permanence order including provision granting authority for the child to be adopted;

• (e) the adoption agency includes in any report submitted to the court in accordance with subsection (2) of section 17 of the Act (reports where child placed by agency), or subsection (2) of section 19 of the Act (notice under section 18: local authority’s duties) (as those sections fall to be construed by virtue of the modifications in regulation 9), details of–

• (i) visits carried out under regulation 25(1) of the Adoption Agencies Regulations; and

• (ii) any reviews carried out under regulation 26(2) of those Regulations;

• (f) in a case where there is only one prospective adopter, the prospective adopter has confirmed in writing to the adoption agency that the prospective adopter will accompany the child out of Great Britain and into the receiving State; and

• (g) in a case where the prospective adopters are a relevant couple, they have confirmed in writing to the adoption agency–

• (i) that both members of the relevant couple will so accompany the child; or

• (ii) if the adoption agency and the competent authority of the receiving State have confirmed that it is necessary for only one such member so to accompany the child, that one such member will do so.

Convention adoption order

51

An adoption order may not be made as a Convention adoption order unless–

• (a) in the case of–

• (i) an application for the order by a relevant couple, both members of the couple have been habitually resident in a Convention country outwith the British Islands for a period of not less than one year ending with the date of the application;

• (ii) an application for the order by one person, the applicant has been habitually resident in a Convention country outwith the British Islands for a period of not less than one year ending with the date of the application;

• (b) the child to be adopted was, on the date on which the agreement under Article 17(c) of the Convention was made, habitually resident in any part of the British Islands;

• (c) copies of the Article 16 Report (within the meaning of regulation 48) and the agreement under Article 17(c) of the Convention are made available to the court; and

• (d) the competent authority of the receiving State has confirmed that the child is authorised to enter and remain permanently in the Convention country in which the applicant is or, as the case may be, the applicants are habitually resident.

Requirements following a Convention adoption order or a Convention adoption

52

• (1) Where a Convention adoption order is made by a court in Scotland, the court must send a copy of the order to the Central Authority.

• (2) On receipt of a copy of the order under paragraph (1), the Central Authority must issue a certificate in the form set out in Schedule 3 certifying that the adoption has been made in accordance with the Convention.

• (3) A copy of the certificate issued under paragraph (2) must be sent to–

• (a) the CA of the receiving State; and

• (b) the relevant local authority.

• (4) Where a Convention adoption is made and the Central Authority receives a certificate under Article 23 of the Convention in respect of that Convention adoption, the Central Authority must send a copy of that certificate to–

• (a) the adoption agency which sent the Central Authority the Article 16 Report under regulation 48(2); and

• (b) the Registrar General of Births, Deaths and Marriages for Scotland.

CHAPTER 3 — MISCELLANEOUS PROVISIONS

Application of the Act to, and making of, Convention adoption orders

53

• (1) Subject to the modifications provided for in this Chapter, the provisions of the Act apply to Convention adoption orders so far as the nature of the provision permits and unless the contrary intention is shown.

• (2) Without prejudice to paragraph (1), an adoption order is to be made as a Convention adoption order if–

• (a) the application is for a Convention adoption order; and

• (b) the requirements specified in regulation 34 or, as the case may be, regulation 51 are complied with.

Notification to local authority of adoption application

54

Section 18(1) of the Act applies as if for the words “not placed for adoption with the applicants by an adoption agency” there were substituted “entrusted to the applicants by a competent authority within the meaning of the Convention (other than an adoption agency which placed the child for adoption with the applicants).”.

Prohibition on removal where Convention adoption order pending

55

Section 20 of the Act applies as if–

• (a) for subsection (1) there were substituted–

(1) Where an application for a Convention adoption order in respect of a child has been made but not disposed of, a parent or guardian of the child is not entitled to remove the child from the care of the applicant except with the consent of the court.

; and

• (b) subsection (2) were omitted.

Removal of children

56

• (1) In a case falling within Chapter 1 of this Part, sections 21 to 23 of the Act do not apply.

• (2) In a case falling within Chapter 2 of this Part, section 21 of the Act applies as if–

• (a) in subsection (4), references to an adoption order were references to a Convention adoption order; and

• (b) subsection (6) were omitted.

Return or delivery of child

57

As respects Convention adoption orders, the Act applies as if sections 25 and 26 were omitted.

Age of person in respect of whom Convention adoption order may be made

58

Section 28(4) of the Act applies as if “or over” were omitted.

Application for Convention adoption order by relevant couple

59

Section 29 of the Act applies as if–

• (a) in subsection (1)–

• (i) “and” were inserted at the end of paragraph (a);

• (ii) paragraph (c) and “and” immediately preceding it were omitted; and

• (b) subsection (2) were omitted.

Application for Convention adoption order by one person

60

Section 30 of the Act applies as if subsections (1)(c), (3)(d) and (6) were omitted.

Convention adoption orders: consent

61

As respects Convention adoption orders, the Act applies as if section 31 were omitted.

Application and modification of the Adoption Agencies Regulations

62

• (1) Subject to paragraphs (2) and (3), the provisions of the Adoption Agencies Regulations apply to adoptions to be effected by a Convention adoption order or a Convention adoption, so far as the nature of the provision permits and unless the contrary intention is shown.

• (2) In their application to such adoptions, the Adoption Agencies Regulations apply as if–

• (a) regulations 6, 7, 8, 9, 10, 11, 14, 15, and 21 were omitted;

• (b) in regulation 13–

• (i) paragraphs (1) and (2) were omitted;

• (ii) in paragraph (3) the references to a decision were to a decision mentioned in regulation 18(1) of these Regulations;

• (iii) in that paragraph the reference to a recommendation were to a recommendation under regulation 17(1)(b) of these Regulations;

• (iv) in paragraph (4) the reference to the decision under paragraph (1) of regulation 13 were a reference to a decision mentioned in regulation 18(1) of these Regulations; and

• (v) in each of paragraphs (5) and (6) the references to a recommendation under regulation 6(2) were references to a recommendation under regulation 17(1)(b) of these Regulations; and

• (c) in each of regulations 16(1) and 17(1), the references to a decision under regulation 13(1) were references to a decision mentioned in regulation 18(1) of these Regulations.

• (3) In a case falling within Chapter 1 of this Part, the Adoption Agencies Regulations apply as if regulations 24 and 25 of those Regulations were omitted.

Offences

63

• (1) Any person who contravenes or fails to comply with any of the regulations mentioned in paragraph (2) commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

• (2) The regulations are–

• (a) regulation 26;

• (b) regulation 29(1);

• (c) regulation 30(1)(b);

• (d) regulation 30(3); and

• (e) regulation 36.

PART 4 — REVOCATION

Revocation

64

The Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003[^f00021] are revoked.

SCHEDULE 1 — SPECIFIED OFFENCES

Offences in Scotland

1

An offence of rape.

2

An offence specified in Schedule 1 to the Criminal Procedure (Scotland) Act 1995[^f00022] (offences against children under the age of 17 years to which special provisions apply) except–

• (a) an offence under subsection (5) of section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995[^f00023] (homosexual offences) of committing or being party to the commission of, or procuring or attempting to procure the commission of an act of sodomy otherwise than in private;

• (b) in a case where the offender–

• (i) was under 18 at the time the offence was committed, an offence of assault; or

• (ii) was under 20 at the time the offence was committed, the offences mentioned in paragraph 3 below, and

• (c) any offence specified in paragraph 2B of that Schedule (certain offences under section 52 or 52A of the Civic Government (Scotland) Act 1982)[^f00024].

3

The offences are–

• (a) an offence contrary to subsection (3) of section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 (intercourse with a girl between 13 and 16);

• (b) an offence under section 13(5)[^f00025] of that Act of committing or being party to the commission of, or procuring or attempting to procure the commission of a homosexual act with a person under the age of 16 years; and

• (c) an offence under section 6 of that Act (indecent behaviour towards a girl between 12 and 16).

4

An offence under section 170 of the Customs and Excise Management Act 1979[^f00026] (penalty for fraudulent evasion of duty etc.) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876[^f00027] (prohibitions and restrictions relating to pornography) where the prohibited goods included indecent photographs of children under the age of 16.

5

An offence under section 52 (taking, distributing, showing or publishing etc. any indecent photograph or pseudo-photograph of a child) or 52A (possessing any indecent photograph or pseudo-photograph of a child) of the Civic Government (Scotland) Act 1982.

Offences in Northern Ireland

6

An offence of rape under Article 5 of the Sexual Offences (Northern Ireland) Order 2008[^f00028].

7

An offence of assault by penetration under Article 6 of that Order.

8

An offence of causing a person to engage in sexual activity without consent under Article 8 of that Order if the activity fell within paragraph (4) of that Article.

9

An offence of rape of a child under 13 under Article 12 of that Order.

10

An offence of sexual activity with a child family member under Article 32 of that Order if the touching fell within paragraph (6) of that Article.

11

An offence of inciting a child family member to engage in sexual activity under Article 33 of that Order if the touching to which the incitement related fell within paragraph (6) of that Article.

12

An offence of sexual activity with a person with a mental disorder impeding choice under Article 43 of that Order if the touching fell within paragraph (3) of that Article.

13

An offence of causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity under Article 44 of that Order if the activity caused or incited fell within paragraph (3) of that Article.

14

An offence of inducement, threat or deception to procure sexual activity with a person with a mental disorder under Article 47 of that Order if the touching fell within paragraph (2) of that Article.

15

An offence of causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception under Article 48 of that Order if the activity caused or agreed to fell within paragraph (2) of that Article.

16

An offence specified in Schedule 1 to the Children and Young Persons Act (Northern Ireland) 1968[^f00029] except for–

• (a) the offence of common assault or battery;

• (b) in a case where the offender was under 18 at the time the offence was committed, an offence contrary to section 47 of the Offences Against the Person Act 1861[^f00030] (assault occasioning actual bodily harm).

17

An offence under Article 3 of the Protection of Children (Northern Ireland) Order 1978[^f00031] (indecent photographs).

18

An offence contrary to Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988[^f00032] (possession of indecent photographs of children).

19

An offence contrary to section 170 of the Customs and Excise Management Act 1979[^f00033] in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (prohibitions and restrictions relating to pornography) where the prohibited goods included indecent photographs of children under the age of 16.

SCHEDULE 2 — CERTIFICATE OF ELIGIBILITY AND APPROVAL

SCHEDULE 3 — CERTIFICATE THAT AN ADOPTION HAS BEEN MADE IN ACCORDANCE WITH THE CONVENTION

Signed

ADAM INGRAM — Authorised to sign by the Scottish Ministers — 14th May 2009

Explanatory note

(This note is not part of the Regulations)

These Regulations make provision for adoptions with a foreign element under the Adoption (Intercountry Aspects) Act 1999 and the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).

The Regulations distinguish two categories of adoptions with a foreign element – those effected under the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption[^f00034] (“Convention cases”) and all other foreign adoptions (“non-Convention cases”).

Part 2 (with the exception of regulation 9) makes provision for non-Convention cases whilst Part 3 concerns Convention cases.

The requirements for non-Convention cases are set out in Part 1, Chapter 6 of the 2007 Act. Chapter 1 of Part 2 of these Regulations makes provision for cases where a child is brought into the United Kingdom in circumstances where section 58 of the 2007 Act applies. Section 58 applies where a British resident brings or causes another to bring a child into the United Kingdom for the purposes of adoption or where they bring or cause another to bring a child adopted by a British resident under an external adoption effected within a period of 12 months from that adoption.

Regulations 3 and 4 prescribe the requirements which must be met by the prospective adopters before a child is brought into the United Kingdom. Regulation 5 then imposes functions on the local authority which apply when the child has been brought into the United Kingdom and the prospective adopters have given notice of their intention to apply for an adoption order.

Chapter 2 of Part 2 of these Regulations makes provision for cases where a child is to be taken out of the United Kingdom for overseas adoption (an adoption effected outwith the British Islands which is not within the scope of the Convention). Regulations 7 and 8 prescribe the requirements which must be met before an order under section 59 of the 2007 Act (a preliminary order conferring parental responsibilities and rights on prospective adopters where the child is to be adopted abroad) is made. These provisions apply only to non-Convention cases. Regulation 9 specifies those provisions of the 2007 Act which apply to orders made under section 59 and applies to both Convention and non-Convention cases.

Part 3 of the Regulations makes provision only for Convention cases. Chapter 1 regulates the procedure which must be followed when the United Kingdom is the receiving State (where a child is brought from outwith the British Islands to the United Kingdom for adoption by a British resident in accordance with the Convention) whilst Chapter 2 regulates the process when the United Kingdom is the State of Origin (where a child who is habitually resident in the British Islands is to be adopted by a person or a couple habitually resident outwith the British Islands in accordance with the Convention). Both Chapters prescribe the requirements and procedures which must be followed for such adoptions as well as making provision for the recognition of such adoptions.

Chapter 3 makes miscellaneous provision. Regulation 53 applies the provisions of the 2007 Act to Convention adoption orders subject to modifications. Regulations 54 to 61 modify the application of that Act to such adoptions. Regulation 62 applies the Adoption Agencies (Scotland) Regulations 2009 with modifications. Regulation 63 provides that a person who fails to comply with any of the provisions listed in paragraph (2) commits an offence.

Part 4 (regulation 64) revokes the Adoption (Hague Convention) (Scotland) Regulations 2003.

Footnotes

[^f00001]: 1999 c. 18. Section 1 of the Adoption (Intercountry Aspects) Act 1999 enables the Scottish Ministers to make regulations to give effect to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption concluded at the Hague on 29th May 1993 (“the Convention”). The functions of the Secretary of State transferred to the Scottish Ministers by virtue of section 16(2) of the 1999 Act and section 53 of the Scotland Act 1998 (c. 46).

[^f00002]: 2007 asp 4.

[^f00003]: S.S.I. 2009/154.

[^f00004]: The expression “Convention country” is defined in section 119(1) of the Act.

[^f00005]: The expression “overseas adoption” is defined in section 67 of the Act.

[^f00006]: 1971 c. 77.

[^f00007]: The expression “relevant couple” is defined in section 29(3) of the Act.

[^f00008]: 1978 c. 29. Section 2 was amended by the National Health Service and Community Care Act 1990 c. 19, sections 28 and 66(1) and Schedule 9; the National Health Service Reform (Scotland) Act 2004 asp 7, section 11 and Schedule 1; and the Smoking, Health and Social Care (Scotland) Act 2005 asp 13, section 42(1) and Schedule 2.

[^f00009]: 1980 c. 44.

[^f00010]: 2004 asp 4.

[^f00011]: The expression “adoption support services” is defined in section 1(5) of the Act.

[^f00012]: The expression “Convention adoption” is defined in section 119(1) of the Act.

[^f00013]: S.I. 2005/389 as amended by S.I. 2005/3482 and S.I. 2007/603.

[^f00014]: 1981 c. 61. Subsection (5A) of section 1 was inserted by the Adoption (Intercountry Aspects) Act 1999, section 7 and was subsequently amended by the Adoption and Children Act 2002 c. 38, sections 137(4)(b) and 148 and Schedule 4.

[^f00015]: 1978 c. 29. Section 2 was amended by the National Health Service and Community Care Act 1990 c. 19, sections 28 and 66(1) and Schedule 9; the National Health Service Reform (Scotland) Act 2004 asp 7, section 11 and Schedule 1 and the Smoking, Health and Social Care (Scotland) Act 2005 asp 13, section 42(1) and Schedule 2.

[^f00016]: 1980 c. 44.

[^f00017]: 2004 asp 4.

[^f00018]: 1995 c. 36.

[^f00019]: Article 23 of the Convention provides that an adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be legally recognised by other contracting States. The certificate must specify when and by whom the agreement that that the adoption could proceed was given.

[^f00020]: “appropriate court” is defined in section 118 of the 2007 Act.

[^f00021]: S.S.I. 2003/19.

[^f00022]: 1995 c. 46. Schedule 1 was amended by the Prohibition of Female Mutilation (Scotland) Act 2005 asp 8, section 7 and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 asp 9, schedule 1.

[^f00023]: 1995 c. 39. Section 13 was amended by the Sexual Offences (Amendment) Act 2000 c. 44, sections 1 and 2 and the Convention Rights (Compliance) (Scotland) Act 2001 asp 7, section 10.

[^f00024]: 1982 c. 45. Section 52 was amended by the following enactments: the Criminal Justice and Public Order Act 1994 c. 33, section 84; the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 c. 40, Schedule 4; the Criminal Justice (Scotland) Act 2003 asp 7, section 19, and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 asp 9, section 16. Section 52A was inserted by the Criminal Justice Act 1988 c. 33, section 16(1)(2) and was subsequently amended by the Criminal Justice and Public Order Act 1994, section 84 and the Criminal Justice (Scotland) Act 2003, section 19.

[^f00025]: Section 5(3) was amended by the Crime and Punishment (Scotland) Act 1997 c. 48, section 14.

[^f00026]: 1979 c. 2. Section 170 was amended by the Finance (No. 2) Act 1992 c. 48, Schedule 2; the Criminal Justice Act 2003 c. 44, section 293; the Criminal Justice and Immigration Act 2008 c. 4, Schedule 17, S.I. 1996/2686 and S.I. 2004/702.

[^f00027]: 1876 c. 36. Section 42 was repealed in part by the Statute Law (Repeals) Act 1993 c. 50, Part IX of the Schedule and the Statute Law (Repeals) Act 2008 c. 12, Schedule 2.

[^f00028]: 2008 No. 1769 (N.I. 2).

[^f00029]: 1968 c. 34. Schedule 1 was amended by the Sexual Offences Act 2003 c. 42, Schedule 6 and the Domestic Violence Crime and Victims Act 2004, c. 28, Schedule 10 and by S.I. 1978 No. 1047 (N.I. 17); S.I. 1985 No. 1638 (N.I. 17); S.I. 2003 No. 1247 (N.I. 13); S.I. 1986 No. 595 (N.I. 4); S.I. 1995 No. 755 (N.I. 2).

[^f00030]: 1861 c. 100.

[^f00031]: Northern Ireland Order in Council 1978 No. 1047 (N.I. 17). Article 3 was amended by the Criminal Justice and Public Order Act 1994 c. 33, section 84 and the Criminal Justice and Court Services Act 2000 c. 43, section 41 and by S.I. 2003 No. 1247 (N.I. 13).

[^f00032]: Northern Ireland Order in Council 1988 No. 1847 (N.I. 17). Article 15 was amended by the Criminal Justice and Public Order Act 1994 c. 33, section 84 and the Criminal Justice and Court Services Act 2000 c. 43, section 41.

[^f00033]: Section 17 was repealed by the Commissioners for Revenue and Customs Act 2005 c. 11, Schedule 5.

[^f00034]: Concluded at The Hague on 29th May 1993.