International Adoption – PLWG Best Practice: A Guide

Moving onto the fourth and penultimate article in my series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 4 of the PLWG report. This section addresses a more niche element of adoptions, those that are either international, or have an international element. As it stands, adoptions with an international element are extremely confusing, legislatively complex, and rife with delay. This chapter aims to provide background to the chaos involved in such adoptions and seeks to provide a comprehensive recommendation to move forward.

As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.

The terms ‘country’ and ‘state’ are used interchangeably in this article to refer to the Central Authority within that country whose role it is to deal with international adoptions.

Introduction

The Working Group’s remit was to consider not only reform to the procedure of international adoption, but any changes to the substantive law. As part of this, three key areas were identified:

1. Whether the statutory framework is sufficiently clear;
2. Whether there needs to be any changes to the statutory framework or procedure;
3. Whether good practice guidance would be of assistance.

International Adoptions Generally

Broadly speaking, the PLWG define international adoptions as any incoming or outgoing adoption involving another country. These include adoptions under the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (“the Hague Convention” or “the 1993 Convention”); adoptions governed by s.66 of the Adoption and Children Act 2002; adoptions under s.57 of the Family Law Act 1986 and common law adoptions; and domestic adoptions concerning overseas resident children.

It is not common in England and Wales for adoption orders to be made in favour of wider family, but where a placement is overseas, adoption may be necessary with respect to security of placement and immigration status. Similarly, there are children from outside the jurisdiction placed in the UK for adoption.

These cases are very complex and often lead to delay. The aim of the PLWG report in this area is to identify how improvements can be made to these harmful complexities.

Adoptions Pursuant to the 1993 Hague Convention

The UK is a Contracting State to the 1993 Convention, incorporated domestically via the Adoption (Intercountry Aspects) Act 1999 and the Adoptions with a Foreign Element Regulations 2005 (“the 2005 Regulations” or “the AFER 2005”). The 1993 Convention, at its core, is a partnership agreement between countries – the ‘origin’ country of the child is responsible for assessing the child, and the ‘receiving’ country is responsible for assessing the adopters. Neither state has a higher authority.

The Convention requires the receiving state to confirm that, upon adoption, the child will receive an immigration status such that they can permanently remain within the jurisdiction. Upon both confirming the match and an order being made, ALL Convention states MUST give effect to the order. There is no need to seek further orders within those states.

Whichever jurisdiction makes the adoption order (usually the ‘origin’ country, but there is nothing in law preventing the ‘receiving’ country making the order), must issue an Article 23 certificate confirming the Convention process has been followed (including dates of Article 17 agreements). This certificate (subject to the rare exception under Article 24 that the adoption is contrary to that state’s public policy) then binds every Convention state.

The 2005 Regulations are not a self-contained set of rules. They instead supplement the existing domestic framework contained within the Adoption and Children Act 2002 and the Adoption Agency Regulations 2005. International adoptions are also dealt with by way of further legislation (Children and Adoption Act 2006; Local Authority (Adoptions) (Miscellaneous Provisions) Regulations 2005). As such, those unfamiliar with the process, including professionals, can quickly become overwhelmed. The need to cross reference numerous regulations is complex, however, the legislative framework is very thorough and specialist lawyers are able to navigate this (though this requires Local Authorities to either have, or instruct, said specialist lawyers).

Outgoing Convention Adoptions

Local Authorities and the courts must consider whether a child who cannot be cared for by their birth family can be cared for by their wider family. This duty exists even if the wider family live overseas (the rationale being that it is better for a child to maintain family ties abroad, than to sever those ties domestically).

The PLWG did not look at the conduct of assessments of overseas family members, however, the Working Group did note that some authorities were reluctant to engage with the overseas assessment process in a timely manner. The Working Group note that authorities can seek support from Children and Families Across Borders and the Outbound Permanence Service (via Coram BAAF).

Many overseas placements do not involve adoption (these can often be affected under other orders such as Special Guardianship Orders), but some placements necessitate this, such necessity often coming from immigration status or SGO’s not being an order in the receiving state.

The Convention framework does not sit well with the typical adoption process in England and Wales, where children are removed due to abuse or neglect, or where there is nobody to exercise Parental Responsibility. Article 4 of the Convention specifically sets the groundwork that a Local Authority must obtain a placement order, Article 17 further set out requirements that the Central Authorities have agreed the adoption.

Children habitually resident in England and Wales are very rarely placed abroad for adoption unless it is to be with family members due to parental abuse or neglect. These children should be placed as soon as possible, but the Convention requirements, domestic legislation, and immigration laws make this very difficult, in some cases impossible.

The domestic legislation sets up somewhat of a paradox. Section 85 ACA 2002 makes it an offence to remove a child from the UK for the purposes of adoption, unless the prospective adopters have been granted parental responsibility via section 84. The issue, however, is that an application under section 84 cannot be made unless the court is satisfied that the child and the prospective adopter have had sufficient opportunities to be seen together – both countries additionally still need to comply with Articles 15, 16, and 17 of the Convention.

It is therefore in the child’s interests to obtain a Convention adoption order in the domestic courts. Re M (A Child) (Adoption: Placement Outside Jurisdiction) [2011] 2 WLR 1264 held that an offence would not be committed under s.85 in those circumstances as, any ‘visit’ the child made to the prospective adopters would not be for the purpose of adoption in that state, but to further a domestic Convention adoption.

Incoming Convention Adoptions

Incoming adoptions are not a frequent occurrence and, when these do happen, the burden on the domestic authorities is lesser given the assessment of the children is for the state of ordinary residence. The PLWG do however note that, adoption agencies do not always appreciate the complexities of Convention adoptions.

It is recommended that there is an open access hotline for social workers to obtain advice and information on any adoption with an international element, this is especially vital where the prospective adopters do not, or cannot, instruct lawyers. Procedural difficulties are often not noticed until several steps into proceedings, leading to significant delay and harm to the child and families.

Non-Convention Adoptions (Outgoing)

Children can only be taken out of the UK for adoption purposes via a section 84 order. This requires compliance with the 2005 Regulations. Section 84 is not available to those normally resident in the UK, it is designed solely for foreign nationals to assist in foreign adoption.

A s.84 order removes parental responsibility from all other people and grants this to the prospective adopters. It also authorises the removal of the child from the jurisdiction for the purposes of adoption. An order under s.84 is not, however, guaranteed to be recognised in the foreign court.

If the adoption is agency, the child must be placed with the prospective adopters for at least 10-weeks before an application under section 84 is issued.

If the child is looked after by a Local Authority, permission to remove from the jurisdiction can be sought under Schedule 2 of the Children Act 1989 prior to the granting of a placement order. Where a Local Authority is permitted to place a child for adoption, removal from the jurisdiction is then governed by section 28 ACA 2002. The position is not clear on whether s.28 can be used to allow the child to remain outside the jurisdiction, or to be placed for adoption whilst they remain outside the jurisdiction (there are no reported cases on this matter).

If the child is not looked after, it is difficult for the prospective adopters to comply with section 84, and s.42 where it is a non-agency adoption (this requires the child to be seen by the Local Authority). One possible way around this is that the Local Authority make a temporary home for the prospective adopters within the jurisdiction, for 10-weeks. It is clear this is not a viable position. It is therefore more straightforward for public law orders to be made and for a mirroring order to be obtained in the non-Convention state.

This is not always the right path for a child, and it may not overcome immigration issues in some states. But if it is, the proposed adopters may then seek to adopt at a later stage (having then complied with the s.84 requirements by virtue of an alternative order), this is uncontroversial if the state is a party to the Hague Convention Parental Responsibility and Protection of Children 1996 (not to be confused with the 1993 Convention which has been the subject of this Chapter) this is simple. If the state is not a party, it is liable to be extremely complicated. Though the cases where these issues transpire are very small.

Non-Convention Adoptions (Incoming)

Unlike outgoing non-Convention adoptions, there are a significant number of inbound adoptions under section 57 of the Family Law Act 1986. These cases are dealt with under the High Court’s inherent jurisdiction but can be heard by a High Court Judge sitting in the Family Court.

If the adoption is an overseas adoption pursuant to s.87 ACA 2002 (under the law of a country listed in the Adoption (Recognition of Overseas Adoptions) Order 2013), it will automatically be recognised in England and Wales and there is no need for proceedings to recognise the child’s status under English law (but this process does not confer British citizenship).

If an adoption order is made outside the jurisdiction and neither the Convention nor s.87 apply, the adoption may be recognised according to common law. Re Valentine’s Settlement [1965] Ch 831 set out four principles:

1. The adoptive parents have been domiciled in the foreign country at the time of the adoption;
2. The child was legally adopted according to the law of that jurisdiction;
3. The adoption has the same substantive characteristics and concept as an English adoption;
4. There must be no public policy reason refusing the recognition.

Where these criteria are met, a person may apply under s.57 Family Law Act 1986 for recognition of the common law adoption.

Where the criteria in Re Valentine’s Settlement are not met, the courts may still recognise an adoption where to not do so would be a breach of the Article 8 rights of the children and prospective adopters (such cases being extremely rare, and extremely complex).

Dual applications for common law recognition and declarations of status requires the court to deal with different principles to each application and their domicile. Recognition will rely on the applicant’s domicile at the date of application, but a s.57 declaration will rely on the applicant’s domicile at or prior to the application.

Section 83 ACA 2002 makes it an offence to bring a child resident outside the UK into the UK for the purpose of adoption (a reverse of s.85) unless the Convention has been complied with. Whilst such adoptions are factually complex, the courts apply domestic law and assessment takes place within the jurisdiction. Where a person breaches s.83, the courts do not automatically refuse to make an adoption order.

Most applications to adopt from overseas are compliant with the 2005 Regulations, the prospective adopters will be registered and approved by the Department of Education. Upon returning to the UK with the child, there is further assessment and, following the child having lived with the prospective adopters, a further report to the court.

The biggest issue with such adoptions, despite a rigorous and complex process, including government departments, is that there is no recognition of the process at the visa stage when the child is finally ready to join their intended family. As noted by the Working Group:

“The apparent systemic failure to process visa applications promptly…to enable the child to enter the UK and begin their lives with their newly adopted parents…is lamentable.”

In some cases, years off delay can ensue, causing unnecessary emotional and financial hardship. The Working Group recommend that policy is amended to allows such children a special status with the Home Office at the visa stage. Whilst the usual checks should continue to apply, these should be fast-tracked, the delay otherwise being harmful to the welfare of the child.

Where adopters are domiciled in the UK but are habitually resident elsewhere, section 83 does not apply. If an adoption is made in a country not on the list in the 2013 Order, then it will not be recognised. A visa can be applied for on the basis of a period of care abroad, this may allow the child to settle in the  UK, but it does not alter the family law status – these parents may apply for a domestic adoption despite being habitually resident elsewhere.

In these cases, the child must have lived with the prospective adopters for at least three-years (unless this time is abridged by the court). At the point of being able to make the application, three years having passed often means there are difficulties tracing parents to obtain consent. The PLWG suggest considering whether allowing an application after 6 to 12 months would be more appropriate.

PLWG Conclusion

“The current system is just about working but the sheer complexity of it is illustrated by the number of statutes and statutory instruments which govern the process in England…”

With a possible combination of up to 18 pieces of legislation dealing with adoption (not including the international law), the complexity cannot be understated. Delays, misunderstanding, and mistakes are too common in adoptions with an international element.

The overarching recommendation of the Working Group is to review the legislative framework for international adoptions, such that this is contained within a single Act of Parliament, with regulations where necessary. Where regulations are required, these should be dealt with in a way to not require cross-referencing so as to leave the process more accessible to all involved.

The PLWG recognise that this is a major statutory task, and, outside of such reform (hopefully in the interim at most), recommend the following:

1. The Central Authority’s should update and expand the written guidance for intercountry adoptions to draw together the legislation into one place.
2. Consideration should be given to setting up a specialist referral unit.
3. The Central Authority’s should work closely with the Home Office where applications are relevant to immigration status decisions.
4. Section 84 ACA 2002 should be amended to make explicit that prospective adopters may be assessed overseas without committing an offence under s.85.
5. The regulations should be reviewed for inconsistencies (such as the paradox created by regulation 46, requiring a placement order and parental consent)
6. Regulation 47(1)(d) of the 2005 regulations should be amended to make clear this relates to the receiving state.
7. Practice Directions should be drafted to govern applications under Schedule 2 to the Children Act 1989 or applications under s.28 ACA 2002.
8. Cafcass Legal must be given sufficient resources to allow them to advise in such complex cases, often being the only lawyers involved.
9. The Home Office should create a fast-track process for visa approval where the applicant has fully complied with the regulations.
10. Section 42 should be amended to allow applications where adopters are habitually resident outside the UK to be made after six months.
11. Consideration should be given to amending the Children and Adoption Act 2006 to require mandatory review of countries on the banned list every three years.

Conclusion

The PLWG’s recommendations on international adoptions highlight the significant complexities and challenges within the current system. By addressing gaps in legislative clarity, procedural inefficiencies, and the burdens placed on families and professionals, these proposals aim to simplify the framework while safeguarding the welfare of children involved in cross-border adoptions. The overarching call for consolidating legislation into a single statutory framework is a bold but necessary step towards reducing delays and ensuring that all parties can navigate the process with greater ease and confidence.

The proposed amendments to legislation and practice have the potential to transform the landscape of international adoptions. Streamlining the statutory framework into one cohesive Act would resolve much of the confusion caused by the current patchwork of regulations. This would not only benefit legal professionals and social workers but also provide prospective adopters with a clearer understanding of their obligations and rights. Such simplification is particularly critical for cases involving vulnerable children, where unnecessary delays can have a profound and lasting impact on their stability and well-being.

The emphasis on inter-agency collaboration, particularly with the Home Office on immigration matters, is another pivotal recommendation. By fast-tracking visa applications for children who have complied with all adoption regulations, the welfare of these children can be prioritised, reducing emotional and financial strain on families. Furthermore, enabling overseas assessments under section 84 without triggering offences under section 85 would mitigate procedural roadblocks and allow children to transition into stable placements more swiftly.

Whilst the PLWG report does not consider this position within Chapter 4, the Working Group’s vision for “open” adoptions domestically, as advocated for in Chapter 1 of the report, introduces an interesting parallel for international adoptions. If adopted children can maintain ties to their birth families without severing connections entirely, the rationale for prioritising family placements abroad – despite logistical challenges – may shift. Courts might feel more confident in pursuing domestic solutions or alternative orders when open adoptions ensure that biological ties remain intact and meaningful. This evolution could reduce reliance on complex international placements, particularly in cases where immigration or procedural barriers make overseas placements less practical, but, at least currently, mandatory to pursue.

The PLWG’s recommendations for international adoptions reflect a nuanced understanding of the countless challenges faced by children, families, and professionals. By fostering legislative coherence, enhancing inter-agency cooperation, and promoting a child-centred approach, these proposals have the potential to transform the adoption system. Ultimately, the recommendations align with the broader goal of creating a framework that balances the need for permanency and security with the preservation of identity and familial connections, ensuring the best outcomes for children involved in international adoptions.