Intercountry adoption: Scotland's guide for international adoption

5. Roles, Responsibilities and Stages of Intercountry Adoption (ICA)

This section provides an overview of the key roles and responsibilities in the ICA process and outlines the stages involved.

5.1 Role of Prospective Adopters

Before beginning the ICA application process, prospective adopters should research the country they wish to adopt from to find out the country’s adoption criteria and what fees may be charged. The country's embassy or consulate can help find information and give advice about adoption. Find information about other countries' embassies in the UK on GOV.UK. This will enable prospective adopters to make an informed decision for, what can be, a demanding and uncertain journey.

If applicants wish to proceed, they should contact their local authority adoption agency. All prospective adopters need to be assessed and approved as eligible and suitable to adopt by an adoption agency. Information on eligibility requirements can be found in Section Four- Eligibility.

Prospective adopters should seek independent legal advice. This is important for a number of reasons, including:

1) For Hague Convention Adoptions, it is a legal requirement that the child will be authorised to enter and reside in the UK. This will depend on the nationality and/or immigration status of the prospective adopters. Legal advice should be sought on how these issues may impact an ICA application.

2) It is an offence in certain circumstances, under section 61 of the 2007 Act, for a person who is habitually resident in the British Islands to bring, or cause another person to bring, a child who is habitually resident outwith the British Islands into the UK for the purpose of adoption.

Whether an individual is habitually resident in a country is a question based on the facts and circumstances in each case. An individual may be habitually resident in more than one country at the same time. The Scottish Government does not determine an individual's habitual residence and cannot give advice on this matter. Ultimately, it would be a point to seek independent legal advice on and a point for a Court to determine. Prospective adopters should, therefore, take independent legal advice on their habitual residence status.

5.2 Role of Local Government Adoption Agencies

Local authorities serve as adoption agencies and should be a prospective adopter’s primary contact throughout the ICA process. Prospective adopters must apply for an assessment to be carried out. Once an application is accepted, the local authority or independent third-party agency (contracted on behalf of the local authority) will conduct an assessment of the applicant’s suitability to adopt. Prospective adopters are expected to be prepared to fully cooperate and provide the necessary information to enable the assessment.

The 2007 Act places a duty on all local authorities to assess ICA applications in their area. The assessment process is set out in regulations. Additional details and weblinks are available in Section two—Policy and Legislative Context.

The assessment – often referred to as a ‘home study’ – involves in-depth interviews with a social worker, as well as medical, financial and police checks. This process ensures that prospective adopters are able to provide the child with a safe, secure and stable home. When the assessment process is complete, applications are considered by the agency’s adoption panel, which will then make a recommendation on whether the applicants are suitable to adopt. The decision-making function of the adoption agency is carried out by designated Agency Decision Makers who will decide if a prospective adopter is approved for adoption.

Once the Agency Decision Maker has approved the prospective adopters, all supportive documentation will be gathered by the Agency and sent to the Scottish Government ICA team, who will process the prospective adopters’ casefile, checking that the eligibility criteria have been met and the proper assessments have been conducted. Further information can be found at 5.5 for ICA Application Process.

5.3 Role of the Scottish Government

The Scottish Government acts as the Central Authority for Scotland. A caseworker from the Scottish Government’s ICA team will communicate with applicants, social workers (generally working in the local authority), the Home Office and the corresponding authorities in the country of origin throughout the application process. The Scottish Government will be involved in all ICA processes until the Certificate of Eligibility is issued.

Depending on specific country requirements (as detailed in the Country Profile of the country prospective adopters wishes to adopt from), documents pertaining to the adoption application may require notarisation, apostillisation, and legalisation. Section 8—Definitions offers details on these terms. A majority of countries require both notarisation by a notary public in the UK and an apostille from the UK's Foreign, Commonwealth and Development Office (FCDO). A smaller number of countries require notarisation, apostillisation from the FCDO, and legalisation/attestation from their Consulate or High Commission.

If an application to adopt a child—using the mechanisms of the Hague Convention—requires notarisation, the Scottish Government is required to send the whole file by secure guaranteed delivery to a notary public of the applicant’s choice. It is important to note the fee for notarisation is paid for by the prospective adopters.

The Scottish Government will also arrange for the documents to be sent to the FCDO, Consulate and/or High Commission, as required, to provide confirmation to the receiving state that the signature on the Certificate of Eligibility has come from a UK public official and authenticates documents for use internationally (in countries that are part of the Hague Convention).

If the application is for a Non-Hague Convention Adoption, the role of the Scottish Government ends with the Certificate of Eligibility being issued, and it is for the applicants to continue the process themselves.

If the application is for a Hague Convention Adoption, and once the papers have been notarised, legalised and translated as required, the Scottish Government will forward the dossier of documents to the relevant authority in the State of Origin from which the prospective adopter wishes to adopt.

5.4 Regarding Data Protection

The UK General Data Protection Regulation (UKGDPR) and the Data Protection Act (DPA) 2018 impose obligations on the use of all personal data held by the Scottish Government. More information about the Scottish Government’s general privacy policy can be found online, as well as the ICA-specific privacy policy.

5.5 Stages of ICA Application Process

Note: Together, the 2007 Act, the 2009 Foreign Element Regulations, and the 2009 Adoption Regulations place duties on all local authorities and the Scottish Government to assess and process ICA applications in their area. Further details can be found in Section two—Policy and Legislative Context.

Stage One – Adoption Agency Assessment

The first step in the process is to be assessed as suitable to adopt by an adoption agency. Each local authority has an adoption agency that has a duty to assess prospective adopters who meet the eligibility criteria. Prospective adopters must apply to the local authority for an assessment. Information on contacting Local Authorities in Scotland is available online.

Stage Two – Central Authority Checks

If approved by the adoption agency, the application and supporting documents are then passed onto the Scottish Government’s ICA Team. The ICA team will cross-check the documents provided by the applicant against the intended country’s requirements, which can be found on the HCCH website on the country’s home page.

While the Scottish Government will be the main lead contact with the overseas Central Authority, and will pass on any relevant information provided, it is the prospective adopter’s responsibility to be informed regarding what is needed, and any additionally required documents may come at an additional cost to the prospective adopter.

If not approved by the adoption agency, the application process will end. Any further desire to adopt through ICA would require an appeal through the local authority regarding their decision, or a new assessment and application. Applicants should speak with the relevant local authority on these matters.

Stage Three—Approval and Matching Process

Provided that the necessary paperwork has been supplied, and prospective adopters have been approved by the local authority to adopt a child through ICA, a Certificate of Eligibility will be awarded by the Scottish Government.

The Certificate of Eligibility is processed for both Hague Convention and Non-Hague Convention Adoptions. It confirms that the casefile complies with the relevant regulations (Adoption and Children (Scotland) Act 2007; Adoptions with a Foreign Element (Scotland) Regulations 2009). Specifically, the certificate ensures that the information listed in Part 1, Schedule 1 of the Adoption Agencies (Scotland) Regulations 2009 has been covered as part of the assessment done by the Local Authority Agency.

For Hague Convention Adoption cases, once the Certificate of Eligibility to adopt has been legalised by the FCDO, the next step depends on the requirements of the Convention country that the prospective adopters are applying to adopt from (State of Origin).

The casefile is now ready to be sent to the State of Origin; however, some states may require the casefile to be translated. The prospective adopters are responsible for sourcing a translation service that meets the requirements of the State of Origin, as well as covering the cost of the translation. Some states may also require the casefile to be legalised by their embassy or consulate in the UK, in addition to the legalisation process of the FCDO.

The Scottish Government will then send the casefile to the Central Authority of the State of Origin. Although the Scottish adoption agency and the Scottish Government have certified the prospective adopters as suitable and eligible to adopt, ultimately the decision to approve the application to adopt is made by the State of Origin. Prospective adopters cannot recover the costs of any application or associated fees if their application is not accepted.

If the State of Origin approves the application, the Central Authority in that state will work with adoption agencies in their country on a suitable match. Waiting times vary from country to country but are often lengthy and, in some cases, prospective adopters wait a number of years before being successfully matched.

Once a possible match has been identified, the Central Authority in the State of Origin will send a report with details of the child to the Scottish Government. The ICA team will then share this information with the adoption agency, who liaise with the prospective adopters to discuss the suitability of the match. If the prospective adopters wish to pursue the potential match and the adoption agency sees no impediment to do so, the Scottish Government will communicate this to the State of Origin. Again, next steps will vary from country to country.

The match needs to be approved in the State of Origin, and, in some cases, prospective adopters will be required to travel to the State of Origin to meet with the child and their adoption agency. The period of time that the prospective adopters are required to stay will differ depending on the requirements of the State of Origin. Once the match has been approved in the State of Origin and following more contact between the prospective adopters and their adoption agency to confirm they still wish to proceed, a formal agreement is reached between the two Central Authorities.

The Adoption Order may be granted in either the receiving state (Scotland) or the State of Origin. This is generally decided by the State of Origin. Other than in exceptional circumstances, the child must be accompanied to Scotland by the prospective adopters. In rare cases where this is not possible, the child must be accompanied by a nominee of the prospective adopters who has been approved by the adoption agency.

For Non-Hague Convention Adoption cases, all original documentation will be returned to prospective adopters once all checks have been completed and the Certificate of Eligibility has been issued. The Scottish Government does not play any further role in the adoption process with the State of Origin. It is for the prospective adopters to take this forward with the State of Origin while seeking advice from their own independent legal adviser.

It is for prospective adopters to gain legal consent from the State of Origin to bring the child to Scotland. In advance of bringing the child to Scotland, prospective adopters must have also successfully applied for entry clearance from the UK Home Office. As immigration is reserved to the UK Government, the Scottish Government cannot advise on this issue. During this part of the process, it is normal for the UK Home Office to contact the Scottish Government to confirm if a Certificate of Eligibility to adopt has been issued.

There are certain duties placed on prospective adopters, outlined in the 2009 Foreign Element Regulations, regarding notifications to be given prior to a child’s entry into the UK. Local authorities should consult the Regulations and seek advice from their own solicitors regarding steps to follow.

If the prospective adopters have the necessary consent from the child’s State of Origin and the UK Home Office to bring the child to Scotland, they must notify their local authority within fourteen days of the child arriving in the country.

The prospective adopters should also instruct a solicitor to lodge a petition for an Adoption Order for the child in the Scottish Courts. The solicitor will be able to advise at what point the Order can be lodged.

For both Hague Convention Adoptions and Non-Hague Convention Adoptions, once the adoption has been approved by the State of Origin, the adoptive parents can contact UK Visa and Immigration to proceed with getting the required paperwork that will allow the child to enter the UK.