The Adoptions with a Foreign Element (Scotland) Regulations 2009

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision for adoptions with a foreign element under the Adoption (Intercountry Aspects) Act 1999 and the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”).

The Regulations distinguish two categories of adoptions with a foreign element – those effected under the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption(1) (“Convention cases”) and all other foreign adoptions (“non-Convention cases”).

Part 2 (with the exception of regulation 9) makes provision for non-Convention cases whilst Part 3 concerns Convention cases.

The requirements for non-Convention cases are set out in Part 1, Chapter 6 of the 2007 Act. Chapter 1 of Part 2 of these Regulations makes provision for cases where a child is brought into the United Kingdom in circumstances where section 58 of the 2007 Act applies. Section 58 applies where a British resident brings or causes another to bring a child into the United Kingdom for the purposes of adoption or where they bring or cause another to bring a child adopted by a British resident under an external adoption effected within a period of 12 months from that adoption.

Regulations 3 and 4 prescribe the requirements which must be met by the prospective adopters before a child is brought into the United Kingdom. Regulation 5 then imposes functions on the local authority which apply when the child has been brought into the United Kingdom and the prospective adopters have given notice of their intention to apply for an adoption order.

Chapter 2 of Part 2 of these Regulations makes provision for cases where a child is to be taken out of the United Kingdom for overseas adoption (an adoption effected outwith the British Islands which is not within the scope of the Convention). Regulations 7 and 8 prescribe the requirements which must be met before an order under section 59 of the 2007 Act (a preliminary order conferring parental responsibilities and rights on prospective adopters where the child is to be adopted abroad) is made. These provisions apply only to non-Convention cases. Regulation 9 specifies those provisions of the 2007 Act which apply to orders made under section 59 and applies to both Convention and non-Convention cases.

Part 3 of the Regulations makes provision only for Convention cases. Chapter 1 regulates the procedure which must be followed when the United Kingdom is the receiving State (where a child is brought from outwith the British Islands to the United Kingdom for adoption by a British resident in accordance with the Convention) whilst Chapter 2 regulates the process when the United Kingdom is the State of Origin (where a child who is habitually resident in the British Islands is to be adopted by a person or a couple habitually resident outwith the British Islands in accordance with the Convention). Both Chapters prescribe the requirements and procedures which must be followed for such adoptions as well as making provision for the recognition of such adoptions.

Chapter 3 makes miscellaneous provision. Regulation 53 applies the provisions of the 2007 Act to Convention adoption orders subject to modifications. Regulations 54 to 61 modify the application of that Act to such adoptions. Regulation 62 applies the Adoption Agencies (Scotland) Regulations 2009 with modifications. Regulation 63 provides that a person who fails to comply with any of the provisions listed in paragraph (2) commits an offence.

Part 4 (regulation 64) revokes the Adoption (Hague Convention) (Scotland) Regulations 2003.

(1)

Concluded at The Hague on 29th May 1993.