Background
Intercountry adoptions
4.‘Intercountry adoption’ is a general term referring to the adoption of a child resident abroad by adopters resident in the United Kingdom; it may also refer to the adoption of a child resident in the United Kingdom by adopters resident overseas. Before 1990 there were few intercountry adoptions, many of which were adoptions of children by birth relatives. There are currently over 300 adoptions each year of children from overseas by adopters living in the United Kingdom where the adopters have been approved as suitable to adopt by their local authority social services or approved adoption agency.
5.There are approximately 100 other cases each year where people avoid the adoption procedures and bring children to the UK without approval. The Act aims to prevent such cases by creating new offences of failing to comply with regulatory requirements.
Existing legislation and procedures
6.Adoption is entirely a creature of statute. It is regulated by the 1976 Act and in Scotland by the 1978 Act. Intercountry adoption was unusual at the time this legislation was passed and detailed provisions were therefore not included (other than for the implementation of the 1965 Hague Convention). Every local authority has a duty to establish and maintain an adoption service in its area. Only local authorities and adoption agencies approved by the Secretary of State may make arrangements for the adoption of a child (except where the child is a relative). The process is set out in regulations. The Act will enable the Secretary of State to apply the existing regulations (with appropriate amendments) to intercountry cases and make new regulations to implement the 1993 Hague Convention.
7.At present, the procedure for intercountry adoptions is set out in departmental guidance and is as follows. A person who wishes to be assessed as suitable to adopt a child from overseas has to be approved by a local authority social services or approved adoption agency. A successful application is sent to the Department of Health which attaches its official certificate and passes the application to the relevant authority in the prospective adopter’s country of choice. The purpose of the certificate is to assure the competent authority overseas that the applicant was assessed by an approved adoption agency or statutory body; was found suitable to adopt a child from the particular country; and that once the adoption order is made the child will be able to enter the UK and reside permanently with the adoptive parents.
8.If the competent body in that country accepts the application, it will identify (match) a child for that family and send details of the child, such as health and family background (if known), to the prospective adopters. They will then decide whether to accept the child. If they wish to pursue the adoption of the particular child matched to them, they will make arrangements to visit the child before formally confirming their acceptance of the child to the competent authorities in the child’s State of origin.
Recognition of foreign adoption orders
9.There are two main types of foreign adoption orders recognised by law in England and Wales: a 1965 Convention adoption and one made in a country designated by the Secretary of State for this purpose. An adoption order made in a country outside of a Convention or designated country is not recognised and therefore requires the adoptive parents subsequently to make application to a court in the UK for an adoption order.
10.The Act provides that adoption orders made under the 1993 Convention in any Convention country are to be recognised. Convention adoptions, wherever made, will confer British nationality on the child if the adopter (or one of them in a joint adoption) is a British citizen and if he or they are habitually resident in the UK at the time of the adoption. Also, adoption orders made in designated countries will continue to be recognised as overseas adoptions in a revision of the list.
The 1993 Hague Convention
11.This Convention is essentially a framework setting out minimum standards for the process of intercountry adoption to work in the best interests of the children concerned and enable countries to absorb its Articles within their own substantive law. The Convention is underpinned by the 1989 United Nations Convention on the Rights of the Child which set out principles concerning the rights of children and included reference to adoption where a child cannot live with his or her own birth parents. Preparation of the Convention involved more than 65 countries, including the UK, as well as non-government organisations and other voluntary bodies with an interest in intercountry adoption.
12.As at the beginning of August 1999, 26 countries have ratified the Convention, 35 have signed (UK in January 1994) and a further 9 have acceded (accession is effectively ratification by countries who sent no delegates to the final ‘diplomatic’ session of the Hague Conference in May 1993). A country that has ratified or acceded to the Convention is described as a ‘Contracting State’. A State that allows its children to be adopted by families living overseas according to the Convention is known as a ‘State of origin’; a State which permits a child to enter its country and live permanently with the adoptive parents is a ‘Receiving State’.