Part 2 - Adoptions With A Foreign Element
Section 9 - Declaration of special restrictions on adoptions from abroad
50.Section 9 makes provision regarding the restriction of intercountry adoptions from countries where the Secretary of State has determined that it would be contrary to public policy to further the bringing of children into the United Kingdom by British residents in the cases specified in subsection (2). The provisions apply equally to adoptions from countries that are signatories to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29th May 1993, and those that are not.
51.Subsection (2) provides that the cases to which the section applies are, under paragraph (a), where a British resident wishes to bring or cause another person to bring a child who is not a British resident into the United Kingdom for the purposes of adoption by the British resident and there have been, or would have to be, some proceedings in the country that has given rise to the concern or dealings with authorities or agencies there; and, under paragraph (b), where a British resident wishes to bring or to cause another to bring a child into the United Kingdom having adopted the child abroad within 12 months of the date on which he brings the child in. The term British resident is defined in subsection (10).
52.These cases mirror the cases to which section 83 of the Adoption and Children Act 2002 (restriction on bringing children in) applies, subject to the amendment of that section by section 14 of this Act.
53.Subsections (4) and (5) provide that the suspension is achieved through a declaration made by order by the Secretary of State, following consultation with the National Assembly for Wales and the Department of Health, Social Services and Public Safety in Northern Ireland, that 'special restrictions' are to apply in relation to bringing children into the United Kingdom in the cases specified in subsection (2). The Secretary of State must publish his reasons for making the declaration in relation to each restricted country (subsection (7)) and must publish a list of restricted countries, the 'restricted list', which he must keep up to date (subsection (8)). Subsection (9) requires publication of both the restricted list and the reasons in whatever way the Secretary of State thinks appropriate for bringing them to the attention of adoption agencies and members of the public.
Section 10 - Review
54.Section 10 requires the Secretary of State to keep the restricted list under review. If the Secretary of State no longer has reason to believe that it would be contrary to public policy to further the bringing of children into the United Kingdom from a restricted country, he is required to revoke the order containing the declaration made in relation to that country. Before doing so, he must consult the National Assembly for Wales and the Department of Health, Social Services and Public Safety in Northern Ireland.
Section 11 - The special restrictions
55.Section 11 makes provision for the special restrictions that may be applied by virtue of section 9. It provides that the appropriate authority is not to take any step which he or it may otherwise have taken to further the intercountry adoption.
56.The term 'appropriate authority' is defined in subsection (4). Who the appropriate authority is in a particular case will depend on whether or not the case is a Convention case; that is, one conducted under procedures established under the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29th May 1993. If it is a Convention case then the appropriate authority will be the Central Authority: that is, in relation to England, the Secretary of State; in relation to Wales, the National Assembly for Wales; and in Northern Ireland, the Department of Health, Social Services and Public Safety. If it is not a Convention case, then the appropriate authority in England and Wales is the Secretary of State, and in Northern Ireland is the Secretary of State and the Department of Health, Social Services and Public Safety, for the purposes of the steps in the process which each takes.
57.The effect of the restrictions is that the Secretary of State, the National Assembly for Wales or the Department of Health, Social Services and Public Safety would no longer process intercountry adoption cases from the restricted country. The steps referred to would include, for example, the issuing of a certificate of eligibility to adopt and the forwarding of matching reports from the child's country of origin to the prospective adopters by those acting on behalf of the Secretary of State.
58.Subsection (2) also provides, however, for adoptions to be permitted to continue in exceptional cases - that is, cases where the prospective adopters are able to satisfy the appropriate authority (or, in the case of non-Convention cases in Northern Ireland, the Secretary of State) that the adoption should proceed. Subsection (3) allows regulations to provide for the procedure to be followed by the appropriate authority (or, in the case of non-Convention cases in Northern Ireland, the Secretary of State) in the consideration of exceptional cases and a non-exhaustive list of matters that must be taken into account.
Section 12 - Imposition of extra conditions in certain cases
59.When special restrictions are declared in relation to a country, regulations under section 12 will allow the Secretary of State to specify in the restricted list a step in relation to that country. The step is likely to be the latest point at which the appropriate authority is involved in the processing of intercountry adoption applications. The step might be, for example, forwarding a matching report from the foreign authority to the prospective adopter.
60.Where a step has been specified in relation to a country, the regulations may also provide one or more conditions that must be met in relation to adoptions from that country. These conditions would be in addition to any conditions already set out in existing legislation on restrictions on bringing children into the UK for adoption. A condition could be, for example, that the adopters have received written notification from the Secretary of State that their adoption can proceed.
61.If a child is brought into the UK without any such condition or conditions having been met, the person who brings the child into the UK (or causes another person to bring the child in) is guilty of an offence. In that case, they are liable to a prison term of up to twelve months in England and Wales, six months in Northern Ireland, and/or a fine.
62.If the step specified in the regulations has already been taken before the country was added to the restricted list, no offence would be committed.
63.Subsection (6) lowers the maximum prison sentence that can be imposed in England and Wales to six months for the period until the coming into force of section 154(1) of the Criminal Justice Act 2003, which will raise the maximum prison term that can be imposed by magistrates' courts to 12 months.
Section 13 - Power to charge
64.Section 13 inserts new section 91A into the Adoption and Children Act 2002. Section 91A(2) provides the Secretary of State with the power to charge a fee to adopters or prospective adopters for services provided or to be provided by the Secretary of State in relation to intercountry adoptions. Section 91A(3) gives the National Assembly for Wales the power to charge a fee for the services provided or to be provided by it as the Central Authority in Convention cases.
65.The Secretary of State and the Assembly may determine how much to charge, and may in particular charge a single flat fee or set different fees for different cases, providing the fee income received, taking one financial year with another, is not greater than the cost of providing the services. The section also provides the Secretary of State and the Assembly with discretion to waive the fee in any given case.
Section 14 - Other amendments relating to adoptions from abroad
66.Section 14 makes further provision regarding intercountry adoption. Subsection (1) amends section 83 of the Adoption and Children Act 2002. Section 83, among other things, makes it an offence for a British resident to bring or cause someone else to bring into the United Kingdom a child who was habitually resident outside the British Islands who has been adopted within the period of six months before he was brought in, unless the adopter meets certain requirements and conditions. These conditions include that the adopter has been assessed and approved in accordance with regulations. This section extends that time limit to twelve months.
67.Subsection (2) provides that the amendment mentioned above will only apply in relation to a child adopted under an external adoption order made after the change from six to twelve months is brought into force. Before commencing this amendment, the Government will look to give a sufficient period of notice.
68.Where a notice of intention to adopt a child (who has been brought into the country for the purposes of intercountry adoption) has been provided to a local authority the authority will have certain functions to discharge in respect of him, under regulations made under section 83 of the Adoption and Children Act 2002. Following the repeal of the ‘protected child’ provisions in the Adoption Act 1976, such a child may also be considered to be a privately fostered child as defined in section 66 of the 1989 Act. If he is then the local authority would have duties in respect of the child under regulations made under section 67 of the 1989 Act. The functions imposed on the local authority under these regulations are separate from, but additional and similar to, those imposed under the regulations made under section 83 of the Adoption and Children Act 2002. The effect of the provision in section 14(3) is to exclude a child in respect of whom a notice of intention to adopt has been served from the definition of a privately fostered child, so preventing the local authority being subject to two different sets of duties in respect of the same child.