Intercountry adoption: Scotland's guide for international adoption

3. Types of ICA

This section describes the different types of ICA and associated legislation.

3.1 Hague Convention Adoption

Hague Convention Adoptions refer to adoptions carried out under the framework of

the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption (‘the Hague Convention’). The Hague Convention is an international treaty to which many countries are signatories, including the UK. Countries that are signatories to the Hague Convention are known as “Contracting States”. Prospective adopters seeking to adopt a child who is habitually resident in another Contracting State may seek to do so using the mechanisms of the Hague Convention.

The Hague Convention established an international system of co-operation that aims to prevent the abduction, sale and illegal trafficking of children. The Convention requires that ICA happens only when it is in a child’s best interests; that all prospective adopters are assessed and approved as suitable to adopt; and that no profit is made from the adoption process.

The four nations of the United Kingdom are ‘Contracting States’ and each have Central Authorities established, in accordance with the Convention, to undertake various duties to facilitate the Hague Convention Adoption process. This includes information sharing and identifying obstacles to the Convention being followed.

Further detail on the role of the Scottish Government as the Central Authority for Hague Convention cases in Scotland is set out in Roles, Responsibilities and Stages of Intercountry Adoption (ICA).

A full list of Hague Convention countries – i.e. Contracting States – is available online.

3.2 Non-Hague Convention Adoption

A Non-Hague Convention Adoption is typically where prospective adopters are seeking to adopt a child from a country which is either not a Contracting State to the Hague Convention or from a Restricted Country entered onto the Restricted List, detailed in section 3.4. These kinds of adoption cannot use the legal mechanisms of the Hague Convention to process the adoption.

Further detail on the role of the Scottish Government for Non-Hague Convention cases in Scotland is set out in Section 5 – Roles and Responsibilities.

3.3 State of Origin Adoption (where Scotland is the “sending State”)

Most ICAs in Scotland take place with Scotland being the receiving state, i.e. the place where a child is coming to reside. However, Scotland can also be the ‘State of Origin,’ i.e. the place a child is leaving from.

A State of Origin Adoption takes place when a child who is habitually resident in Scotland is adopted out of the UK to live in another country.

The Scottish Government only handles State of Origin Adoptions for children leaving Scotland. If someone wishes for a child, who is habitually resident in England, Wales or Northern Ireland, to be adopted out of the UK to go live in another country, please contact the respective UK country’s ICA team to proceed. Their contact details are found in the Contacts section.

A State of Origin Adoption occurs when a local authority has:

• decided the child is eligible for adoption;
• decided that adoption is in the best interests of a child;
• considered the possibilities for placement of that child within the British Islands, which were deemed unsuitable to meet the child’s specific needs; and
• considers that adoption by a person(s) habitually resident in a Contracting State outside the British Islands may be in the child’s best interests.

3.4 Restricted Countries List Adoptions

A list of ‘Restricted Countries’ exists to identify countries where Scotland, and the wider UK, has public policy concerns about adoption practices occurring in those countries. Special measures have been put in place which require additional checks to be made where prospective adopters seek to adopt a child from a Restricted Country. It is a requirement under section 62(5) of the 2006 Act, that Scottish Ministers publish and maintain the Restricted List. Section 62(4) also requires that the reasons for such declarations must be published.

Countries may be placed on the Restricted List due to concerns about the integrity of their adoption processes, such as issues relating to child trafficking and non-compliance with international standards. Being on the Restricted List means that prospective adopters can only adopt from these nations under tightly regulated circumstances.

It is possible to apply for an adoption from a country on the Restricted List. This process requires an ‘Exception Request’ to be approved by Scottish Ministers in order for such an adoption to be considered.

It should be noted that some countries on the Restricted List are also Contracting States to the Hague Convention. If the Exception Request is approved by Scottish Ministers, and the country is both (a) a Contracting State to the Hague Convention; and (b) entered onto the Restricted List, it will be considered a ‘Hague Convention Adoption’ when processing the case. There are exceptions to this rule, however, in cases where a country may be (a) a Contracting State to the Hague Convention; and (b) entered onto the Restricted List; but where the United Kingdom has raised objection to the country’s accession. This would be processed as a Non-Hague Convention Adoption.

At the time this guidance was published, there were three countries on the Restricted list which have entered the Convention into force, namely Haiti, Cambodia and Guatemala. As the UK does not recognise Cambodia and Guatemala as Convention countries, any application to adopt from those countries would be processed as Non-Hague Convention Adoptions.

Regarding Haiti, and any future countries that have implemented the Convention and appear on the Restricted List, it is the case that an approved Exception Request would be followed by a Hague Convention Adoption process.