Convention Adoptions
Author | Nasreen Pearce/Richard Budworth |
Pages | 135-151 |
Chapter 13
Convention Adoptions
INTRODUCTION
13.1 A ‘Convention adoption’ is an adoption effected under the law of a country outside the British Islands, in which the 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) is in force and certified in pursuance of Art 23(1) of that Convention (ACA 2002, s 66). The Hague Convention has been incorporated into domestic law by virtue of the Adoption (Intercountry Aspects) Act 1999. The aim of the Convention is to ensure that intercountry adoptions take place in the best interests of the child, and with respect for his fundamental rights as recognised in international law; and to establish a common basis and principles on which arrangements for intercountry adoptions should be made between contracting member states. Adoption orders made under the Convention are recognised in all member states (for details of Convention requirements, see Chapter 12). Anyone who wishes to adopt a child from a Hague Convention country must comply with the provisions of the Convention and of the AFER 2005.
13.2 For advisory guidance on Convention adoptions issued by the Permanent Bureau at The Hague, see The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention: Guide to Good Practice, Guide No. 1, which is available at:
www.hcch.net/upload/adoguide_e.pdf
13.3 For the Government’s guidance, see ‘Intercountry adoption: information for adoption agencies’, which is available at:
www.gov.uk/guidance/intercountry-adoption-information-for-adoption-agencies
136 Adoption Law: A Practical Guide
13.4 In undertaking the assessment, the adoption agency will apply the procedure which is set out in AAR 2005, Pt 4, as amended by the Adoption Agencies (Miscellaneous Amendments) Regulations 2013 (SI 2013/985) (AAR 2013). Part 4 now provides a two-stage approval process for prospective adopter(s). The procedure for stage 1 is set out in AAR 2005, regs 22–27 and applies when prospective adopter(s) notify the adoption agency that they want to adopt a child. Stage 2, set out in AAR 2005, regs 28–30G, applies where within six months following the adoption agency’s decision that the prospective adopter(s) may be suitable to adopt, the prospective adopter(s) notify the adoption agency that they wish to proceed to stage 2 of the approval process.
CHILD ENTERING ENGLAND AND WALES WHERE THE UNITED KINGDOM IS A RECEIVING STATE
13.5 AFER 2005, Pt 3 applies where a person(s) habitually resident in the United Kingdom wishes to adopt a child who is habitually resident in a Convention country.
Age and residency requirement
13.6 To qualify to adopt a child from a Convention country, if the application is to be made by an individual person, the prospective adopter must satisfy the authorities that he has attained the age of 21 and has been habitually resident in a part of the British Islands for a period of not less than one year immediately preceding the making of the application. Where the application is made by a couple, they must both have attained the age of 21 and satisfy the residency requirement (AFER 2005, reg 13(2)).
Application
13.7 Prospective adopter(s) who wish to adopt a child who is habitually resident in a Convention country outside the British Isles must apply in writing to an adoption agency that is accredited to undertake intercountry adoptions for a determination of eligibility and assessment of their suitability to adopt. Prospective adopter(s) must co-operate in providing the adoption agency with any information it requires for the purposes of the assessment (AFER 2005, reg 13(1)(a)(b)).
Counselling and provision of information
13.8 Before carrying out the assessment, the adoption agency is required to provide to the prospective adopter(s) counselling services as required under AAR
2013, reg 24(1)(a). The adoption agency is also required to explain to the prospective adopter(s) the procedure in relation to, and the legal implications of, adopting a child from the state of origin (the state where the child is habitually resident) in question. The information given usually includes information about the process of assessment and matching; the role of the Department for Education and Skills (DfES) (in Wales, the National Assembly); the immigration implications and processes; and the actions which the prospective adopter(s) will have to take once they have been approved as suitable persons to adopt a child. The prospective adopter(s) may need to attend meetings arranged by the adoption agency to assist in understanding the process and the issues which arise. In particular, prospective adopter(s) should be fully assisted in understanding the implications not only of UK adoption law, but also of the law of adoption in the child’s state of origin. The requirement for the prospective adopter(s) to visit the child in the state of origin, to accompany him to the United Kingdom, and the costs and other consequences need to be addressed carefully. Written information on these matters must be provided. If the adoption agency to whom the application has been made is satisfied that the prospective adopter(s) have already received counselling and been provided with the relevant information from another authorised agency, this requirement can be dispensed with (AFER 2005, reg 14(2)).
Assessment of eligibility and suitability
13.9 In carrying out the assessment on the suitability of the prospective adopter(s), the adoption agency must follow the procedure and apply the requirements relevant to domestic adoptions under AAR 2013, Pt 4, i.e. regs 22– 30G (AFER 2005, reg 15(1)) (see Chapter 16). The adoption agency must place on the prospective adopter’s/prospective adopters’ case record any information obtained during the two-stage process in AAR 2013, Pt 4. In assessing eligibility and suitability, the adoption agency must check the age and residence of the prospective adopter(s), and their immigration status, under both British law and the law of the state of origin. It is important that this issue is addressed first. In the event of a favourable report, a ‘prospective adopter’s report’ must be prepared for submission to the adoption panel. In a Convention adoption case, the prospective adopter’s report must include the following information, as set out in AFER 2005, reg 15(4), in addition to that required in a domestic case:
(a) the State of origin from which the prospective adopter wishes to adopt a child;
(b) confirmation that the prospective adopter is eligible to adopt a child under the law of that State;
(c) any additional information obtained as a consequence of the requirements of that State; and
(d) the agency’s assessment of the prospective adopter’s suitability to adopt a child who is habitually resident in that State.
138 Adoption Law: A Practical Guide
13.10 The decision about whether the prospective adopter(s) are suitable to adopt a child must be undertaken in accordance with AAR 2013, reg 30B.
The agency’s decision and notification
13.11 The adoption agency must notify to the prospective adopter(s) its decision on suitability. If the decision is that the prospective adopter(s) are not suitable to adopt a child, the agency must give its reasons, and a copy of the recommendation of the adoption panel. The prospective adopter(s) should be informed of their right to challenge the decision within 40 working days of the date on which the notification was sent, by submitting any representations the prospective adopter(s) wish to make to the agency or the Secretary of State for a review by an independent review panel. On receiving notice of the application for a review, the agency must within 10 days send to the Secretary of State all the documents and information which were passed to the adoption agency and any relevant information in relation to the prospective adopter(s), which was obtained by the agency after the date on which the original decision was made. Thereafter, the agency must make the decision only after taking into account the recommendations of the independent review panel and the recommendation of the adoption panel made under AAR 2013, reg 30A. On the independent review panel’s decision and its recommendations, the adoption agency must send to the Secretary of State a copy of the notification. Following approval, the adoption agency is required to review the approval in accordance with AAR 2013, reg 30D unless the adoption agency has received from the relevant CA written confirmation as required under the Hague Convention, Art 17.
Procedure following decision on suitability
13.12 Once the adoption agency decides that prospective adopter(s) are suitable to adopt a child from the state of origin in question, it must send the following documents and information to the CA (the Secretary of State in England or...
To continue reading
Request your trial