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 and practitioners, 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 by the Scottish Government in writing as soon as possible. Where an exception request is being made in respect of the adoption of a specific child, regulation 6 of the regulations sets out the ‘matters’ to be considered. 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

In particular, with reference to the fourth matter above—the ‘child’s particular needs and the capacity of the prospective adopters to meet those needs’—the capacity of the prospective adopters to meet the needs of the particular child should be evidenced through a home assessment completed by the local authority.

It is within the local authority’s right and responsibility to use the same home assessment process used for other intercountry adoption applications and domestic adoption applications. The local authority holds the responsibility to determine if prospective adopters are suitable to adopt.

To note, the home assessment decision is not a decision regarding the status of the exception request being granted, but rather a confirmation of whether the prospective adopters are suitable to adopt more generally. As noted below, it will be for the Scottish Ministers to consider in light of all relevant information whether the case should be treated as exceptional.

Regarding all matters mentioned above which need evidenced, if the exception 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 all information has been gathered, and before any evidence is put to Ministers to consider if 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 an opportunity for prospective adopters 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.

Where a specific child has not been identified, the only matter which will be specified in the acknowledgement letter, according to regulations. is ‘the reasons why the state of origin was placed on the restricted list’ (i.e. the issues in relation to adoption process and practice in the relevant country that led to it being placed on the restricted list).

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.

Please see the 'making a request' section on this page regarding matters to be considered where a specific child has not been identified.

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.