Adoption and Children Act 2002

Chapter 1 Miscellaneous

Advertisements in the United Kingdom

123 Restriction on advertisements etc.

(1) A person must not—

(a) publish or distribute an advertisement or information to which this section applies, or

(b) cause such an advertisement or information to be published or distributed.

(2) This section applies to an advertisement indicating that—

(a) the parent or guardian of a child wants the child to be adopted,

(b) a person wants to adopt a child,

(c) a person other than an adoption agency is willing to take any step mentioned in paragraphs (a) to (e), (g) and (h) and (so far as relating to those paragraphs) (i) of section 92(2),

(d) a person other than an adoption agency is willing to receive a child handed over to him with a view to the child’s adoption by him or another, or

(e) a person is willing to remove a child from the United Kingdom for the purposes of adoption.

(3) This section applies to—

(a) information about how to do anything which, if done, would constitute an offence under section 85 or 93, section 11 or 50 of the Adoption (Scotland) Act 1978 (c. 28) or Article 11 or 58 of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)) (whether or not the information includes a warning that doing the thing in question may constitute an offence),

(b) information about a particular child as a child available for adoption.

(4) For the purposes of this section and section 124—

(a) publishing or distributing an advertisement or information means publishing it or distributing it to the public and includes doing so by electronic means (for example, by means of the internet),

(b) the public includes selected members of the public as well as the public generally or any section of the public.

(5) Subsection (1) does not apply to publication or distribution by or on behalf of an adoption agency.

(6) The Secretary of State may by order make any amendments of this section which he considers necessary or expedient in consequence of any developments in technology relating to publishing or distributing advertisements or other information by electronic or electro-magnetic means.

(7) References to an adoption agency in this section include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances.

• “Prescribed” means prescribed by regulations made by the Secretary of State.

(8) Before exercising the power conferred by subsection (6) or (7), the Secretary of State must consult the Scottish Ministers, the Department of Health, Social Services and Public Safety and the Assembly.

(9) In this section—

(a) “adoption agency” includes a Scottish or Northern Irish adoption agency,

(b) references to adoption are to the adoption of persons, wherever they may be habitually resident, effected under the law of any country or territory, whether within or outside the British Islands.

124 Offence of breaching restriction under section 123

(1) A person who contravenes section 123(1) is guilty of an offence.

(2) A person is not guilty of an offence under this section unless it is proved that he knew or had reason to suspect that section 123 applied to the advertisement or information.

But this subsection only applies if sufficient evidence is adduced to raise an issue as to whether the person had the knowledge or reason mentioned.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

Adoption and Children Act Register

125 Adoption and Children Act Register

(1) Her Majesty may by Order in Council make provision for the Secretary of State to establish and maintain a register, to be called the Adoption and Children Act Register, containing—

(a) prescribed information about children who are suitable for adoption and prospective adopters who are suitable to adopt a child,

(b) prescribed information about persons included in the register in pursuance of paragraph (a) in respect of things occurring after their inclusion.

(2) For the purpose of giving assistance in finding persons with whom children may be placed for purposes other than adoption, an Order under this section may—

(a) provide for the register to contain information about such persons and the children who may be placed with them, and

(b) apply any of the other provisions of this group of sections (that is, this section and sections 126 to 131), with or without modifications.

(3) The register is not to be open to public inspection or search.

(4) An Order under this section may make provision about the retention of information in the register.

(5) Information is to be kept in the register in any form the Secretary of State considers appropriate.

126 Use of an organisation to establish the register

(1) The Secretary of State may make an arrangement with an organisation under which any function of his under an Order under section 125 of establishing and maintaining the register, and disclosing information entered in, or compiled from information entered in, the register to any person is performed wholly or partly by the organisation on his behalf.

(2) The arrangement may include provision for payments to be made to the organisation by the Secretary of State.

(3) If the Secretary of State makes an arrangement under this section with an organisation, the organisation is to perform the functions exercisable by virtue of this section in accordance with any directions given by the Secretary of State and the directions may be of general application (or general application in any part of Great Britain) or be special directions.

(4) An exercise of the Secretary of State’s powers under subsection (1) or (3) requires the agreement of the Scottish Ministers (if the register applies to Scotland) and of the Assembly (if the register applies to Wales).

(5) References in this group of sections to the registration organisation are to any organisation for the time being performing functions in respect of the register by virtue of arrangements under this section.

127 Use of an organisation as agency for payments

(1) An Order under section 125 may authorise an organisation with which an arrangement is made under section 126 to act as agent for the payment or receipt of sums payable by adoption agencies to other adoption agencies and may require adoption agencies to pay or receive such sums through the organisation.

(2) The organisation is to perform the functions exercisable by virtue of this section in accordance with any directions given by the Secretary of State; and the directions may be of general application (or general application in any part of Great Britain) or be special directions.

(3) An exercise of the Secretary of State’s power to give directions under subsection (2) requires the agreement of the Scottish Ministers (if any payment agency provision applies to Scotland) and of the Assembly (if any payment agency provision applies to Wales).

128 Supply of information for the register

(1) An Order under section 125 may require adoption agencies to give prescribed information to the Secretary of State or the registration organisation for entry in the register.

(2) Information is to be given to the Secretary of State or the registration organisation when required by the Order and in the prescribed form and manner.

(3) An Order under section 125 may require an agency giving information which is entered on the register to pay a prescribed fee to the Secretary of State or the registration organisation.

(4) But an adoption agency is not to disclose any information to the Secretary of State or the registration organisation—

(a) about prospective adopters who are suitable to adopt a child, or persons who were included in the register as such prospective adopters, without their consent,

(b) about children suitable for adoption, or persons who were included in the register as such children, without the consent of the prescribed person.

(5) Consent under subsection (4) is to be given in the prescribed form.

129 Disclosure of information

(1) Information entered in the register, or compiled from information entered in the register, may only be disclosed under subsection (2) or (3).

(2) Prescribed information entered in the register may be disclosed by the Secretary of State or the registration organisation—

(a) where an adoption agency is acting on behalf of a child who is suitable for adoption, to the agency to assist in finding prospective adopters with whom it would be appropriate for the child to be placed,

(b) where an adoption agency is acting on behalf of prospective adopters who are suitable to adopt a child, to the agency to assist in finding a child appropriate for adoption by them.

(3) Prescribed information entered in the register, or compiled from information entered in the register, may be disclosed by the Secretary of State or the registration organisation to any prescribed person for use for statistical or research purposes, or for other prescribed purposes.

(4) An Order under section 125 may prescribe the steps to be taken by adoption agencies in respect of information received by them by virtue of subsection (2).

(5) Subsection (1) does not apply —

(a) to a disclosure of information with the authority of the Secretary of State, or

(b) to a disclosure by the registration organisation of prescribed information to the Scottish Ministers (if the register applies to Scotland) or the Assembly (if the register applies to Wales).

(6) Information disclosed to any person under subsection (2) or (3) may be given on any prescribed terms or conditions.

(7) An Order under section 125 may, in prescribed circumstances, require a prescribed fee to be paid to the Secretary of State or the registration organisation—

(a) by a prescribed adoption agency in respect of information disclosed under subsection (2), or

(b) by a person to whom information is disclosed under subsection (3).

(8) If any information entered in the register is disclosed to a person in contravention of subsection (1), the person disclosing it is guilty of an offence.

(9) A person guilty of an offence under subsection (8) is liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

130 Territorial application

(1) In this group of sections, “adoption agency” means—

(a) a local authority in England,

(b) a registered adoption society whose principal office is in England.

(2) An Order under section 125 may provide for any requirements imposed on adoption agencies in respect of the register to apply—

(a) to Scottish local authorities and to voluntary organisations providing a registered adoption service,

(b) to local authorities in Wales and to registered adoption societies whose principal offices are in Wales,

and, in relation to the register, references to adoption agencies in this group of sections include any authorities or societies mentioned in paragraphs (a) and (b) to which an Order under that section applies those requirements.

(3) For the purposes of this group of sections, references to the register applying to Scotland or Wales are to those requirements applying as mentioned in paragraph (a) or, as the case may be, (b) of subsection (2).

(4) An Order under section 125 may apply any provision made by virtue of section 127—

(a) to Scottish local authorities and to voluntary organisations providing a registered adoption service,

(b) to local authorities in Wales and to registered adoption societies whose principal offices are in Wales.

(5) For the purposes of this group of sections, references to any payment agency provision applying to Scotland or Wales are to provision made by virtue of section 127 applying as mentioned in paragraph (a) or, as the case may be, (b) of subsection (4).

131 Supplementary

(1) In this group of sections—

(a) “organisation” includes a public body and a private or voluntary organisation,

(b) “prescribed” means prescribed by an Order under section 125,

(c) “the register” means the Adoption and Children Act Register,

(d) “Scottish local authority” means a local authority within the meaning of the Regulation of Care (Scotland) Act 2001 (asp 4),

(e) “voluntary organisation providing a registered adoption service” has the same meaning as in section 144(3).

(2) For the purposes of this group of sections—

(a) a child is suitable for adoption if an adoption agency is satisfied that the child ought to be placed for adoption,

(b) prospective adopters are suitable to adopt a child if an adoption agency is satisfied that they are suitable to have a child placed with them for adoption.

(3) Nothing authorised or required to be done by virtue of this group of sections constitutes an offence under section 93, 94 or 95.

(4) No recommendation to make an Order under section 125 is to be made to Her Majesty in Council unless a draft has been laid before and approved by resolution of each House of Parliament.

(5) If any provision made by an Order under section 125 would, if it were included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, no recommendation to make the Order is to be made to Her Majesty in Council unless a draft has been laid before, and approved by resolution of, the Parliament.

(6) No recommendation to make an Order under section 125 containing any provision in respect of the register is to be made to Her Majesty in Council if the register applies to Wales or the Order would provide for the register to apply to Wales, unless a draft has been laid before, and approved by resolution of, the Assembly.

(7) No recommendation to make an Order under section 125 containing any provision by virtue of section 127 is to be made to Her Majesty in Council if any payment agency provision applies to Wales or the Order would provide for any payment agency provision to apply to Wales, unless a draft has been laid before, and approved by resolution of, the Assembly.

Other miscellaneous provisions

132 Amendment of Adoption (Scotland) Act 1978: contravention of sections 30 to 36 of this Act

After section 29 of the Adoption (Scotland) Act 1978 (c. 28) there is inserted—

“29A Contravention of sections 30 to 36 of Adoption and Children Act 2002

(1) A person who contravenes any of the enactments specified in subsection (2) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.

(2) Those enactments are—

(a) section 30(1), (2) and (3) (removal of child placed or who may be placed for adoption),

(b) sections 32(2)(b), 33(2) and 35(2) (return of child by prospective adopters),

(c) section 34(1) (removal of child in contravention of placement order),

(d) section 36(1) (removal of child in non-agency case), and

(e) section 36(5) (return of child to parent or guardian),

of the Adoption and Children Act 2002.”

133 Scottish restriction on bringing children into or out of United Kingdom

(1) In section 50 of the Adoption (Scotland) Act 1978 (restriction on removal of children for adoption outside Great Britain)—

(a) in subsection (1), “not being a parent or guardian or relative of the child” is omitted,

(b) after subsection (3) there is inserted—

“(4) The Scottish Ministers may by regulations provide for subsection (1) to apply with modifications, or not to apply, if—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is a step-parent of the child,

and any conditions prescribed by the regulations are met.

(5) On the occasion of the first exercise of the power to make regulations under subsection (4)—

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of the Scottish Parliament, and

(b) accordingly section 60(2) does not apply to the statutory instrument containing the regulations.”

(2) For section 50A of that Act (restriction on bringing children into the United Kingdom for adoption) there is substituted—

“50A Restriction on bringing children into the United Kingdom

(1) This section applies where a person who is habitually resident in the British Islands (the “British resident”)—

(a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident; or

(b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time.

(2) In subsection (1) above the references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

(3) This section does not apply if the child is intended to be adopted under a Convention adoption order.

(4) An external adoption means an adoption, other than a Convention adoption, of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is—

(a) an adoption within the meaning of Part IV; or

(b) a full adoption (as defined in section 39(2A)).

(5) Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies—

(a) to apply to an adoption agency in the prescribed manner for an assessment of his suitability to adopt the child; and

(b) to give the agency any information it may require for the purpose of the assessment.

(6) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.

(7) In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may provide for any provision of Part II of this Act to apply with modifications or not to apply.

(8) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if—

(a) he has not complied with any requirement imposed by virtue of subsection (5); or

(b) any condition required to be met by virtue of subsection (6) is not met,

before that time, or before any later time which may be prescribed.

(9) A person guilty of an offence under this section is liable—

(a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

(10) Regulations may provide for this section not to apply if—

(a) the adopters or (as the case may be) prospective adopters are natural parents (whether or not they have parental responsibilities or parental rights in relation to the child), natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child,

and any prescribed conditions are met.

(11) On the occasion of the first exercise of the power to make regulations under subsection (10)—

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of the Scottish Parliament, and

(b) accordingly section 60(2) does not apply to the statutory instrument containing the regulations.

(12) In this section, “prescribed” means prescribed by regulations and “regulations” means regulations made by the Scottish Ministers.”

(3) In section 65 of that Act (interpretation), in subsection (1), in the definition of “adoption agency”, for “and 27” there is substituted “, 27 and 50A”.

134 Amendment of Adoption (Scotland) Act 1978: overseas adoptions

In section 65 of the Adoption (Scotland) Act 1978 (c. 28) (interpretation), for subsection (2) there is substituted—

“(2) In this Act, “overseas adoption” —

(a) means an adoption of a description specified in an order made by the Scottish Ministers, being a description of adoptions effected under the law of any country or territory outside the British Islands, but

(b) does not include a Convention adoption.

(2A) The Scottish Ministers may by regulations prescribe the requirements that ought to be met by an adoption of any description effected after the commencement of the regulations for it to be an overseas adoption for the purposes of this Act.

(2B) At any time when such regulations have effect, the Scottish Ministers must exercise their power under subsection (2) so as to secure that subsequently effected adoptions of any description are not overseas adoptions for the purposes of this Act if they consider that such adoptions are not likely within a reasonable time to meet the prescribed requirements.

(2C) An order under subsection (2) may contain provision as to the manner in which evidence of any overseas adoption may be given.

(2D) In subsections (2) to (2C), “adoption” means the adoption of a child or of a person who was a child at the time the adoption was applied for.”

135 Adoption and fostering: criminal records

(1) Part 5 of the Police Act 1997 (c. 50) (certificates of criminal records) is amended as follows.

(2) In section 113 (criminal record certificates), in subsection (3A), for “his suitability” there is substituted “the suitability of the applicant, or of a person living in the same household as the applicant, to be a foster parent or”.

(3) In section 115 (enhanced criminal record certificates), in subsection (6A), for “his suitability” there is substituted “the suitability of the applicant, or of a person living in the same household as the applicant, to be a foster parent or”.

136 Payment of grants in connection with welfare services

(1) Section 93 of the Local Government Act 2000 (c. 22) (payment of grants for welfare services) is amended as follows.

(2) In subsection (1) (payment of grants by the Secretary of State), for the words from “in providing” to the end there is substituted—

“(a) in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State, or

(b) in connection with any such welfare services.”

(3) In subsection (2) (payment of grants by the Assembly), for the words from “in providing” to the end there is substituted—

“(a) in providing, or contributing to the provision of, such welfare services as may be determined by the Assembly, or

(b) in connection with any such welfare services.”

(4) After subsection (6) there is inserted—

“(6A) Before making any determination under subsection (3) or (5) the Secretary of State must obtain the consent of the Treasury.”

137 Extension of the Hague Convention to British overseas territories

(1) Her Majesty may by Order in Council provide for giving effect to the Convention in any British overseas territory.

(2) An Order in Council under subsection (1) in respect of any British overseas territory may, in particular, make any provision corresponding to provision which in relation to any part of Great Britain is made by the Adoption (Intercountry Aspects) Act 1999 (c. 18) or may be made by regulations under section 1 of that Act.

(3) The British Nationality Act 1981 (c. 61) is amended as follows.

(4) In section 1 (acquisition of British citizenship by birth or adoption)—

(a) in subsection (5), at the end of paragraph (b) there is inserted “effected under the law of a country or territory outside the United Kingdom”,

(b) at the end of subsection (5A)(b) there is inserted “or in a designated territory”,

(c) in subsection (8), the words following “section 50” are omitted.

(5) In section 15 (acquisition of British overseas territories citizenship)—

(a) after subsection (5) there is inserted—

“(5A) Where—

(a) a minor who is not a British overseas territories citizen is adopted under a Convention adoption,

(b) on the date on which the adoption is effected—

(i) the adopter or, in the case of a joint adoption, one of the adopters is a British overseas territories citizen, and

(ii) the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in a designated territory, and

(c) the Convention adoption is effected under the law of a country or territory outside the designated territory,

the minor shall be a British overseas territories citizen as from that date.”,

(b) in subsection (6), after “order” there is inserted “or a Convention adoption”.

(6) In section 50 (interpretation), in subsection (1)—

(a) after the definition of “company” there is inserted—

““Convention adoption” means an adoption effected under the law of a country or territory in which the Convention is in force, and certified in pursuance of Article 23(1) of the Convention”,

(b) after the definition of “Crown service under the government of the United Kingdom” there is inserted—

““designated territory” means a qualifying territory, or the Sovereign Base Areas of Akrotiri and Dhekelia, which is designated by Her Majesty by Order in Council under subsection (14)”.

(7) After subsection (13) of that section there is inserted—

“(14) For the purposes of the definition of “designated territory” in subsection (1), an Order in Council may—

(a) designate any qualifying territory, or the Sovereign Base Areas of Akrotiri and Dhekelia, if the Convention is in force there, and

(b) make different designations for the purposes of section 1 and section 15;

and, for the purposes of this subsection and the definition of “Convention adoption” in subsection (1), “the Convention” means the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993.

An Order in Council under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

138 Proceedings in Great Britain

Proceedings for an offence by virtue of section 9, 59, 93, 94, 95 or 129—

(a) may not be brought more than six years after the commission of the offence but, subject to that,

(b) may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

In relation to Scotland, “the prosecutor” is to be read as “the procurator fiscal”.

Amendments etc.

139 Amendments, transitional and transitory provisions, savings and repeals

(1) Schedule 3 (minor and consequential amendments) is to have effect.

(2) Schedule 4 (transitional and transitory provisions and savings) is to have effect.

(3) The enactments set out in Schedule 5 are repealed to the extent specified.