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Adoptions with a Foreign Element

Document Cited authorities 8 Cited in Related
AuthorNasreen Pearce/Richard Budworth
Pages125-134

Chapter 12


Adoptions with a Foreign Element

INTRODUCTION

12.1 Adoptions with a foreign element encompass any adoption of a child which took place outside England and Wales, and ‘foreign adoption’ therefore means any adoption made outside this jurisdiction. An ‘overseas adoption’ is defined in ACA 2002, s 87(1) to mean ‘an adoption of a description specified by the Secretary of State, being a description of adoption effected under the law of any country or territory outside the British Islands, but ... does not include a Convention adoption’. Convention adoption is an adoption made under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). Chapters 13–15 deal with these various types of adoptions with a foreign element. This chapter sets out the requirements of the Hague Convention.

12.2 The principles by reference to which the law on intercountry adoptions and the recognition of foreign adoptions has been formulated are enshrined in a number of international declarations and Conventions to which the United Kingdom is a party. These instruments provide the legal framework for the relevant domestic law. An appreciation of some of the background elucidates the reasons for, and the purpose of, the domestic process which has been laid down in respect of adoptions with a foreign element, and in particular those now known as ‘Convention adoptions’. The relevant statutory provisions include, in particular, the Adoptions with a Foreign Element Regulations 2005 (SI 2005/392) (AFER 2005) and the Hague Convention.

12.3 The most important international instruments, which form the backbone of the legislative framework on the rights of the child, include:

▪ the United Nations Declaration on Social Legal Principles relating to the

Protection and Welfare of Children with special reference to Foster

126 Adoption Law: A Practical Guide

Placements and Adoptions Nationally and Internationally, adopted by General Assembly Resolution 41/85 of 3 December 1986;
▪ the United Nations Convention on the Rights of the Child 1989 (UNCRC); ▪ the Hague Convention (see paras 12.8–12.23);
▪ Recommendation 1443/2000, International adoption: respecting children’s rights, adopted by the Parliamentary Assembly of the Council of Europe on 26 January 2000;
▪ the European Parliament’s Resolution on Improving the Law and Co-operation between Member States on the Adoption of Minors, of
12 December 1996.

12.4 The central theme which runs through the international instruments is the principle that the best interests of the child must be the determining factor in any decision that is made relating to a child.

THE UNCRC

12.5 The UNCRC recognises that the child, ‘for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’. UNCRC, Art 9 requires states to ensure that a child is not separated from his parents against their will, except where such separation is necessary for the best interests of the child, for example where there has been abuse or neglect of the child, but in any such case the parents should be given the opportunity to take part in any proceedings and to express their views. Where the separation of a child from his parents is inevitable, the state is obliged to respect the right of the child to maintain his relationship and for direct contact with his parents unless it is found to be contrary to the interests of the child.

12.6 Where, having taken account of the child’s right to the preservation of family life, it is nevertheless considered that it is in the child’s best interests that he should not live with his parents, the state is required to provide protection and assistance and to ensure alternative care for the child. UNCRC, Art 20(3) specifically states that such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard must be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

12.7 In states which recognise and permit adoption, the state is required to ensure that ‘the best interests of the child shall be the paramount consideration’. In particular, under UNCRC, Art 21, states must:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to...

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