The Human Fertilisation and Embryology (Parental Orders) Regulations 2018

Regulation 3

SCHEDULE 2 Application and modification of the 2007 Act in relation to parental orders and applications for such orders

1.  The provisions of the 2007 Act set out in the following paragraphs have effect in relation to parental orders and applications for parental orders subject to the modifications set out in those paragraphs.

2.  Section 14(1) to (4) and (8) (considerations applying to the exercise of powers) has effect as if—

(a) the words “or adoption agency” were omitted in each place they appear;

(b) in subsection (1) after “to (4)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(c) in subsection (1) for “the adoption of a child” there were substituted “an application for a parental order”; and

(d) in subsection (4)(d) for “an adoption order” there were substituted “a parental order”.

3.  Section 22 (restrictions on removal: application for adoption order pending) has effect as if—

(a) for the words “prospective adopters” in each place they appear there were substituted “applicants or applicant (as the case may be)”;

(b) in subsection (1)—

(i) after “Subsection (2)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(ii) for “an adoption order” there were substituted “a parental order”; and

(iii) paragraph (b) were omitted;

(c) in subsection (2) after “subsection (3)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(d) in subsection (3) after “This subsection” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(e) in subsection (4) after “this section” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

4.  Section 24 (return of child removed in breach of certain provisions) has effect as if—

(a) in subsection (3)(a) for “an adoption order or a permanence order” there were substituted “a parental order”; and

(b) in subsection (4)—

(i) in paragraph (a) for “sections 20, 21, 22 and 23” there were substituted “section 22 (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(ii) in paragraph (b) for “sections 30, 34, 35 and 36 of the 2002 Act” there were substituted “section 36 of the 2002 Act (as applied with modifications by regulation 2 of and Schedule 1 to the Parental Order Regulations)”; and

(iii) in paragraph (c) for “Articles 28 and 29 of the Northern Ireland Order” there were substituted “Article 28 of the Northern Ireland Order (as applied with modifications by regulation 4 of and Schedule 3 to the Parental Order Regulations)”.

5.  Section 27(1) (contravention of sections 30 to 36 of 2002 Act) has effect as if for “any of the provisions of the 2002 Act mentioned in subsection (2)” there were substituted “section 36(1) (removal of a child in non-agency case) of the 2002 Act (as applied with modifications by regulation 2 of and Schedule 1 to the Parental Order Regulations)”.

6.—(1) Section 28 (adoption orders) is modified as follows.

(2) Except as provided for in sub-paragraph (3), section 28 has effect as if for the words “an adoption order” in each place they appear there were substituted “a parental order”.

(3) Subsection (1) has effect as if—

(a) for “An adoption order” there were substituted—

“Without prejudice to section 54(1) or 54A(1) of the 2008 Act (which empowers the court to make an order providing for a child to be treated in law as the child of the applicants), a parental order”;

(b) the words “on an application under section 29 or 30” were omitted; and

(c) for “adopters or adopter” there were substituted “applicants or applicant (as the case may be)”.

(4) Section 28(6) has effect as if for “adopted” there were substituted “the subject of a parental order”.

7.  Section 33(1) and (2) (restrictions on making orders) has effect as if in subsection (1)—

(a) after “subsection (2)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(b) for “an adoption order” there were substituted “a parental order”; and

(c) for “falling within subsection (3)” there were substituted “for a parental order”.

8.  Section 35 (effect of order on existing rights etc.) has effect as if—

(a) for the words “an adoption order” in each place they appear, except in subsection (1), there were substituted “a parental order”;

(b) in subsection (1)—

(i) the words from “Where an adoption” to “section 30,” were omitted; and

(ii) for “the order” there were substituted “a parental order”;

(c) in subsection (1)(a) for “the other member of the relevant couple” there were substituted “either of the applicants in the case of a parental order under section 54 of the 2008 Act or the applicant in the case of a parental order under section 54A of that Act”;

(d) in subsection (1)(b) for “other member” there were substituted “applicant”; and

(e) in subsection (2)(b) after “subsection (3)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

9.  Section 40(1) to (3), (5) and (10) (status conferred by adoption) has effect as if—

(a) for subsection (1) there were substituted—

“(1) A person who is the subject of a parental order is to be treated in law as if born as the child of the person or persons who obtained the order.”;

(b) for subsection (2) there were substituted—

“(2) A person who is the subject of a parental order is to be treated as the child of the person or persons who obtained the order.”;

(c) for subsection (3) there were substituted—

“(3) A person who is the subject of a parental order is to be treated in law as not being the child of any person other than the person or persons who obtained the order.”;

(d) in subsection (5)—

(i) for “Subsections (3) and (4) do” there were substituted

“Subsection (3) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) does”; and

(ii) after “this Act” insert “(as modified by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(e) in subsection (10)—

(i) after “Chapter” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(ii) after “this section” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(iii) for the word “adoption” in each place it appears there were substituted “making of the parental order”.

10.  Section 41 (miscellaneous enactments) has effect as if—

(a) for subsection (1) there were substituted—

“(1) Notwithstanding the effect of making a parental order but without prejudice to section 40(1) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations), the person who is the subject of that parental order shall be treated for the purposes of determining the forbidden degrees of consanguinity and affinity in respect of the law relating to marriage or to the eligibility of persons to register as civil partners of each other and in respect of the crime of incest, as if—

(a) that person were the child of the person or persons who obtained the order, and

(b) that person were also the child of any other person who, prior to the making of the parental order, was the mother or father of the person.”;

(b) in subsection (2)—

(i) for “an adoption order” there were substituted “a parental order”;

(ii) for “adopter” there were substituted “person or persons who obtained the order”; and

(iii) for “adopted” there were substituted “who is the subject of the order”; and

(c) in subsection (3) after “Section 40” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

11.  Section 42 (pensions) has effect as if—

(a) after “Section 40” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(b) for “person’s adoption” there were substituted “making of a parental order in respect of that person”.

12.  Section 43(1) to (3) (insurance) has effect as if—

(a) for the words “adoptive parents” in each place they appear there were substituted “person or persons who obtained the parental order”;

(b) in subsection (1)—

(i) after “Subsections (2) and (3)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) for “is adopted” there were substituted “becomes the subject of a parental order”;

(c) in subsection (2), for “adoption” there were substituted “parental order”; and

(d) subsection (4) were omitted.

13.  Section 53 (Adopted Children Register and index) has effect as if—

(a) for the words “Adopted Children Register” in each place they appear there were substituted “Parental Order Register”;

(b) in subsection (2)(a) for “adoption orders” there were substituted “parental orders”;

(c) in subsection (2)(b) after “schedule 1” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(d) in subsection (4)—

(i) after “Schedule 1” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) for “adoptions” and for “adoption orders” there were substituted “parental orders”.

14.  Section 54 (searches and extracts) has effect as if for the words “Adopted Children Register” in each place they appear there were substituted “Parental Order Register”.

15.  Section 55(1) to (5) (connections between the register and birth records) has effect as if—

(a) in subsection (1)—

(i) after “schedule 1” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(ii) for “marked “Adopted”” there were substituted “marked “Parental Order””; and

(iii) for “Adopted Children Register” there were substituted “Parental Order Register”;

(b) in subsection (2) after “subsection (1)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(c) in subsection (3) for “subsection (4)” there were substituted “subsections (4) and (5) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(d) in subsection (4)—

(i) in paragraph (a) after “sheriff,” there were inserted “or”;

(ii) for paragraph (b) there were substituted—

“(b) to a person who is the subject of a parental order who is aged 16 or over and to whom the information relates (“the person”).”;

(iv) paragraph (c) were omitted; and

(e) for subsection (5) there were substituted—

“(5) Before the Registrar General discloses information to the person in accordance with subsection (4)(b) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) the person must—

(a) be informed about the availability of any services providing counselling in relation to the implications of compliance with the request; and

(b) be given a suitable opportunity to receive counselling.”.

16.  Section 56 (admissibility of extracts as evidence) has effect as if—

(a) for the words “Adopted Children Register” in each place they appear there were substituted “Parental Order Register”;

(b) in subsection (1)—

(i) after “section 54(2)(b)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) for “adoption” there were substituted “parental order”; and

(c) in subsection (2) for “adopted person” there were substituted “person who is the subject of the parental order”.

17.  Section 57 (interpretation of chapter 5) has effect as if—

(a) in subsection (1) for “this Chapter” there were substituted “sections 53 to 57 and schedule 1 (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(b) in subsection (2) after “or schedule 1” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

18.—(1) Section 58(1), (2) and (10) (restriction on bringing children into the United Kingdom) has effect as if—

(a) in subsection (1)—

(i) in paragraph (a) for “adoption by the British Resident” there were substituted “applying for a parental order to be granted in favour of the British Resident”; and

(ii) paragraph (b) were omitted;

(b) in subsection (2)—

(i) after “subsection (1)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) for the words “adoption, or a child adopted,” in each place they appear there were substituted “applying for a parental order”; and

(c) in subsection (10)—

(i) after “this section” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) for “Scottish Ministers” there were substituted “Secretary of State”.

(2) Subsection (6) is applied without modification.

19.  Section 77(1) (effect of certain orders made in England and Wales) has effect as if it were substituted with—

“(1) A parental order made in England and Wales has the same effect as an order under section 50 or section 51 (as the case may be) of the 2002 Act (as applied with modifications by regulation 2 of and Schedule 1 to the Parental Order Regulations) in Scotland as it has in England and Wales.”.

20.  Section 108(1) and (2) (Rules: appointment of curators ad litem and reporting officers) has effect as if—

(a) in subsection (1)—

(i) for “In the case of an application for a relevant order in relation to a child” there were substituted “For the purpose of any application for a parental order”; and

(ii) in paragraph (b) for “adoption” there were substituted “the parental order”; and

(b) in subsection(2)(b) after “reporting officer” there were inserted “but that person shall not be any person or employee of any person holding a licence granted under section 11 of the Human Fertilisation and Embryology Act 1990, as amended by section 11 of the 2008 Act”.

21.  Section 109(1) (proceedings to be in private) has effect as if there were substituted—

Any proceedings before the court in relation to a parental order or an order under section 24 (return of a child removed in breach of certain provisions) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) must be heard and determined in private unless the court otherwise directs.”.

22.  Section 111 (evidence of consent) has effect as if in subsection (1)—

(a) for “If a document signifying any” there were substituted “Any agreement or”;

(b) for “this Act” there were substituted “section 54 or section 54A of the 2008 Act”; and

(c) after “to be given” there were inserted “to the making of a parental order or application for such an order may be given in writing and, if a document signifying agreement or consent,”.

23.  Section 113 (admissibility of certain documents as evidence) has effect as if—

(a) in paragraph (a) after “2002 Act” there were inserted “(as applied with modifications by regulation 2 of and Schedule 1 to the Parental Order Regulations)”; and

(b) in paragraph (b) after “Northern Ireland Order” there were inserted “(as applied with modifications by regulation 4 of and Schedule 3 to the Parental Order Regulations)”.

24.  Section 114 (rules of procedure) has effect as if—

(a) in subsection (1)—

(i) after “this Act” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) after “matters of procedure” there were inserted “arising out of an application under section 54 or section 54A of the 2008 Act”;

(b) for subsection (2) there were substituted—

“(2) In the case of an application for a parental order, the rules must require any person mentioned in subsection (3) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) to be notified of the matters mentioned in subsection (4).”; and

(c) for subsection (3) there were substituted—

“(3) Those persons are every person who can be found and whose consent to the making of the order is required under section 54(6) or section 54A(5)of the 2008 Act.”.

25.  Section 117(1) (orders and regulations) has effect as if—

(a) after the words “this Act” in each place they appear there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(b) for the words “Scottish Ministers” in each place they appear there were substituted “Secretary of State”;

(c) in subsection (4)—

(i) after “subsection (5),” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(ii) the words “(other than an order under section 121)” were omitted; and

(iii) for “the Scottish Parliament” there were substituted “either House of Parliament”;

(d) for section 117(5) there were substituted—

“(5) A statutory instrument containing regulations under paragraphs 1(1) or 7(4) and (11) of schedule 1 (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) is subject to annulment in pursuance of a resolution of the Scottish Parliament.”; and

(e) in subsection (6) after “this section,” and after “section 57(1)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

26.  Section 118 (meaning of “appropriate court”) has effect as if—

(a) in subsection (1) after “this Act” in both places those words appear there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(b) for subsection (3)(a) there were substituted—

“(a) the application is for a parental order, and”.

27.  Section 119(2)(1) (interpretation) has effect as if—

(a) after “this Act,” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(b) in the definition of “the 2002 Act” after “Adoption and Children Act 2002 (c.38)” there were inserted “(as applied with modifications by regulation 2 of and Schedule 1 to the Parental Order Regulations)”;

(c) after the definition of “the 2002 Act” there were inserted—

““the 2008 Act” means the Human Fertilisation and Embryology Act 2008 (c.22),”;

(d) in the definition of “the Northern Ireland Order” after “(S.I. 1987/2203)” there were inserted “(as applied with modifications by regulation 4 of and Schedule 3 to the Parental Order Regulations)”;

(e) for the definition of “applicant” there were substituted—

““applicant has the meaning given by section 54 or section 54A of the 2008 Act, as the case may be,” and

(f) after the definition of “overseas adoption” there were inserted—

““parental order” means either an order under section 54 (parental orders) or section 54A (parental orders: one applicant) of the 2008 Act;

“Parental Order Regulations” means the Human Fertilisation and Embryology (Parental Orders) Regulations 2018,”.

28.  Paragraphs 1, 2 and 4 of Schedule 1 (registration of adoption orders) have effect as if—

(a) for the words “Adopted Children Register” in each place they appear there were substituted “Parental Order Register”;

(b) for the words “adoption order” where they appear in paragraphs 1 and 2(2) there were substituted “parental order”;

(c) for the words “an adoption order” where they appear in paragraphs 2(1)(a) and (b) and 4(a) there were substituted “a parental order”;

(d) in paragraph 1(2) after “sub-paragraph (1)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(e) in paragraph 2(1)—

(i) after “sub-paragraph (2)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(ii) paragraph (b) were omitted; and

(f) in paragraph 2(2) for “word “Adopted”” there were substituted “words “Parental Order””.

29.  Paragraph 5 of Schedule 1 (registration of adoptions in other parts of the British Islands) has effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) Sub-paragraph (2) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations) applies where the Registrar General is notified by the authority maintaining a register of parental orders in a part of the British Islands outwith Scotland that a parental order has been made in that part in respect of a child”;

(b) in sub-paragraph (2) for—

(i) “Adopted Children Register” there were substituted “Parental Order Register”; and

(ii) “word “Adopted”” there were substituted “words “Parental Order””;

(c) sub-paragraph (3) were omitted;

(d) in sub-paragraph (4) for “subparagraphs (2) and (3)” there were substituted “sub-paragraph (2) (as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(e) in sub-paragraph (5) after “sub-paragraph (4)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(f) sub-paragraph (6) were omitted.

30.  Paragraph 7 of Schedule 1 (amendment of orders and rectification of registers) has effect as if—

(a) for the words “an adoption order” in each place they appear there were substituted “a parental order”;

(b) for the word “adopter” in each place it appears there were substituted “person or persons who obtained the order”;

(c) for the words “adopted person” in each place they appear there were substituted “person who is the subject of the parental order”;

(d) for the words “Adopted Children Register” in each place they appear there were substituted “Parental Order Register”;

(e) in sub-paragraph (3)—

(i) “or 3” were omitted; and

(ii) after “paragraph 2” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”;

(f) in sub-paragraph (4) after “subparagraphs (1) to (3)” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(g) sub-paragraphs (9) and (10) were omitted.

31.  Paragraph 8 of Schedule 1 (marking of entries on re-registration of birth) has effect as if—

(a) after “this Act” there were inserted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”; and

(b) in paragraph 8(a) for “or 6” there were substituted “(as applied with modifications by regulation 3 of and Schedule 2 to the Parental Order Regulations)”.

(1)

Section 117 has been amended, but those amendments are not relevant to this instrument.

(2)

Section 119 was amended by paragraph 11 of Schedule 5 to the Children and Young People (Scotland) Act 2014 (asp 8).