Foreign adoptions

Part 2 of the Children & Adoption Act 2006 makes some significant changes to the law relation to inter-country adoption. These proposed changes have come in for a fair degree of criticism, not least because of a perceived lack of a proper public consultation. By way of summary, the Act:

(1) allows for the suspension of adoptions from countries where there are concerns about adoption practices;

(2) introduces the ability to charge fees to prospective adopters for services provided in relation to inter-country adoptions;

(3) simplifies local authority functions and procedures upon a child's arrival into the country for the purpose of adoption; and

(4) tightens up the restrictions against bringing children into the UK.

In order to understand and appreciate the significance of these changes, a basic understanding of the law and procedure regarding inter-country adoption is necessary. As practitioners know only too well, the law relating to adoption is complex. The area of the law concerning inter-country adoption is no exception.

Adoption process

Very simply speaking, there are essentially three ways in which a child from abroad
can come to the UK and be recognised as 'adopted' for the purposes of our domestic law:

(a) Where a child has been adopted in one of the 66 countries on the 'designated list' set out in the Adoption (Designation of Overseas Adoptions) Order 1973, as last amended in 1993. Adoption orders made by the relevant authorities in these countries are recognised in the UK.

(b) The provisions of the Adoption (Inter-country Aspects) Act 1999 supplemented by the Inter-country Adoption (Hague Convention) Regulations 2003 incorporate the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption into our domestic law as from 1 June 2003. This provides the second method by which a child from abroad can enter the UK and be recognised as 'adopted' for the purposes of domestic law.

(c) Adoption orders in respect of children whose country of origin is neither on the designated list nor a signatory to the Hague Convention are not recognised in the UK. If the prospective adoptive parents wish an adoption to be recognised, they must seek the necessary approvals to proceed with the adoption and obtain an adoption order in this country under the Adoption and Children Act 2002.

Non-designated or Hague Convention country

The process for adopting a child from a country not on the designated list or not a signatory to the Hague Convention is complicated.

Prospective adopters must first make an application to their local adoption agency for an assessment of their suitability to adopt. This process involves the prospective adopters providing as detailed information about themselves as the Adoption Agency may require for the purposes of the assessment. Once the assessment is complete and if favourable, the Adoption Agency must notify the Secretary of State. The Secretary of State then considers the assessment and decides whether or not to issue a certificate to the relevant foreign authority. If a certificate is issued, matching by the foreign authority of the prospective adopters with an appropriate child can take place, followed by an application by the prospective adopters of an adoption order. Once the foreign authority has granted an adoption order to the prospective adopters, they have to apply and obtain entry clearance for the child to enter the UK from the appropriate entry clearance officer. Once the child is brought into the UK, the prospective adopters must notify their local authority of their intention to apply for an adoption order in the UK. It is only at this stage of the process that the prospective adopters can finally apply to and obtain from a UK court an adoption order under the Adoption and Children Act 2002.

Designated or Hague Convention country

If the country of origin of the child is on the designated list or a signatory to the Hague Convention, the process is unsurprisingly less complex. The initial stages of assessment as to suitability is similar to the procedure set out above. Once suitability has been approved, the path to adoption for prospective adopters of children from designated list or Hague Convention countries is relatively straightforward.

In Convention cases, the UK Central Authority takes over from the adoption agency and, if satisfied with the paperwork, will issue a certificate of eligibility and suitability. The papers are then forwarded to the State of Origin to consider the application. If the application is accepted, the prospective adopters are matched with a child. Where the prospective adopters wish to proceed, the State of Origin and the UK Central Authority will come to an understanding as to the adoption, known as an Art 17 agreement. The prospective adopters can then either:

(a) obtain a convention adoption order in the State of Origin;

(b) obtain an interim adoption order in the State of Origin pending a full convention adoption order. In this situation, the child is treated as a privately fostered child in the UK until the full convention adoption order is made; or

(c) have the child placed with them with the intention that the child is adoption in the UK.

In relation to designated list cases, the procedure is virtually identical to Convention cases, save that the Secretary of State in involved instead of the Central Authority.

Adoption orders made in Scotland, Northern Island, the Isle of Man and the Channel Islands are all automatically recognised in England and Wales.

It is upon this framework that the Children & Adoption Act 2006 received Royal Assent on 21 June 2006.

Public policy restrictions

As can be seen from the above framework, the Secretary of State currently has no express statutory right to place restrictions on adoptions from particular countries. Historically, the UK has placed restrictions upon countries such as Guatemala. In June 2003, the UK placed a temporary suspension on adoptions by UK residents of children from Cambodia. This decision was the subject of a judicial review before Mr Justice Munby in July 2005.

Section 9 of the Act allows the Secretary of State to make declarations of special restrictions on intercountry adoptions from countries where it is determined that it would be contrary to 'public policy' to further the bringing of children into the UK by British residents. The section applies to all adoptions, whether or not the country in question is a signatory to the Convention. Section 9(7) requires the Secretary of State to publish reasons for any declarations made, while s 9(8) requires a list of restricted countries to be published and kept up to date. Section 11 makes provision for the special restrictions that may be applied by virtue of s 9 and s 10 requires the Secretary of State to keep any restrictions made under review.

A criticism of the Act has been its failure to define the meaning of 'public policy'. It is unclear as to what criteria the Secretary of State will apply when determining whether or not to apply special restrictions to a particular country. A further concern has been the significant amount of detail that appears to have been left to regulations. In particular, details setting out the special restrictions placed upon a particular country and the detail as to the provision for exceptional cases.

The Act does not require the Secretary of State to consult any other parties except the National Assembly for Wales, the Department of Health, Social Services and Public Safety in Northern Ireland before declaring that special restrictions will apply to inter-country adoptions from a particular country. Pressure for a wider consultation to include potential adoptive parents and UK adoption agencies appear to have been ignored.

Section 12 provides for the making of regulations that would allow the Secretary of State to specify a step in relation to a particular country on the restricted list. The step would be the latest point at which the appropriate authority is involved in the processing of inter-country adoption applications. The explanatory notes to the Act give as an example the forwarding of a matching report from the foreign authority to the prospective adopters.

Charging for services

Section 13 of the Act gives the Secretary of State the power to charge a fee to adopters for services provided in relation to inter-country adoptions. This particular section was not included in the Draft Bill that was published for consultation. It was only introduced to the Bill upon its second reading in June 2005. The British Association for Adoption and Fostering (BAAF) was so concerned about this provision that it wrote to the government. BAAF's primary concern was that the additional financial burden on intercountry adopters may cause an increasing number of applicants to attempt to circumvent the procedures, thereby placing children at risk. This would defeat the objective of some of the other proposed changes in the Act which seek to make it harder to circumvent the current restrictions upon adopters bringing children into the UK.

It will be for the Secretary of State (The Welsh Assembly for Wales) to determine how much to charge. It may be that the fee will be a single flat fee, or it may be a variety of different fees for differing cases. The fee charged will not be greater that the cost of providing the services to the prospective adopters. From the government's reply, it appears that the fees could be in the region of £800 to £1,000.

Further constraints

The remainder of the changes are contained within s 14 of the Act. Section 14(1) amends s 83 of the Adoption and Children Act 2002 by tightening the restrictions upon intercountry adopters bringing children into the UK. Currently, s 83 makes it an offence for a British resident to bring a child into the UK who had been adopted within a period of six months before entry unless certain requirements and conditions are satisfied. These conditions include that the adopter has been assessed and approved in accordance with regulations. Section 14(1) extends the time limit to 12 months.

Finally, s 14(3) excludes a child in respect of whom notice of intention to adopt has been served from the definition of a privately fostered child, thereby preventing local authorities undertaking two different sets of duties in respect of the same child.

What the Act does not establish is a National Intercountry Adoption Agency. Such a step would have brought the UK into line with most other Western states.

While the Act as a whole has received Royal Assent, none of the sections have come into force as yet.