Commentary on Sections Part 3 -Miscellaneous and Final Provisions Chapter 1 – Miscellaneous Section 133: Scottish restriction on bringing children into or out of United Kingdom
324.Section 133 amends sections 50 and 50A of the Adoption (Scotland) Act 1978.  Subsection (1) amends section 50 of the Adoption (Scotland) Act 1978 which places restrictions on taking children out of the United Kingdom for adoption.  It removes the exemption of parents, guardians and relatives of the child from the restrictions.  It also adds a new subsection (4) to section 50 to enable regulations to be made providing for the restrictions to apply with modifications or not to apply if the prospective adopters are parents, relatives or guardians of the child (or one of them is) or the prospective adopter is a step-parent.  The new subsection 50(4) also enables regulations to prescribe conditions which must be met if the restrictions are not to apply or to apply with modification. The first set of regulations to be made under subsection 50(4) are to be subject to the affirmative resolution procedure.
325.Subsection (2) amends section 50A of the Adoption (Scotland) Act 1978 to impose restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British Islands into the United Kingdom with the intention of adopting the child in the United Kingdom, unless the person complies with prescribed requirements and meets prescribed conditions.  It also makes it a criminal offence for a British resident to bring or cause someone else to bring a child habitually resident outside the British Islands who he has adopted within the last six months into the United Kingdom, unless he complies with prescribed requirements and meets prescribed conditions.  A person would be liable on summary conviction to up to six months’ imprisonment or a fine not exceeding the statutory maximum (currently £5,000), or both, or, in the event of the case being referred to the Crown court, to up to twelve months’ imprisonment or an unlimited fine, or both.
326.It is intended that regulations will require the British resident to be assessed and approved as suitable to adopt by a United Kingdom adoption agency prior to bringing a child into the United Kingdom.
327.The restrictions in section 50A as amended do not apply if the child is intended to be adopted under a Convention adoption order (subsection (3)), as the provisions in the Hague Convention will apply in such circumstances.  Subsection (10) of section 50A provides a power to make regulations to specify that the restrictions do not apply where the prospective adopters are parents, guardians or relatives of the child (or one of them is) or the prospective adopter is a step-parent of the child where any prescribed conditions are met.  Subsection 50A(11) provides that the first set of regulations to be made under this power are to be subject to the affirmative resolution procedure.