Inter-country adoption: an overview

16 Nov 2016

by Hilka Hollmann, Freemans

In this notoriously tricky area of international law, the factual matrix and the ever-evolving rules need careful scrutiny

Adoptions with an international element are increasing and becoming more complex, not least because our lives have become more international and transient. Often no legal advice is taken at the outset and it is only further down the line that adopters encounter difficulties and may even, unbeknown to them, have committed an offence under English law. In addition, the law has not always developed at the same speed to comfortably accommodate new outlooks and situations and it may be time for aspects of our adoption legislation to be revisited by Parliament.

When it comes to adoptions with an international element, the right balance needs to be struck. On the one hand there is the protection of children from trafficking and the trade in children for adoption, as covered by the 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Adoption Hague Convention).

On the other hand there is the need to allow real families to be legally secure, taking into account changing lifestyles, legal frameworks and local cultures. The latter is possibly best illustrated by kinship adoptions and the “gifting” of children for adoption within families and local communities in parts of the Indian subcontinent.

For instance, it is perfectly socially and legally acceptable in India for a family with a number of children to “gift” a child to relatives or friends who cannot have children. Indian law provides for two types of legal adoptions: a religious one (the term is only used here for want of a better word) where the adoption is arranged between families, often involving their local temple and magistrates; and a court one, where adopters undergo an assessment and approval process akin to the UK in relation to an unidentified child, and the order is made by the court following a formal application. Similarly, privately arranged adoptions are common in the US, but a criminal offence in England & Wales under s92 of the Adoption and Children Act 2002 (the Act), unless they involve close family members. It is easy to see how, without any intended wrongdoing or malice, problems can arise when two seemingly opposing systems collide by people moving between countries.

In addition, there are policy considerations and well- publicised examples where adoption and family law have been used to try to circumvent immigration rules, most notably with regards to older children who have otherwise no connection to the proposed adopters.

The law with regards to these cases is summarised concisely in the 2015 decision of the Court of Appeal in FAS v Secretary of State for the Home Department & anor [2015] EWCA Civ 951. The dicta is clear: where the adoption is solely for the benefit of the grant of British citizenship, it must fail; if the grant of citizenship is one of many – ancillary and legitimate – benefits of an adoption order, the main consideration for the family court remains the child’s welfare, as set out in s1 of the Act. In the FAS case, the child was in any event too old to become a British citizen on adoption by virtue of ss1(5) and 1(5)(A) of the British Nationality Act 1981. For a child to take British citizenship from their adoptive parents on adoption, they must be under 18 years of age.

FAS and other cases also illustrate that it is prudent to consider immigration advice alongside family law provisions, because often the two will overlap.

Case study

Paul and Emma are both doctors from England. For an adventure, they moved to Singapore five years ago and in January 2014 they adopted a child from Malaysia. Ethan had been abandoned as a baby and no one knew who his parents were. Advertisements in the national and local press and police notifications led nowhere in tracing his birth family. When Ethan turned four, the family decided to return to the UK, so Ethan could grow up with his grandparents and other family around, and start school there.

On applying for entry clearance for Ethan, it came as a complete shock to Paul and Emma that he was not considered to be their child under English law. After all, the Singapore-based adoption agency which had assessed the couple undertook a very thorough assessment of their circumstances and they underwent counselling to prepare them for adoption. Further, Singapore is not a country from or through which adoptions are banned under English law because of dubious adoption practices. Nor is Malaysia.

Luckily, by then Ethan had lived with them for 18 months and was granted entry clearance to the UK under the de facto adoption provisions. However, once back in England, no one had parental responsibility for Ethan and he was not a British citizen with indefinite rights to remain here. His future remained uncertain and the family were worried. The de facto adoption which had enabled his entry to the UK is purely an immigration concept in the consideration of an immigration application and requires 18 months of care of a foreign child abroad. It does not bestow parental rights on the carer(s). Legally, therefore, under English law, Ethan was a privately fostered child and the family required local authority checks pursuant to Part IX of the Children Act 1989.

Incoming international adoptions such as Ethan’s can be divided into three categories:

  • Adoptions under the Adoption Hague Convention.
  • Overseas adoptions from non-Hague Convention countries.
  • Foreign adoption orders not recognised under the law of England & Wales.

Hague Convention adoptions

These are recognised in all countries that have signed the Adoption Convention and are only possible (and indeed required by Article 41 of the Convention) where the prospective adopter is habitually resident in one Hague Convention country and wishes to adopt a child habitually resident in another Hague country. They are overseen by the central authorities in both countries. In the UK that is the Department for Education.

In order for an adoption under the Hague convention to succeed, the following also has to be closely observed:

  • Care of the child cannot be entrusted to the prospective adopters until they have been fully approved under the Hague process (Article 17). This means they have been approved as adopters under Article 15 by their central authority; the child’s central authority has approved the child being available for a Hague adoption under Article 16; and an Article 17 certificate has been issued, which concludes the assessment and approval process and confirms that neither central authority objects to the adoption proceeding.
  • There can be no contact between the prospective adopter and those having care of the child prior to their full Hague approval, save for family members or if the child’s country has made provisions to allow for derivation from the Hague provisions to be in line with its own domestic law (Article 29).
  • The prospective adopters’ immigration status needs to be such that they can sponsor the entry clearance and residence of a child (Article 5). In some cases only citizenship may be permissible and if the prospective adopter(s) are not citizens in their country of residence, immigration advice should be sought.
  • The usual prohibitions of payments during the adoption process apply (Article 4), as it is in our own domestic law.

So what does that mean for Ethan?

Neither Singapore nor Malaysia are signatories of the Adoption Hague Convention, so this route is not available to Emma and Paul. In any event, they have always shared the same habitual residence with Ethan since they adopted him and by having already taken over his care prior to an Article 17 approval, they would have offended one of the key principles of the Adoption Hague Convention. In fact, once already adopted under domestic law, a re-adoption under the Adoption Hague Convention is unlikely to ever succeed unless an Article 17 certificate was issued prior to the prospective adopter(s) having obtain the domestic adoption order.

Overseas adoptions

Section 66 of the Adoption and Children Act 2002 defines adoptions recognised under the law of England & Wales. Amongst them are overseas adoptions, which are defined in s87. In order for a non-Hague Convention adoption to be recognised under English law, it needs to have been effected in one of the countries set out in the Adoption (Recognition of Overseas Adoptions) Order 1973 (for pre- 3 January 2014 adoptions) or in the Adoption (Recognition of Overseas Adoptions) Order 2013 (for adoptions on or after 3 January 2014).

Both Malaysia and Singapore were listed in the 1973 Order but no longer in the 2013 Order, which is principally comprised of countries that have also ratified the 1993 Hague Convention.

Having been adopted in late January of 2014, Ethan’s adoption order is therefore not recognised in England, and he will need to be re-adopted under domestic law to become his parents’ legal child there. Had he been adopted prior to January of 2014, his Malaysian adoption order would be recognised, although he would have had to apply separately to become a British citizen. Unlike a Hague Convention or domestic adoption order, an overseas adoption order does not automatically grant citizenship to the child if one of the adoptive parents is British.

Both Emma and Paul are domiciled in the UK and therefore have standing to bring an adoption application under s49(2) of the Act without having to live here for one year and establish the otherwise required habitual residence here.

Indeed, based on their domicile, their presence or habitual residence in the UK is not required at all to start the process (section 44(9) of the Act and regulation 3 of the Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005). However, whilst it is legally possible for someone not living in the UK to adopt a child also not living in the UK, using the Act, there will be practical (although not unsurmountable) difficulties that require consideration to enable a local authority to carry out its assessment and to see the child in the home environment, which must be in the local authority area (s42(7) of the Act).

Equally, Ethan’s whereabouts and nationality are also largely irrelevant to his parents’ ability to adopt him under the Act, although it may inform the procedures they have to follow (see s83 of the Act, which is discussed in more detail below). The impact on his status in his country of origin if an adoption order is made will need consideration during the adoption proceedings.

If Ethan has not yet lived with them for three years, they would require permission of the court first before being able to give their notice of intention to adopt to their local authority, pursuant to ss42(6) and 44(4) of the Act. From thereon, normal adoption procedures apply and the adoption proceeds as a domestic adoption application.

Thus, upon the expiration of the three months’ notice period (s44(3)), the adoption application can be issued. The application form may differ depending on Ethan’s habitual residence. Case law dictates that because Ethan would become a British citizen on adoption, the Home Office will need to be notified (Re W (A minor) (Adoption: Non-patrial) [1986] 1 FLR 179 and Re K (Adoption and wardship) [1997] 2 FLR 221). Although the onus is on the adopters, it is usually the court that will send the notification to the Home Office liaison officer. In accordance with the President’ guidance from March 2013 on communication with the Home Office, the Secretary of State for the Home Office should be given 28 days to indicate whether they wish to intervene in the adoption proceedings.

Section 83

Section 83 of the Act makes it a criminal offence for a person habitually resident in the UK to either bring a child habitually resident in another country into the UK for the purposes of adoption or within one year of a foreign adoption order being made unless the procedures, assessments and approvals set out in the Adoptions with a Foreign Element Regulations 2005 (as amended) have been followed.

Thus for s83 to apply, the child and prospective adopter have to have a separate habitual residence and the prospective adopter has to be habitually resident in the UK.

It is unlikely that s83 would apply to Ethan and his parents but it will need to be considered in light of their circumstances at the time. A letter of no objection from the Department for Education or the British consulate, obtained at the time of the foreign adoption and confirming that the adoption can proceed without reference to English adoption law, will be helpful.

Alternative routes

A foreign adoption order can be recognised under English law without requiring a re-adoption. However, so far, it requires a connection of domicile of at least one parent to the country of the child’s origin where the adoption order was made. Hedley J considered this point in Re R (A child) [2012] EWHC 2956 (Fam). For a recent and very useful summary of the law and procedures in relation to recognition applications, see Re G (Children) [2014] EWHC 2605 (Fam).

An adoption recognised by application to the court will not bestow British citizenship on the child.

Where to go from here

It is highly likely that Ethan’s welfare requires the making of an adoption order under the Act. However, in other cases, non-recognised foreign adoption orders to ex-pats mean that a child remains in legal limbo here. Whilst this may not make any practical difference if the family continues to live abroad, if at a later stage, and commonly on retirement, the parents wish to re-settle in the UK, the child may be beyond the ambit of the Act because they are too old. They would therefore cease to be a legal part of their family simply by relocation.

Awareness of such potential difficulties, and the development of the law on recognition of foreign adoption orders, could guard against such anomalies and protect the place of children within their families and throughout their lives.

Hilka Hollmann is a specialist adoption and international children lawyer at Freemans Solicitors.

The issues discussed here only form a small part of a wide field of considerations when it comes to inter-country adoptions, including outgoing adoption of children subject to care proceedings. For those interested in the subject, a seminar on inter-country adoption with judges, immigration practitioners, lawyers and social workers is being organised in November of this year. For further information please visit www.freemanssolicitors.net/site/news