In an increasingly globalised world, it is common for families in Scotland to complete adoptions abroad. Whether the adoption took place while living overseas or involved adopting a child from a different country, recognising these foreign adoption orders in Scotland is essential to ensure that the new parent/child relationship is fully recognised. However, not all foreign adoptions are automatically recognised under Scots law. It is, therefore, important for adoptive parents to understand the legal processes and options available.
This article explores how foreign adoption orders can be recognised in Scotland, what to do if a foreign adoption order is not automatically recognised, and alternative routes for securing the legal status of the adopted child and their parents.
Which foreign adoption orders are automatically recognised?
The first step in determining whether a foreign adoption order is recognised in Scotland is to establish whether the country where the adoption took place is included in the list of nations whose adoption orders are automatically recognised. This includes the British Isles, countries which are part of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 or countries with which the UK has reciprocal agreements. A list of such countries is contained within The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013.
What to do if a foreign adoption order is not recognised in Scotland
If an adoption order from a foreign country is not automatically recognised in Scotland, parents must take additional legal steps to ensure that the adoption is fully valid and enforceable under Scots law. In such cases, two potential legal pathways are available:
- Petitioning the Court of Session for recognition at common law
- Applying for a domestic adoption order in Scotland
Petitioning the Court of Session for recognition at common law
For foreign adoptions that are not recognised, one option is to petition the Court of Session for the adoption order to be recognised and registered at common law. This was considered in the case of Ian & Aida Ashford Brown [2015] CSOH 68. In that case, the court confirmed a three-stage test (established by the leading English authority G (Children) [2014] EWHC 2605) for the court to consider:
- Was the adoption obtained wholly lawfully in the foreign country?;
- If so, did the concept of adoption in that jurisdiction substantially conform with the Scottish concept?;
- If so, was there any public policy consideration that should mitigate against recognition?
A noteworthy aspect of this process is that recognition at common law appears to be available even when the adopted person is over the age of eighteen. This is particularly important for individuals who were adopted abroad as children but are now adults, as it offers a route to secure recognition of their adopted status and the associated rights.
Once the Court of Session grants recognition, the foreign adoption order will be registered, and the adoption will be treated as fully valid under Scots law.
Raising a fresh petition for a domestic adoption order in Scotland
Another option is to petition for a fresh domestic adoption order under Scots law. This option is only available if the child is under eighteen at the time of application, making it crucial for adoptive parents to act promptly in certain cases.
A domestic adoption order provides full legal recognition of the parent-child relationship and ensures that the child has the same legal status as any other adopted child in Scotland. The process of applying for a domestic adoption order will require to consider a full assessment of the adoption circumstances and the child’s welfare, much like any other adoption proceeding in Scotland.
Next steps: which path is right for your family?
If your family has secured a foreign adoption order, the first step is to determine whether the order is automatically recognised in Scotland. If it is not, you will need to consider either petitioning for recognition at common law or applying for a domestic adoption order. Each route has its own advantages, and the appropriate option will depend on the specific circumstances of your case, including the age of the adopted person.
How can we help?
It is advisable to seek legal advice from a family law specialist who can guide you through the options and assist you to gather the necessary documentation for your chosen pathway. Our adoption lawyers have a wealth of knowledge and experience in adoptions. For more information, please get in touch.
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