Adoption - special restrictions: list of countries

Requests for exceptions to suspensions of adoptions from specified countries - information for prospective adopters

Introduction

The information below outlines the process that will be followed when a request for an exception to a suspension of adoptions from a country is being considered by the Scottish Ministers. It is a guide for prospective adopters, aimed particularly at those applying for an exception.

The information provided here reflects and expands on the process set out in the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008 (referred to hereafter as “the regulations”).  It applies only where requests for exceptions are submitted to the Scottish Ministers.

A suspension of adoptions, by prospective adopters resident in the British Islands, from a particular country, can be imposed by the Scottish Ministers under powers contained in the Adoption and Children (Scotland) Act 2007 (sections 62-65). Under these provisions a country which is the subject of ‘special restrictions’ is known as a ‘restricted country’. The Scottish Ministers are required to publish a list of restricted countries, ‘the restricted list’.  Read further information about the statutory framework for the restriction of adoptions from abroad.

The policy presumption is that, because a country is on the restricted list (i.e. that a suspension is in place), adoptions from that country by British Residents will not continue.  For any application to proceed where a suspension is in place, the Scottish Ministers will need to be satisfied that the facts of a particular case are such that an exception should be made to the general policy.

Making a request

Prospective adopters who wish to request that their case be treated as an exception to a suspension should make an application to the Scottish Government by writing to: intercountryadoption@gov.scot

The request should set out the reasons why the prospective adopters consider their case is exceptional. In doing so, prospective adopters may find it helpful to consider the list of ‘matters’ which must be considered when exceptions are being considered as set out in paragraph 10 below.

When a request for an exception is received it will be acknowledged in writing as soon as possible. If the request does not set out the reasons why the prospective adopters consider that the case should be treated as an exception, clarification of these reasons will be sought and further information about the facts of the case will be sought. Any further enquiries, for example, seeking information from the British Embassy in the country in respect of which the suspension is in place will also be made if considered appropriate.

Once this information has been gathered, and before any decision is made as to whether the case is exceptional, the prospective adopters will be asked whether there is any further information which they would like to be considered as part of their request. This will be the prospective adopters opportunity to add anything further that they consider relevant. For example, it may be that they have requested another person or body to supply information that has not yet been received. A decision will normally be deferred until confirmation has been received from the prospective adopters that they have submitted all the information which they would like to be considered, or any outstanding information is received.

Deciding whether a case is ‘exceptional’

The decision as to whether a case is exceptional will be taken by the Scottish Ministers. In deciding whether or not a case is exceptional, the Scottish Ministers will consider all the information provided which is relevant to the individual facts and circumstances of the case. The regulations list a number of ‘matters’ which must be taken into account when exceptional cases are being considered. The list is non-exhaustive and while the listed matters must be considered, matters other than those listed in the regulations may also be taken into account depending on the circumstances of the case.

Where an exception request is more likely to be made in respect of the adoption of a specific child, regulation 6 sets out the ‘matters’ to be taken into account. These are:-

• the ‘circumstances leading to the child becoming available for adoption’. This might include whether the child has been orphaned, abandoned or relinquished.
• ‘whether any competent authority in the State of origin has made a decision in relation to the adoption or availability for adoption of the child’.  This might include whether a court or adoption agency has been involved in determining the status of the child.
• ‘the relationship of the child to the prospective adopters including how and when that relationship was formed’. This might cover how the child was ‘matched’ with the prospective adopters, for example, whether the child and the prospective adopters are related or have a long standing relationship.
• the ‘child’s particular needs and the capacity of the prospective adopters to meet those needs’. This might include a child with a special need
• the ‘reasons why the State of origin was placed on the restricted list’. These would be the particular issues in relation to adoption process and practice in the relevant country that led to it being placed on the restricted list

Where a specific child has not been identified, the only matter specified in the regulations is ‘the reasons why the State of origin was placed on the restricted list’ (i.e. the particular issues in relation to adoption process and practice in the relevant country that led to it being placed on the restricted list). Although the additional matters listed at regulation 6 are only likely to be relevant where a specific child has been identified, other matters may be relevant depending on the circumstances of the case.

Notifying prospective adopters of a decision

When the Scottish Ministers have decided whether or not the case merits an exception to the suspension, we will write to the prospective adopters as soon as possible to inform them of the outcome. If an exception is merited, the case will be processed. If the case does not merit an exception, the prospective adopters will be informed by the Scottish Government, in writing, with the reasons for the decision.

Following notification of a decision in respect of their request for an exception, prospective adopters who have new or additional information are entitled to submit further exception requests. However, Scottish Ministers are not required to reconsider requests unless they contain additional information which is likely to have affected the outcome of the initial decision. Prospective adopters may also make further requests if the new request relates to a different child, or to a different restricted country.

Timescales

Any requests for exceptions will be dealt with as quickly as possible. We are unable to offer a fixed timescale for the consideration of cases as the time taken to consider requests is likely to vary according to the particular circumstances of the case.