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Coping with the reform of the designated list

Immigration analysis: What practical challenges does the government's reform of the designated list for overseas adoption present for immigration practitioners? Naomi Angell of Osbornes LLP and Kathryn Cronin of Garden Court Chambers, outline the potential pitfalls for overseas adopters.

Original news
Adoption (Recognition of Overseas Adoptions) Order 2013 SI 2013/1801: The countries and territories whose adoption orders are recognised under the Adoption and Children Act 2002 (ACA 2000) are listed in this Order. Adoptions made under those countries' and territories' orders will be recognised in England and Wales and the child will be treated as the child of the adoptive parents/guardians. This Order will come into force on 3 January 2014. What constitutes adoption in this context? ACA 2002 defines adoptions to mean:
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any adoption order made in the UK and Islands an adoption order made outside the British Islands under the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption of 29 May 1993 a foreign adoption order recognised by the High Court (see Re R (a child) [2012] EWHC 2956 (Fam), [2012] All ER (D) 157 (Dec) and Re T and M (Adoption) [2010] EWHC 964 (Fam) and an 'overseas' adoption (defined in ACA 2002, s 87 as an adoption which is not a Hague Convention adoption effected in and under the statute law in force in a country listed in regulations designating overseas adoptions)

These are recognised adoptions and children adopted under any of these adoptions orders are to be treated in UK law as if they were born the children of their adopters (ACA 2002, s 67). This article is concerned with reforms associated with 'overseas adoption' notably the change in the current list of 66 designated countries whose adoptions are recognised as having effect in the UK. The list is currently set out in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973, SI 1973/19 (the 1973 Order) as amended by the Adoption (Designation of Overseas Adoptions) Variation Order 1993, SI 1993/690. What prompted the changes? The current list of designated 'overseas adoption' countries comprises Commonwealth and ex-Commonwealth countries, European countries and a number of other miscellaneous countries, such as the USA and China. There was no clear rationale behind this list.

There has been concern for some time that the list of countries on the designated list needed updating and reform, as the UK and many other countries have ratified the Hague Convention on intercountry adoption and the designated list did not reflect these changes. There was also concern that some of the countries on the designated list had adoption systems which did not reflect UK adoption processes or provide equivalent protection to ensure:
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the parents gave free and informed consent to the adoption their children were not bought or trafficked, and/or that the rights of the adoptive children were protected

What are the changes and which countries are affected? The new designated list is in the Schedule to the Adoption (Recognition of Overseas Adoptions) Order 2013 (the 2013 Order). On commencement, the 2013 Order will replace the 1973 Order and the current list of designated countries. The new list of countries whose adoptions are to be automatically recognised are countries that have ratified the Hague Convention. This is a much enlarged list87 countries compared with 66and the change will result in some countries on the current designated list, which are not Convention countries, being dropped from the new designated list. The deleted countries include a number of Commonwealth African countries such as Nigeria, Malawi, Ghana, Uganda and Zimbabwe as well as Caribbean states like Jamaica and Trinidad. Other countries have been added to the listIndia, Brazil, Colombia, Ecuador, Georgia, the Czech Republicto name a few. As with the previous designated list, the list in the 2013 Order will require future amendments when new countries sign and incorporate the Hague Convention From January 2014 an adoption order made in a country on the new designated country list may be a Hague or an 'overseas adoption'. The adoption will be a Hague intercountry adoption if a child is resident in one Hague state and is being adopted by an adopter who is resident in another Hague State and the child is to be taken to live in the adopter's home country. The adoption will be an 'overseas adoption' if the adopter and child were both resident in the Hague/designated list state and the adoption order was made under the domestic adoption laws of the state and the adopters and child were to live there after the adoption or in another country (not the UK). If in a year or two the adoptive parents wished to come to the UK with their adopted child, their adoptionwhich was not a Hague but an 'overseas adoption', would be recognised in the UK. When will these changes take effect? The 2013 Order with the reformed designated list comes into force on 3 January 2014. Article 2 of the 2013 Order retains the definition of 'overseas adoptions' in the 1973 Ordernamely as an adoption, other than a Hague Convention adoption, made under the law of a country listed in the schedule (other than under customary or common law) [ACA 2002, s 87]. The 2013 Order will apply to adoptions effected after 3 January 2014 and to parties who have standing to obtain a domestic adoption order from the particular Hague state. Thus, for example, UK law will recognise and give effect to a post-3 January 2014 adoption order granted to a Brazilian citizen resident in Brazil and concerning a child resident in Brazil. How will the new designated list affect immigration practice? The new list will produce a change in immigration practice in some cases. The Immigration Rules make provision for the entry/residence of certain adopted/adoptive children, namely:

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those being brought to the UK for adoption children adopted under a Hague Convention adoption children adopted under an 'overseas' recognised adoption, and children whom the Immigration Rules define as 'de facto' adopted childrenchildren, whether formally adopted or not, who have lived abroad with and in the care of their 'parents' for at least 18 months immediately prior to making any application for entry to the UK (Immigration Rules HC395 paras 309-316F)

As one of the categories of adopted children eligible for entry/residence comprises 'overseas adoption' children, the designated adoption list has served not only to recognise these adoptions in family law but also to facilitate the entry of these 'overseas adopted' children. These adopted children are eligible to be approved for entry/residence in the UK because 'overseas adoptions' are 'recognised' adoptions under ACA 2002, s 66. The change in the list means that, for example, children adopted in Nigeria will no longer meet the immigration rules criterion for a recognised adoption while Indian adopted children who presently fail that particular criterion because India is not on the list, could meet this criterion in future because Indian adoptions made after 3 January 2014 will be recognised in the UK. Where, as in India now or Nigeria in future, children adopted under overseas orders are not recognised 'overseas adoptions', such children will have to satisfy alternative Immigration Rules criterianamely either living abroad with their 'parents' for 18 months so as to meet the 'de facto adoption' criterion, or having their 'parents' approved and certified as suitable adopters so the children can be brought to the UK under the Immigration Rules permitting entry for adoptive children. It should be noted that the above immigration requirements for adopters to be approved, and adoptions to be recognised or 'de facto adoptions', are not the only restrictions limiting the entry and stay of adopted or adoptive children. Even where children can satisfy these particular criteria, they may still be refused entry under other Immigration Rules criteriafor example:
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if the parents/'parents' cannot adequately maintain or accommodate their adopted children, or if it cannot be shown that the adoption was due to the inability of the original parents or current carers to care for the children (see HC395 para 310(ix))

This last is a criterion said to ensure that adoptions are genuine and not contrived solely to serve an immigration outcome. Are you anticipating problems with the amended regime? ACA 2002, s 83, as amended by the Children and Adoption Act 2006, s 14 (CAA 2006), imposes restrictions on families bringing children into the UK involved in intercountry adoption. The effect of this is that if at any time a person who is habitually resident in the British Isles 'brings or causes another to bring into the UK' a child for the purpose of adoption or a child adopted under an external adoption order, effected within the period of 12 months immediately before the child enters the UK, the 'parents' must comply with adoption regulations. These regulations require the parents to obtain:
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a positive advance home study report from an English or Welsh adoption agency, recommending them as suitable to adopt, and a certificate of eligibility from the relevant central government department, in England the Department for Education, certifying their suitability

It is a criminal offence to bring, or cause another to bring, a child into the UK for adoption within 12 months of an external adoption without the adopters obtaining the necessary assessment, approval and certification. These domestic provisions mirror the Hague Convention requirements which also require such advance approval and certification of adopters where the adopters are habitually resident in one state and their adopted/adoptive child is habitually resident in another. Many adopters are unaware of these restrictions and may only come to know of ACA 2002, s 83 provisions when their adoptive or adopted child is refused entry clearance. In such circumstances adopters may have no choice but to leave their adopted children with carers in their home state while the adoptive parents return to the UK for their vetting and approval as adopters. Such situations can be very stressful and the family separation may last for several monthsthe general time frame for the vetting and approval of adopters and obtaining a certificate of eligibility is on average around nine months. The ACA 2002, s 83 restrictions apply to all external adoptions where the adopters are habitually resident in the UK, including recognised 'overseas adoptions' (ACA 2002, s 83(3)). The Immigration Rules purport to apply the ACA 2002, s 83 restrictions to all adopted or adoptive child entry even where the 'parents' are not habitually resident in the UK (HC395 para 309B). These family and immigration provisions have the effect that even where the adoption is from a designated list country and is recognised in the UK, the adopted child may not be brought into the UK within 12 months of the adoptionsave where the parents have approval and certification as adopters. If Rule 309B which purports to enlarge the reach of ACA 2002, s 83 is upheld in immigration appeals, it will mean such families are stranded abroad for 18 months. It is likely that there will be a number of families who are not aware of the changes to the existing designated list and will adopt children from countries on the current list without realising their adoption is not recognised in the UK. These people will be unaware that they now need to obtain advance home study reports and a certificate of eligibility in order to bring their child into this country without breaching ACA 2002, s 83. Further, when in the UK, they will need to seek recognition of their foreign adoption order either by readopting the child in the courts here or by seeking a declaration of recognition of foreign adoption under the Family Law Act 1986, s 57. How might this affect on-going cases? Families in the process of adopting a child from countries which are on the current designated list but will not be on the new list need to obtain a final adoption order from the foreign country from which they adopted before 3 January 2014, if it is to be recognised under the current regime. Without the final order they will need to readopt the child in this country or obtain a Declaration of Recognition of Foreign Adoption in order to obtain recognition of their foreign adoption in this country. The designated list changes will be particularly helpful to expats in new designated list countries who adopt children after 3 January 2014 while living and working abroad, and wish to bring their children to the UK to settle here. What action should lawyers be taking when advising clients following the changes? Any case involving a foreign adoption is likely to be complex. Lawyers need to be alert to both the family and immigration laws pertaining to such cases. Lawyers need to ascertain key facts essential for determining status and travel issues for the adopted children:
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the adopters and children's nationality and immigration statusdetermining whether they can live together and in which countries

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the country of adoption (and whether this country is on designated list in force at the date of the adoption and/or is a Hague Convention state) the adopter's domicile (this information is necessary to ascertain if the adopters have standing to seek recognition of their external adoption or to seek an English adoption order) the adopter's and the children's habitual residence (this is important because the ACA 2002, s 83 restrictions apply only if the adopters are habitually resident in the UK)

The answers to these questions provide the framework within which lawyers can begin to advise on the status, family and immigration issues which these adoptions raise. Interviewed by Guy Skelton. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.