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01 AUG 2013

Placement of children outside England and Wales: international adoption, special guardianship and the Hague Convention 1996 – known unknowns?

Ayeesha Bhutta and Ruth Cabeza, Barristers, Field Court Chambers

When parents are not able to give their child good enough care, often the State has to step in to ensure that the child's needs are met. It is an internationally accepted principle that if a child cannot be cared for by his parent, the next best option will be for the child to be cared for by a willing and able member of his extended family or person with a pre-existing connection to the child - a connected person. If a connected person is able to offer a permanent home to the child then, quite rightly, our legislation requires the local authority to give priority to placing the child with that person. The law's ‘bias' in favour of family placements is not limited by geography. Placements of children abroad with connected persons have become more common. The greater movement of people, fuelled by ease of travel and communications, has contributed to what is undoubtedly an increasing trend.

This article considers some of the similarities between the 1996 and 1993 Conventions with reference to interstate assessment, and the need for agreement to the suitability of the placement before it can proceed. Within the context of children who are habitually resident in England and Wales, when it is proposed that their long term care will be provided by family members habitually resident outside the UK under either an adoption or special guardianship order (‘SGO'), the article explores:

-          the role of the Central Authority under the 1993 Convention;

-          an overview of the role of the Central Authority in an inter-country adoption;

-          the role of the Central Authority under the 1996 convention;

-          the role of the Central Authority in the placement of children overseas under an SGO; and

-          the relationship between the recognition and enforcement provisions of Brussels IIR and 1996 Convention with regard to SGOs.

The full version of this article appears in International Family Law [2013] IFL 213

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