The Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at The Hague on 29 May 1993
Hague Convention adoption procedures
The following information sets out the procedural requirements of adoptions under the Hague Convention, starting from the point at which a certificate of eligibility, together with information on prospective adopters, has been sent to the country from which the prospective adopters would like to adopt.
This information is not intended to provide a full and complete description of the law and prospective adopters should seek advice specific to their circumstances from their adoption agency and their lawyer.
Matching, and meeting the agency to discuss the match
The Hague Convention requires that information about the child must be sent directly from the Central Authority in the State of origin to the Central Authority in the receiving State - the Scottish Government is the Central Authority for Scotland.
The Adoptions with a Foreign Element (Scotland) Regulations 2009 (the "Regulations") require Scottish Government as the Central Authority to forward this information to the prospective adopters' adoption agency which in turn must send the information to the prospective adopters and then meet with them to discuss (i) the information, (ii) the proposed placement and (iii) the availability of adoption support services. If appropriate, the adoption agency must also offer a counselling service and further information as required.
It is important that these procedures are followed correctly. If not, the adoption agency will not be able later to confirm to the Scottish Government that all the proper steps have been taken and the Scottish Government will not be able to agree with the Central Authority in the State of origin of the child (in accordance with Article 17 of the Convention) that the adoption may proceed under the terms of the Convention.
Occasionally, prospective adopters or their adoption agency have received matching information directly from the State of origin of the child. If that were to happen and the prospective adopters were then to act on the information received, there is a risk that the adoption may then no longer meet the requirements of the Regulations or the Hague Convention. If prospective adopters receive information directly, they should immediately notify their adoption agency and the Scottish Government. It will be necessary for them to wait for information about the child to be sent to them by their UK adoption agency, once the agency has received the information from the Scottish Government. In cases where the information is initially misrouted, the the Scottish Government contacts the Central Authority in the State of origin to request that they provide the information directly to the Scottish Government, thus ensuring that the requirements of the Convention may be met; the information will then be passed on as required by the Regulations.
Meeting the child and 'entrustment'
Once the matching information has been received and discussed by the adoption agency with the prospective adopters as described above, the prospective adopters may then visit the child in the State of origin. The Regulations say that, in the case of adoptions by couples, each prospective adopter must visit the child in his/her State of origin (regulation 21(3)(b)) but both prospective adopters do not need to visit the child at the same time.
Meeting the child
Meeting the child with whom the prospective adopters have been matched is likely to be very exciting, and they are understandably often keen to complete the adoption process as quickly as possible thereafter. However, it is important that prospective adopters do not have the child 'entrusted' to them as a result of these initial visits to/meetings with, the child. Before this happens, the Scottish Government and the Central Authority in the State of origin must have formally agreed in writing that the adoption may proceed (this is called an Article 17(c) agreement) before any decision to entrust the child with prospective adopters is taken.
After the prospective adopters' visit to the child, they must confirm in writing to the adoption agency:
(i) that they have visited the child,
(ii) whether or not they have received any additional information and reports about the child and, if so, provide copies of them; and
(iii) whether they wish to proceed to adopt the child.
It is only when the adoption agency has received the prospective adopters' written confirmation that it will be able to notify the Scottish Government in writing that the procedural requirements up to this point have been met and that it is content for the adoption to proceed. It is only when the Scottish Government receives this confirmation from the adoption agency that it can enter into an Article 17(c) agreement with the Central Authority in the State of origin (see regulation 21(4)).
Article 17 of the Hague Convention says that any decision that "a child should be entrusted to prospective adopters" may only be made if various conditions are satisfied. One of those conditions, Article 17(c), is that the Central Authorities in both countries involved in the adoption have each agreed that the adoption may proceed. The Scottish Government will act promptly to conclude an Article 17(c) agreement with the Central Authority in the State of origin once it receives written confirmation from the adoption agency that the necessary steps up to that point have been properly taken. DCSF will notify both the prospective adopters and the adoption agency in writing as soon as the Article 17(c) agreement has been made (regulation 21(5) of the Regulations). Only after this has happened can a decision to entrust the child to the prospective adopters be taken.
A 'decision to entrust' a child may take the form of a decision by those caring for the child to hand over the child to the prospective adopters (for an overnight stay or longer period). It may also take the form of a court order made in favour of the prospective adopters. In either case, it is essential that the Article 17(c) agreements are exchanged before the decision to entrust the child takes place. Once the agreements have been made it is then acceptable, for example, for the child to be placed with the prospective adopters on an overnight or longer basis, pending a court hearing. If the child is entrusted to prospective adopters before the Article 17(c) agreement is made it will not be possible for the adoption to be effected or recognised under the Hague Convention. Therefore, prospective adopters need to resist any pressure from agencies, institutions or authorities abroad to accept the child into their care (whether overnight or for a longer period) before having received confirmation from the Scottish Government that an Article 17(c) agreement has been made. It is also important that they bear in mind the need to have received this confirmation when seeking to set the date for relevant court (or other determinative) hearings.
Collecting the child/obtaining an adoption order
Once the prospective adopters have received confirmation from the Scottish Government that the agreement required by Article 17(c) has been made, they may then obtain a court order and/or receive the child into their care.
After the Article 17(c) agreement has been made, the prospective adopters must:
(i) notify their adoption agency (preferably in writing, and as soon as possible) of their expected date of entry into the UK with the child,
(ii) confirm to their adoption agency when they have received the child into their care, and
(iii) accompany the child into the UK unless, in the case of a couple, their adoption agency and the Central Authority in the State of origin have agreed that it is acceptable for only one of them to do so.
Completion of the adoption: certification under the Hague Convention
When the adoption order is made or, in the case of an interim order, becomes a final order, the relevant authority in the country in which the adoption order has been made will issue a certificate under Article 23 of the Hague Convention. This certifies that the adoption was made in accordance with the Hague Convention and, in particular, states the date on which agreement was made under Article 17(c) and by whom the agreement was made. The Hague Convention requires all States that have signed the Convention to recognise adoptions which have been certified under Article 23.
Recognition of Hague Convention adoption and obtaining British citizenship for the child
An adoption order made abroad which is validly certified by the relevant foreign authority under Article 23 of the Hague Convention is recognised under UK law, i.e. adopters will be recognised as the parent(s) of the child without the need for them also to obtain an adoption order in a UK court. If (i) the adopter or, in the case of a joint adoption, one of the adopters is a British citizen and (ii) the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the UK (or a territory designated for the purposes of the British Nationality Act 1981), then the child will automatically acquire British citizenship when the adoption is validly certified, by the issuing of an Article 23 certificate, as having been effected in accordance with the Hague Convention.
Where an adoption order is made abroad and an Article 23 certificate issued in the State of origin of the child, the adopters can then obtain a British passport for the child at the local British Embassy. (The Home Office website, www.ind.homeoffice.gov.uk, sets out more information on immigration and nationality procedures). Until a full adoption order is made, whether in the State of origin or in the UK, an Article 23 certificate will not be issued.
After return to the UK with the child - notifying the local authority
It is important to bear in mind that if a full adoption order has not been made (and, hence, an Article 23 certificate from the State of origin has not yet been issued), the prospective adopters are required within 14 days of the child's entry into the UK to notify their local authority of the child's arrival in the UK.
If the prospective adopters do not have an interim adoption order from the state of origin (which is expected in due course to become a full adoption order), they must at the same time also notify their local authority of their intention to apply to the Scottish courts for an adoption order in accordance with section 28(2) of the Adoption and Children Act 2002. In the unhappy event that they do not after all intend to give the child a home, regulation 24 of the Regulations also requires that they must notify their local authority of this.
The local authority is required to monitor the child's placement (whether as a private fostering arrangement and/or as a pre-adoptive placement) until it comes to an end, usually through the making of a full adoption order (regulation 27). The local authority will be able to provide advice about the relevant monitoring requirements, and prospective adopters should confirm with their local authority what notification is required in respect of private fostering arrangements. Advice about the eligibility and procedural requirements for applying for an adoption order in the UK may also be sought from the relevant adoption agency.
If, having given the notification described above, the prospective adopters move home to the area of another local authority before obtaining a full adoption order, they must also confirm to their new local authority, in writing within 14 days of the move, that the child has entered the UK and that they have notified another local authority of their intention to apply for an adoption order or, alternatively, their intention not to give the child a home.
Failure to provide any of the notifications mentioned in the above four paragraphs is a criminal offence.
Some countries require post-placement reports on the child, particularly where interim adoption orders have been made. Where an adoption is intended to be completed in the State of origin after a probationary period, the responsible local authority must prepare any reports requested by the relevant Central Authority (regulation 32).
Consequences of the adoption not proceeding under the Hague Convention
If the adoption is not capable of being completed under the terms of the Hague Convention, the consequences will vary, depending on the country from which the child is being adopted.
Designated List adoptions
Adoptions in some countries are recognised automatically in the UK, in addition to the recognition given to Hague Convention adoptions. These countries are set out in the 'designated list' - see the end of this sheet. If adopters have obtained an adoption order effected under the law in force in one of these countries (but not an adoption obtained through the other country's common law or 'customary law'), they do not need also to obtain a UK adoption order in order for their adoption to be recognised by UK law. However, the child will not automatically have acquired British citizenship through this process, which means that adopters would need separately to apply to the Home Office to seek British citizenship for their child.
Non-Designated List adoptions
If the country from which the child is being adopted is not on the designated list, prospective adopters will need to obtain a UK adoption order if the adoption is to be recognised by UK law. This will mean that they will need to follow the relevant further procedures, which will incur additional costs and take more time before the child can be recognised in law as being a full member of the adopters' family. Prospective adopters may need to seek further advice, about the process of applying for an adoption order in the UK courts, from their adoption agency. An adoption order made in a UK court confers British citizenship on the child if (i) the adopter or, in the case of a joint adoption, one of the adopters is a British citizen and (ii) the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the UK (or a territory designated for the purposes of the British Nationality Act 1981).
Entry clearance for the child
Whether the country is on the designated list or not, adopters will need to obtain entry clearance for the child at the nearest British Embassy before returning to the UK with the child following the adoption in the State of origin. Had the adoption been recognised under the Hague Convention, they would, as noted above, have been able to obtain the child's passport at the British Embassy, in the State of origin, following the adoption.
Non-compliance
Additionally, UK adoption law imposes separate procedural requirements in non-Hague Convention cases; in some circumstances, non-compliance with these requirements may constitute a criminal offence. Here again, those in this position may need to seek advice from their adoption agency, about non-Hague Convention procedural requirements, if they have any concerns that their adoption might not be capable of being completed under the Hague Convention.
Further references
The Regulations can be found at http://www.opsi.gov.uk/legislation/scotland/ssi2009/ssi_20090182_en_1
The Adoption and Children (Scotland) Act 2007 can be found at http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070004_en_1.htm
Further information can be found on our website at http://www.scotland.gov.uk/Topics/People/Young-People/children-families/17972/10959
The Hague Convention may be found at http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=69.
Information on immigration requirements may be found in the Home Office leaflet "Inter-country Adoption and the Immigration Rules" which is available at http://www.ind.homeoffice.gov.uk/sitecontent/documents/residency/intercountryadoption.pdf
The 'designated list': countries listed in the Adoption (Designation of Overseas Adoptions) Order 1973
Commonwealth countries
Australia, Bahamas, Barbados, Belize, Bermuda, Botswana, British Virgin Islands, Canada, Cayman Islands, Cyprus, Dominica, Fiji, Ghana, Gibraltar, Guyana, Hong Kong, Jamaica, Kenya, Lesotho, Malawi, Malaysia, Malta, Mauritius, Montserrat, Namibia, New Zealand, Nigeria, Pitcairn Island, St. Christopher, Nevis and Anguilla, St. Vincent, Seychelles, Singapore, South Africa, Sri Lanka, Swaziland, Tanzania, Tonga, Trinidad and Tobago, Uganda, Zambia, Zimbabwe
Foreign countries
Austria, Belgium China, Denmark (including Greenland and the Faroes), Finland, France (including Reunion, Martinique, Guadeloupe and French Guyana), Germany (but not adoptions effected in East Germany prior to reunification),Greece, Iceland, The Republic of Ireland, Israel, Italy, Luxembourg, The Netherlands (including the Antilles), Norway, Portugal (including the Azores and Madeira), Spain (including the Balearics and Canary Islands), Surinam, Sweden, Switzerland, Turkey, United States of America, Yugoslavia (but none of the States which make up the former Yugoslavia)