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BACKGROUND
1. The Adoption and Children Act 2002 ('the 2002 Act') replaced existing legislation governing adoptions in England and Wales and made provisions for England and Wales for adoptions with a foreign element, including restrictions on moving children in and out of the country and recognition of adoptions made overseas. Following the approval of the Scottish Parliament under the Sewel Convention, the 2002 Act also made some provision for adoptions with a foreign element in Scotland. However, since (a) it was unclear how the provisions regarding the removal of countries from the 'designated list' would work in practice and (b) the intercountry adoption provisions in what was the Westminster Children and Adoption Bill (now the Children and Adoption Act 2006), although limited to England and Wales, were relevant to Scotland, the previous administration agreed that the intercountry adoption provisions contained in the 2002 Act should not be commenced but should, instead, be replicated in our Adoption Bill (now the 2007 Act).
Existing legislation in Scotland
2. Adoption with a foreign element in Scotland are currently provided for in the 1978 Act, as amended by the 1999 Act. Particularly relevant are:
- the restriction on removing a child from the United Kingdom for the purpose of adoption (section 50) and the associated provision allowing the court to authorise a child to be taken abroad for adoption (section 49). Section 50 does not apply to parents, relatives or guardians of the child;
- the restriction on bringing a child into the United Kingdom for the purpose of adoption (section 50A as inserted by section 14 of the 1999 Act) and the 2001 Regulations. Section 50A does not apply to parents, relatives or guardians of the child;
- the recognition of adoptions made overseas (section 38(1)(d) and section 65(2) of the 1978 Act) and the associated orders (the Adoption (Designation of Overseas Adoptions) Order 1973, as amended by the Adoption (Designation of Overseas Adoptions) (Variation) (Scotland) Order 1995 (this is known as the 'designated list').
3. These are the provisions that were to be amended or substituted by the 2002 Act (the "new legislation" - see paragraph 5 below). However, there are other provisions in the 1978 Act that govern adoptions with a foreign element (for example, section 47 (section 68 of the 2007 Act)) and the general provisions on adoption and the regulation of adoption agencies (by the Adoption Agencies (Scotland) Regulations 1996 - 'the 1996 Regulations') are also relevant, as they apply, some with modifications (see section 1(3)(a) of the 1999 Act), to intercountry adoptions.
4. The 1999 Act also made provision and amended the 1978 Act to allow Scotland to ratify the Hague Convention. Detailed procedures for Scotland were laid out in the 2003 Regulations. The Act and Regulations were brought into force in Scotland (apart for provisions not to be commenced) on 1 June 2003 by the Adoption (Intercountry Aspects) Act 1999 (Commencement No 10 (Scotland) Order 2003.
Effect of the new legislation
5. Section 60 of the 2007 Act is the equivalent of section 50 of the 1978 Act and reflects the amendments proposed by section 133(1) of the 2002 Act. It removes the exemption of parents, guardians and relatives of the child from the restrictions on removal of children for adoption outside Great Britain but enables regulations to be made (section 60(5)) which provide for the restrictions to apply with modifications or not to apply if the prospective adopters are parents, relatives or guardians of the child (or one of them is) or the prospective adopter is a step-parent, and prescribed conditions are met.
6. Section 58 of the 2007 Act replicates the new section 50A of the 1978 Act proposed by section 133(2) of the 2002 Act but never commenced. It applies to British residents bringing or causing someone else to bring into the United Kingdom a child habitually resident outside the British Islands with the intention of adopting the child in the United Kingdom. It also applies to British residents who bring or cause someone else to bring into the United Kingdom a child habitually resident outside the British Islands who they have adopted within the last 12 months (the timescale in section 133(2) of the 2002 Act was six months but this was changed to reflect the amendment to twelve months in the Children and Adoption Bill/Act) under the law of any country outside the United Kingdom. The provisions allow requirements and conditions to be prescribed by regulations for persons and children to whom the section applies (section 58(5) and (6)). Breach of these requirements and conditions is an offence (section 61) and a person would be liable on summary conviction to up to six months' imprisonment or a fine not exceeding the statutory maximum (currently £5,000), or both, or, if tried on indictment, to up to twelve months' imprisonment or an unlimited fine, or both.
7. Section 58 does not apply if the child is intended to be adopted under a Hague Convention adoption order. Section 58 also removes the exemption of parents, guardians and relatives from the restrictions on bringing children into the UK for the purposes of adoption but there is provision to make regulations to provide that the restrictions do not apply where the prospective adopters are parents, guardians or relatives of the child (or one of them is) or the prospective adopter is a step-parent of the child where any prescribed conditions are met (section 58(8)).
8. Section 67 of the 2007 Act is the equivalent of section 65(2) of the 1978 Act and replicates the substitution proposed by section 134 of the 2002 Act (except that section 67(1)(a) refers to "an adoption of a description specified in regulations made by Scottish Ministers" as opposed to "an adoption of a description specified in an order made by Scottish Ministers"). This section makes clear that the definition of "overseas adoption" does not include a Hague Convention adoption and enables Scottish Ministers to make an order specifying overseas adoption orders which will be recognised in Scots law (effectively a Scottish version of the 'designated list' referred to in paragraph 4 above). The section also allows Scottish Ministers to specify, by regulation, clear criteria that must be met for adoption from a country to be recognised (section 67(2)) and obliges Scottish Ministers to remove recognition from overseas adoptions that do not meet the requirements in the regulations (section 67(3)).
9. The existing 'designated list' dates from the 1970s and it is not clear what criteria were applied in the formulation of the list. The Department for Children, Schools and Families ( DCSF) are currently reviewing the current list. In the circumstances, any regulations under section 67 should be dealt with separately at a later date when the results of the DCSF review are known.
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