Convention adoptions – sections 3 to 8
Section 4. Effect of Convention adoptions in England and Wales
23.Section 38(1) of the 1976 Act is amended by subsection (1) which inserts a new paragraph (cc) ‘which is a Convention adoption’, thereby adding to the list of types of adoption orders made.
24.The effect of this amendment is to enable Convention adoptions to be recognised in accordance with section 39 of the 1976 Act. A Convention adoption is an adoption order made under the Convention in any Convention country outside the British Isles which has been certified in accordance with the requirements of Article 23(1) of the Convention (see section 8).
25.Subsections (2) and (3) make provisions for simple adoptions.
26.Adoption law of the United Kingdom recognises only one type of adoption – ‘full adoption’: this creates a new and irrevocable legal relationship between the child and adoptive parents which severs all legal ties between the child and his birth parents.
27.Section 39(2) of the 1976 Act (status conferred by adoption) provides that a child adopted in England and Wales is to be treated in law as if he were not the child of any person other than the adopters or adopter. In some other countries, however, certain forms of adoption do not have the effect of totally severing all ties from the birth parents – these are known as ‘simple adoptions’.
28.Article 26 of the Convention provides for the recognition of both full and simple adoptions but does not prejudice the application of any legal provision in force in the Contracting State if it is more favourable to the child. By the amendment to section 38(1), all Convention adoptions will be recognised as full adoptions, but new section 39 (3A) provides a mechanism whereby a court may give a direction with regard to the child's status if this is more favourable to the child. Unless such an application is made the adoption is to be treated as a full adoption in accordance with Article 26(3).
29.Article 27 allows a receiving State to convert a simple adoption into a full adoption if its law so permits and provided the birth parents and relevant parties under Article 4 have given their consent to a full adoption. Where England is the receiving State, the Department of Health, as the Central Authority, will ensure in all cases that the birth parents are informed of the effects of a simple adoption in English or Scots law and seek to obtain their consent to a full adoption prior to a Convention adoption or a Convention adoption order being made.
30.Where the UK is not the receiving State, it is possible that a child may be brought to this country in circumstances where simple adoptions are recognised in both the State of origin and the receiving State and no consent to full adoption has been given (a so called ‘third country case’). In those cases, the adoption will still be treated as a full adoption by operation of law, but if any issue of status arises where it is felt it would be more favourable to the child to treat the adoption otherwise than as a full adoption, an application may be made to the High Court.
31.Insertion of a new subsection (3A) provides that where a child has been adopted under a Convention order and the High Court is satisfied, on an application under this subsection,
that under the law of the country in which the adoption was effected the adoption was not a full adoption;
that the consents referred to in Article 4(c) and (d) of the Convention have not been given for a full adoption, or that the United Kingdom is not the receiving State (within the meaning of Article 2 of the Convention); and
that it would be more favourable to the adopted child for a direction to be given under this subsection,
the Court may direct that subsection (2) shall not apply, or shall not apply to such an extent as may be specified in the direction.
32.Article 4(c) of the Convention is concerned with consent to adoption. It places a responsibility on the competent authorities in the State of origin to be satisfied that consent to the adoption of the child has been given by the birth parent or legal guardian after being counselled about the effects of giving consent, in particular whether an adoption will terminate the legal relationship between the child and his birth family; that such consent has been freely given, without payment or any other inducement, and has not been withdrawn; and that the consent of the birth mother has only been given after the birth of the child.
33.Article 4(d) is concerned with the child. The competent authorities are to be satisfied that the child, according to his age and understanding, has been counselled about the proposed adoption; has given consideration to his wishes and feelings; that the child’s consent to the adoption has been given freely and in the required legal form, and obtained without payment or inducement of any kind. (In most cases, however, children to be adopted will in fact be too young to give their consent to their adoption.)
34.The effect of this new subsection is to provide a new legal mechanism for the High Court to give a direction whether and to what extent a child adopted under a simple adoption under the Convention should be treated as if he were not the child of any person other than the adopters or adopter. It will be available only if the adoption was not a full adoption, if the consents to a full adoption were not given or the UK is not the receiving State. It must be more favourable to the adopted child for the direction to be given.
35.Situations where a court may be called upon to make a direction may be confined to cases where the birth parents come into unexpected money. Any request by the birth parents for contact may be dealt with under existing Children Act provisions.
36.The court may involve the Attorney General ((3B)(a)) and rules of court may be made for example as to the parties to any application.
