What is intercountry adoption?
An intercountry adoption is an adoption of a child who is habitually resident in one country by an individual or couple who are habitually resident in another country. The principles of intercountry adoption which are enshrined in the relevant international conventions to which the UK is a signatory are as follows:
- children who cannot live with their birth parents should be given the opportunity to live as part of a permanent family in their country of birth wherever possible;
- intercountry adoption may be considered as an alternative means of providing a permanent family for a child who cannot be cared for in a suitable manner in his or her own country;
- intercountry adoption should only take place where it is in the best interests of the child and with respect for his or her fundamental rights;
- safeguards and standards equivalent to those which apply in domestic adoption should be applied in intercountry adoption to protect the welfare of the child; • intercountry adoption should only take place after the birth mother has given her informed consent to adoption after the birth of the child; and
- profit should not be made from the process.
What does UK law require for adoption?
Adoption legislation governing the bringing of children into the UK applies to all prospective adopters habitually resident1 in the British Islands, irrespective of their nationality. Briefly, UK law will require:
- assessment by an adoption agency of the prospective adopters’ suitability to adopt a child;
- the issue of a certificate;
- the prospective adopters, and others, to take various steps – these will depend on the circumstances of a particular case.
Prospective adopters who fail to comply with the relevant requirements commit an offence.
Types of intercountry adoption
There are three main types of intercountry adoptions: ‘Hague Convention’, ‘Designated List’ and ‘Other’. Briefly:
Hague Convention adoptions are intercountry
adoptions to the UK from a country in which the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
(“the Hague Convention”) is in force, and which are processed and certified in accordance with the Hague Convention. The purpose of the Hague Convention is to establish safeguards to protect the best interests of children and to produce a system of co-operation between countries to prevent child trafficking. The UK implemented the Hague Convention on 1 June 2003. Hague Convention adoptions made overseas are recognised in UK law, and there is no need to readopt the child in the UK. Hague Convention adoptions also result in British citizenship for the child if, at the time of the adoption, the prospective adopters are habitually in the British Islands and at least one of the prospective adopters is a British citizen. Detailed information on the process for Hague Convention adoptions is available on the frequently asked questions section of the DCSF website: www.dcsf.gov.uk/intercountryadoption Where the UK has objected to a country’s accession to the Hague Convention, the Hague Convention is not then ‘in force’ between the two countries. Relevant information is available on the Hague Conference (www.hcch.net) website.
Designated List adoptions
Adoptions in countries listed in the Adoption (Designation of Overseas Adoptions) Order 1973 (commonly known as ‘the designated list’) are recognised in UK law and there is, therefore, no need to readopt the child in the UK for the adoption to be recognised here. However, a separate application will need to be made for British citizenship for the child. Decisions on the granting of citizenship are at the discretion of the Home Secretary. The countries on the designated list can be found on the frequently asked questions section of the DCSF website. 3) ‘Other’. An overseas adoption is not recognised in the UK if it is not a Hague Convention adoption or made in a country on the designated list. The adopter(s) will need to apply for an adoption order in the UK. An adoption order made in a UK court confers British citizenship on the child if the adopters, or one of them, is a British citizen.
Other adoptions
Adoption in any other circumstances will not result in the adopted child acquiring British citizenship automatically. The child can only acquire citizenship will be through registration under section 3(1) of the British Nationality Act 1981. Registration under this section is entirely at the discretion of the Home Secretary.
Where the child was adopted:
- before 3 January 2014 in a ‘designated country’
- after 3 January 2014 in a country that is listed in the Adoption (Recognition of Overseas Adoptions) Order 2013 or the Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013 and the Adoption (Recognition of Overseas Adoptions) (Scotland) Amendment Regulations
- through a Hague Convention adoption
an application will normally be approved if each of the following criteria is satisfied:
- at least one of the adoptive parents is a British citizen otherwise than by descent (i.e. by virtue of his or her birth, adoption, registration or naturalisation in the United Kingdom)
- the adoptive parents have consented to the registration
- there is no reason to refuse registration on grounds of the child’s character
- the Home Secretary is satisfied that all relevant adoption laws have been complied with. This includes the laws of the country in which the adoption has taken place, the country of origin of the child and the country in which the adoptive parents are habitually resident
- the Home Secretary is satisfied that the adoption is not one of convenience arranged to facilitate the child’s admission to the United Kingdom
Adoptions before 3 January 2014 in countries that were not on the designated list, or after 3 January 2014 in countries that are not recognised in UK law in accordance with the legislation listed above, and which are not Hague Convention adoptions, are not recognised in UK law. Applications for registration in these circumstances would normally be refused.
Registration under Section 3(1) of the British Nationality Act confers ‘British citizenship other than by descent’ upon the child. This is the same status as if they had been born in the UK to a British citizen parent. This means that they can pass on British citizenship to any children they have.
Application forms are available on Home Office website. Information about how to apply and where to send the application is in Guide MN1.
British citizens are not subject to control under UK immigration legislation, but they must be able to prove their status when seeking admission to this country. This may be done by producing either a UK passport which describes the holder as a British citizen or a certificate of entitlement to the right of abode.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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