Subordinate Legislation
Registration of Foreign Adoptions (Scotland) Regulations 2003 (SSI 2003/67)
Item 2 on the agenda is subordinate legislation. The committee is asked to consider, under the negative procedure, Scottish statutory instrument 2003/67, the Registration of Foreign Adoptions (Scotland) Regulations 2003. The purpose of the regulations is to specify the requirements that must be met before a foreign adoption can be registered in the adopted children register that is maintained by the Registrar General for Scotland under the Adoption (Scotland) Act 1978. The regulations are made in line with the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003, which were laid on 14 January 2003 and will take effect from 1 June 2003.
Four Executive officials are in attendance from the registrar general's department and the legal and parliamentary services department. The SSI is to be considered under the negative procedure, which means that, unless there are strong objections, the committee will agree that it does not wish to make any recommendation in its report to Parliament. Members have in front of them the report from the Subordinate Legislation Committee, which met this morning.
The Subordinate Legislation Committee asked the Executive two questions on the regulations. The first was whether the best possible wording was used at the beginning of regulation 4(4). That was a minor point. The Executive accepted that the phraseology was not as elegant as it might have been, but stated that the meaning of the regulation was clear. The Subordinate Legislation Committee accepted that.
The other point that the Subordinate Legislation Committee raised concerned regulation 6(2), which refers to an "adoptive father and mother" rather than to adoptive parents, which would include same-sex adoptive couples. The Subordinate Legislation Committee wondered whether that wording would allow same-sex couples to adopt here, as is the case in some convention countries. The answer that we received from the Executive was informative and the Subordinate Legislation Committee decided to accept the wording of the instrument as it stands.
For the sake of the record, can you explain the meaning of regulation 6(2)?
Paul Parr (General Register Office for Scotland):
I am the deputy registrar general and responded to the Subordinate Legislation Committee on behalf of the Executive.
We recognise the point that the Subordinate Legislation Committee made—that in some convention countries and other foreign countries from which we recognise overseas adoptions same-sex couples may be permitted to adopt. However, when we framed the regulations under the Adoption (Scotland) Act 1978 and the Adoption (Intercountry Aspects) Act 1999 we were doing so as part of a larger package of statutory instruments in the Scottish Parliament and at Westminster, to allow ratification by the United Kingdom of the 1993 Hague convention. Because we drew up the regulations within the framework of domestic legislation, we had to prescribe the form of the register. All that the regulations do is prescribe who may apply to have an adoption registered and the form of the register page. We are confined by the framework of domestic legislation, which would not allow a same-sex adoption to be registered.
That is helpful for clarification.
I would like to raise two small issues from the documentation, just for information. Paragraph 5 of the Executive note states:
"This instrument is made in line with the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003".
What is the meaning of the phrase "in line with"?
Does the instrument conform to the Hague convention in all respects? Are there different forms in different convention countries?
I ask one of our legal advisers to comment on that.
Andrew Crawley (Scottish Executive Legal and Parliamentary Services Department):
I am Andy Crawley from the solicitors division. I understand that the regulations are framed as part of the UK ratification process for the Hague convention. The Executive does not feel that it is in a position to take a view on the law in all the many other convention countries. We understand that same-sex adoption is permitted in certain convention countries. However, it does not follow that because same-sex adoption is permitted in those countries, a same-sex adoption would be eligible to be registered here as a convention adoption. That may or may not be the case. In our view, it is too early to say.
We expect that not only these but all other relevant sets of regulations in Scotland and the United Kingdom—perhaps also in Northern Ireland, but separately—will be amended as part of a review of the operation of the treaty that may take place two years from now. The issues that have been raised are not legal issues. We have advised that, as part of the ratification process, it is sensible to make these regulations now and to review them in the light of how the convention operates and broader adoption issues that are under review, as members appreciate.
You have not dealt with the precise question that I asked. Paragraph 7 of the Executive note states:
"This instrument concerns only the technical issue of the format of registration and no specific consultation on this aspect was considered necessary."
The instrument relates only to the technical format of registration. The Executive note states that it
"is made in line with the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003".
Is the technical format that is used here common to all Hague convention countries, or are there differences between the format that is used in this country and that which is used in other countries? That is important for parents who are travelling from one country to another and who are bringing in children from another country.
I appreciate the point that the member makes. In the form of register page that we provided in the schedule to the regulations our aim was to ensure as much consistency as possible within the United Kingdom. We also sought consistency with the existing adopted children register. The form in the regulations and the current adopted children register are identical.
We hope that we will obtain from the adopters and the convention country sufficient information to complete the registration page.
I am concerned that the information in the adopted children register is less comprehensive than I would expect. Part 11 of the form refers to "Details of Order". Is the information on the form limited because the order will contain substantive information?
That is correct.
Are members happy to allow the order to proceed?
Members indicated agreement.
Meeting continued in private until 14:37.