UK Offence Report

34 Any person who contravenes or fails to comply with– a regulation 13 (duty of prospective adopter to…

regulation 34 of The Intercountry Adoption (Hague Convention) Regulations (Northern Ireland) 2003

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

34 Any person who contravenes or fails to comply with–

a regulation 13 (duty of prospective adopter to notify HSS trust);

b regulation 16(2) (surrender of child to HSS trust);

c regulation 16(4) (surrender of child to HSS trust as ordered by the court); or

d regulation 21(3) (surrender of child to HSS trust within period determined by the court), without reasonable excuse, is guilty of an offence and liable on summary conviction to imprisonment for

a term not exceeding six months, or

a fine not exceeding level

5 on the standard scale, or both.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

child to HSS trust within period determined by the court), without reasonable excuse, is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

What would breach regulation 34?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Intercountry Adoption (Hague Convention) Regulations (Northern Ireland) 2003, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
6 months

in Northern Ireland a reference to a level is construed as referring to the standard scale as it currently stands (Fines and Penalties (NI) Order 1984 art.5(3)), not as it stood when the instrument was made.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
13 January 2003
In force from
1 June 2003
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations.) — the explanatory note published with the instrument, © Crown copyright.

These Regulations implement the 1993 Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption concluded at the Hague on 29th May 1993. Part I provides for commencement and interpretation (regulations 1 and 2). Part II makes provision in respect of requirements, procedure, recognition, and effect of adoption in Northern Ireland where the United Kingdom is the receiving State. Part II applies where a child is habitually resident in another Contracting State and the prospective adopters are habitually resident in the British Islands. Regulations 3 to 5 make provision regarding the application for determination of eligibility and assessment of suitability, eligibility and other requirements such as counselling. Regulations 6 to 9 provide for the assessment of suitability of the prospective adopter, the procedure to be followed and the notification of decision. Regulation 10 sets out the procedure following receipt of the Article 16 report from the Central Authority of the State of origin. Regulation 11 imposes duties on the adoption agency in respect of the period before the arrival of the child in Northern Ireland. Regulations 12 to 18 make provision in respect of the case where a child arrives in Northern Ireland but no Convention adoption order has been made. Regulation 19 prescribes the requirements for the purposes of making a Convention adoption order. Regulation 20 makes provision regarding the procedure to be followed following a Convention adoption order or Convention adoption. Regulations 21 and 22 respectively make provision in respect of where a court refuses to make a Convention adoption order or a Convention order. Part III makes provision in respect of requirements and procedure where the United Kingdom is the State of origin. Part III applies where a child, habitually resident in Northern Ireland, is to be adopted by prospective adopters who are habitually resident in another Contracting State. Regulation 23 imposes duties on an adoption agency in respect of the assessment of a child. Regulations 24 to 28 set out the functions of an adoption panel, provide for making and notification of decisions, the procedure to be followed once the Article 15 report is received, duties of the adoption panel and the HSS trust decision in respect of the placement of the child. Regulation 29 sets out the requirements in respect of the Article 16 report and the procedure to be followed in the preparation and completion of that report. Regulations 30 and 31 respectively prescribe the requirements for the purposes of making a Convention adoption order and the procedural requirements following a Convention adoption order or Convention adoption. Part IV makes miscellaneous provisions. Regulations 32 and 33 provide for the modification of the Adoption (Northern Ireland) Order 1987 and the Adoption Agencies Regulations (Northern Ireland) 1989. Regulation 34 makes it an offence where a person contravenes or fails to comply with regulation 13 (duty of prospective adopter to notify HSS trust), regulation 16(2) (surrender of child to HSS trust), regulation 16(4) (surrender of child to HSS trust as ordered by the court) or regulation 21(3) (surrender of child to HSS trust within period prescribed by the court). Regulation 35 makes transitional and consequential provisions.

Read the full note and every offence in this instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source