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

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision under sections 11 and 12 of the Children and Adoption Act 2006 (“the Act”) relating to restrictions on adoptions from abroad.

Section 9 of the Act makes provision regarding the restriction of adoptions from abroad by British residents. Section 9(4) provides that the Secretary of State may by order declare in relation to a country or territory that special restrictions are for the time being to apply. Section 11(1) of the Act provides that the special restrictions are that the appropriate authority is not to take any step that the authority might otherwise have taken to further the adoption from abroad. Section 11(2) of the Act provides that, where special restrictions apply, the appropriate authority may take those steps if the prospective adopters satisfy the relevant authority that the appropriate authority should take those steps despite the special restrictions. Regulations 3 to 5 provide for the procedure to be followed by the relevant authority in the consideration of exceptional cases. Regulation 6 sets out the matters to be taken into account by the relevant authority in determining whether a case is exceptional. The relevant authority will be the appropriate authority (as defined in section 11(4) of the Act) except, in relation to Northern Ireland, in a case which is not a Convention case; in such a case, the relevant authority is the Secretary of State. A Convention case is one where the adoption is intended to be effected in accordance with the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29th May 1993.

Regulation 7(1) enables the Secretary of State to specify in the restricted list (i.e. the list of restricted countries maintained under section 9(8) of the Act) a step in relation to a country or territory in respect of which special restrictions have been declared by virtue of an order made under section 9(4) of the Act (a “restricted country”). Where a step has been specified in relation to a restricted country, regulation 7(2) prescribes the condition that the relevant authority must notify the prospective adopters in writing that the adoption may proceed; a person who brings a child into the United Kingdom or causes another to do so in contravention of this condition commits an offence under section 12(3) of the Act.