Adopting a child from the UK if you live overseas

This is a brief overview of the legal processes and does not constitute legal advice. No person should take any action without advice specific to their situation. 

Prospective adopters living outside the UK and wishing to adopt in their home country must comply with the law in that country to be approved as adopters. Where prospective adopters from a country outside the UK wish to adopt a child from the UK, the law in the UK applies to protect the welfare of the child concerned.  

Contents

Overview

Planning the introductions

Introductions book

Meeting your child for the first time

Introductions

Introduction review

Preparing your child to move in with you

When your child moves in with you

Taking care of yourself

Suggested reading

The Hague Convention

Britain is a signatory to The Hague Convention on Protection of Children and Co-operation in Respect of intercountry Adoption. The purpose of the convention is to establish safeguards to protect the best interests of children and to produce a system of cooperation between countries to prevent child trafficking. An adoption can only take place under the convention if the adopters have been approved as suitable to become adopters in the receiving state (in their home country) and if the receiving country confirms that the child will be allowed to enter and reside permanently in that country.  

 

Placing a child for adoption with relatives who live abroad 

A small number of children looked after by local authorities in the UK are placed for adoption with relatives who live overseas. With the increased mobility of families, and an increased recognition of the importance of trying to keep children within their extended family, these placements are becoming more common.  

A full assessment for suitability to adopt is required by law. If the family lives in a country which has ratified The Hague Convention, an adoption agency in the receiving state (the adopters’ home country) will be asked to assess and approve the prospective adopters. The assessment will be carried out in the usual way for that country.  

If the family live in a country which has not ratified The Hague Convention, the child’s local authority may either ask an adoption agency in that country to undertake an adoption assessment, or it may decide to send a member of their adoption team to the country to prepare a prospective adopter’s report. 

 

Placing a child overseas with ‘stranger’ adopters  

Technically it is possible to place a child who has been looked after in the UK with ‘stranger’ adopters in a Hague Convention country who have been assessed and approved in that country, but in practice this is unlikely to happen. Children have been removed from their birth parents and may have coped with several foster placements and have therefore experienced many losses in their lives. A move to another country will not therefore be appropriate for many children looked after in the UK.  

A report about the child would be prepared by the local authority for their adoption panel including details of the efforts made to find adopters in the UK, and the reasons why a placement overseas in a particular country would be in the child’s best interests.  

 

Restrictions on taking children out of the UK for adoption 

Section 85 of the Adoption and Children Act 2002 provides restrictions on removing children from the British Islands for the purposes of adoption. Failure to comply with Section 85 is a criminal offence punishable by 12 months’ imprisonment and an unlimited fine. To avoid breaching Section 85, prospective adopters who live abroad will need to obtain a convention adoption order, an adoption order in a UK court, or an order under Section 84 of the Act, before removing the child from the British Islands.  

 

Child to live with the adopters before removal from the UK 

In all cases the child must have lived with the prospective adopters in the UK for a minimum of 10 weeks before one of these orders can be applied for, although it is not necessary for both members of a couple to live continuously in the UK with the child for the 10 weeks (see legal case Re G [a child] [2008] EWCA Civ 105 as an example where the adoptive father’s absence for work was not deemed to break the 10-week rule).  

 

Adoption order in the UK 

A prospective adopter may only apply for an adoption order or a convention adoption order to be granted in the UK if they meet the age and domicile or habitual residence conditions in UK law [see Eligibility, Section 49].  

Most prospective adopters who are habitually resident outside the British Islands will not meet the habitual residence or domicile conditions and will need to adopt a child outside the UK.  

 

Adopting outside the UK – Section 84 order 

Where prospective adopters wish to take a child out of the UK for adoption in their country, they must come to the UK and the child must live with them in the UK for at least 10 weeks. The prospective adopters can then apply to the High Court for a Section 84 parental responsibility order. They are not able to take the child out of the country until this has been granted. 

Once parental responsibility under Section 84 is granted to the adopters they can leave the UK and return with the child to their own country. The Section 84 order extinguishes the parental responsibility of everyone else, i.e. the birth parents and the local authority. 

Although in many ways the Section 84 order is the same as an adoption order, most prospective adopters will apply for a full adoption order on their return home as this is the only order recognised by virtually all other countries.  

 

Eligibility to be granted an adoption or convention adoption order in England or Wales – Section 49 order  

 

Age  

Each applicant must be at least 21 years of age. There is no legal upper age limit.  

 

Domicile and habitual residence  

A single person, or one of a couple, must be domiciled in the UK, Channel Islands or Isle of Man, or each applicant must have been habitually resident in any part of the British Islands for at least one year preceding the making of the application for an adoption order. 

Domicile means the country where someone is deemed to have their permanent home. A person can only have one domicile at any time. A person acquires a domicile of origin at birth which remains their domicile wherever they go, unless a new domicile is acquired (a domicile of choice). A person may acquire a domicile of choice by residing in a country other than that of their domicile of origin with the intention of residing there indefinitely. 

 

Habitual residence  

This depends on the quality of residence, not just duration, and requires an element of intention. Residence must continue for some time but there is no requisite period of residence that establishes it as habitual. Factors such as owning property, type of employment contract, financial arrangement, location of bank accounts and local connections may be relevant in deciding if someone has habitual residence. Someone who leaves the UK to take up employment elsewhere may acquire habitual residence in another country, but they may also retain habitual residence in the British Islands because of the links they have maintained (those listed above). It is possible to be habitually resident in two countries at the same time. 

 

Further Information 

 

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