2 July 2001
18.Section 4 amends Article 39(1) of the 1987 Order to clarify the position with regard to Convention adoptions made outside the UK, Channel Islands and the Isle of Man. It is concerned with the legal status in Northern Ireland of children who are the subject of such adoptions.
19.Subsection (1) adds the term “Convention adoption” to the definition of adoption in Article 39(1) of the 1987 Order. This definition in the 1987 Order sets out the legal status of adopted children. The effect of the amendment is to enable Convention adoptions to be recognised in accordance with Article 40 of the 1987 Order. A Convention adoption is an adoption order made under the Convention in any Convention country (outside the UK, Channel Islands and the Isle of Man) which has been certified in accordance with the requirements of Article 23(1) of the Convention.
20.Subsections (2) and (3) deal with certain cases where a Convention adoption is made outside the UK, Channel Islands and the Isle of Man. The cases addressed are those which are not “full adoptions” and those where consents required by Article 4(c) and (d) of the Convention have not been given for a full adoption (e.g. matters relating to the consent of the birth mother, the consent of the child (where relevant) and safeguards against consents induced by payment).
21.Northern Ireland adoption law, in common with that in the rest of the UK, recognises only one type of adoption – “full adoption”. The latter creates a new and irrevocable legal relationship between the child and the adoptive parents which severs all legal ties between the child and birth parents and is set out in Article 40(2) of the 1987 Order. This contrasts with “simple adoptions” which may be made in some Convention countries, where some forms of adoption do not totally sever all legal ties with birth parents.
22.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 Article 39(1) noted above, all Convention adoptions will be recognised as full adoptions. However a new paragraph (3A) is inserted into Article 40 of the 1987 Order by Section 4(3). This provides a mechanism whereby the High Court may give a direction with regard to the child’s status if this is more favourable to the child. The Court may thus direct that Article 40(2) shall not apply or shall not apply to the extent specified in the direction.
23.Situations where a court may be called upon to give a direction might include cases where the birth parents come into unexpected money.