Nationality law relating to children adopted overseas is quite complex and it is always a good idea to consult with an expert as early as possible.
Children adopted in the UK by order of a UK court become British citizens at the time of adoption if one of the parents is a British citizen. Children adopted by British citizens overseas may in limited circumstances also become British citizens automatically, or may be registered as British citizens at the discretion of the Secretary of State.
This is a brief guide as a starting point on the subject which does not substitute legal advice.
Automatic acquisition with a Hague Convention adoption
Children adopted abroad in a country-signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) and in accordance with the terms of the Convention become British citizens automatically under section 1(5) of the British Nationality Act 1981. In other words, they do not need to be registered as British citizens, they can make an application for a British passport. The documents they need is a certificate confirming that the adoption was made in accordance with the terms of the Hague Convention and that at least one of the adoptive parents is British and ordinarily resident in the UK at the time of adoption.
It is important to note that the Hague Convention only applies to inter-country adoptions made for the purpose of bringing a child to the UK. If both the child and the adoptive parent(s) are habitually resident outside the UK, an adoption cannot be made under the terms of the Hague Convention.
If the above does not apply, you may consider registering the child as a British citizen.
The statute gives the Secretary of State very wide discretionary powers to register any child under the age of 18 wherever they deem appropriate.
These powers are exercised restrictively but there are certain factors that have to be taken into the equation. One of them is consideration whether the adoption is recognised by the UK. The following types of adoptions are recognised:
- Adoptions under the terms of the Hague Convention 1993. This means that although the adoption was not for the purpose of bringing the child to the UK (for example, the parents lived in the country where they adopted the child), nevertheless all the protective mechanisms of the Convention were in place and the required checks and certifications were carried out by the competent authorities to ensure that the adoption was in the best interests of the child.
- Adoptions which took place after 4 January 2014 in countries listed in the Adoption (Recognition of Overseas Adoptions) Order 2013;
- Adoptions which took place before 4 January 2014 in countries listed in the Adoption (Designation of Overseas Adoptions) Order 1973
The 1973 Order is based mainly on the Commonwealth. The 2013 Order is more in line with the internationally recognised standards for child protection and consists mainly of the Hague Convention countries.
However, the lists are not an automatic pathway to registration and at the same time, children adopted in the countries not on the relevant Adoption Order lists may also have a claim to registration. The relevant considerations will include the adoption procedures involved, evidence that the adoption was genuine and that the British citizen parent continues to bear parental responsibility for the child, the best interests of the child, and whether the child’s future is linked to the UK.
In any case, the likelihood of success will depend very much on the specific circumstances as well as the strength of the submissions made in support of the application and the evidence provided.
If you would like to book a consultation regarding your adopted child’s claim to British nationality, one of our consultants will be happy to speak with you.