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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

International Adoption: Child Migration & Immigration Control

29 June 2018 Grace McGill Personal Immigration

What does international / Intercountry adoption actually mean in terms of UK Immigration control? It is a cumbersome process fraught with legal difficulties and regulation far from straightforward.

Prospective adopters  must show that:

  • the child cannot be cared for in any suitable manner in his/her own country;
  • the adoption would be in the best interests of the child;
  • the adopter has been assessed by a registered adoption agency as eligible and suitable to adopt from overseas; and
    • no profit will be made from the process.
    • the child is under 18 years of age.

There are three types of intercountry adoption:

Hague Convention Cases

The UK is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The Convention establishes a system of co-operation between contracted countries, ensuring intercountry adoptions are in the best interests of the child and that all steps necessary are taken to prevent child trafficking.

Successful adoptions by UK citizens in other Hague Convention countries result in immediate recognition of the adoption by the UK authorities and British citizenship for the child (if the adopters are habitually resident in the UK or certain designated territories and at least one of them is a British citizen).

Designated List

On 3 January 2014, The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013 and The Adoption (Recognition of Overseas Adoptions) (Scotland) Amendment Regulations 2013 came into force. They replace The Adoption (Designation of Overseas Adoptions) Order 1973 (1973 Order) and The Adoption (Designation of Overseas Adoptions) (Variation) (Scotland) Order 1995.

The countries listed in the 2013 Regulations contain a 'designated list' of countries in which adoptions are recognised in Scotland. It should be noted however that this does not confer automatic British citizenship to a child. An application for citizenship must be made to the relevant UK authorities. All decisions are at the discretion of the Home Secretary. Adoption alone does not guarantee entry into the UK.

Other 

Adoptions from countries that are not party to the Hague Convention, or from a country that is not on the Designated list, are not recognised under UK law. An adopter will need to apply for an adoption order from a court in the UK. If received, this order recognises the adoption and confers British citizenship onto the child (if the adopter, or one of the adopters, is a British citizen).

But what of those adoptions undertaken which are neither Hague Convention nor on the designated lists? What happens if the adopted child is resident in Scotland / UK under Immigration control yet has been adopted by a  British Citizen (s)  whilst living abroad? What if that child is now over 18 years of age?  In a test case brought to the Court of Session  : Ian Brown [2015] CSOH 68 a petition was raised for recognition of a foreign adoption at common law where we were successful in presenting a case to Lord Brailsford that the adoption order granted in the relative jurisdiction in this instance Ethiopia, was one which the evidence showed,  satisfied the tests set out in the English authority  of G ( Children ) 2014 :  (i) Was the adoption obtained wholly lawfully in the foreign country?; (ii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept?; (iii) If so, was there any public policy consideration that should mitigate against recognition? Whilst the success of this case did not lead to an immediate recognition of British Citizenship, it corrected a historical wrong and ultimately did resolve immigration status resulting in citizenship being granted.  

 

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