Is Your International Adoption Recognised In Scotland?

For many individuals and couples, the journey to parenthood is not always straightforward.

We have previously written about the legal position around surrogacy and parental orders in Scotland. Another route that some parents take is adoption – including international adoption.

In Scotland, adoption gives adoptive parents full parental rights and responsibilities, while revoking those rights and responsibilities from the birth parents. This process allows the adoptive parents to then become the legal parents of that child.

Complexities can arise when parents who have adopted a child overseas then seek to bring that child to Scotland to reside, as intercountry adoptions are not always automatically recognised in Scotland. This can be complicated, and we would suggest that you seek specialist UK immigration advice as well as family law advice early on in the process.

Whilst Grace McGill, head of our immigration team, has previously explored and discussed international adoption from an immigration law perspective, this article sets out when an intercountry adoption may be automatically recognised in Scotland and, if not, what steps are required to ensure that it is recognised from a family law perspective.

You can also read Grace's insight on the international adoption rules which provides an update in terms of the current rules in place regarding parents looking to bring their adopted children to the UK.

When is an international adoption automatically recognised?

Scotland will automatically recognise adoptions which are granted in specific countries without the need for further legal steps to be taken, as these adoptions are recognised under Scottish regulations. These include:

• Adoptions granted in countries that are signatory to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. This international agreement promotes cooperation amongst signatory countries to ensure that intercountry adoptions are in the best interests of the child by establishing certain safeguard measures.
• Adoptions granted in the countries listed in The Adoption (Recognition of Overseas Adoptions (Scotland) Regulations 2013 and its Amendment.

In these cases, no application for recognition of the adoption is required as it is treated in the same way as if it were granted in Scotland.

What if the adoption is not automatically recognised?

If the country in which your adoption order has been granted is not identified on the list within these regulations, additional steps must be taken. There are two separate processes which are available:

1. Apply to the Court of Session for recognition at common law; or
2. Apply for a domestic adoption order through the Scottish Courts.
   Advice from a specialist family lawyer is essential to determine the best course of action and to guide you through the process.

Countries with restrictions on adoption

The Scottish Government has identified countries where there is concern over adoption practices and procedures, which may pose risks to the welfare of children. Where this is the case, restrictions on adoptions being automatically recognised have been put in place. Such restrictions are imposed if it is believed that there are harmful practices in those countries that would go against public policy in Scotland. This restricts the bringing of children to Scotland, either for adoption or having been adopted in the specified country.

The list of countries with restrictions in place remains under regular review by the Scottish Government. There are currently restrictions on adopting a child from:

• Cambodia
• Ethiopia
• Guatemala
• Haiti
• Nepal
• Nigeria

Are exceptions to the restrictions possible?

For some of these restricted countries, it is possible to apply for an exemption to the restrictions. This process involves providing a detailed case to the Scottish Ministers, who will consider whether the adoption should be treated as an exception, which requires certain criteria, as established by the Scottish Government, to be met.

The Scottish Ministers will seek the following information in order to assess whether an exemption is appropriate and in the child's best interests:

• The circumstances leading to the child becoming available for adoption
• Whether any competent authority in the state or origin has made a decision in relation to the adoption – i.e. a court order
• The relationship of the child to the prospective adopters
• The child's particular needs and the capacity of the prospective adopters to meet those needs
• The reasons why the state of origin was placed on the restricted list

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.