A Brief Guide to Intercountry Adoption

Posted On: 02 September 2010

Author: Janys M Scott QC

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AC(S)A   -  Adoption and Children (Scotland) Act 2007

SSI 2009/182 – Adoption of Children with a Foreign Element (Scotland) Regulations 2009

Convention - Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (The Hague, 29 May 1993; TS 40 (1994); Cm 2691).
A.  Children leaving Scotland

a) A child who is habitually resident in Scotland (or is a Commonwealth citizen) should not be sent to any place outwith the British Islands (ie UK, Channel Islands and Isle of Man) for adoption there unless there is a preliminary order allowing this under AC(S)A section 59.  Contravention is an offence under section 60.

b) An order under section 59 generally vests parental responsibilities and parental rights in the applicants and extinguishes parental responsibilities and parental rights previously held by others.  The child must live with the applicants for 10 weeks before the application.  An order can only be made if the adopters would not meet the residence/domicile requirements to apply for adoption.

c) A section 59 order may be made without any agency involvement, eg where there is a stepparent or a placement with relatives.  Other placements may contravene the bar on private placements in section 75.  Notice must be given to the/a local authority under section 18 and a report prepared under section 19.

d) A section 59 order may follow an agency placement, in which case a section 17 report is required.  The much more stringent reporting requirements of SSI 2009/182, regs 7 and 8 must be satisfied.

e) A section 59 order is required if there is to be a Convention adoption overseas. A permanence order should be secured (SSI 2009/182 reg 46(7) – (10)).  The adoption agency should comply with the reporting requirements of SSI 2009/182 reg 50.

f) A domestic adoption order may be granted under AC(S)A before the child leaves, but may not be recognised overseas.

g) A Convention adoption order may be granted.  This safeguards the interests of the child and results in an adoption order that will be recognised in other Convention countries.  Reports on adopters are prepared in the state where they are habitually resident and reports on the child are prepared in Scotland.  A permanence order with authority to adopt should be secured (SSI 2009/182 reg 46(7) – (10)).  The adoption proceeds under the special rules applicable to Convention adoption orders.

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