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COMMENTARY AND CONSULTATION QUESTIONS
Regulation 1 - Citation and commencement
It is planned that these regulations will come into force in early 2009.
Regulation 2 - Interpretation
Regulation 2 provides for definitions to be used throughout the Regulations. Where an expression is used in these Regulations it will have the same definition as in the Act unless a separate definition is provided.
Regulation 3
Regulation 4
Regulations 3 and 4 provide for the procedure and impose conditions and requirements that must be met before a child is brought into the UK in the circumstances set out in section 58(1) of the 2007 Act.
Regulation 5
This regulation imposes functions on the local authority in respect of a child brought into the UK in circumstances where section 58 of the 2007 Act applies.
Regulation 6
Regulation 6 modifies certain provisions in Chapter 2 of Part I of the Act where a child is brought into the UK and section 58 of the 2007 Act applies.
Regulation 7
This regulation imposes requirements that must be met before an order may be made under section 59 of the Act vesting parental responsibilities and rights in relation to a child who the prospective adopters intend to adopt under the law of a country or territory outwith the British Islands.
Regulation 8
Regulation 8 specifies the documents which an adoption agency must submit to the court in relation to an application by prospective adopters under section 59 of the Act.
Regulation 9
This regulation modifies certain provisions in the Act in relation to orders under section 59 of the Act.
Regulation 10
Regulation 10 applies the provisions of Chapter 1 of Part 3 of the Regulations where prospective adopters habitually resident in the British Islands wish to adopt a child habitually resident outwith the British Islands in accordance with the Hague Convention.
Regulations 11 to 13
These regulations make provision regarding the application for determination of eligibility and suitability to be adoptive parents, the requirements for eligibility and the provision of information to the prospective adopters.
Regulations 14 to 20
These regulations provide for the assessment of suitability of the prospective adopters, the procedure to be followed (including the setting up of a case record, police checks and the provision of counselling) and the notification, and review, of the decision.
Regulations 21 to 24
These regulations set out the procedures to be followed before and after the central authorities of the receiving state and the state of origin can make an agreement under Article 17(c) of the Convention in respect of the adoption. Regulation 24 also requires the adoption agency to notify certain other agencies of the proposed adoption placement before the child's arrival in Scotland.
Regulations 26 to 32
These regulations make provision in respect of the case where a child arrives in Scotland but no Convention adoption has been made. In particular these regulations impose certain duties and obligations on the local authority and the prospective adopters where the adoption placement breaks down.
Regulations 33
This regulation specifies what must be included in the report which is submitted to the court in accordance with section 19(2) of the Act.
Regulation 34
This regulation specifies when an adoption order may be made as a Convention adoption order where the UK is the receiving State.
Regulation 35
This regulation makes provision regarding the procedure to be followed following the making of a Convention adoption order or a Convention adoption.
Regulation 36
This regulation requires the child to be handed over to the local authority in circumstances where a court refuses to make a Convention adoption order or the application for the order is withdrawn.
Regulations 37
This regulation makes provision in respect of the annulment of a Convention adoption order or a Convention order.
Regulations 39 and 40
These regulations make provision for counselling and information regarding the implications of the adoption to be made available for the child and parent or guardian of the child.
Regulation 41
This regulation sets out the information which must be included in the report prepared by the adoption agency in accordance with regulation 7(1)(h) of the Adoption Agencies (Scotland) Regulations.
- Should any other information be included?
Regulations 42 to 46
These regulations impose duties on an adoption agency and an adoption panel in respect of the assessment of a child as being suitable for intercountry adoption. The regulations also provide for the making and notification of decisions, the duties of the adoption panel and the making of decisions in respect of the placement of the child. Regulation 45 also sets out the procedure to be followed once the Article 15 report has been received.
Regulations 47
This regulation explains what needs to be done in the event of a placement not proceeding.
Regulations 48 to 49
These regulations set out the requirements in respect of the Article 16 report, the procedure to be followed in the preparation and completion of that report and the requirements to be met before the child is placed.
Regulation 50
This regulation prescribes, for the purposes of section 59(3) of the 2007 Act, the requirements which have to be satisfied before an order under that section may be made prior to a Convention adoption.
Regulation 51
This regulation specifies when an adoption order may be made as a Convention adoption order where the UK is the State of origin.
Regulation 52
This regulation sets out the requirements following the making of a Convention adoption order or a Convention adoption
Regulations 54 to 61
These regulations provide for the modification of the 2007 Act and the Adoption Agencies (Scotland) Regulations in respect of adoptions under the Hague Convention.
Regulation 54 is intended to achieve a similar modification to that effected by regulation 57 of the English Regulations. Although there is no direct equivalent of section 44(3) of the 2002 Act in the 2007 Act, the 3 month period prior to an adoption order being made is provided for in section 18(2).
- Is regulation 54 required?
Regulation 55 is intended to replicate the amendment which was made to section 27 of the 1978 Act by Schedule 3 to the 2003 Regulations. That section was rewritten as section 20 of the 2007 Act. The nearest equivalent to section 20 is section 30 of the 2002 Act but there has been no modification made to section 30 by the English Regulations.
- Is regulation 55 required?
Regulation 56 is intended as a parallel of regulation 54 of the English Regulations. Regulation 54(1) (of the English Regulations) disapplies sections 36-40 of the 2002 Act as regards cases involving persons habitually resident in the UK adopting a child habitually resident in a non- UK Convention country. Sections 21-23 of the 2007 Act are similar in effect to sections 36, 37 and 40 but are by no means exact equivalents (and sections 38 and 39 of the 2002 Act do not appear to have any parallels in the 2007 Act).
Sections 36-40 of the 2002 Act apply where the child is not placed by an adoption agency (section 36(1) refers). Section 21 of the 2007 Act appears to apply where the child is not placed by an adoption agency because the notice under section 18(2) (which is mentioned in section 21(1)(a)) can only be given where a child was not placed by an adoption agency. Section 20 is not included in the run of sections being disapplied as it expressly applies only where a placement has been made. Section 22 does not specify whether placement must have been made and so could apply whether it has or not and section 23 applies where section 21(1) or section 22(1) applies so again could include cases where a child was placed for adoption.
In order for sections 21-23 of the 2007 Act to apply, the child must have "had a home with" the prospective adopters for a 5 year period (sections 21(1)(b), 22(1)(b) and 23(1)(a) refer). While that home may have been anywhere in the world, the prospective adopters must have had a sufficient link with the UK for a sufficient length of time to be considered habitually resident here. In most cases that would mean the child would also be habitually resident in the UK, given the requirement to have a home with the prospective adopters. Where the prospective adopters and the child are both habitually resident in the UK, the case would not fall within Chapter 1 of the draft Regulations so there is no need to disapply sections 21-23 for such cases. It is possible to imagine a case of a child who is habitually resident in another country having his home with a person habitually resident in the UK. This however seems a fairly unlikely scenario.
- Is regulation 56(1) required and, if so, under what circumstances should sections 21-23 be disapplied (e.g. should the disapplication apply only to cases where the child was not placed by an adoption agency)?
Paragraph (2) of regulation 56 modifies section 21 of the 2007 Act in its application to Chapter 2 cases (i.e. cases involving children habitually resident in the UK being adopted by prospective adopters habitually resident in a non- UK Convention country). Regulation 54(2)(a)(ii) of the English Regulations omits section 36(2) of the 2002 Act and the omission of section 21(6) of the 2007 Act is intended to have the same effect. However, the different approaches of the two Acts in this area makes identifying a precise parallel difficult.
It may be that the proposed modifications to section 21 will not apply to many cases because of the requirement in section 21(1)(b) for the child to have his home with the prospective adopters in the 5 years preceding the giving of notice under section 18(2). For a case to fall within Chapter 2, the prospective adopters must be habitually resident in a Convention country other than the UK and the child must be habitually resident in the UK, so the chances of those circumstances existing while the child's home is with the prospective adopters are considered to be low. In most cases, the requirements to have a home in a foreign country will fix habitual residence there and the adoption would not be governed by the Convention. However, theoretical cases may be possible so the question is:-
- Is regulation 56(2) required?
Regulation 57
This regulation modifies the 2007 Act by omitting sections 25 and 26. These sections are the equivalent of sections 30 and 31 of the 1978 Act which were omitted by Schedule 3 to the 2003 Regulations.
- Is regulation 57 required?
Regulation 58
The modification of section 12 of the 1978 Act by Schedule 3 to the 2003 Regulations meant that a Convention adoption order could not be made in respect of a person who was 19 or older. In terms of section 28(4) of the 2007 Act it is possible for an adoption order to be made in respect of a person aged 19 (or possibly even older) if the application for the order was made while the person was still under 18. Regulation 58 is intended to achieve the same effect as the Schedule 3 modification.
- Is regulation 58 required?
Regulations 59 and 60
These regulations modify sections 29 and 30 of the 2007 Act to remove the residency/domicile requirements to enable Convention adoption orders to be made in much the same way as Regulation 58 of the English Regulations modifies section 49 of the 2002 Act.
- Are regulations 59 and 60 required?
Regulation 61
This regulation replicates regulation 32 of the 2003 Regulations which provided for modification of the 1996 Regulations.
- Do you have any comments on Regulation 61?
- Should any other modifications be made?
Regulation 62
This regulation makes it an offence where a person fails to comply with regulation 26 (requirement to notify relevant local authority), regulation 30 (withdrawal of child from prospective adopters) and regulation 36 (refusal of court to make a Convention adoption order.
- Should a failure to comply with any other provisions of the Regulations constitute a criminal offence?
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