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ANNEX B: THE ADOPTIONS WITH A FOREIGN ELEMENT (SPECIAL RESTRICTIONS ON ADOPTIONS FROM ABROAD) (SCOTLAND) REGULATIONS 2008

SCOTTISH STATUTORY INSTRUMENTS

2008 No.

CHILDREN AND YOUNG PERSONS

The Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 64(3), 65(1) and 117(2)(a) and (3) of the Adoption and Children (Scotland) Act 2007( ¹) and all other powers enabling them to do so.

Citation and commencement

1) These Regulations may be cited as the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008 and come into force on [ ] 2008.

Interpretation

2) -(1) In these Regulations-

"the Act" means the Adoption and Children (Scotland) Act 2007;

"request" means a request that is made in writing by the prospective adopters stating that the Scottish Ministers should take any step as mentioned in section 64(1) of the Act despite an order having been made under section 62(3) of the Act in relation to the State of origin;

"the State of origin" means the country or territory from which the prospective adopters wish to bring a child into the United Kingdom.

(2) For the purposes of these Regulations the Scottish Ministers are "satisfied that the case is exceptional" if they are satisfied that they should take any step as mentioned in section 64(1) of the Act despite an order having been made under section 62(3) of the Act in relation to the State of origin.

Receipt of a request

3) -(1) On receipt of a request, the Scottish Ministers must-

(a) acknowledge receipt of the request in writing as soon as is practicable,
(b) make such enquiries of the prospective adopters as appear necessary to clarify-

(i) the reasons why the prospective adopters consider that the Scottish Ministers should be satisfied that the case is exceptional, or
(ii) any other information that has been submitted by the prospective adopters,

(c) make such further enquiries as they consider appropriate, and
(d) ask the prospective adopters whether there is any further information that they have not submitted but that they consider relevant to the request.

(2) The Scottish Ministers may defer making a determination in accordance with regulation 4 until-

(a) the prospective adopters confirm that there is no further information that they consider relevant to the request, or
(b) where the prospective adopters indicate that there is further information that they consider relevant to the request, that information has been received.

Determining whether an exception to the special restrictions should be made

4) -(1) In determining whether they are satisfied that the case is exceptional, the Scottish Ministers must-

(a) consider all the information they hold that is relevant to the request, and
(b) take into account the matters referred to in regulation 6.

(2) After making a determination, the Scottish Ministers must-

(a) notify the prospective adopters in writing as to whether they are satisfied that the case is exceptional, and
(b) where they are not so satisfied, give reasons.

Further requests

5) - (1) This regulation applies where the Scottish Ministers have made a determination in accordance with regulation 4 and the prospective adopters submit a further request.

(2)The Scottish Ministers must consider that further request if they consider that it contains-

(a) new information, or
(b) information that might have led to them being satisfied that the case was exceptional if it had been available at the time they made the determination.

Matters to be taken into account

6) - (1) In determining under regulation 4 whether or not they are satisfied that a case is exceptional, the Scottish Ministers must take the following matters into account (whether or not they also take other matters into account) -

(a) where the prospective adopters wish to adopt a particular child -

(i) the circumstances leading to the child becoming available for adoption,
(ii) 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,
(iii) the relationship of the child to the prospective adopters, including how and when it was formed,
(iv) the child's particular needs and the capacity of the prospective adopters to meet those needs, and
(v) the reasons why the State of origin was placed on the restricted list( ²); or

(b) in any other case, the reasons why the State of origin was placed on the restricted list.

(2) In this regulation, a "competent authority" means a court or a person who performs functions which correspond to the functions of an adoption agency or to the functions of the Scottish Ministers in respect of intercountry adoption.

Imposition of extra conditions

7) - (1) The Scottish Ministers may specify in the restricted list, in relation to any restricted country( ³), a step which is not otherwise provided for by virtue of any enactment but which, by virtue of the arrangements between the United Kingdom and that country or territory, the Scottish Ministers normally take in connection with the bringing in of a child where that country or territory is concerned.

(1) If a step has been specified under paragraph (1), the condition which is to be met for the purposes of section 65(1)(b) of the Act is that the Scottish Ministers have notified the prospective adopters in writing that the adoption may proceed.

(2) A notification for the purpose of paragraph (2) must state that it is given for the purpose of that paragraph.

[A member of the Scottish Executive]
[Authorised to sign by the Scottish Ministers]
St Andrew's House,
Edinburgh
2008

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