The Adoptions with a Foreign Element (Scotland) Regulations 2009
| Jurisdiction | Scotland |
| Citation | SSI 2009/182 |
| Year | 2009 |
2009 No. 182
CHILDREN AND YOUNG PERSONS
The Adoptions with a Foreign Element (Scotland) Regulations 2009
Made 14th May 2009
Laid before the Scottish Parliament 15th May 2009
Coming into force 28th September 2009
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 1(1) to (3) and (5) of the Adoption (Intercountry Aspects) Act 19991and sections 8, 58(5), (6), (7) and (10), 59(3) and (6) and 61(1) of the Adoption and Children (Scotland) Act 20072and all other powers enabling them to do so.
PART 1
GENERAL
Citation and commencement
1.—(1) These Regulations may be cited as the Adoptions with a Foreign Element (Scotland) Regulations 2009 and come into force on 28th September 2009.
(2) These regulations extend to Scotland only.
Interpretation
2. In these Regulations–
“the Act” means the Adoption and Children (Scotland) Act 2007;
“the Adoption Agencies Regulations” means–
(a) in Part 2, the Adoptions Agencies (Scotland) Regulations 20093; and
(b) in Part 3, those Regulations subject to the modifications set out in regulation 62;
“adoption agency” in Part 3 means a local authority or a registered adoption service which is an accredited body for the purposes of the Convention;
“adoption panel”, in relation to an adoption agency, means an adoption panel appointed by the agency under regulation 3 of the Adoption Agencies Regulations, and includes a joint adoption panel (within the meaning of that regulation) established by the agency jointly with any other adoption agency;
“CA of the receiving State” means, in relation to a Convention country4other than the United Kingdom, the Central Authority of the receiving State;
“CA of the State of origin” means, in relation to a Convention country other than the United Kingdom, the Central Authority of the State of origin;
“Central Authority” means the Scottish Executive;
“competent authority”, in relation to a function under the Convention, means an authority in a Contracting State which is entitled to carry out that function;
“Convention prospective adopter” is to be construed in accordance with regulation 45(1);
“eligible to adopt” in Part 3, except in regulations 16(4)(b) and 50(3)(a)(ii), is to be construed in accordance with regulation 12(1);
“prospective adopters”–
(a) in Chapter 1 of Part 2 means a person who makes, or persons who make, an application under regulation 3; and
(b) in Chapter 1 of Part 3 means a person or, as the case may be, a relevant couple who makes an application under regulation 11;
“receiving State” is to be construed in accordance with Article 2 of the Convention;
“relevant foreign authority” means a person or body outwith the British Islands performing functions in the country in which the child, or the prospective adopter, is habitually resident which correspond to the functions of an adoption agency or to the functions of the Scottish Ministers in respect of adoptions with a foreign element;
“relevant local authority”, in relation to prospective adopters, means–
(a) the local authority within whose area the prospective adopters have their home; or
(b) in the case where the prospective adopters no longer have a home in Scotland, the local authority for the area in which they last had their home; and
“State of origin” is to be construed in accordance with Article 2 of the Convention.
PART 2
BRINGING CHILDREN INTO, AND TAKING CHILDREN OUT OF, THE UNITED KINGDOM
CHAPTER 1
BRINGING CHILDREN INTO THE UNITED KINGDOM
Requirements applicable in respect of bringing, or causing another to bring, a child into the United Kingdom
3. A person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where section 58 of the Act applies must–
(a) apply in writing to an adoption agency for an assessment of the person’s suitability to adopt a child; and
(b) give the adoption agency any information it may require for the purpose of the assessment.
Conditions applicable in respect of a child brought into the United Kingdom
4.—(1) This regulation prescribes the conditions for the purposes of section 58(6) of the Act in respect of a child brought into the United Kingdom in circumstances where section 58 applies.
(2) Prior to the child’s entry into the United Kingdom, the prospective adopters must–
(a)
(a) receive from the Secretary of State notification in writing that the Secretary of State has issued a certificate confirming to the relevant foreign authority–
(i) that the prospective adopters have been assessed and approved as eligible and suitable to be adoptive parents in accordance with the Adoption Agencies Regulations; and
(ii) that if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption5is effected, the child will be authorised to enter and reside permanently in the United Kingdom;
(b)
(b) before visiting the child in the State of origin–
(i) notify the adoption agency of the details of the child to be adopted;
(ii) provide the adoption agency with any information and reports received from the relevant foreign authority; and
(iii) discuss with the adoption agency the proposed adoption and any information and reports so received;
(c)
(c) visit the child in the State of origin (and, where the prospective adopters are a couple, each of them must so visit the child); and
(d)
(d) after that visit–
(i) confirm in writing to the adoption agency that the prospective adopters have done so and wish to proceed with the adoption;
(ii) provide the adoption agency with any additional reports and information received on or after that visit; and
(iii) notify the adoption agency of the date the prospective adopters expect to enter the United Kingdom with the child.
(3) On entering the United Kingdom, the child must be accompanied by the prospective adopters (and, where the prospective adopters are a couple, the child must be accompanied by both members of the couple unless the adoption agency and the relevant foreign authority have agreed that it is necessary for only one of them to do so).
(4) Except where an overseas adoption is, or is to be, effected, the prospective adopters must within the period of 14 days beginning with the date on which the child is brought into the United Kingdom give notice to the relevant local authority–
(a)
(a) of the child’s arrival in the United Kingdom; and
(b)
(b) of the prospective adopters' intention–
(i) to apply for an adoption order in accordance with section 18(2) of the Act; or
(ii) not to give the child a home.
(5) In a case where the prospective adopters have given notice in accordance with paragraph (4) and subsequently move their home into the area of another local authority, they must within 14 days of so moving confirm in writing to that authority–
(a)
(a) the child’s arrival in the United Kingdom; and
(b)
(b) that notice of the prospective adopters' intention has been given in accordance with paragraph (4)(b).
(6) In this regulation, “entry clearance” has the same meaning as in the Immigration Act 19716.
Functions imposed on the local authority
5.—(1) This regulation applies where–
(a)
(a) a child is brought into the United Kingdom in circumstances where section 58 of the Act applies; and
(b)
(b) notice has been given by the prospective adopters to the relevant local authority in accordance with section 18(2) of the Act of their intention to apply for an adoption order.
(2) The local authority must–
(a)
(a) if it has not already done so, set up a case record in respect of the child and place on it any information received from–
(i) the relevant foreign authority;
(ii) the adoption agency (if it is not the local authority);
(iii) the prospective adopters;
(iv) the entry clearance officer; and
(v) the Secretary of State and the Scottish Ministers;
(b)
(b) send to the Scottish Ministers written notification of the child’s arrival in the United Kingdom;
(c)
(c) send the prospective adopters' registered medical practitioner (and, where required in cases where the prospective adopters are a relevant couple7, the registered medical practitioner of each member of the couple) written notification of the child’s arrival in the United Kingdom and send with that notification a written report of the child’s health history and current state of health (so far as is known);
(d)
(d) send to the Health Board constituted under section 2 of the National Health Service (Scotland) Act 19788in whose area the prospective adopters have their home written notification of the child’s arrival in the United Kingdom;
(e)
(e) where the child is of school age (as defined in section 31 of the Education (Scotland) Act 19809), send to the education authority in whose area the prospective adopters have their home written notification of the child’s arrival in the United Kingdom and information, if known, about–
(i) the child’s educational history; and
(ii) whether the child has additional support needs (within the meaning of the Education (Additional Support for Learning) (Scotland) Act 200410);
(f)
(f) ensure that the child and the prospective adopters are visited within one week of receipt of the notice mentioned in paragraph (1)(b) and thereafter not less than once a week until the review mentioned in sub-paragraph (g) and thereafter at such frequency as the local authority may (subject to sub-paragraphs (g) and (h)) decide;
(g)
(g) unless the child no longer has a home with the prospective adopters or an adoption order is made in respect of the child–
(i) carry out a review of the child’s case...
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