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	United Kingdom Statutory Instruments
You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Adoptions with a Foreign Element Regulations 2005 No. 392 URL: http://www.bailii.org/uk/legis/num_reg/2005/20050392.html

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"the Agencies Regulations" means the Adoption Agencies Regulations 2005[4];

"child's case record" has the same meaning as in regulation 12 of the Agencies Regulations or corresponding Welsh provision;

"CA of the receiving State" means, in relation to a Convention country other 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;

"Convention adoption" is given a meaning by virtue of section 66(1)(c) of the Act;

"Convention country" has the same meaning as in section 144(1) of the Act;

"Convention list" means - 

(a) in relation to a relevant Central Authority, a list of children notified to that Authority in accordance with regulation 40; or

(b) in relation to any other Central Authority within the British Islands, a list of children notified to that Authority in accordance with provisions, which correspond to regulation 40.

"corresponding Welsh provision" in relation to a Part or a regulation of the Agencies Regulations means the provision of regulations made by the Assembly under section 9 of the Act which corresponds to that Part or regulation;

"prospective adopter's case record" has the same meaning as in regulation 22(1) of the Agencies Regulations or corresponding Welsh provision;

"prospective adopter's report" has the same meaning as in regulation 25(5) of the Agencies Regulations or corresponding Welsh provisions;

"receiving State" has the same meaning as in Article 2 of the Convention[5];

"relevant Central Authority"[6] means - 

(c) in Chapter 1 of Part 3, in relation to a prospective adopter who is habitually resident in - 


(i) England, the Secretary of State; and

(ii) Wales, the National Assembly for Wales; and



(d) in Chapter 2 of Part 3 in relation to a local authority in - 



(i) England, the Secretary of State; and

(ii) Wales, the National Assembly for Wales;

"relevant local authority" means in relation to a prospective adopter - 

(a) the local authority within whose area he has his home; or

(b) in the case where he no longer has a home in England or Wales, the local authority for the area in which he last had his home;

"relevant foreign authority" means a person, outside the British Islands performing functions in the country in which the child is, or in which the prospective adopter is, habitually resident which correspond to the functions of an adoption agency[7] or to the functions of the Secretary of State in respect of adoptions with a foreign element;

"State of origin" has the same meaning as in Article 2 of the Convention.

(a) apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and

(b) give the adoption agency any information it may require for the purpose of the assessment[8].

Conditions applicable in respect of a child brought into the United Kingdom
     4.  - (1) This regulation prescribes the conditions for the purposes of section 83(5) of the Act in respect of a child brought into the United Kingdom in circumstances where section 83 applies[9].

    (2) Prior to the child's entry into the United Kingdom, the prospective adopter must - 

(a) receive in writing, notification from the Secretary of State that she has issued a certificate confirming to the relevant foreign authority - 


(i) that the person has been assessed and approved as eligible and suitable to be an adoptive parent in accordance with Part 4 of the Agencies Regulations or corresponding Welsh provision; 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 adoption[10] is effected, the child will be authorised to enter and reside permanently in the United Kingdom;



(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) meet with the adoption agency to discuss the proposed adoption and information received from the relevant foreign authority;



(c) visit the child in the State of origin (and where the prospective adopters are a couple each of them); and

(d) after that visit - 



(i) confirm in writing to the adoption agency that he has done so and wishes 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 his expected date of entry into the United Kingdom with the child.

    (3) The prospective adopter must accompany the child on entering the United Kingdom unless, in the case of a couple, 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 adopter 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) of the child's arrival in the United Kingdom; and

(b) of his intention - 


(i) to apply for an adoption order in accordance with section 44(2) of the Act; or

(ii) not to give the child a home.

    (5) In a case where a prospective adopter has given notice in accordance with paragraph (4) and subsequently moves his home into the area of another local authority, he must within 14 days of that move confirm in writing to that authority, the child's entry into the United Kingdom and that notice of his intention - 

(a) to apply for an adoption order in accordance with section 44(2) of the Act has been given to another local authority; or

(b) not to give the child a home,

has been given.

Functions imposed on the local authority
     5.  - (1) Where notice of intention to adopt has been given to the local authority, that authority must - 

(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 the - 


(i) relevant foreign authority;

(ii) adoption agency, if it is not the local authority;

(iii) prospective adopter;

(iv) entry clearance officer; and

(v) Secretary of State, or as the case may be, the Assembly;



(b) send the prospective adopter's general practitioner written notification of the arrival in England or Wales of the child and send with that notification a written report of the child's health history and current state of health, so far as is known;

(c) send to the Primary Care Trust or Local Health Board (Wales), in whose area the prospective adopter has his home, written notification of the arrival in England or Wales of the child;

(d) where the child is of compulsory school age, send to the local education authority, in whose area the prospective adopter has his home, written notification of the arrival of the child in England or Wales and information, if known, about the child's educational history and whether he is likely to be assessed for special educational needs under the Education Act 1996[11];

(e) ensure that the child and the prospective adopter are visited within one week of receipt of the notice of intention to adopt and thereafter not less than once a week until the review referred to in sub-paragraph (f) and thereafter at such frequency as the authority may decide;

(f) carry out a review of the child's case not more than 4 weeks after receipt of the notice of intention to adopt and - 



(i) visit and, if necessary, review not more than 3 months after that initial review; and

(ii) thereafter not more than 6 months after the date of the previous visit,



unless the child no longer has his home with the prospective adopter or an adoption order is made;



(g) when carrying out a review consider - 


(i) the child's needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development;

(ii) the arrangements for the provision of adoption support services and whether there should be any re-assessment of the need for those services; and

(iii) the need for further visits and reviews; and



(h) ensure that - 



(i) advice is given as to the child's needs, welfare and development;

(ii) written reports are made of all visits and reviews of the case and placed on the child's case record; and

(iii) on such visits, where appropriate, advice is given as to the availability of adoption support services.

    (2) Part 7 of the Agencies Regulations or corresponding Welsh provision (case records) shall apply to the case record set up in respect of the child as a consequence of this regulation as if that record had been set up under the Agencies Regulations or corresponding Welsh provision.

    (3) In a case where the prospective adopter fails to make an application under section 50 or 51 of the Act within two years of the receipt by a local authority of the notice of intention to adopt the local authority must review the case.

    (4) For the purposes of the review referred to in paragraph (3), the local authority must consider - 

(a) the child's needs, welfare and development, and whether any changes need to be made to meet his needs or assist his development;

(b) the arrangements, if any, in relation to the exercise of parental responsibility for the child;

(c) the terms upon which leave to enter the United Kingdom is granted and the immigration status of the child;

(d) the arrangements for the provision of adoption support services for the adoptive family and whether there should be any re-assessment of the need for those services; and

(e) in conjunction with the appropriate agencies, the arrangements for meeting the child's health care and educational needs.

    (5) In a case where the local authority to which notice of intention to adopt is given ("the original authority") is notified by the prospective adopter that he intends to move or has moved his home into the area of another local authority, the original authority must notify the local authority into whose area the prospective adopter intends to move or has moved, within 14 days of receiving information in respect of that move, of - 

(a) the name, sex, date and place of birth of child;

(b) the prospective adopter's name, sex and date of birth;

(c) the date on which the child entered the United Kingdom;

(d) where the original authority received notification of intention to adopt, the date of receipt of such notification whether an application for an adoption order has been made and the stage of those proceedings; and

(e) any other relevant information.

Application of Chapter 3 of the Act
     6. In the case of a child brought into the United Kingdom for adoption in circumstances where section 83 of the Act applies - 

(a) the modifications in regulations 7 to 9 apply;

(b) section 36(2) and (5) (restrictions on removal) and section 39(3)(a) (partners of parents) of the Act shall not apply.

Change of name and removal from the United Kingdom
     7. Section 28(2) of the Act (further consequences of placement) shall apply as if from the words "is placed" to "then", there is substituted "enters the United Kingdom in the circumstances where section 83(1)(a) of this Act applies".

Return of the child
     8.  - (1) Section 35 of the Act (return of child) shall apply with the following modifications.

    (2) Subsections (1), (2) and (3) shall apply as if in each place where - 

(a) the words "is placed for adoption by an adoption agency" occur there were substituted "enters the United Kingdom in circumstances where section 83(1) applies";

(b) the words "the agency" occur there were substituted the words "the local authority"; and

(c) the words "any parent or guardian of the child" occur there were substituted "the Secretary of State or, as the case may be, the Assembly".

    (3) Subsection (5) shall apply as if for the words "an adoption agency" or "the agency" there were substituted the words "the local authority".

Child to live with adopters before application
     9.  - (1) In a case where the requirements imposed by section 83(4) of the Act have been complied with and the conditions required by section 83(5) of the Act have been met, section 42 shall apply as if - 

(a) subsection (3) is omitted; and

(b) in subsection (5) the words from "three years" to "preceding" there were substituted "six months".

    (2) In a case where the requirements imposed by section 83(4) of the Act have not been complied with or the conditions required by section 83(5) have not been met, section 42 shall apply as if - 

(a) subsection (3) is omitted; and

(b) in subsection (5) the words from "three years" to "preceding" there were substituted "twelve months".

Application of the Act in respect of orders under section 84
     11.  - (1) The following provisions of the Act which refer to adoption orders shall apply to orders under section 84 as if in each place where the words "adoption order" appear there were substituted "order under section 84" - 

(a) section 1(7)(a) (coming to a decision relating to adoption of a child);

(b) section 18(4) (placement for adoption by agencies);

(c) section 21(4)(b) (placement orders);

(d) section 22(5)(a) and (b) (application for placement orders);

(e) section 24(4) (revoking placement orders);

(f) section 28(1) (further consequences of placement);

(g) section 29(4)(a) and (5)(a) (further consequences of placement orders);

(h) section 32(5) (recovery by parent etc. where child placed and consent withdrawn);

(i) section 42(7) (sufficient opportunity for adoption agency to see the child);

(j) section 43 (reports where child placed by agency);

(k) section 44(2) (notice of intention to adopt);

(l) section 47(1) to (5), (8) and (9) (conditions for making orders);

(m) section 48(1) (restrictions on making applications);

(n) section 50(1) and (2) (adoption by a couple);

(o) section 51(1) to (4) (adoption by one person);

(p) section 52(1) to (4) (parental etc. consent);

(q) section 53(5) (contribution towards maintenance); and

(r) section 141(3) and (4)(c) (rules of procedure).

    (2) Section 35(5) of the Act (return of child in other cases) shall apply to orders under section 84 of that Act as if in paragraph (b) of that subsection - 

(a) for the first reference to "adoption order" there were substituted "order under section 84(1)"; and

(b) the words in brackets were omitted.

Counselling and information
     14.  - (1) An adoption agency must provide a counselling service in accordance with regulation 21(1)(a) of the Agencies Regulations or corresponding Welsh provision and must - 

(a) explain to the prospective adopter the procedure in relation to, and the legal implications of, adopting a child from the State of origin from which the prospective adopter wishes to adopt in accordance with the Convention; and

(b) provide him with written information about the matters referred to in sub-paragraph (a).

    (2) Paragraph (1) does not apply if the adoption agency is satisfied that the requirements set out in that paragraph have been carried out in respect of the prospective adopter by another agency.

Procedure in respect of carrying out an assessment
     15.  - (1) Regulation 22 of the Agencies Regulations (requirement to consider application for an assessment of suitability) or corresponding Welsh provision shall apply as if the reference to an application in those Regulations or corresponding Welsh provision was to an application made in accordance with regulation 13.

    (2) Where the adoption agency is satisfied that the requirements in - 

(a) regulation 14; and

(b) regulations 23 (police checks) and 24 (preparation for adoption) of the Agencies Regulations or corresponding Welsh provision,

have been meet, regulations 25 (prospective adopter's report) and 26 (adoption panel) of the Agencies Regulations or corresponding Welsh provisions shall apply.

    (3) The adoption agency must place on the prospective adopter's case record any information obtained as a consequence of this Chapter[13].

    (4) The adoption agency must include in the prospective adopter's report - 

(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.

    (5) The references to information in regulations 25(5) and 26(2) of the Agencies Regulations or corresponding Welsh provisions shall include information obtained by the adoption agency or adoption panel as a consequence of this regulation.

Adoption agency decision and notification
     16. The adoption agency must make a decision about whether the prospective adopter is suitable to adopt a child in accordance with regulation 27 of the Agencies Regulations and regulations made under section 45 of the Act, or corresponding Welsh provisions.

Review and termination of approval
     17. The adoption agency must review the approval of each prospective adopter in accordance with regulation 29 of the Agencies Regulations or corresponding Welsh provision unless the agency has received written notification from the relevant Central Authority that the agreement under Article 17(c) of the Convention[14] has been made.

Procedure following decision as to suitability to adopt
     18.  - (1) Where an adoption agency has made a decision that the prospective adopter is suitable to adopt a child in accordance with regulation 16, it must send to the relevant Central Authority - 

(a) written confirmation of the decision and any recommendation the agency may make in relation to the number of children the prospective adopter may be suitable to adopt, their age range, sex, likely needs and background;

(b) the enhanced criminal record certificate obtained under regulation 23 of the Agencies Regulations or corresponding Welsh provision;

(c) all the documents and information which were passed to the adoption panel in accordance with regulation 25(9) of the Agencies Regulations or corresponding Welsh provision;

(d) the record of the proceedings of the adoption panel, its recommendation and the reasons for its recommendation; and

(e) any other information relating to the case as the relevant Central Authority or the CA of the State of origin may require.

    (2) If the relevant Central Authority is satisfied that the adoption agency has complied with the duties and procedures imposed by the Agencies Regulations or corresponding Welsh provision, and that all the relevant information has been supplied by that agency, the Authority must send to the CA of the State of origin - 

(a) the prospective adopter's report prepared in accordance with regulation 25 of the Agencies Regulations or corresponding Welsh provision;

(b) the enhanced criminal record certificate;

(c) a copy of the adoption agency's decision and the adoption panel's recommendation;

(d) any other information that the CA of the State of origin may require; and

(e) a certificate in the form set out in Schedule 1 confirming that the - 


(i) prospective adopter is eligible to adopt;

(ii) prospective adopter has been assessed in accordance with this Chapter;

(iii) prospective adopter has been approved as suitable to adopt a child; and

(iv) child will be authorised to enter and reside permanently in the United Kingdom if entry clearance, and leave to enter or remain as may be necessary, is granted and not revoked or curtailed and a Convention adoption order or Convention adoption[15] is made.

    (3) The relevant Central Authority must notify the adoption agency and the prospective adopter in writing that the certificate and the documents referred to in paragraph (2) have been sent to the CA of the State of origin.

Procedure following receipt of the Article 16 Information from the CA of the State of origin
     19.  - (1) Where the relevant Central Authority receives from the CA of the State of origin, the Article 16 Information relating to the child whom the CA of the State of origin considers should be placed for adoption with the prospective adopter, the relevant Central Authority must send that Information to the adoption agency.

    (2) The adoption agency must consider the Article 16 Information and - 

(a) send that Information to the prospective adopter;

(b) meet with him to discuss - 


(i) that Information;

(ii) the proposed placement;

(iii) the availability of adoption support services; and



(c) if appropriate, offer a counselling service and further information as required.

    (3) Where - 

(a) the procedure in paragraph (2) has been followed;

(b) the prospective adopter (and where the prospective adopters are a couple each of them) has visited the child in the State of origin; and

(c) after that visit to the child, the prospective adopter has confirmed in writing to the adoption agency that - 


(i) he has visited the child;

(ii) he has provided the adoption agency with additional reports and information received on or after that visit; and

(iii) he wishes to proceed to adopt that child,



the agency must notify the relevant Central Authority in writing that the requirements specified in sub-paragraphs (a) to (c) have been satisfied and at the same time it must confirm that it is content for the adoption to proceed.

    (4) Where the relevant Central Authority has received notification from the adoption agency under paragraph (3), the relevant Central Authority shall - 

(a) notify the CA of the State of origin that - 


(i) the prospective adopter wishes to proceed to adopt the child;

(ii) it is prepared to agree with the CA of the State of origin that the adoption may proceed; and



(b) confirm to the CA of the State of origin that - 



(i) in the case where the requirements specified in section 1(5A) of the British Nationality Act 1981[16] are met that the child will be authorised to enter and reside permanently in the United Kingdom; or

(ii) in any other case, if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed and a Convention adoption order or a Convention adoption is made, the child will be authorised to enter and reside permanently in the United Kingdom.

    (5) The relevant Central Authority must inform the adoption agency and the prospective adopter when the agreement under Article 17(c) of the Convention has been made.

    (6) For the purposes of this regulation and regulation 20 "the Article 16 Information" means - 

(a) the report referred to in Article 16(1) of the Convention including information about the child's identity, adoptability, background, social environment, family history, medical history including that of the child's family and any special needs of the child;

(b) proof of confirmation that the consents of the persons, institutions and authorities whose consents are necessary for adoption have been obtained in accordance with Article 4 of the Convention; and

(c) the reasons for the CA of the State of origin's determination on the placement.

Procedure where proposed adoption is not to proceed
     20.  - (1) If, at any stage before the agreement under Article 17(c) of the Convention is made, the CA of the State of origin notifies the relevant Central Authority that it has decided the proposed placement should not proceed - 

(a) the relevant Central Authority must inform the adoption agency of the CA of the State of origin's decision;

(b) the agency must then inform the prospective adopter and return the Article 16 Information to the relevant Central Authority; and

(c) the relevant Central Authority must then return those documents to the CA of the State of origin.

    (2) Where at any stage before the adoption agency receives notification of the agreement under Article 17(c) of the Convention the approval of the prospective adopter is reviewed under regulation 29 of the Agencies Regulations or corresponding Welsh provision, and as a consequence, the agency determines that the prospective adopter is no longer suitable to adopt a child - 

(a) the agency must inform the relevant Central Authority and return the documents referred to in regulation 19(1);

(b) the relevant Central Authority must notify the CA of the State of origin and return those documents.

    (3) If, at any stage before the child is placed with him, the prospective adopter notifies the adoption agency that he does not wish to proceed with the adoption of the child - 

(a) that agency must inform the relevant Central Authority and return the documents to that Authority; and

(b) the relevant Central Authority must notify the CA of the State of origin of the prospective adopter's decision and return the documents to the CA of the State of origin.

Applicable requirements in respect of prospective adopter entering the United Kingdom with a child
     21. Following any agreement under Article 17(c) of the Convention, the prospective adopter must - 

(a) notify the adoption agency of his expected date of entry into the United Kingdom with the child;

(b) confirm to the adoption agency when the child is placed with him by the competent authority in the State of origin; and

(c) accompany the child on entering the United Kingdom unless, in the case of a couple, the adoption agency and the CA of the State of origin have agreed that it is necessary for only one of them to do so.

Applicable requirements in respect of an adoption agency before the child enters the United Kingdom
     22. Where the adoption agency is informed by the relevant Central Authority that the agreement under Article 17(c) of the Convention has been made and the adoption may proceed, before the child enters the United Kingdom that agency must - 

(a) send the prospective adopter's general practitioner written notification of the proposed placement and send with that notification a written report of the child's health history and current state of health, so far as it is known;

(b) send the local authority (if that authority is not the adoption agency) and the Primary Care Trust or Local Health Board (Wales), in whose area the prospective adopter has his home, written notification of the proposed arrival of the child into England or Wales; and

(c) where the child is of compulsory school age, send the local education authority, in whose area the prospective adopter has his home, written notification of the proposed arrival of the child into England or Wales and information about the child's educational history if known and whether he is likely to be assessed for special educational needs under the Education Act 1996[17].

Applicable provisions following the child's entry into the United Kingdom where no Convention adoption is made
     23. Regulations 24 to 27 apply where - 

(a) following the agreement between the relevant Central Authority and the CA of the State of origin under Article 17(c) of the Convention that the adoption may proceed, no Convention adoption is made, or applied for, in the State of origin; and

(b) the child is placed with the prospective adopter in the State of origin who then returns to England or Wales with that child.

Applicable requirements in respect of prospective adopter following child's entry into the United Kingdom
     24.  - (1) A prospective adopter must within the period of 14 days beginning with the date on which the child enters the United Kingdom give notice to the relevant local authority - 

(a) of the child's arrival in the United Kingdom; and

(b) of his intention - 


(i) to apply for an adoption order in accordance with section 44(2) of the Act; or

(ii) not to give the child a home.

    (2) In a case where a prospective adopter has given notice in accordance with paragraph (1) and he subsequently moves his home into the area of another local authority, he must within 14 days of that move confirm to that authority in writing the child's entry into the United Kingdom and that notice of his intention - 

(a) to apply for an adoption order in accordance with section 44(2) of the Act has been given to another local authority; or

(b) not to give the child a home,

has been given.

Functions imposed on the local authority following the child's entry into the United Kingdom
     25.  - (1) Where notice is given to a local authority in accordance with regulation 24, the functions imposed on the local authority by virtue of regulation 5 shall apply subject to the modifications in paragraph (2).

    (2) Paragraph (1) of regulation 5 shall apply as if - 

(a) in sub-paragraph (a) - 


(i) in head (i) for the words "relevant foreign authority" there is substituted "CA of the State of origin and competent foreign authority";

(ii) in head (v) there is substituted "the relevant Central Authority"; and



(b) sub-paragraphs (b) to (d) were omitted.

Prospective adopter unable to proceed with adoption
     26. Where the prospective adopter gives notice to the relevant local authority that he does not wish to proceed with the adoption and no longer wishes to give the child a home, that authority must - 

(a) receive the child from him before the end of the period of seven days beginning with the giving of the notice; and

(b) give notice to the relevant Central Authority of the decision of the prospective adopter not to proceed with the adoption.

Withdrawal of child from prospective adopter
     27.  - (1) Where the relevant local authority are of the opinion that the continued placement of the child is not in the child's best interests - 

(a) that authority must give notice to the prospective adopter of their opinion and request the return of the child to them; and

(b) subject to paragraph (3), the prospective adopter must, not later than the end of the period of seven days beginning with the date on which notice was given, return the child to that authority.

    (2) Where the relevant local authority has given notice under paragraph (1), that authority must at the same time notify the relevant Central Authority that they have requested the return of the child.

    (3) Where notice is given under paragraph (1) but - 

(a) an application for a Convention adoption order was made prior to the giving of that notice; and

(b) the application has not been disposed of,

the prospective adopter is not required by virtue of paragraph (1) to return the child unless the court so orders.

    (4) This regulation does not affect the exercise by any local authority or other person of any power conferred by any enactment or the exercise of any power of arrest.

Breakdown of placement
     28.  - (1) This regulation applies where - 

(a) notification is given by the prospective adopter under regulation 26 (unable to proceed with adoption);

(b) the child is withdrawn from the prospective adopter under regulation 27 (withdrawal of child from prospective adopter);

(c) an application for a Convention adoption order is refused;

(d) a Convention adoption which is subject to a probationary period cannot be made; or

(e) a Convention adoption order or a Convention adoption is annulled pursuant to section 89(1) of the Act.

    (2) Where the relevant local authority are satisfied that it would be in the child's best interests to be placed for adoption with another prospective adopter habitually resident in the United Kingdom they must take the necessary measures to identify a suitable adoptive parent for that child.

    (3) Where the relevant local authority have identified and approved another prospective adopter who is eligible, and has been assessed as suitable, to adopt in accordance with these Regulations - 

(a) that authority must notify the relevant Central Authority in writing that - 


(i) another prospective adopter has been identified; and

(ii) the provisions in regulations 14, 15 and 16 have been complied with; and



(b) the requirements specified in regulations 18 and 19 have been complied with.

    (4) Where the relevant Central Authority has been notified in accordance with paragraph (3)(a) - 

(a) it shall inform the CA of the State of origin of the proposed placement; and

(b) it shall agree the placement with the CA of the State of origin in accordance with the provisions in this Chapter.

    (5) Subject to paragraph (2), where the relevant local authority is not satisfied it would be in the child's best interests to be placed for adoption with another prospective adopter in England or Wales, it must liaise with the relevant Central Authority to arrange for the return of the child to his State of origin.

    (6) Before coming to any decision under this regulation, the relevant local authority must have regard to the wishes and feelings of the child, having regard to his age and understanding, and where appropriate, obtain his consent in relation to measures to be taken under this regulation.

Convention adoptions subject to a probationary period
     29.  - (1) This regulation applies where - 

(a) the child has been placed with the prospective adopters by the competent authority in the State of origin and a Convention adoption has been applied for by the prospective adopters in the State of origin but the child's placement with the prospective adopter is subject to a probationary period before the Convention adoption is made; and

(b) the prospective adopter returns to England or Wales with the child before that probationary period is completed and the Convention adoption is made in the State of origin.

    (2) The relevant local authority must, if requested by the competent authority of the State of origin, submit a report about the placement to that authority and such a report must be prepared within such timescales and contain such information as the competent authority may reasonably require.

Report of local authority investigation
     30. The report of the investigation which a local authority must submit to the court in accordance with section 44(5) of the Act must include - 

(a) confirmation that the Certificate of eligibility and approval has been sent to the CA of the State of origin in accordance with regulation 18;

(b) the date on which the agreement under Article 17(c) of the Convention was made; and

(c) details of the reports of the visits and reviews made in accordance with regulation 5 as modified by regulation 25.

Convention adoption order
     31. An adoption order shall not be made as a Convention adoption order unless - 

(a) in the case of - 


(i) an application by a couple, both members of the couple have been habitually resident in any part of the British Islands for a period of not less than one year ending with the date of the application; or

(ii) an application by one person, the applicant has been habitually resident in any part of the British Islands for a period of not less than one year ending with the date of the application;



(b) the child to be adopted was, on the date on which the agreement under Article 17(c) of the Convention was made, habitually resident in a Convention country outside the British Islands; and

(c) in a case where one member of a couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) is not a British citizen, the Home Office has confirmed that the child is authorised to enter and reside permanently in the United Kingdom.

Requirements following a Convention adoption order or Convention adoption
     32.  - (1) Where the relevant Central Authority receives a copy of a Convention adoption order made by a court in England or Wales that Authority must issue a certificate in the form set out in Schedule 2 certifying that the adoption has been made in accordance with the Convention.

    (2) A copy of the certificate issued under paragraph (1) must be sent to the - 

(a) CA of the State of origin;

(b) adoptive parent; and

(c) adoption agency and, if different, the relevant local authority.

    (3) Where a Convention adoption is made and the relevant Central Authority receives a certificate under Article 23[18] of the Convention in respect of that Convention adoption, the relevant Central Authority must send a copy of that certificate to the - 

(a) adoptive parent; and

(b) adoption agency and, if different, the relevant local authority.

Refusal of a court in England or Wales to make a Convention adoption order
     33. Where an application for a Convention adoption order is refused by the court or is withdrawn, the prospective adopter must return the child to the relevant local authority within the period determined by the court.

Annulment of a Convention adoption order or a Convention adoption
     34. Where a Convention adoption order or a Convention adoption is annulled under section 89(1) of the Act and the relevant Central Authority receives a copy of the order from the court, it must forward a copy of that order to the CA of the State of origin.

    (2) Paragraph (1) does not apply if the adoption agency is satisfied that the requirements set out in that paragraph have been carried out in respect of the prospective adopter by another agency.

Counselling and information for the parent or guardian of the child etc.
     37.  - (1) An adoption agency must provide a counselling service and information in accordance with regulation 14 of the Agencies Regulations or corresponding Welsh provision for the parent or guardian of the child and, where regulation 14(4) of the Agencies Regulations or corresponding Welsh provision applies, for the father.

    (2) The adoption agency must also - 

(a) explain to the parent or guardian, and, where regulation 14(4) of the Agencies Regulations or corresponding Welsh provision applies, the father the procedure in relation to, and the legal implications of, adoption under the Convention by a prospective adopter in a receiving State; and

(b) provide him with written information about the matters referred to in sub-paragraph (a).

    (3) Paragraphs (1) and (2) do not apply if the adoption agency is satisfied that the requirements set out in that paragraph have been carried out in respect of the prospective adopter by another agency.

Requirements in respect of the child's permanence report and information for the adoption panel
     38.  - (1) The child's permanence report which the adoption agency is required to prepare in accordance with regulation 17 of the Agencies Regulations or corresponding Welsh provision must include - 

(a) a summary of the possibilities for placement of the child within the United Kingdom; and

(b) an assessment of whether an adoption by a person in a particular receiving State is in the child's best interests.

    (2) The adoption agency must send - 

(a) if received, the Article 15 Report; and

(b) their observations on that Report,

together with the reports and information referred to in regulation 17(2) of the Agencies Regulations or corresponding Welsh provision to the adoption panel.

Recommendation of adoption panel
     39. Where an adoption panel make a recommendation in accordance with regulation 18(1) of the Agencies Regulations or corresponding Welsh provision it must consider and take into account the Article 15 Report, if available, and the observations thereon together with the information passed to it as a consequence of regulation 38.

Adoption agency decision and notification
     40. Where the adoption agency decides in accordance with regulation 19 of the Agencies Regulations or corresponding Welsh provision that the child should be placed for an adoption in accordance with the Convention it must notify the relevant Central Authority of - 

(a) the name, sex and age of the child;

(b) the reasons why they consider that the child may be suitable for such an adoption;

(c) whether a prospective adopter has been identified and, if so, provide any relevant information; and

(d) any other information that Authority may require.

Convention list
     41.  - (1) The relevant Central Authority is to maintain a Convention list of children who are notified to that Authority under regulation 40 and shall make the contents of that list available for consultation by other Authorities within the British Islands.

    (2) Where an adoption agency - 

(a) places for adoption a child whose details have been notified to the relevant Central Authority under regulation 40; or

(b) determines that an adoption in accordance with the Convention is no longer in the best interests of the child,

it must notify the relevant Central Authority accordingly and that Authority must remove the details relating to that child from the Convention list.

Receipt of the Article 15 Report from the CA of the receiving State
     42.  - (1) This regulation applies where - 

(a) the relevant Central Authority receives a report from the CA of the receiving State which has been prepared for the purposes of Article 15 of the Convention[19] ("the Article 15 Report");

(b) the Article 15 Report relates to a prospective adopter who is habitually resident in that receiving State; and

(c) the prospective adopter named in the Article 15 Report wishes to adopt a child who is habitually resident in the British Islands.

    (2) Subject to paragraph (3), if the relevant Central Authority is satisfied the prospective adopter meets the following requirements - 

(a) the age requirements as specified in section 50 of the Act in the case of adoption by a couple, or section 51 of the Act in the case of adoption by one person; and

(b) in the case of a couple, both are, or in the case of adoption by one person, that person is habitually resident in a Convention country outside the British Islands,

that Authority must consult the Convention list and may, if the Authority considers it appropriate, consult any Convention list maintained by another Central Authority within the British Islands.

    (3) Where a prospective adopter has already been identified in relation to a proposed adoption of a particular child and the relevant Central Authority is satisfied that prospective adopter meets the requirements referred to in paragraph (2)(a) and (b), that Authority - 

(a) need not consult the Convention list; and

(b) must send the Article 15 Report to the local authority which referred the child's details to the Authority.

    (4) The relevant Central Authority may pass a copy of the Article 15 Report to any other Central Authority within the British Islands for the purposes of enabling that Authority to consult its Convention list.

    (5) Where the relevant Central Authority identifies a child on the Convention list who may be suitable for adoption by the prospective adopter, that Authority must send the Article 15 Report to the local authority which referred the child's details to that Authority.

Proposed placement and referral to adoption panel
     43.  - (1) Where the adoption agency is considering whether a proposed placement should proceed in accordance with the procedure provided for in regulation 31 of the Agencies Regulations or corresponding Welsh provision it must take into account the Article 15 Report.

    (2) Where the adoption agency refers the proposal to place the child with the particular prospective adopter to the adoption panel in accordance with regulation 31 of the Agencies Regulations or corresponding Welsh provision, it must also send the Article 15 Report to the panel.

Consideration by adoption panel
     44. The adoption panel must take into account when considering what recommendation to make in accordance with regulation 32(1) of the Agencies Regulations or corresponding Welsh provision the Article 15 Report and any other information passed to it as a consequence of the provisions in this Chapter.

Adoption agency's decision in relation to the proposed placement
     45.  - (1) Regulation 33 of the Agencies Regulations or corresponding Welsh provision shall apply as if paragraph (3) of that regulation or corresponding Welsh provision was omitted.

    (2) As soon as possible after the agency makes its decision, it must notify the relevant Central Authority of its decision.

    (3) If the proposed placement is not to proceed - 

(a) the adoption agency must return the Article 15 Report and any other documents or information sent to it by the relevant Central Authority to that Authority; and

(b) the relevant Central Authority must then send that Report, any such documents or such information to the CA of the receiving State.

Preparation of the Article 16 Information
     46.  - (1) If the adoption agency decides that the proposed placement should proceed, it must prepare a report for the purposes of Article 16(1) of the Convention which must include - 

(a) the information about the child which is specified in Schedule 1 to the Agencies Regulations or corresponding Welsh provision; and

(b) the reasons for their decision.

    (2) The adoption agency must send the following to the relevant Central Authority - 

(a) the report referred to in paragraph (1);

(b) details of any placement order or other orders, if any, made by the courts; and

(c) confirmation that the parent or guardian consents to the proposed adoption.

    (3) The relevant Central Authority must then send the documents referred to in paragraph (2) to the CA of the receiving State.

Requirements to be met before the child is placed for adoption with prospective adopter
     47.  - (1) The relevant Central Authority may notify the CA of the receiving State that it is prepared to agree that the adoption may proceed provided that CA has confirmed that - 

(a) the prospective adopter has agreed to adopt the child and has received such counselling as may be necessary;

(b) the prospective adopter has confirmed that he will accompany the child to the receiving State, unless in the case of a couple, the adoption agency and the CA of the receiving State have agreed that it is only necessary for one of them to do so;

(c) it is content for the adoption to proceed;

(d) in the case where a Convention adoption is to be effected, it has explained to the prospective adopter the need to make an application under section 84(1) of the Act; and

(e) the child is or will be authorised to enter and reside permanently in the Convention country if a Convention adoption is effected or a Convention adoption order is made.

    (2) The relevant Central Authority may not make an agreement under Article 17(c) of the Convention with the CA of the receiving State unless - 

(a) confirmation has been received in respect of the matters referred to in paragraph (1); and

(b) the adoption agency has confirmed to the relevant Central Authority that - 


(i) it has met the prospective adopter and explained the requirement to make an application for an order under section 84 of the Act before the child can be removed from the United Kingdom;

(ii) the prospective adopter has visited the child; and

(iii) the prospective adopter is content for the adoption to proceed.

    (3) An adoption agency may not place a child for adoption unless the agreement under Article 17(c) of the Convention has been made and the relevant Central Authority must advise that agency when that agreement has been made.

    (4) In this regulation, the reference to "prospective adopter" means in the case of a couple, both of them.

Requirements in respect of giving parental responsibility prior to a proposed Convention adoption
     48. In the case of a proposed Convention adoption, the prescribed requirements for the purposes of section 84(3) of the Act (requirements to be satisfied prior to making an order) are - 

(a) the competent authorities of the receiving State have - 


(i) prepared a report for the purposes of Article 15 of the Convention;

(ii) determined and confirmed in writing that the prospective adoptive parent is eligible and suitable to adopt;

(iii) ensured and confirmed in writing that the prospective adoptive parent has been counselled as may be necessary; and

(iv) determined and confirmed in writing that the child is or will be authorised to enter and reside permanently in that State;



(b) the report required for the purposes of Article 16(1) of the Convention has been prepared by the adoption agency;

(c) the adoption agency confirms in writing that it has complied with the requirements imposed upon it under Part 3 of the Agencies Regulations or corresponding Welsh provision and this Chapter;

(d) the adoption agency has obtained and made available to the court - 



(i) the reports and information referred to in regulation 17(1) and (2) of the Agencies Regulations or corresponding Welsh provision;

(ii) the recommendation made by the adoption panel in accordance with regulations 18 and 33 of the Agencies Regulations or corresponding Welsh provisions; and

(iii) the adoption placement report prepared in accordance with regulation 31(2) of the Agencies Regulations or corresponding Welsh provision;



(e) the adoption agency includes in their report submitted to the court in accordance with section 43(a) or 44(5) of the Act as modified respectively by regulation 11, details of any reviews and visits carried out as consequence of Part 6 of the Agencies Regulations or corresponding Welsh provision; and

(f) the prospective adopter has confirmed in writing that he will accompany the child on taking the child out of the United Kingdom to travel to the receiving State or in the case of a couple the agency and competent foreign authority have confirmed that it is necessary for only one of them to do so.

Local authority report
     49. In the case of a proposed application for a Convention adoption order, the report which a local authority must submit to the court in accordance with section 43(a) or 44(5) of the Act must include a copy of the - 

(a) Article 15 Report;

(b) report prepared for the purposes of Article 16(1); and

(c) written confirmation of the agreement under Article 17(c) of the Convention.

Convention adoption order
     50. An adoption order shall not be made as a Convention adoption order unless - 

(a) in the case of - 


(i) an application by a couple, both members of the couple have been habitually resident in a Convention country outside the British Islands for a period of not less than one year ending with the date of the application; or


(aa) an application by one person, the applicant has been habitually resident in a Convention country outside the British Islands for a period of not less than one year ending with the date of the application;



(b) the child to be adopted was, on the date on which the agreement under Article 17(c) of the Convention was made, habitually resident in any part of the British Islands; and

(c) the competent authority has confirmed that the child is authorised to enter and remain permanently in the Convention country in which the applicant is habitually resident.

Requirements following a Convention adoption order or Convention adoption
     51.  - (1) Where the relevant Central Authority receives a copy of a Convention adoption order made by a court in England or Wales, that Authority must issue a certificate in the form set out in Schedule 2 certifying that the adoption has been made in accordance with the Convention.

    (2) A copy of the certificate must be sent to the - 

(a) CA of the receiving State; and

(b) the relevant local authority.

    (3) Where a Convention adoption is made and the Central Authority receives a certificate under Article 23[20]in respect of that Convention adoption, the relevant Central Authority must send a copy of that certificate to the relevant local authority.

Removal of children
     54.  - (1) In a case falling within Chapter 1 of this Part, sections 36 to 40 of the Act shall not apply.

    (2) In a case falling within Chapter 2 of this Part - 

(a) section 36 of the Act shall apply, as if - 


(i) for the words "an adoption order" in paragraphs (a) and (c) in subsection (1) there were substituted "a Convention adoption order"; and

(ii) subsection (2) was omitted; and



(b) section 39 of the Act shall apply as if subsection (3)(a) was omitted.

Modifications of the Act in respect of orders under section 84 where child is to be adopted under the Convention
     55. The modifications set out in regulation 11 shall apply in the case where a couple or person habitually resident in a Convention country outside the British Islands intend to adopt a child who is habitually resident in England or Wales in accordance with the Convention.

Child to live with adopters before application for a Convention adoption order
     56. Section 42 of the Act shall apply as if - 

(a) subsections (1)(b) and (3) to (6) were omitted; and

(b) in subsection (2) from the word "If" to the end of paragraph (b) there were substituted "In the case of an adoption under the Convention,".

Notice of intention to adopt
     57. Section 44 of the Act shall apply as if subsection (3) was omitted.

Application for Convention adoption order
     58. Section 49 of the Act shall apply as if - 

(a) in subsection (1), the words from "but only" to the end were omitted;

(b) subsections (2) and (3) were omitted.

Offences
     59. Any person who contravenes or fails to comply with - 

(a) regulation 26 (requirement to notify relevant local authority);

(b) regulation 27 (withdrawal of child by local authority); and

(c) regulation 33 (refusal of court to make Convention adoption order)

is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.


Filkin
Parliamentary Under Secretary of State Department for Education and Skills

24th February 2005

[2] 2002 c.38.back

[3] By virtue of section 16(1) of the 1999 Act and section 83(9) of the Act, the powers under those sections are exercisable after consultation with the National Assembly for Wales.back

[4] S.I 2005/389.back

[5] See section 18 of the 1999 Act for the meaning of Convention.back

[6] Under section 2(1) of the 1999 Act, the functions under the Convention of the Central Authority are to be discharged in relation to England by the Secretary of State and in relation to Wales by the National Assembly for Wales.back

[7] See section 2(1) of the Act for the meaning of adoption agency.back

[8] Part 4 of the Agencies Regulations and corresponding Welsh provisions impose duties on adoption agencies in respect of a prospective adopter.back

[9] Regulation 34 of the Agencies Regulations and corresponding Welsh provision impose additional functions on the adoption agency in relation to a case where section 83 applies.back

[10] The term "overseas adoption" is given a meaning by virtue of section 87(1) of the 2002 Act.back

[11] 1996 c.56.back

[12] See section 18 of the 1999 Act.back

[13] An adoption agency is required to set up a case record in respect of a prospective adopter under regulation 22(1) of the Agencies Regulations or corresponding Welsh provision.back

[14] Article 17 sets out the conditions which must be satisfied before a decision is made by the State of origin that a child may be placed with prospective adopters. The condition in Article 17(c) is that the Central Authorities of the State of origin and receiving State have agreed that the adoption may proceed.back

[15] The term "Convention adoption order" means an adoption which by virtue of section 1 of the Adoption (Intercountry Aspects) Act 1999 (c.18) is made as a Convention adoption order (see section 144 of the 2002 Act and regulation 31). The term "Convention adoption" means an adoption effected under the law of a Convention country outside the British Islands, and certified in pursuance of Article 23(1) of the Convention (see section 66(1)(c) of the 2002 Act).back

[16] 1981 c.61. Section 1 is amended by section 7 of the Adoption (Intercountry Aspects) Act 1999 and by section 137 of the 2002 Act.back

[17] 1996 c.56.back

[18] Article 23 provides that an adoption certificate certified by the competent authority of the State as having been made in accordance with the Convention shall be recognised by other contracting States. The certificate must specify when and by whom the agreement that the adoption could proceed was given.back

[19] Article 15 provides for the CA of the receiving State if satisfied that the applicants are eligible and suited to adopt, to prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the child for whom they would be qualified to care.back

[20] Article 23 of the Convention provides that an adoption certificate certified by the competent authority of the State as having been made in accordance with the Convention shall be recognised by other contracting States. The certificate must specify when and by whom the agreement that the adoption could proceed was given.back

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