Couples or individuals who are unable to conceive naturally may wish to consider adopting a child. In today’s globalised world, international or overseas adoption is becoming more common. Where an adoption takes place overseas, it is important to be aware of and consider in advance the legal requirements for recognition of the adoption in Scotland.
Not all overseas adoptions are recognised in Scotland. A list of nations in which foreign adoptions are automatically recognised is contained in the Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013. Included in this list are the British Isles and countries that are signatories to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (“the Hague Convention”).
The law differentiates between “Hague Convention” adoptions and “other” adoptions, so it is important to note whether the country you seek to adopt a child from is a country which is listed in the Hague Convention. If it is not, there is a different procedure that applies.
The Hague Convention
The Hague Convention regulates adoption between signatory states. It applies where the adopted child is habitually resident in one of these states, and the adopter/s are habitually resident in another contracting state (e.g. the UK).
Those wishing to adopt should apply to the Central Authority in the State of their habitual residence to commence the process for overseas adoption. For Scottish residents, the Scottish Government is the Central Authority.
There are various pieces of legislation in Scotland that apply to overseas adoptions which prospective adopters should be aware of. These are:
- Adoption and Children (Scotland) Act 2007
- The Adoption (Intercountry Aspects) Act 1999
- Adoption with a Foreign Element (Scotland) Regulations 2009
These pieces of legislation regulate a variety of matters such as a couple or individual’s eligibility to adopt. Currently in Scotland, you must be 21 years of age to be an adopter. The adopter/s must be habitually resident in the receiving State (i.e. the country where the child is to be brought to – Scotland) for at least 1 year as at the date of the application.
If you meet these general eligibility requirements, you can apply to an adoption agency for a suitability assessment. This assessment will include a police record check, and medical checks with your consent. Further checks include social work checks, personal and professional references, as well as a health and safety check of your home. The adoption agency will then prepare a written report and notify the prospective adopter as to whether they can proceed. You should expect that this assessment may take up to 6 months for completion.
A child must be under the age of 18 to be adopted. Under the Hague Convention, it must be established that the child has been freely given up for adoption in their home country, or the country in which they hold habitual residence. It must be demonstrated that the adoption has not been subject to any payment or financial compensation. Most importantly, it must be in the child’s best interests that an intercountry adoption proceeds. A consideration that will be taken into account is whether separation from their country of original and their familial ties there is ultimately in their best interests.
Other Adoptions
If you are seeking to adopt a child from a country that is not a signatory to the Hague Convention, you should consider the adoption processes in both Scotland and the country from which you seek to adopt the child from. A separate legal process applies, and it is important that you contact the Central Authority and your local council for guidance before you embark on any steps in this regard.
It may be the case that there are rules in the child’s home country, or country of habitual residence at the time of the application, that restrict who may be an adopter. For instance, the laws of that country might consider a prospective adopter’s marital status, health, or sexual orientation in an assessment as to their suitability to adopt. It is important that you conduct thorough research into the country from which you may adopt from.
Immigration Considerations
For all overseas and intercountry adoptions, there is the added complexity of immigration. It is important that you take immigration advice at the outset to ensure you are aware of all aspects of the immigration process that would allow you to bring an adopted child into Scotland. It is also important for you to take legal advice from an immigration solicitor as to the child’s continued right to remain in the UK.
For Hague Convention adoptions, the acquiring of British citizenship is different to that of other adoptions. It is important that before a child is brought into the UK, that immigration advice is sought.
Court Process
After an assessment has been carried out and an adoption agency has deemed you suitable as an adopter, and matters have progressed, prospective adoptees should be considering the legal adoption orders that they require to obtain in Scotland.
An adoption order can be sought from the court when the child has been legally brought to Scotland. Our solicitors would be able to assist you with making an application for this order. In order to seamline and safeguard your position, it may be worthwhile speaking with a family law solicitor before commencing the adoption process to ensure that you are aware of your rights and responsibilities as you embark on your adoption journey.
Should you wish to discuss any of the above, please get in touch with our team and one of our family solicitors will be able to meet with you to advise you on your options.
DISCLAIMER
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.