Legal Update: Adoption of children from other countries

This month, Ethiopia's parliament agreed to legislation banning the adoption of children by foreigners, stating that orphans and other vulnerable children should be cared for and supported by local systems, in order to protect them from abuse abroad. The shift reflects the decrease in the number of international adoptions, as developing countries become more prosperous and their systems for domestic adoption improve.

An individual can adopt a child from overseas if the child cannot be cared for in a safe environment in their own country; the adoption would be in their best interests; and the adopter has been assessed as eligible and suitable to adopt from overseas by an adoption agency in the UK. However, intercountry adoption is more complicated than adopting children from within the UK, as both UK law and the laws of the child's birth country will apply. Britain is the lowest per capita adopter of foreign children compared with any other in the western world.

Approval for adoption

An intercountry adoption is an adoption of a child who is habitually resident in one country by an individual or couple who are habitually resident in another country. In order to adopt a child from another country, an individual must first be eligible to adopt in the UK: they must be over 21, habitually resident in the UK and not have been found guilty of or cautioned for a prescribed offence (generally offences against or involving children). They will also need to be approved as a suitable prospective adopter by an adoption agency authorised to deal with intercountry adoption. Many other issues will be taken into account, including health, age, support network, financial circumstances, other children in their family, religion and ethnic background.

Other countries have their own eligibility criteria and they are often more extensive than the UK eligibility criteria. Some countries have upper age limits, they might accept single applicants or only married couples, they might be specific on what health grounds an application might be excluded and they might prioritise applications according to the prospective adopter's proven links to the country.

Recognition of intercountry adoptions

There are three main types of intercountry adoptions: "Hague Convention", "Designated List" and "Other". Hague Convention adoptions are intercountry adoptions to the UK from a country in which the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("the Hague Convention") is in force. The Hague Convention establishes safeguards to protect the best interests of children and to produce a system of co-operation between countries to prevent child trafficking. Hague Convention adoptions made overseas are recognised in UK law, and there is no need to readopt the child in the UK. They also result in British citizenship for the child if, at the time of the adoption, the adopters are habitually resident in the UK and at least one of the prospective adopters is a British citizen.

Adoptions in countries listed in the Adoption (Designation of Overseas Adoptions) Order 1973 ("Designated list") are recognised in UK law and there is therefore no need to readopt the child in the UK for the adoption to be recognised here. However, a separate application will need to be made for British citizenship for the child.

An overseas adoption is not recognised in the UK if it is not a Hague Convention adoption or made in a country on the designated list. The adopter(s) will need to apply for an adoption order in the UK. An adoption order made in a UK court confers British citizenship on the child if the adopters, or one of them, is a British citizen.

As developments in Ethiopia show, not all countries place children overseas for adoption and it is not currently possible to adopt from some countries due to the UK placing restrictions on those countries. The UK has restricted adoption from Cambodia, Guatemala, Nepal and Haiti.

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