304.Section 123 is a restatement and amendment of section 58 of the Adoption Act 1976. Section 58 of that Act restricts the publication of advertisements indicating that the parent or guardian of a child want that child to be adopted, that a person wants to adopt a child, or that persons other than adoption agencies are willing to make arrangements for the adoption of a child. Section 123, which is a United Kingdom wide provision, goes further than this. It imposes a new restriction on the distribution of such advertisements, on advertisements that a person is willing to remove a child from the United Kingdom for the purpose of adoption, and on the publication and distribution of information about how to make arrangements for the adoption of a child.
305.Subsection (1) provides that a person must not publish or distribute an advertisement or information to which this section applies. Subsection (2) provides that this section applies to an advertisement that the parent or guardian of a child wants the child to be adopted, that a person wants to adopt a child, that a person is willing to take specific steps to arrange an adoption, as set out in section 92, or that a person is willing to remove children from the United Kingdom for the purposes of adoption. Subsection (3) states that this provision also applies to information about how to do anything which, if done, would constitute an offence under sections 85 or 93 and the mirror provisions of the Adoption (Scotland) Act 1978 and the Adoption (Northern Ireland) Order 1987, and to information about a particular child as a child available for adoption.
306.Subsection (4) defines publishing and distribution. This provision covers all forms of publication and distribution, including electronic means such as the internet. Subsection (5) provides that this section does not apply to publication or distribution by or on behalf of an adoption agency. Under subsection (6) the Secretary of State may by order make any amendments of this section necessary to take into account developments in technology relating to publishing or distributing advertisements or other information by electronic or electro-magnetic means.
307.Any such order cannot be made without being approved by both the House of Commons and the House of Lords. Before exercising the power provided by subsection (6) the Secretary of State must, under subsection (8), consult the Scottish Ministers, the Department of Health, Social Services and Public Safety (in Northern Ireland) and the Assembly. Subsection (7) provides that the Secretary of State may make regulations to prescribe that a body outside the United Kingdom is for the purposes of section 123 to be treated as a United Kingdom adoption agency if it corresponds in its functions to a United Kingdom adoption agency. As a consequence, such a body would not then be considered to be acting in contravention of section 123 if it were to advertise in the United Kingdom. Subsection (9) also provides that an adoption agency includes a Scottish or Northern Irish adoption agency.
308.Section 124 sets out that it is an offence to breach section 123(1). Subsection (2) provides a defence. Subsection (3) provides for the penalty 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.
309.Subsection (1) of section 125 enables the Queen to make an Order in Council enabling the Secretary of State to establish and maintain a register to be known as the Adoption and Children Act Register. The register will cover England and may also cover Wales and/or Scotland. It will contain details of children who are suitable for adoption and prospective adopters who have been approved to adopt a child. This information will be used to suggest adoptive families for children in cases where a local match is not suitable for the child, or cannot be found within an agreed period of time. The register will also contain additional prescribed information about such people in respect of events occurring to them after their inclusion in the register (see subsection (1)(b)). This provision may be used, for example, to enable the register to record information about the stability of adoptive placements.
310.Subsection (2) enables the Order to apply any of the provisions in sections 126 to 131 with or without modification for the purpose of finding persons with whom children may be placed for purposes other than adoption. This provision may be used to extend the remit of the register to cover children needing other types of permanent placements, such as special guardianship.
311.The register will not be open to public inspection or search and the Order will make provision about retention of information in the register. Information will be held on the Register in any form the Secretary of State considers appropriate, but is most likely to be held electronically.
312.Section 126 deals with delegation of the Secretary of State’s function under section 125. Subsection (1) enables the Secretary of State to delegate his function of establishing and maintaining the register to an organisation defined by section 131(1)(a) as including either a public body or a private or voluntary organisation. It also enables that organisation to release information entered in or compiled from information entered in the register on the Secretary of State’s behalf. Where the Secretary of State enters into an agreement with an organisation under subsection (1) he may issue general or special directions in respect of the way in which the organisation operates the register (see subsection (3)). Subsection (2) enables the Secretary of State to make payments to the organisation in respect of this arrangement.
313.Subsection (4) provides that where the Secretary of State delegates his function of establishing and maintaining the register to an organisation under subsection (1) or he issues general or special directions to such an organisation under subsection (3) he must first obtain the agreement of Scottish Ministers, if the Register applies to Scotland, and of the National Assembly for Wales, if the Register applies to Wales. Subsection (5) provides that, where the Secretary of State delegates his function to such an organisation under subsection (1), the references to the registration organisation in the remaining provisions dealing with the register are to that organisation.
314.Section 127 provides that the Order in Council may enable an organisation maintaining the register on the Secretary of State’s behalf to act as an agent for the payment or receipt of sums payable by adoption agencies to other adoption agencies. This could be used, for example, to enable the organisation to manage the payment of “inter-agency fees” (see paragraph 50 above) between adoption agencies in respect of matches suggested by the register.
315.The Secretary of State may issue general or special directions in respect of the way in which the organisation is to perform the functions under this section (subsection (2)). If the Secretary of State issues such directions he must first obtain the agreement of Scottish Ministers, if this provision applies to Scotland, and of the National Assembly for Wales, if this provision applies to Wales (subsection (3)).
316.Section 128 deals with the supply of information to the Secretary of State or the registration organisation for entry in the register. The Order in Council will set out the type of information which must be passed by adoption agencies to the Secretary of State or the registration organisation for inclusion in the register, and the time, form and manner in which that information must be given. Subsection (3) provides that the Order may require adoption agencies to pay a fee to the Secretary of State or the registration organisation in respect of information to be entered on the register. Such a fee would contribute towards the administrative costs of placing information on the register and would not include any element of profit. Subsection (4) clarifies that these requirements are subject to the parties to whom the information relates consenting to inclusion of the information on the register. Where the information relates to a child, the Order will set out who may consent to the sharing of the information on the child’s behalf.
317.Section 129 provides that information maintained on the register may only be disclosed by the Secretary of State or the registration organisation in accordance with the statutory provisions and on any prescribed terms and conditions. Under subsection (5)(a) any information may be released from the register with the consent of the Secretary of State.
318.Under subsection (2) prescribed information held on the register may be given either to an adoption agency which is looking for suitable adoptive parents with whom to place a child, or to an adoption agency acting on behalf of approved adoptive parents who wish to adopt a child. Under subsection (4) the Order in Council will set out the steps which adoption agencies must take upon receipt of this information.
319.Subsection (3) enables information either held on the register or compiled from information held on the register to be passed to prescribed categories of persons for statistical or research purposes and other prescribed purposes. Subsection (5) also enables any prescribed information to be passed to Scottish Ministers, if the register applies to Scotland, and to the National Assembly for Wales, if the register applies to Wales. Subsection (7) enables fees to be charged in respect of information given to adoption agencies under subsection (2) or in respect of information given to prescribed categories of persons for statistical or research purposes, or other prescribed purposes, under subsection (3). Disclosure of information otherwise than in accordance with the provisions set out in this section is an offence, punishable on summary conviction by up to three months’ imprisonment or a fine not exceeding level 5 on the standard scale, or both.
320.Section 130 makes provision in respect of the territorial application of the provisions on the Adoption and Children Act Register. Subsection (1) sets out that in this group of sections the term “adoption agency” means a local authority in England or a voluntary adoption agency whose principal office is in England. Subsection (2) sets out that an Order in Council made under section 125 can provide for any requirements imposed on English adoption agencies to apply to Scottish and/or Welsh local authorities and voluntary adoption agencies. This enables the Adoption and Children Act Register to be extended to Scotland and/or Wales. Subsection (4) sets out that an Order made under section 125 can apply the provisions in section 127 on the use of the Register as an agent for the payment of fees between adoption agencies to adoption agencies in Scotland and/or Wales.
321.Section 131 provides general interpretation in respect of the provisions in sections 125 to 130. Subsection (3) clarifies that any action taken by the Secretary of State or the registration organisation which might otherwise be an offence under sections 93 to 95 is not an offence where the action was authorised or required to be done by virtue of these provisions.
322.Subsection (4) sets out that an Order made under section 125 is subject to the affirmative resolution procedure. Subsections (5) to (7) set out that where the register applies to Scotland, a draft of the Order must be approved by the Scottish Parliament, and where the register applies to Wales, a draft of the Order must be approved by the National Assembly for Wales.
323.Sections 30 to 36 of the Act provide for restrictions on the removal of a child who has been placed for adoption. Contravention of these restrictions will be a criminal offence in England and Wales and will be liable to prosecution in England or Wales. Section 132 makes similar provision in Scotland under the Adoption (Scotland) Act 1978, so that if a person commits an offence in England and Wales under the removal and recovery provisions in sections 30 to 36 of the Act he can be prosecuted in Scotland.
324.Section 133 amends sections 50 and 50A of the Adoption (Scotland) Act 1978. Subsection (1) amends section 50 of the Adoption (Scotland) Act 1978 which places restrictions on taking children out of the United Kingdom for adoption. It removes the exemption of parents, guardians and relatives of the child from the restrictions. It also adds a new subsection (4) to section 50 to enable regulations to be made providing for the restrictions to apply with modifications or not to apply if the prospective adopters are parents, relatives or guardians of the child (or one of them is) or the prospective adopter is a step-parent. The new subsection 50(4) also enables regulations to prescribe conditions which must be met if the restrictions are not to apply or to apply with modification. The first set of regulations to be made under subsection 50(4) are to be subject to the affirmative resolution procedure.
325.Subsection (2) amends section 50A of the Adoption (Scotland) Act 1978 to impose restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the United Kingdom with the intention of adopting the child in the United Kingdom, unless the person complies with prescribed requirements and meets prescribed conditions. It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands who he has adopted within the last six months into the United Kingdom, unless he complies with prescribed requirements and meets prescribed conditions. A person would be liable on summary conviction to up to six months’ imprisonment or a fine not exceeding the statutory maximum (currently £5,000), or both, or, in the event of the case being referred to the Crown court, to up to twelve months’ imprisonment or an unlimited fine, or both.
326.It is intended that regulations will require the British resident to be assessed and approved as suitable to adopt by a United Kingdom adoption agency prior to bringing a child into the United Kingdom.
327.The restrictions in section 50A as amended do not apply if the child is intended to be adopted under a Convention adoption order (subsection (3)), as the provisions in the Hague Convention will apply in such circumstances. Subsection (10) of section 50A provides a power to make regulations to specify that the restrictions do not apply where the prospective adopters are parents, guardians or relatives of the child (or one of them is) or the prospective adopter is a step-parent of the child where any prescribed conditions are met. Subsection 50A(11) provides that the first set of regulations to be made under this power are to be subject to the affirmative resolution procedure.
328.Section 134 makes similar provision to section 87 in relation to Scotland. It enables Scottish Ministers to make an order specifying the adoption orders which will be recognised in Scotland. It is intended to review which countries’ adoption orders will be recognised in the United Kingdom. This section allows Scottish Ministers to specify clear criteria that must be met for a country to be included on the revised “designated list”.
329.The new Criminal Records Bureau (CRB) has been established under the Police Act 1997 to provide (amongst other things) for a system for vetting those who work with children, and a “one stop shop” to simplify and speed up that process.
330.The intention is that criminal record checks (known as Standard Disclosures) and enhanced criminal record checks (known as Enhanced Disclosures) should be available through the CRB on both prospective foster and adoptive parents and other adults in the same household as them.
331.Criminal record certificates cover both spent and unspent convictions, and cautions, reprimands and warnings. Enhanced criminal record certificates also include “soft information” from local police records which the chief officer of police considers relevant. This would include relevant matters which did not lead to a conviction. The process would also include a check of lists maintained by the Department of Health and the Department for Education and Skills of persons considered unsuitable to work with children, under the “one-stop shop” arrangement under the Protection of Children Act 1999. Such checks for the purpose of determining the suitability of persons to act as foster parents and adoptive parents are already specifically provided for under sections 113 and 115 of the Police Act 1997.
332.Subsection (1) provides that Part 5 of the Police Act 1997, which covers certificates of criminal records, is to be amended. Subsections (2) and (3)amend sections 113 and 115 of the Police Act to make it absolutely clear that adoptive parents, foster parents and other adults in the same household are all eligible for checks under sections 113 and 115 of the Police Act 1997.
333.Section 136amends section 93 of the Local Government Act 2000, which enables the Secretary of State to pay grants to local authorities in England and the National Assembly to pay grants to local authorities in Wales for welfare services. The provisions in section 136 clarify that grants may be paid contributing to the provision of welfare services, or in connection with welfare services, as well as for their direct provision. Subsection (4) explicitly recognises that the Treasury must approve the proposed terms and conditions of any grant made under section 93 of the Local Government Act 2000, in addition to its amount and the manner of payment, before the grant is made.
334.Section 137 enables provisions giving effect to the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption to be extended to any British Overseas Territory by Order in Council.
335.Article 45 of the Hague Convention allows the Convention to extend to British Overseas Territories at the same time as the United Kingdom ratifies the Convention or later. For the Convention to be extended to any territory that territory must have the necessary legislation implementing the Convention in place. Section 137 allows an Order in Council to make any provision in respect of any British Overseas Territory that would put in place the legislation necessary to allow the Convention to be extended to that territory. In particular, subsection (2) permits provisions corresponding to the Adoption (Intercountry Aspects) Act 1999 and regulations made under section 1 of that Act (which will be used to give effect to the Convention in England, Wales and Scotland) to be made in respect of any British Overseas Territory.
336.Subsections (3) to (7) amend the British Nationality Act 1981 to ensure that where the Convention has been extended to any British Overseas Territory, a child adopted overseas under a Convention Adoption Order may acquire automatic British Overseas Territory Citizenship. British Overseas Territory Citizenship will be automatically granted if at least one of the adopters is a British Overseas Territory Citizen and, in the case of a joint adoption, both adopters are habitually resident in the United Kingdom or the relevant British Overseas Territory.
337.The usual time limit for the prosecution of summary only offences (all offences under the Act are summary only offences except those provided for by sections 83 and 85) under the Act is six months after the commission of the offence (see section 127(1) of the Magistrates’ Courts Act 1980). However, in some cases offences may not come to light immediately, for example where they are uncovered by an inspection or in the case of the private adoption of a baby or an infant until the child needs to be enrolled for primary school education. In those cases where it is possible that it will take some time for an offence to come to the attention of the authorities the time limit has been extended. In the case of offences committed under sections 9, 59, 93, 94, 95 and 129, section 138 therefore extends the time limit to six years after the commission of an offence. Proceedings may be brought within six months of the date the prosecutor had sufficient evidence to warrant bringing the proceedings.