Adoption (Intercountry Aspects) Bill
Memorandum by the Department of Health
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.
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
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
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
(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
COMMENTARY ON DELEGATED POWERS
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
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
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.
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
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
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.
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