The Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision under the Adoption and Children (Scotland) Act 2007 (“the Act”) in relation to restrictions on adoptions from abroad. Where an order has been made under section 62(3) of the Act specifying a country to which special restrictions will apply, the Scottish Ministers will not be permitted to take any steps to further the bringing of children into the United Kingdom from that country for the purposes of adoption. However, the Scottish Ministers may decide to take those steps if they are satisfied that they should do so in a particular case. These Regulations set out the procedures to be followed by the Scottish Ministers when determining whether or not to take those steps. They also allow the Scottish Ministers to specify existing additional steps which they must take in relation to adoptions from certain restricted countries and extra conditions are imposed in that regard.

Regulation 3 applies where the Scottish Ministers receive a request from prospective adopters asking them to take the steps which they are not permitted to take due to special restrictions being in place. The Scottish Ministers are required under regulation 3(1) to acknowledge receipt of that request and to make various further enquiries of the prospective adopters where necessary or appropriate. Regulation 3(2) allows the Scottish Ministers to defer making a determination until such time as the prospective adopters have provided further information or indicated that there is no further relevant information.

Regulation 4(1) requires the Scottish Ministers to consider all the information they have at their disposal and the matters set out in regulation 6 when making a determination. Under regulation 4(2) they are required to notify the prospective adopters as to the result of that determination. Under regulation 5 the Scottish Ministers need not consider a further request if they consider that it does not offer any new information or does not contain any information that might have changed their original determination. Regulation 6 sets out the matters to be taken into account by the Scottish Ministers when making a determination.

Regulation 7(1) allows the Scottish Ministers to specify, in the restricted list, additional steps which have been agreed between the United Kingdom and a restricted country, which are not otherwise provided for by any enactment, but which the Scottish Ministers normally take in connection with bringing a child from the restricted country into the United Kingdom. Where such steps are specified in the restricted list, regulation 7(2) provides that the Scottish Ministers must notify the prospective adopters in writing before the adoption of a child from that country can proceed. Any person who brings, or causes another person to bring, a child into the United Kingdom for the purposes of adoption in contravention of this condition commits an offence.