Intercountry adoption: Scotland's guide for international adoption

6. Exception Requests

This section gives an overview of Exception Requests, including what they are, which countries they affect, and how to make a request. The information below reflects and expands on the process set out in the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008 and applies only where requests for exceptions are submitted to Scottish Ministers.

An Exception Request is a preliminary step that prospective adopters must take in order to adopt a child who is habitually resident in a Restricted Country, as detailed in sections 3.2 and 3.4. The policy presumption is that, because a Restricted Country is on the Restricted List (i.e. that a suspension is in place), adoptions from that country by Scottish residents will not be processed.

For any application to proceed where a suspension is in place, 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. If an Exception Request is granted, the case proceeds as a Hague or Non-Hague Convention Adoption application, depending on whether the Restricted Country’s Convention status is acknowledged by the United Kingdom, and prospective adopters then need to meet all requirements for that process to be completed.

6.1 Making a request

To adopt a child from a Restricted Country, the prospective adopters need to contact the ICA Team at the Scottish Government via email at intercountryadoption@gov.scot, explaining their desire to adopt from a Restricted Country. The ICA Team will send an email acknowledging receipt of the request and will then issue a formal acknowledgement letter to the prospective adopters, which includes the categories of information required for Ministers’ consideration. The acknowledgement letter confirms knowledge of the applicant’s desire to adopt but does not automatically approve the adoption.

In line with the UK Government, the first step is for prospective adopters to be assessed by their local authority to be considered for approval as prospective adopters. If prospective adopters are deemed eligible to adopt, the next step is for prospective adopters and local authorities to work together to compile the documentation which will be submitted to the Scottish Government.

This documentation is required to ensure that a well-informed decision can be made by Scottish Ministers regarding an Exception Request where a child has been identified. It will also reduce speculative Exception Requests where a specific child has not been identified, as this circumstance would not allow for sufficient supporting documentation to be provided.

Please note, this is a change from the previous understanding that applicants could decide whether they wanted to be assessed by their local authority before or after Ministers considered their Exception Request. Local authorities still retain the right to do an initial assessment of applicants before determining if a full assessment is recommended.

Once the prospective adopters have gathered all the required supporting documentation listed in the acknowledgement letter and have been assessed by the local authority, the formal Exception Request and supporting documentation should then be submitted to the Scottish Government for consideration.

6.2 Deciding whether a case is ‘exceptional’

Scottish Ministers will make the decision regarding whether or not a case is exceptional. Scottish Ministers will consider all the information provided that is relevant to the individual facts and circumstances of the case.

Section 6 of the 2008 Regulations lists a number of ‘matters’ which must be taken into account when exception cases are being considered. The following list is not exhaustive, and additional matters may also be taken into account depending on the circumstances of the case:

• 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 particular issues in relation to adoption process and practice in the relevant country that led to it being placed on the Restricted List. The Scottish Government will provide this information.

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’. Although the additional matters listed at section 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.

6.3 Notifying Prospective Adopters of a decision

When Scottish Ministers have decided whether or not the case merits an exception to the suspension, the Scottish Government’s ICA Team will write to the prospective adopters as soon as possible to inform them of the outcome. If an exception is merited, the case will proceed as a Hague or Non-Hague application, depending on the applicable circumstance. If the case does not merit an exception, the prospective adopters will be informed by the Scottish Government’s ICA Team, in writing, with the reasons for the decision.

If Scottish Ministers have not approved an Exception Request, prospective adopters may choose to submit new or additional information for Ministers’ further consideration. However, Ministers are not required to reconsider requests unless they contain additional information which would have likely affected the outcome of the initial decision. As such, there is no formal appeals process if an Exception Request is ultimately denied. Further information regarding Exception Requests can be found in The Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008.

If prospective adopters have had an Exception Request denied, they are still entitled to make new Exception Requests if the request relates to a different child, or to a different Restricted Country.

6.4 Timescales

Any requests for exceptions will be dealt with as quickly as possible. Home study assessments with local authorities can sometimes take up to a year to complete. Once an assessment is complete and all documentation is received by the Scottish Government ICA Team, requests will be put to Ministers for consideration. It is anticipated that decisions from Ministers to be given within a few weeks of receiving the request for consideration.

If the request is approved, the application process continues as a normal Hague or Non-Hague application process, which can sometimes additionally take a few years, depending on the State of Origin’s processes and requirements for adoption. Therefore, all those considering adopting from a Restricted Country should be prepared for the overall process to take a significant length of time. Please note that these timescales are estimates and it varies from case to case.