Select Committee on Delegated Powers and Deregulation Nineteenth Report



ANNEX 1

Adoption (Intercountry Aspects) Bill

Memorandum by the Department of Health

INTRODUCTION

1.  The Adoption (Intercountry Aspects) Bill received its First reading in the House of Lords on 11 June 1999. This memorandum summarises the main provisions of the Bill and provides an overview of the delegated powers. It subsequently identifies each power; describes its purpose; explains why the matter has been left to delegated legislation; and explains the degree of parliamentary control provided.

23.  The origins of the Bill lie in the steady growth in intercountry adoption in the United Kingdom since 1990. About 400 UK families are successful each year in being approved to adopt children living abroad; there are approximately 100 other cases where people avoid the adoption procedure and bring children to the United Kingdom without approval. Yet there are few specific provisions for intercountry adoption in the Adoption Act 1976. Also, the United Kingdom played an influential part in the preparation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded on 23 May 1993 which it signed in January 1994; to date there has been no opportunity to present the necessary legislation to enable the UK to ratify.

THE BILL

In summary the Bill:

Creates a statutory basis for intercountry adoption.

24.  Adoption is entirely a creature of statute. It is regulated in England and Wales by the Adoption Act 1976 ("the 1976 Act") and in Scotland by the Adoption (Scotland) Act 1978 ("the 1978 Act"). The 1976 and 1978 Acts were passed at a time when intercountry adoption was relatively unusual in the UK, and little provision was made for it. The Bill makes amendments to the 1976 and 1978 Acts in order to provide a clear statutory basis for intercountry adoption. This will enable more efficient and effective regulation of the process, placing it on a level with domestic adoption and within the mainstream adoption service.

Enables the United Kingdom to give effect to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993 ('the Convention').

25.  The Convention provides for the first time an important framework of minimum standards to ensure that the welfare of children to be adopted by families living overseas is protected at all stages of the adoption process. The Bill implements the Convention by the following means: (a) by giving the Secretary of State the power to make regulations to give effect to the Convention, (b) by providing for the discharge of functions under the Convention, (c) by amending (amongst others) the 1976 and 1978 Acts and the British Nationality Act 1981.

Provides sanctions to prohibit a person bringing a child into the United Kingdom or otherwise make arrangements for the adoption of a child from overseas without authority.

26.  It is vital that intercountry adoption is managed to the highest professional standards to avoid 'baby trafficking'. The Bill will make it an offence for a child to be brought into the United Kingdom by a person who is habitually resident in the British Islands unless requirements to be prescribed in regulations are complied with.

OVERVIEW OF THE DELEGATED POWERS AND TYPE OF PARLIAMENTARY SCRUTINY

27.  The Bill has a number of provisions containing powers to make delegated legislation. The powers are concerned with the detail of implementation of the Convention, and with establishing proper procedures for Convention and other intercountry adoptions. They also provide for regulatory offences to be created. Regulations made in consequence of the Bill are to be made by statutory instrument. In line with established practice that the affirmative procedure is restricted to exceptional cases, the negative procedure is adopted.

28.  By clause 16(1), the power to make delegated legislation under clauses 1 and 18(3), and sections 17 and 56A of the 1976 Act as inserted by clauses 3 and 14, is exercisable only after consultation with the National Assembly of Wales. Under the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) certain of the Secretary of State's powers to make subordinate legislation under the Adoption Act are transferred to the Assembly. The Transfer Order does not extend to functions in relation to the Convention, and the powers under the clauses mentioned above will not be exercised separately in relation to Wales. But it is considered necessary that the Assembly should be formally consulted in the making of these regulations since it is to be the Central Authority for Wales for the purposes of the Convention.

RATIONALE FOR DELEGATED POWERS IN THE BILL

29.  In considering what matters should be specified on the face of the Bill and what should be left to delegated powers, the Department has weighed the importance of the matter against the need to:

    (a) avoid excessive technical and administrative detail and keep the Bill as short as possible;

    (b) ensure sufficient flexibility to be able to react to changing circumstances and experience without the need for primary legislation;

    (c) allow detailed administrative arrangements to be established and kept up to date within the basic principles and structures of the Bill, subject to the right of Parliament to challenge inappropriate use of powers; and

    (d) allow flexible timing to get the legislation right, to consult and make changes when circumstances demand.

30.  It is intended that the draft Regulations will be subject to consultation prior to making and laying before Parliament.

COMMENTARY ON DELEGATED POWERS

CLAUSE 1

31.  Subsection (1) enables the Secretary of State to make regulations for giving effect to the Convention. The text of the Convention (so far as is material) forms part of the Bill at Schedule 1.

32.  By subsection (3)(a), the regulations may apply and modify any provision of the enactments relating to adoption; by subsection (3)(b) they may create criminal offences; by subsection (3)(c) they may make different provision for different purposes or areas, and by subsection (3)(d) they may make incidental, supplementary, consequential or transitional provision. Subsection (5) extends the existing powers to make subordinate legislation under the 1976 and 1978 Acts to include the power to make provision to give effect to the Convention. By subsection (6), and for the reasons given in paragraph 9 above, this subsection does not apply in relation to any power exercisable by the National Assembly for Wales.

33.  The Convention is to be implemented in large part through regulations. There are several precedents to such an approach (an example may be found in section 86 Patents Act 1977 in respect of the Community Patent Convention). The powers in Clause 1 are quite wide, in order to establish the framework and process by which the Convention is to work. This is desirable in order to avoid the breadth of detail on the face of the Bill which would otherwise be necessary to implement a Convention of this complexity. It is considered necessary for the effective implementation of the Convention and its efficient operation, to allow for a degree of flexibility and to avoid the rigid legal structure which would otherwise be inevitable. Current adoption procedures are complex, and largely provided for in regulations (in England and Wales, the Adoption Agencies Regulations 1983 (SI 1983 No. 1964) (as amended). To that extent, the use of a regulatory power in adoption is well established.

34.  The power to create regulatory offences in subsection (3)(b) mirrors the 1976 and 1978 Acts which have similar powers (section 9(4) of the 1976 Act and 1978 Act). It is intended to exercise the power to ensure full compliance with regulatory requirements in Convention cases. The power is one of the means of implementing the requirement of the Convention (Article 6) that Central Authorities take all appropriate measures to deter practices contrary to the Convention.

35.  Intercountry adoption is still a relatively new field. From time to time it may be necessary to make changes to the regulations in the light of experience. Any necessary legislative changes therefore can be made through delegated legislation, without the need for primary legislation but subject to Parliamentary scrutiny.

CLAUSE 3

36.  This clause provides the Secretary of State with an enabling power to make regulations for Convention adoption orders. The power will be exercised to make minor but necessary modifications to the jurisdictional requirements under the 1976 and 1978 Acts in order to comply with the requirements of the Convention. For example, it will be necessary to modify the domicile requirements in sections 14(2) and 15(2) of the 1976 and 1978 Acts to comply with Article 14, which is based on habitual residence. The reason for taking the power is to avoid the need to make adjustments of this nature on the face of the Bill.

CLAUSE 12

37.  Clause 12(3) inserts a new paragraph 3 into Schedule 1 of the 1976 and 1978 Acts. Paragraph 3 confers power on the Registrar General (or the Registrar General for Scotland as the case may be) to make regulations about the registration of overseas and Convention adoptions (registrable foreign adoptions). The Adoption (Form of Entry) Regulations 1975 prescribe the format of the entry to be made in the Adopted Children Register for a domestic adoption. It is intended that the power will be exercised to provide that an entry for a registrable foreign adoption should be made in the same way.

38.  The powers in clause 12(3) to specify the manner, person and particulars reflect the powers in the present paragraph 3 of Schedule 1 to the 1976 and 1978 Acts. These new powers are intended to ensure that only those registrable foreign adoptions which meet the criteria to be specified in regulations.

39.  The powers are contained in subordinate legislation in view of the detailed nature of the matters to be prescribed, and to enable the Registrar General to consider and review their impact and effect over time and to propose amendments where and if appropriate.

CLAUSE 14

40.  This clause inserts an additional section after section 56 of the 1976 Act and section 50 of the 1978 Act (restriction on removal of children for adoption outside Great Britain). It provides for restrictions on bringing children into the United Kingdom otherwise than in accordance with regulations. The offence will not apply to a birth parent, relative or guardian of the child. The new sections make it a criminal offence for a person habitually resident in the British Islands to bring to the United Kingdom for the purposes of adoption a child who is habitually resident outside those islands unless they comply with requirements to be prescribed by regulations. These requirements may apply either prior to the child's arrival or within a period to be prescribed and following the child's arrival. An example of the former type of provision to be made is a requirement for adopters to be approved by an adoption agency and to have a certificate of authorisation from the Department of Health before proceeding, and an example of the latter is a requirement for adopters to notify their local authority of the child's arrival in the UK within a specified period.

41.  The power is necessary to deter a person from bringing a child to the United Kingdom for the purposes of adoption without authority, for example, where he has not been assessed by an approved adoption agency as suitable to be an adoptive parent. It is necessary also to provide a degree of protection for the child concerned in that its deterrent effect is intended to motivate people to apply to adopt from overseas by using the proper procedures.

42.  The detail has been left to delegated legislation partly to allow for consultation on the provisions, and partly to enable the requirements to be modified if necessary in the light of experience. Adoption arouses strong feelings, and prospective adopters can be tempted to cut corners or to flout procedures, leading to concerns about the best interests of the child concerned. It is considered desirable to be able to respond swiftly through use of the regulatory power in this clause to abuse of the system.

43.  It is considered necessary to take a power to prescribe offences in relation to requirements to be satisfied either before or within a period to be prescribed after the child's arrival because a person bringing a child into the United Kingdom without authority would otherwise not forced to declare the presence of the child to the local authority which would enable the child to enjoy 'protected' status under the 1976 and 1978 Acts and be the subject of regular visits to safeguard his welfare.

CLAUSE 18

44.  Subsection (3) provides for the Secretary of State to commence the provisions of the Bill by order. It would not be practicable to introduce its provisions on Royal Assent because time is needed to prepare and consult upon delegated legislation, and for local authorities and voluntary adoption societies to prepare for implementation. To allow for flexibility in implementation, commencement orders rather than fixed dates are proposed, and different dates may be appointed of different purposes. These are standard provisions, and as is usual, no parliamentary scrutiny is proposed.

June 1999


 
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