Local authorities and international adoptions

Child removal iStock 000007583512XSmall 146x219Ayeesha Bhutta analyses local authorities' duties and the potential pitfalls they face in cases of international adoption and children being brought illegally into the UK.

The international movement of children for adoption is a highly regulated area and for good reason. In the case of Re M (international adoption trade) [2003] 1 FLR 1111 Mr Justice Munby described the “trade” in “buying and selling” babies as “evil and exploitative”.

A particular concern of the court has been that often – but not always – the prospective carers in an international adoption case would not be assessed positively as adopters for a ‘domestic child’. This is clearly hugely detrimental to the children concerned. Therefore a complex series of statute, regulations and guidance exist regarding international adoption. These regulations are backed up by criminal sanctions.

To bring a child into the United Kingdom for the purpose of adoption without committing a criminal offence the prospective adopter must either:

  • Comply with the requirements of the Hague Convention 1993; or
  • Comply with the Adoptions with a Foreign Element Regulations 2005 (AFER 2005).

Bringing a child into the UK for the purpose of adoption or bringing and child into the UK within 12 months of an adoption order being made in a foreign country (s83 Adoption and Children Act 2002) is a criminal offence.

There is not sufficient space in an article such as this to detail the full requirements of the above routes. Suffice to say in either situation the process is lengthy and requires assessments and approval of the adopters. The local authority may be involved in these processes as the adoption agency and responsible for the assessment of the adopters.

Following the child’s entry to the UK the local authority has duties under the AFER 2005 or the Children Private Arrangements for Fostering Regulations 2005 to visit the child and review his welfare.

AFER 2005 will apply if no adoption order has been made in the child’s home state. In these circumstances the adopter must notify the local authority of his intention to apply for an adoption order in the United Kingdom. Failure to do this is a criminal offence. 

Upon receipt of the notification from the prospective adopters, the local authority has certain duties. In particular they must:

  • set up a case record containing information received from the relevant foreign agency, the adoption agency (if not the local authority), the prospective adopter, entry clearance and information from the Department for Education;
  • notify the adopter’s GP in writing of the child’s arrival into England and Wales and send a report as to the child’s health;
  • send notification to the local Primary Care Trust.

The child should be visited within one week of the notification and thereafter on a weekly basis until a review. The review should be held within four weeks and should consider the child’s needs, arrangements for support services and the need for further visits. The child should be visited further within three months and six-monthly thereafter. The local authority should give the adopters advice as to the child’s needs, welfare and development and adoption support services.

The Children Private Arrangements for Fostering Regulations 2005 will apply if the child enters the country and an overseas adoption is in the process of being made. The adopters should notify the local authority of a private fostering arrangement. The local authority has a duty to “satisfy themselves that the welfare of children who are or are proposed to be privately fostered within their area is being or will be satisfactorily safeguarded and promoted …”.

The regulations provide, amongst other things, that:

  • the local authority should be notified six weeks prior to the start of a private fostering arrangement, or, if the arrangement has already begun, immediately;
  • the local authority should visit the child’s home within seven working days and prepare a written report;
  • the local authority should visit every six weeks for the first year of the arrangement;
  • the private foster carer should inform the local authority of any change of circumstances.

Fulfilling the local authority duties is not difficult if the adopters are honest and open. Problems arise when adopters are determined to ‘hide’ from the system. The local authority may then only become aware when the child has been living in the country for some time. This then creates difficulties: do you remove the child from a secure home?

For example, in the case of Northumberland County Council v Z, X Y and Govt of Kenya [2008] EWHC 1342 a Kenyan child was brought into the UK in deliberate breach of the regulations and there was deliberate deception of the UK and Kenya authorities.

The local authority, once alerted to the situation, acted swiftly to remove the child. At the final hearing the child was returned to Kenya although the professionals involved found the case very finely balanced (the adoptive parents provided good care, had good quality contact following removal and there were initial uncertainties about the state care system in Kenya).

In other cases – such as Re R (intercountry adoption) [1999] 1 FLR 1014 – local authorities have been criticised for a lack of action and leaving children in unsuitable placements.

The following is suggested:

  1. If it is discovered that a child is placed illegally, action to remove the child should be taken swiftly and, if appropriate, care proceedings issued (proceedings should be transferred to the High Court);
  2. The case should be allocated to a senior social worker, ideally with experience in this area;
  3. Adopters’ stories of how the child came to be in the UK should be verified. All documents provided by adopters should be translated into English;
  4. Attempts should be made to contact the child’s natural parents (via the British Embassy in the child’s home country if appropriate) to ensure that they know where the child is and consent to adoption; and
  5. If the child was in ‘care’ or the equivalent in its home country, contact should be established with the local children’s services and their views on the child’s placement should be established.

Ayeesha Bhutta is a barrister at Field Court Chambers. She is the co-author of a book on International adoption, due to be published in November 2012. Ayeesha specialises in children cases and is experienced at acting for local authorities in cases with an international element.