Adoption and Children Act 2002 (c. 38)

(The document as of February, 2008)

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(2) In subsection (1) above the references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

(3) This section does not apply if the child is intended to be adopted under a Convention adoption order.

(4) An external adoption means an adoption, other than a Convention adoption, of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is--

(a) an adoption within the meaning of Part IV; or

(b) a full adoption (as defined in section 39(2A)).

(5) Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies--

(a) to apply to an adoption agency in the prescribed manner for an assessment of his suitability to adopt the child; and

(b) to give the agency any information it may require for the purpose of the assessment.

(6) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.

(7) In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may provide for any provision of Part II of this Act to apply with modifications or not to apply.

(8) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if--

(a) he has not complied with any requirement imposed by virtue of subsection (5); or

(b) any condition required to be met by virtue of subsection (6) is not met,

before that time, or before any later time which may be prescribed.

(9) A person guilty of an offence under this section is liable--

(a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

(10) Regulations may provide for this section not to apply if--

(a) the adopters or (as the case may be) prospective adopters are natural parents (whether or not they have parental responsibilities or parental rights in relation to the child), natural relatives or guardians of the child in question (or one of them is), or

(b) the British resident in question is a step-parent of the child,

and any prescribed conditions are met.

(11) On the occasion of the first exercise of the power to make regulations under subsection (10)--

(a) the regulations shall not be made unless a draft of the regulations has been approved by a resolution of the Scottish Parliament, and

(b) accordingly section 60(2) does not apply to the statutory instrument containing the regulations.

(12) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Scottish Ministers. "

(3) In section 65 of that Act (interpretation), in subsection (1), in the definition of "adoption agency", for "and 27" there is substituted ", 27 and 50A".

134 Amendment of Adoption (Scotland) Act 1978: overseas adoptions

In section 65 of the Adoption (Scotland) Act 1978 (c. 28) (interpretation), for subsection (2) there is substituted--

" (2) In this Act, "overseas adoption" --

(a) means an adoption of a description specified in an order made by the Scottish Ministers, being a description of adoptions effected under the law of any country or territory outside the British Islands, but

(b) does not include a Convention adoption.

(2A) The Scottish Ministers may by regulations prescribe the requirements that ought to be met by an adoption of any description effected after the commencement of the regulations for it to be an overseas adoption for the purposes of this Act.

(2B) At any time when such regulations have effect, the Scottish Ministers must exercise their power under subsection (2) so as to secure that subsequently effected adoptions of any description are not overseas adoptions for the purposes of this Act if they consider that such adoptions are not likely within a reasonable time to meet the prescribed requirements.

(2C) An order under subsection (2) may contain provision as to the manner in which evidence of any overseas adoption may be given.

(2D) In subsections (2) to (2C), "adoption" means the adoption of a child or of a person who was a child at the time the adoption was applied for. "

135 Adoption and fostering: criminal records

(1) Part 5 of the Police Act 1997 (c. 50) (certificates of criminal records) is amended as follows.

(2) In section 113 (criminal record certificates), in subsection (3A), for "his suitability" there is substituted "the suitability of the applicant, or of a person living in the same household as the applicant, to be a foster parent or".

(3) In section 115 (enhanced criminal record certificates), in subsection (6A), for "his suitability" there is substituted "the suitability of the applicant, or of a person living in the same household as the applicant, to be a foster parent or".

136 Payment of grants in connection with welfare services

(1) Section 93 of the Local Government Act 2000 (c. 22) (payment of grants for welfare services) is amended as follows.

(2) In subsection (1) (payment of grants by the Secretary of State), for the words from "in providing" to the end there is substituted--

" (a) in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State, or

(b) in connection with any such welfare services. "

(3) In subsection (2) (payment of grants by the Assembly), for the words from "in providing" to the end there is substituted--

" (a) in providing, or contributing to the provision of, such welfare services as may be determined by the Assembly, or

(b) in connection with any such welfare services. "

(4) After subsection (6) there is inserted--

" (6A) Before making any determination under subsection (3) or (5) the Secretary of State must obtain the consent of the Treasury. "

137 Extension of the Hague Convention to British overseas territories

(1) Her Majesty may by Order in Council provide for giving effect to the Convention in any British overseas territory.

(2) An Order in Council under subsection (1) in respect of any British overseas territory may, in particular, make any provision corresponding to provision which in relation to any part of Great Britain is made by the Adoption (Intercountry Aspects) Act 1999 (c. 18) or may be made by regulations under section 1 of that Act.

(3) The British Nationality Act 1981 (c. 61) is amended as follows.

(4) In section 1 (acquisition of British citizenship by birth or adoption)--

(a) in subsection (5), at the end of paragraph (b) there is inserted "effected under the law of a country or territory outside the United Kingdom",

(b) at the end of subsection (5A)(b) there is inserted "or in a designated territory",

(5) In section 15 (acquisition of British overseas territories citizenship)--

(a) after subsection (5) there is inserted--

" (5A) Where--

(a) a minor who is not a British overseas territories citizen is adopted under a Convention adoption,

(b) on the date on which the adoption is effected--

(i) the adopter or, in the case of a joint adoption, one of the adopters is a British overseas territories citizen, and

(ii) the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in a designated territory, and

the minor shall be a British overseas territories citizen as from that date. " ,

(b) in subsection (6), after "order" there is inserted "or a Convention adoption".

(6) In section 50 (interpretation), in subsection (1)--

(a) after the definition of "company" there is inserted--

" "Convention adoption" means an adoption effected under the law of a country or territory in which the Convention is in force, and certified in pursuance of Article 23(1) of the Convention " ,

(b) after the definition of "Crown service under the government of the United Kingdom" there is inserted--

" "designated territory" means a qualifying territory, or the Sovereign Base Areas of Akrotiri and Dhekelia, which is designated by Her Majesty by Order in Council under subsection (14) " .

(7) After subsection (13) of that section there is inserted--

" (14) For the purposes of the definition of "designated territory" in subsection (1), an Order in Council may--

(a) designate any qualifying territory, or the Sovereign Base Areas of Akrotiri and Dhekelia, if the Convention is in force there, and

(b) make different designations for the purposes of section 1 and section 15;

and, for the purposes of this subsection and the definition of "Convention adoption" in subsection (1), "the Convention" means the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993.

An Order in Council under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

138 Proceedings in Great Britain

Proceedings for an offence by virtue of section 9, 59, 93, 94, 95 or 129--

(a) may not be brought more than six years after the commission of the offence but, subject to that,

(b) may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.

In relation to Scotland, "the prosecutor" is to be read as "the procurator fiscal".

Amendments etc.

139 Amendments, transitional and transitory provisions, savings and repeals

(1) Schedule 3 (minor and consequential amendments) is to have effect.

(2) Schedule 4 (transitional and transitory provisions and savings) is to have effect.

(3) The enactments set out in Schedule 5 are repealed to the extent specified.

Chapter 2 Final provisions

140 Orders, rules and regulations

(1) Any power to make subordinate legislation conferred by this Act on the Lord Chancellor, the Secretary of State, the Scottish Ministers, the Assembly or the Registrar General is exercisable by statutory instrument.

(2) A statutory instrument containing subordinate legislation made under any provision of this Act (other than section 14 or 148 or an instrument to which subsection (3) applies) is to be subject to annulment in pursuance of a resolution of either House of Parliament.

(3) A statutory instrument containing subordinate legislation--

(a) under section 9 which includes provision made by virtue of section 45(2),

(b) under section 92(6), 94 or 123(6), or

is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(4) Subsections (2) and (3) do not apply to an Order in Council or to subordinate legislation made--

(a) by the Scottish Ministers, or

(b) by the Assembly, unless made jointly by the Secretary of State and the Assembly.

(5) A statutory instrument containing regulations under section 63(2) made by the Scottish Ministers is to be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(6) The power of the Department of Health, Social Services and Public Safety to make regulations under section 63(2) is to be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/ 1573 (N.I. 12)); and any such regulations are to be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) as if they were statutory instruments within the meaning of that Act.

(7) Subordinate legislation made under this Act may make different provision for different purposes.

(8) A power to make subordinate legislation under this Act (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to--

(a) those cases subject to specified exceptions, or

(b) a particular case or class of case.

(9) In this section, "subordinate legislation" does not include a direction.

141 Rules of procedure

(1) The Lord Chancellor may make rules in respect of any matter to be prescribed by rules made by virtue of this Act and dealing generally with all matters of procedure.

(2) Subsection (1) does not apply in relation to proceedings before magistrates' courts, but the power to make rules conferred by section 144 of the Magistrates' Courts Act 1980 (c. 43) includes power to make provision in respect of any of the matters mentioned in that subsection.

(3) In the case of an application for a placement order, for the variation or revocation of such an order, or for an adoption order, the rules must require any person mentioned in subsection (4) to be notified--

(a) of the date and place where the application will be heard, and

(b) of the fact that, unless the person wishes or the court requires, the person need not attend.

(4) The persons referred to in subsection (3) are--

(a) in the case of a placement order, every person who can be found whose consent to the making of the order is required under subsection (3)(a) of section 21 (or would be required but for subsection (3)(b) of that section) or, if no such person can be found, any relative prescribed by rules who can be found,

(b) in the case of a variation or revocation of a placement order, every person who can be found whose consent to the making of the placement order was required under subsection (3)(a) of section 21 (or would have been required but for subsection (3)(b) of that section),

(i) every person who can be found whose consent to the making of the order is required under subsection (2)(a) of section 47 (or would be required but for subsection (2)(c) of that section) or, if no such person can be found, any relative prescribed by rules who can be found,

(ii) every person who has consented to the making of the order under section 20 (and has not withdrawn the consent) unless he has given a notice under subsection (4)(a) of that section which has effect,

(iii) every person who, if leave were given under section 47(5), would be entitled to oppose the making of the order.

(5) Rules made in respect of magistrates' courts may provide--

(a) for enabling any fact tending to establish the identity of a child with a child to whom a document relates to be proved by affidavit, and

(b) for excluding or restricting in relation to any facts that may be so proved the power of a justice of the peace to compel the attendance of witnesses.

142 Supplementary and consequential provision

(1) The appropriate Minister may by order make--

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

which he considers necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision of this Act.

(2) For the purposes of subsection (1), where any provision of an order extends to England and Wales, and Scotland or Northern Ireland, the appropriate Minister in relation to the order is the Secretary of State.

(3) Before making an order under subsection (1) containing provision which would, if included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, the appropriate Minister must consult the Scottish Ministers.

(4) Subsection (5) applies to any power of the Lord Chancellor, the Secretary of State or the Assembly to make regulations, rules or an order by virtue of any other provision of this Act or of Her Majesty to make an Order in Council by virtue of section 125.

(5) The power may be exercised so as to make--

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

which the person exercising the power considers necessary or expedient.

(6) The provision which may be made under subsection (1) or (5) includes provision modifying Schedule 4 or amending or repealing any enactment or instrument.

In relation to an Order in Council, "enactment" in this subsection includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

(7) The power of the Registrar General to make regulations under Chapter 5 of Part 1 may, with the approval of the Chancellor of the Exchequer, be exercised so as to make--

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

which the Registrar General considers necessary or expedient.

143 Offences by bodies corporate and unincorporated bodies

(1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, that person as well as the body is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director of a body corporate.

(3) Proceedings for an offence alleged to have been committed under this Act by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings in England and Wales or Northern Ireland, any rules of court relating to the service of documents have effect as if that body were a corporation.

(4) A fine imposed on an unincorporated body on its conviction of an offence under this Act is to be paid out of the funds of that body.

(5) If an unincorporated body is charged with an offence under this Act--

(a) in England and Wales, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to the Magistrates' Courts Act 1980 (c. 43) (procedure on charge of an offence against a corporation),

(b) in Northern Ireland, section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15 (N.I.)) and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (procedure on charge of an offence against a corporation),

have effect in like manner as in the case of a corporation so charged.

(6) Where an offence under this Act committed by an unincorporated body (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the body or any member of its governing body, he as well as the body is guilty of the offence and liable to be proceeded against and punished accordingly.

(7) Where an offence under this Act committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

144 General interpretation etc.

(1) In this Act--

"appropriate Minister" means--
(a)
in relation to England, Scotland or Northern Ireland, the Secretary of State,
(b)
in relation to Wales, the Assembly,

and in relation to England and Wales means the Secretary of State and the Assembly acting jointly,
"the Assembly" means the National Assembly for Wales,
"body" includes an unincorporated body,
"by virtue of" includes "by" and "under",
"child", except where used to express a relationship, means a person who has not attained the age of 18 years,
"the Convention" means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993,
"Convention adoption order" means an adoption order which, by virtue of regulations under section 1 of the Adoption (Intercountry Aspects) Act 1999 (c. 18) (regulations giving effect to the Convention), is made as a Convention adoption order,
"Convention country" means a country or territory in which the Convention is in force,
"court" means, subject to any provision made by virtue of Part 1 of Schedule 11 to the 1989 Act, the High Court, a county court or a magistrates' court,
"enactment" includes an enactment comprised in subordinate legislation,
"fee" includes expenses,
"guardian" has the same meaning as in the 1989 Act and includes a special guardian within the meaning of that Act,
"information" means information recorded in any form,
"local authority" means any unitary authority, or any county council so far as they are not a unitary authority,
"Northern Irish adoption agency" means an adoption agency within the meaning of Article 3 of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)),
"Northern Irish adoption order" means an order made, or having effect as if made, under Article 12 of the Adoption (Northern Ireland) Order 1987,
"notice" means a notice in writing,
"registration authority" (in Part 1) has the same meaning as in the Care Standards Act 2000 (c. 14),
"regulations" means regulations made by the appropriate Minister, unless they are required to be made by the Lord Chancellor, the Secretary of State or the Registrar General,
"relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage,
"rules" means rules made under section 141(1) or made by virtue of section 141(2) under section 144 of the Magistrates' Courts Act 1980 (c. 43),
"Scottish adoption order" means an order made, or having effect as if made, under section 12 of the Adoption (Scotland) Act 1978 (c. 28),
"subordinate legislation" has the same meaning as in the Interpretation Act 1978 (c. 30),
"unitary authority" means--
(a)
the council of any county so far as they are the council for an area for which there are no district councils,
(b)
the council of any district comprised in an area for which there is no county council,
(c)
the council of a county borough,
(d)
the council of a London borough,
(e)
the Common Council of the City of London.

(2) Any power conferred by this Act to prescribe a fee by Order in Council or regulations includes power to prescribe--

(a) a fee not exceeding a prescribed amount,

(b) a fee calculated in accordance with the Order or, as the case may be, regulations,

(3) In this Act, "Scottish adoption agency" means--

(a) a local authority, or

(b) a voluntary organisation providing a registered adoption service;

but in relation to the provision of any particular service, references to a Scottish adoption agency do not include a voluntary organisation unless it is registered in respect of that service or a service which, in Scotland, corresponds to that service.

Expressions used in this subsection have the same meaning as in the Regulation of Care (Scotland) Act 2001 (asp 4) and "registered" means registered under Part 1 of that Act.

(4) In this Act, a couple means--

(a) a married couple, or

(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.

(5) Subsection (4)(b) does not include two people one of whom is the other's parent, grandparent, sister, brother, aunt or uncle.

(6) References to relationships in subsection (5)--

(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for adoption, and

(b) include the relationship of a child with his adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

(7) For the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent.

145 Devolution: Wales

(1) The references to the Adoption Act 1976 (c. 36) and to the 1989 Act in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) are to be treated as referring to those Acts as amended by virtue of this Act.

(2) This section does not affect the power to make further Orders varying or omitting those references.

(3) In Schedule 1 to that Order, in the entry for the Adoption Act 1976, "9" is omitted.

(4) The functions exercisable by the Assembly under sections 9 and 9A of the Adoption Act 1976 (by virtue of paragraphs 4 and 5 of Schedule 4 to this Act) are to be treated for the purposes of section 44 of the Government of Wales Act 1998 (c. 38) (parliamentary procedures for subordinate legislation) as if made exercisable by the Assembly by an Order in Council under section 22 of that Act.

146 Expenses

There shall be paid out of money provided by Parliament--

(a) any expenditure incurred by a Minister of the Crown by virtue of this Act,

(b) any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

147 Glossary

Schedule 6 (glossary) is to have effect.

148 Commencement

(1) This Act (except sections 116 and 136, this Chapter and the provisions mentioned in subsections (5) and (6)) is to come into force on such day as the Secretary of State may by order appoint.

(2) Before making an order under subsection (1) (other than an order bringing paragraph 53 of Schedule 3 into force) the Secretary of State must consult the Assembly.

(3) Before making an order under subsection (1) bringing sections 123 and 124 into force, the Secretary of State must also consult the Scottish Ministers and the Department of Health, Social Services and Public Safety.

(4) Before making an order under subsection (1) bringing sections 125 to 131 into force, the Secretary of State must also consult the Scottish Ministers.

(5) The following are to come into force on such day as the Scottish Ministers may by order appoint--

(a) section 41(5) to (9), so far as relating to Scotland,

(b) sections 132 to 134,

(d) paragraphs 15 and 23 of Schedule 4,

(e) the entries in Schedule 5, so far as relating to the provisions mentioned in paragraphs (c) and (d),

(f) section 139, so far as relating to the provisions mentioned in the preceding paragraphs.

(6) Sections 2(6), 3(3) and (4), 4 to 17, 27(3), 53(1) to (3), 54, 56 to 65 and 98, paragraphs 13, 65, 66 and 111 to 113 of Schedule 3 and paragraphs 3 and 5 of Schedule 4 are to come into force on such day as the appropriate Minister may by order appoint.

149 Extent

(1) The amendment or repeal of an enactment has the same extent as the enactment to which it relates.

(2) Subject to that and to the following provisions, this Act except section 137 extends to England and Wales only.

(3) The following extend also to Scotland and Northern Ireland--

(a) sections 63(2) to (5), 65(2)(a) and (b) and (3), 123 and 124,

(b) this Chapter, except sections 141 and 145.

(4) The following extend also to Scotland--

(a) section 41(5) to (9),

(b) sections 125 to 131,

(d) section 139, so far as relating to provisions extending to Scotland.

(5) In Schedule 4, paragraph 23 extends only to Scotland.

150 Short title

This Act may be cited as the Adoption and Children Act 2002.

SCHEDULES

Section 77(6)

SCHEDULE 1 Registration of adoptions

Registration of adoption orders

1 (1) Every adoption order must contain a direction to the Registrar General to make in the Adopted Children Register an entry in the form prescribed by regulations made by the Registrar General with the approval of the Chancellor of the Exchequer.

(2) Where, on an application to a court for an adoption order in respect of a child, the identity of the child with a child to whom an entry in the registers of live-births or other records relates is proved to the satisfaction of the court, any adoption order made in pursuance of the application must contain a direction to the Registrar General to secure that the entry in the register or, as the case may be, record in question is marked with the word "Adopted".

(3) Where an adoption order is made in respect of a child who has previously been the subject of an adoption order made by a court in England or Wales under Part 1 of this Act or any other enactment--

(a) sub-paragraph (2) does not apply, and

(b) the order must contain a direction to the Registrar General to mark the previous entry in the Adopted Children Register with the word "Re-adopted".

(4) Where an adoption order is made, the prescribed officer of the court which made the order must communicate the order to the Registrar General in the prescribed manner; and the Registrar General must then comply with the directions contained in the order.

"Prescribed" means prescribed by rules.

Registration of adoptions in Scotland, Northern Ireland, the Isle of Man and the Channel Islands

2 (1) Sub-paragraphs (2) and (3) apply where the Registrar General is notified by the authority maintaining a register of adoptions in a part of the British Islands outside England and Wales that an order has been made in that part authorising the adoption of a child.

(2) If an entry in the registers of live-births or other records (and no entry in the Adopted Children Register) relates to the child, the Registrar General must secure that the entry is marked with--

(a) the word "Adopted", followed by

(b) the name, in brackets, of the part in which the order was made.

(3) If an entry in the Adopted Children Register relates to the child, the Registrar General must mark the entry with--

(a) the word "Re-adopted", followed by

(b) the name, in brackets, of the part in which the order was made.

(4) Where, after an entry in either of the registers or other records mentioned in sub-paragraphs (2) and (3) has been so marked, the Registrar General is notified by the authority concerned that--

(a) the order has been quashed,

(b) an appeal against the order has been allowed, or

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