International, or Intercountry adoption is a route to a family many individuals and couples consider. It is however a complex area of law. Prospective adopters can sometimes adopt a child abroad and have that adoption recognised in the UK or in other scenarios, they can obtain Orders abroad and adopt a child here. There are Hague Convention adoptions and non-convention adoptions.
This blog will focus on the mechanisms by which a foreign adoption Order may be recognised in England.
These are:
Hague Convention Adoption
A convention adoption is one made under the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 (“HCCH 1993 Adoption Convention”). The convention establishes a regime of assessment, liaison and recognition between contracting states. The effect is that a Convention adoption undertaken in one state will be automatically recognised in the other signatory “destination” state, and vice versa.
If the country that is the child’s “state of origin” is a signatory to the HCCH 1993 Adoption Convention, an adoption via the convention is likely to be possible.
Automatic Recognition of “Overseas” Adoption
The Adoption and Children Act 2002 makes provision for the recognition of “Overseas” adoptions. However, this only applies to adoptions undertaken in specified countries. The list of those countries is set out in The Adoption (Recognition of Overseas Adoptions) Order 2013. This is a potential route to registering a foreign adoption Order in England.
Inherent Jurisdiction
The High Court has powers to determine that a foreign adoption that falls outside the HCCH 1993 Adoption Convention and is not one where recognition is possible under the 2002 Act, can still be capable of recognition in English law. There are, however, a number of criteria which have to be met to allow for recognition under the inherent jurisdiction:
- the adoptive parents must have been domiciled in the foreign country at the time of the foreign adoption;
- the child must have been legally adopted in accordance with the requirements of the foreign law;
- the foreign adoption must in substance have the same essential characteristics as an English adoption;
- there must be no reason in public policy for refusing recognition; and
- the welfare of the child must be considered.
Intercountry adoption is governed by a series of UK legislation and regulations, alongside international conventions and the laws of foreign jurisdictions. The area is heavily regulated to safeguard child, birth families and the prospective adopters. If you do not follow the correct procedures, it is possible you may commit a criminal offence. It is important to take specialist legal advice as early on as possible so please do hesitate to contact us if you would like to discuss any of the issues raised in this blog further.
