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BACKGROUND
The Adoption and Children (Scotland) Act 2007 ('the 2007 Act') introduced a range of reforms into the law relating to adoption of, and permanent care for, children who cannot remain with their birth families. The Act also contains provisions relating to adoptions from abroad. The full text of the 2007 Act may be found at: http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070004_en_1
Sections 62-65 of the 2007 Act contain provisions for special restrictions to apply in cases where Scottish residents wish to adopt from certain countries (see Annex A for a summary of the provisions). These restrictions will apply when Scottish Ministers are of the opinion that, because of practices taking place in that country in connection with the adoption of children, it would be contrary to public policy to further the bringing of children into the United Kingdom for the purpose of adoption. The Westminster Government has similar powers in the Children and Adoption Act 2006 ('the 2006 Act').
The Westminster Government (after consulting the Welsh Assembly Government) commenced the provisions in the 2006 Act on 6 July 2008 and have followed this with Special Restrictions on Adoptions from Abroad Orders for Cambodia and Guatemala and the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) Regulations 2008. The Orders (which will put the current restrictions on adoptions from Cambodia and Guatemala which were put in place by the Department for Children, Schools and Families using prerogative powers on behalf of England, Wales, Northern Ireland and Scotland on to a statutory footing in relation to England and Wales only) and Regulations will come into effect on 1 August 2008.
In order to ensure that the restrictions on adoptions from Cambodia and Guatemala continue to extend to Scotland, and to avoid a legal loophole, Scottish Ministers propose to commence sections 62-65 of the 2007 Act in August 2008 and then introduce similar Restrictions Orders and Regulations when the Scottish Parliament resumes in September.
The Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008 make provision where there is a suspension of adoptions from a particular country and provide for the procedure to be followed and the matters to be taken into account by Scottish Ministers when considering whether a case should be processed as an exception to the suspension. The Regulations also provide for Scottish Ministers to impose extra conditions in relation to a country where there is a suspension in place.
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