House of Commons - Explanatory Note
Adoption and Children Bill - continued          House of Commons

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Clause 68: Property devolving with peerages etc.

169.     Clause 68 provides that adoption does not affect the descent of any peerage or dignity or title of honour or the devolution of any property devolving with such titles. Thus, unless there is a contrary intention expressed in the instrument, an adopted person cannot inherit such a title or any associated property from his adoptive parents. Likewise, the natural child of a Peer who is adopted will inherit a peerage, dignity or title of honour and any property devolving with such titles from his birth parents. Subsection (3) provides that exceptions may apply where a contrary intention is expressed in the instrument.

Clause 69: Protection of trustees and personal representatives

170.     Clause 69 provides for the protection of trustees or personal representatives who convey or distribute property in ignorance of the making or revocation of an adoption order.

Clause 70: Meaning of disposition

171.     Clause 70 defines the terms "disposition" and "power of appointment " for the purposes of Chapter 4. Subsection (2) confirms that the provisions of this Chapter apply equally to an oral disposition as to a written one. For the purposes of Chapter 4, subsection (3) provides that the date of death of the testator is the date a will or codicil is treated as being made and subsection (4) provides that the provisions of the law of intestate succession are to be treated as if they are contained in an instrument that the deceased executed while of full capacity immediately before his death.

Clause 71: Miscellaneous enactments

172.     Clause 71 provides that the general principle of clause 64 (that an adopted person is to be treated as if he had been born to the adopter or adopters in marriage) is not to apply for the purposes of marriages within prohibited degrees of relationship or to incest, and for these purposes an adopted person remains part of his natural family. The only exception is that an adopted person cannot marry his adoptive parent, as this falls within the restrictions set out in the table of kindred and affinity in Schedule 1 to the Marriage Act 1949. Otherwise there are no restrictions on marriage within an adoptive family.

173.     Subsection (2) lists other enactments which deal with questions of nationality and immigration, and to which the general principle of clause 64 is also not to apply.

Clause 72: Pensions

174.     Clause 72 provides that clause 64(2), (the rule that an adopted child is to be treated only as the child of the adopter(s) or, in the case of a step-parent adoption, only as the child of the adopter and the birth parent to whom he is married), does not affect an adopted person's entitlement to a pension payable to or for his benefit which is in payment at the time of his adoption.

Clause 73: Insurance

175.     Clause 73 provides that any rights and liabilities under any insurance policy that a natural parent has effected for the payment on the death of his child of funeral expenses are transferred by virtue of the adoption of that child to the adoptive parents. The adopters are to be treated as if they took out the policy themselves. Subsection (2) makes clear that references in subsection (1) to adoptive parents are to be read, in the case of a step-parent adoption, as referring to the adopter and the person to whom the adopter is married.

Chapter 5 - The Registers

176.     Chapter 5 deals with registration issues surrounding adoption and the duties placed upon the Registrar General.

Clause 74: Adopted Children Register

177.     Clause 74 places a duty upon the Registrar General to continue to maintain the Adopted Children Register and provides for entries to be made in the register. The Registrar General is to continue to have a duty to maintain an index of the register. Subsection (2) provides that entries may not be made on the Register unless they are made by adoption orders or by the amendment of adoption orders (subsection (5)). Subsection (3) provides that a certified copy of an entry on the Register is evidence of an adoption to which it relates. Subsection (4) provides that where the birth information is contained in the Adopted Children Register, a certified copy of that entry is to be treated as a certified copy of an entry in the registers of live births.

Clause 75: Searches and copies

178.     Clause 75 places a duty on the Registrar General to maintain an electronic index of the Adopted Children Register at the General Register Office. Subsection (2) provides that any person may search the index of the Register, using any facility provided by the Registrar General. If a person can identify an entry in the Register for an adopted adult, the Registrar General is to provide him with a certified copy of that entry. If a person can identify an entry in the Register for an adopted person who is at the time of the application under the age of 18, he is to provide particulars before the Registrar General is to provide him with a certified copy of that entry. Subsection (3) provides that the terms, conditions and regulations as to payment of fees and otherwise applicable under the Births and Deaths Registration Act 1953, and the Registration Services Act 1953, are to apply in respect of searches, and supplies of certified copies, under subsection (2).

Clause 76: Connections between the register and birth records

179.     Clause 76 places a duty on the Registrar General to maintain an index which makes it possible for him to trace the connection between any entry in the registers of live-births or other records which has been marked "Adopted" and any corresponding entry in the Adopted Children Register. Subsection (2) provides that public access to this index is prohibited, except as specified under subsection (3). Subsection (3) provides that the Registrar General is to provide the relevant adoption agency with any information necessary to enable an adopted person to obtain a certified copy of a record of his birth. Subsection (4) provides that subsection (3) does not apply to a person adopted before clauses 53 to 62 are commenced, and for people adopted before that timetable the Registrar General is to continue to have a responsibility to disclose the information necessary for an adopted person to be able to obtain a certified copy of his birth record provided he has attained the age of 18 and applies in the prescribed manner as specified in Schedule 2 of the Bill.

180.     Subsection (5) enables the Registrar General to make regulations to set out the manner in which applications must be made by an adopted person aged under 18 who intends to be married requesting information as to whether the person whom they intend to marry may be within the prohibited degrees of relationship for the purpose of the Marriage Act 1949. Subsections (6) and (7) enable the Registrar General to make regulations requiring the payment of a prescribed fee in respect of information given under clause 76.

Clause 77: Adoption Contact Register

181.     Clause 77 places a duty on the Registrar General to continue to maintain in accordance with regulations the Adoption Contact Register at the General Register Office. The Adoption Contact Register is a register in two Parts designed to facilitate contact between adopted persons and their birth relatives where both parties have expressed a wish for such contact. Subsection (2) enables the Registrar General to prescribe in regulations the information about adopted persons to be included in Part 1 of the Adoption Contact Register. Subsection (3) provides that the Registrar General may make an entry for an adopted adult in Part 1 of the Register if a record of his birth is kept by the Registrar General and he is satisfied that the adopted person has such information necessary to obtain a copy of his birth record. Under subsection (4), the Registrar General is able to make regulations prescribing the information about relatives of adopted persons to be included in Part 2 of the Adoption Contact Register. These regulations will cover information similar to that included in the regulations made under subsection (2), such as names and addresses. Subsection (5) provides that the Registrar General may only make an entry in Part 2 of the Register for a person who has attained the age of 18 and if the Registrar General is satisfied that he is a relative of an adopted person and has such information as is necessary to enable him to obtain a certified copy of the record of the adopted person's birth. Subsection (6) enables the Registrar General to make regulations providing for the disclosure of information contained in one Part of the Register to persons included in the other Part of the Register. Such regulations may provide, for example, that information held on the Register should only be given to the adopted person in order to enable them to make a choice as to whether to initiate contact with their relative(s). Subsection (6) also provides that regulations may be made by the Registrar General to set fees for the making or alteration of entries in the Register, and the disclosure of information recorded on it.

Clause 78: Adoption Contact Register: supplementary

182.     Clause 78 provides that the Adoption Contact Register is not to be open to public inspection or search. For the purposes of clause 77, subsection (2) defines relatives (including half-bloods) so as to include parents, siblings, grandparents, great-grandparents, uncles, aunts, cousins, nephews and nieces or relatives by marriage.

Chapter 6 - Adoptions with a Foreign Element

183.     The provisions in this Chapter incorporate many of the measures of the Adoption (Intercountry Aspects) Act 1999 and extend those measures with new safeguards and penalties.

184.     The Adoption (Intercountry Aspects) Act 1999 ("the 1999 Act") applies to England and Wales and to Scotland and amends both the Adoption Act 1976 and the Adoption (Scotland) Act 1978. It makes provision to regulate intercountry adoption, enables (together with equivalent Northern Ireland legislation) the United Kingdom to ratify the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption and introduces sanctions against those failing to follow the proper procedures for bringing children into the UK. The 1999 Act also clarifies that local authorities have a duty to provide, or arrange to provide, an intercountry adoption service and provides that children who are the subject of a Convention adoption will receive British nationality automatically.

185.     The 1999 Act will largely be repealed for England and Wales when the Bill is enacted, as the majority of the provisions amend the Adoption Act 1976 and have been incorporated into this Bill. Sections 1 (power to make regulations giving effect to the Convention), 2 (Central Authorities and accredited bodies) and 7 (amendments to the British Nationality Act 1981) and Schedule 1 (which sets out the text of the Convention so far as material) will remain. Clause 129(1) defines a Convention adoption order as an adoption order which is made by virtue of regulations made under section 1 of the 1999 Act. The regulations which are to be made under section 1 of the 1999 Act will apply, with or without modification, the provisions of this Bill, for example the conditions which must be satisfied before an application for a Convention adoption order may be made. Convention adoptions made in a country outside the British Islands are recognised, see clause 63(1).

186.     To ensure that people habitually resident in the UK wishing to adopt a child from overseas follow the appropriate approval procedures, whether they adopt the child abroad or in the UK, the Bill enhances the safeguards in the 1999 Act. It incorporates the Act's restriction on British residents bringing children into the UK for the purpose of adoption without complying with prescribed procedures. It also includes a new restriction which makes it an offence for a child who has been adopted overseas by a British resident within the last six months to be brought into the UK without prescribed procedures being complied with. The Bill extends the penalties that may be applied when someone is found guilty of bringing a child into the UK without complying with the prescribed procedures. As well as a penalty to be exercised through the Magistrates' Court of up to six months' imprisonment and or a level five fine, the relevant provisions in this Chapter also provide a new penalty where the Magistrates' Court refers the case to a Crown Court or the defendant enters a plea of not guilty and elects for a Crown Court trial. In such cases, the Crown Court will be able to award a penalty of up to 12 months' imprisonment or an unlimited fine, or both.

Clause 80: Restriction on bringing children in

187.     Clause 80 imposes restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the UK with the intention of adopting the child in the UK, unless the person complies with prescribed requirements and meets prescribed conditions. It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands who he has adopted within the last six months into the UK, unless he complies with prescribed requirements and meets prescribed conditions. A person would be liable on summary conviction to up to six months' imprisonment or a fine not exceeding the statutory maximum, or both, or, in the event of the case being referred to the Crown Court, to up to twelve months' imprisonment or an unlimited fine, or both.

188.     It is intended that regulations will require the British resident to be assessed and approved as suitable to adopt by a UK adoption agency prior to bringing a child into the UK.

189.     This clause replaces and strengthens section 56A of the 1976 Act which was inserted by section 14 of the 1999 Act. It extends to England and Wales only, but clause 120 makes similar provision for Scotland.

Clause 81: Giving parental responsibility prior to adoption abroad

190.     Clause 81 provides that the High Court may make an order for the transfer of parental responsibility for a child to prospective adopters who are not domiciled or habitually resident in England or Wales but who intend to adopt the child outside the British Islands. An order cannot be made where the prospective adopters meet the requirements of domicile or habitual residence to allow an adoption order to be made in England and Wales. Regulations will prescribe the requirements which must be satisfied before an order may be made (subsection (3)). An application for an order may not be made unless the child's home has been with the applicant(s) at all times during the preceding 10 weeks (subsection (4)). An order under this clause has the same effect as an adoption order in extinguishing parental responsibility (subsection (5)). Subsection (6) provides that regulations may be made to apply to orders made under this clause any provision of this Bill which refers to adoption orders with or without modifications.

Clause 82: Restriction on taking children out

191.     Clause 82 imposes restrictions on taking children who are Commonwealth citizens or habitually resident in the United Kingdom out of the United Kingdom for the purpose of adoption. It is an offence unless the proposed adopters are parents, relatives or guardians or a step-parent of the child, or have obtained an order under clause 81. A person would be liable on summary conviction to up to six months' imprisonment or a fine not exceeding the statutory maximum, or both, or, in the event of the case being referred to the Crown Court, to up to twelve months' imprisonment or an unlimited fine, or both.

Clause 83: Overseas adoptions

192.     Overseas adoption orders are recognised in England and Wales. Clause 83 provides that overseas adoptions are those specified by an order made by the Secretary of State, plus "old overseas adoptions" (which by virtue of subsection (3) means an adoption that was an "overseas adoption" in the 1976 Act). Subsection (2) provides that an overseas adoption must be one that appears to the Secretary of State to be effected under the law of any country or territory outside the British Islands but that are not Convention adoptions. An overseas adoption must also meet any requirements prescribed by regulations made by the Secretary of State, following consultation with the National Assembly for Wales. Subsection (4) enables the Secretary of State to provide the manner in which evidence of any overseas adoption may be given.

193.     It is intended to review which country's adoption orders will be recognised in the UK when this Bill is enacted. This clause allows the Secretary of State to specify clear criteria that must be met for a country to be included on the revised "designated list". It also ensures that the status of those adopted from countries included on the previous "designated list" is not undermined by the introduction of a new order.

Clause 84: Modification of section 64 for Convention adoptions

194.     Clause 84 provides that where the High Court, on application, is satisfied that the conditions set out in subsection (2) are met, it may direct that clause 64(2) (which provides for the status conferred by adoption) does not apply or does not apply to any extent which may be specified in the direction. The reason for this provision is as follows. Adoption law of the United Kingdom recognises only one type of adoption, which is full adoption, and this creates a new and irrevocable legal relationship between the child and adoptive parents which severs all legal ties between the child and his birth parents. A child adopted in England and Wales is to be treated in law as not being the child of any person other than the adopters. In some countries, however, certain forms of adoption do not have the effect of totally severing all ties from the birth parents and these are known as simple adoptions.

195.     Article 26 of the Hague Convention provides for the recognition of both full and simple adoptions. Article 27 of the Hague Convention allows a receiving State to convert a simple adoption into a full adoption if its law so permits and provided the birth parents and relevant parties under Article 4 of the Hague Convention have given their consent to a full adoption. Where the receiving State is England and Wales, the Central Authority will ensure that in all cases the birth parents are informed of the effects of a simple adoption in England and Wales and seek to obtain their consent to a full adoption prior to a Convention adoption being made in a country outside the British Islands or a Convention adoption order being made here. Where the receiving State is not England and Wales, it is possible that the child may be brought to this country in circumstances where simple adoptions are recognised, both in the State of origin and the receiving State, and so no consent to full adoption has been given. In those cases the adoption will still be treated as a full adoption by operation of law, but if any issue of status arises where it is felt it would be more favourable to the child to treat the adoption otherwise than as a full adoption, an application may be made to the High Court.

Clause 85: Annulment etc. of overseas or Convention adoptions

196.     Clause 85 provides for the High Court to annul a Convention adoption or a Convention adoption order on the grounds that the adoption is contrary to public policy. Where an overseas adoption or a determination under clause 87 is shown to be contrary to public policy or the authority which made the adoption or determination was not competent to entertain the case, the High Court may order that the overseas adoption or determination should cease to be valid.

Clause 86: Section 85: supplementary

197.     Clause 86 makes supplemental provision in respect of annulment of overseas or Convention adoptions and Convention adoption orders. It specifies that the application must be made in the prescribed manner and within any prescribed period (subsection (1)), that the adopted person or adopter(s) must have been habitually resident in England and Wales immediately before the application (subsection (2)), and that the court is bound by any finding of fact by the authority when determining whether that authority was competent to entertain the case (subsection (3)).

Clause 87: Overseas determinations and orders

198.     Clause 87 makes further provision in relation to overseas determinations and orders. It provides that where any authority of a Convention country (other than the UK) or the Channel Islands, the Isle of Man or any overseas colony has the power to authorise or review the authorisation of an adoption order made in that country or territory, or to give or review a decision revoking or annulling an adoption order or a Convention adoption, that determination will be recognised in the UK. This is subject to clause 85 and any subsequent determination.

Chapter 7 - Miscellaneous

199.     Chapter 7 restates with amendment the criminal offences in sections 11 and 57 of the Adoption Act 1976. These deal with restrictions on making arrangements for adoption and payments offered, made or received in consideration of an adoption. In addition it introduces a new offence which deals with restrictions on preparing reports in connection with adoption. Chapter 7 also sets out who may prosecute offences under the Bill and the time limit for bringing such prosecutions.

200.     In addition Chapter 7 deals with proceedings in the civil courts. It aligns provision for appeals from the Magistrates' Court with the procedure in the Children Act 1989 and restates the requirement previously found in section 64 of the Adoption Act 1976 for certain hearings to be heard in private. New provision is made to impose an obligation on the courts when dealing with proceedings for an adoption or placement order to draw up a timetable to ensure that the matter is dealt with without delay. In addition the role of the guardian ad litem and reporting officer set out previously in section 65 of the Adoption Act 1976 is now replaced by a similar role for an officer of the Children and Family Court Advisory and Support Service. The Bill gives a new right to such officers, in connection with the hearings with which they are involved, to inspect records held by an adoption agency.

201.     This Chapter also provides for recognition in England and Wales of adoption orders made in Scotland, Northern Ireland, the Channel Islands and the Isle of Man.

Clause 88: Restriction on arranging adoptions, etc.

202.     Clause 88 sets out the steps in relation to arranging an adoption that may only be taken by an adoption agency or a person acting in pursuance of an order of the High Court. Subsection (2) lists nine steps that should not be taken, for example seeking, offering or placing a child for adoption. Subsections (3) and (4) provide that certain steps do not apply where one or both of the prospective adopters are parents, relatives or guardians of the child, or where a prospective adopter is a step-parent. Subsection (6) enables the Secretary of State, after consultation with the National Assembly for Wales, to make an order amending subsections (1) to (4) where he considers an amendment necessary or expedient. This power could be used, for example, to specify additional steps for inclusion in the list in subsection (2) to further protect the interests and welfare of children or other parties affected by adoption. Subsection (5) allows regulations to be made prescribing who should be treated as an adoption agency in respect of intercountry adoption for the purpose of this provision.

Clause 89: Offence of breaching restrictions under section 88

203.     Clause 89 provides that where a person contravenes clause 88(1) he is guilty of an offence. It also provides that if the offender is an adoption society, the person who manages the society is also guilty of the offence. Defences are provided in subsections (2) and (3). Subsection (4) sets out the penalty on summary conviction as imprisonment for a term not exceeding six months, or a fine not exceeding £10,000, or both.

Clause 90: Restriction on reports

204.     Clause 90 provides restrictions on the preparation of certain reports in connection with adoption. The intention is to ensure that only professionally qualified staff carry out the necessary evaluations and report writing. Subsection (1) provides a regulation making power so that a person who is not within a prescribed description may not, in any prescribed circumstances, prepare a report for any person about the suitability of a child for adoption or of a person to adopt a child or about the adoption, or placement for adoption, of a child. The intention is to use this power to regulate the preparation of assessment, post-placement and post-adoption reports. Subsection (2)(a) provides that an offence is committed if a person contravenes subsection (1). Subsection (2)(b) provides that an offence is committed where someone causes a person to prepare a report or submits to any person a report which has been prepared in contravention of subsection (1). Subsection (3) provides that where an offence is committed by a person who works for an adoption society the manager of that society is also guilty of the offence. A defence for a person charged with an offence under subsection (2)(b) is provided by subsection (4). Subsection (5) sets out the penalty on summary conviction where an offence is committed as imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

Clause 91: Prohibition of certain payments

205.     Clause 91 prohibits certain payments or rewards in connection with the adoption of a child. Subsection (1) provides that this clause applies to any payment (other than an excepted payment as set out in clause 92) which is made for the adoption of a child, giving any consent for the child's adoption, or the removal from the United Kingdom of a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom, to a place outside the British Islands for the purpose of adoption. Subsection (1) also applies to any payment in connection with certain steps taken to arrange an adoption under clause 88, and the commissioning or preparation of reports where it would contravene clause 90(1).

206.     Subsection (3) provides that an offence is committed where a person makes any payment to which this clause applies, agrees or offers to make any such payment, or receives or agrees to receive or attempts to obtain any such payment. Subsection (4) provides the penalty on summary conviction where an offence is committed as imprisonment for a term not exceeding six months or a fine not exceeding £10,000, or both.

 
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Prepared: 19 October 2001