UK Offence Report

1 Any person who contravenes or fails to comply with any of the regulations mentioned in paragraph (2)…

regulation 63(1) of The Adoptions with a Foreign Element (Scotland) Regulations 2009

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

1 Any person who contravenes or fails to comply with any of the regulations mentioned in paragraph (2) commits an offence and is liable on summary conviction to imprisonment for

a term not exceeding three 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 This is the text as originally made; later amendments are not shown here.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
No statutory defence — prosecution proves everything

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.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 63(1)?

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. On these words an offence is committed where a person contravenes or fails to comply with any of the regulations mentioned in paragraph (2).
  2. Doing the thing the provision prohibits under the Adoptions with a Foreign Element (Scotland) Regulations 2009, whatever the reason for doing it.
  3. 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)
3 months

in Scotland a reference to a level is construed as referring to the standard scale as it currently stands (CP(S)A 1995 s.225(2)), 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
14 May 2009
In force from
28 September 2009
Extent
S

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 make provision for adoptions with a foreign element under the Adoption (Intercountry Aspects) Act 1999 and the Adoption and Children (Scotland) Act 2007 (“the 2007 Act”). The Regulations distinguish two categories of adoptions with a foreign element – those effected under the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption (“Convention cases”) and all other foreign adoptions (“non-Convention cases”). Part 2 (with the exception of regulation 9) makes provision for non-Convention cases whilst Part 3 concerns Convention cases. The requirements for non-Convention cases are set out in Part 1, Chapter 6 of the 2007 Act. Chapter 1 of Part 2 of these Regulations makes provision for cases where a child is brought into the United Kingdom in circumstances where section 58 of the 2007 Act applies. Section 58 applies where a British resident brings or causes another to bring a child into the United Kingdom for the purposes of adoption or where they bring or cause another to bring a child adopted by a British resident under an external adoption effected within a period of 12 months from that adoption. Regulations 3 and 4 prescribe the requirements which must be met by the prospective adopters before a child is brought into the United Kingdom. Regulation 5 then imposes functions on the local authority which apply when the child has been brought into the United Kingdom and the prospective adopters have given notice of their intention to apply for an adoption order. Chapter 2 of Part 2 of these Regulations makes provision for cases where a child is to be taken out of the United Kingdom for overseas adoption (an adoption effected outwith the British Islands which is not within the scope of the Convention). Regulations 7 and 8 prescribe the requirements which must be met before an order under section 59 of the 2007 Act (a preliminary order conferring parental responsibilities and rights on prospective adopters where the child is to be adopted abroad) is made. These provisions apply only to non-Convention cases. Regulation 9 specifies those provisions of the 2007 Act which apply to orders made under section 59 and applies to both Convention and non-Convention cases. Part 3 of the Regulations makes provision only for Convention cases. Chapter 1 regulates the procedure which must be followed when the United Kingdom is the receiving State (where a child is brought from outwith the British Islands to the United Kingdom for adoption by a British resident in accordance with the Convention) whilst Chapter 2 regulates the process when the United Kingdom is the State of Origin (where a child who is habitually resident in the British Islands is to be adopted by a person or a couple habitually resident outwith the British Islands in accordance with the Convention). Both Chapters prescribe the requirements and procedures which must be followed for such adoptions as well as making provision for the recognition of such adoptions. Chapter 3 makes miscellaneous provision. Regulation 53 applies the provisions of the 2007 Act to Convention adoption orders subject to modifications. Regulations 54 to 61 modify the application of that Act to such adoptions. Regulation 62 applies the Adoption Agencies (Scotland) Regulations 2009 with modifications. Regulation 63 provides that a person who fails to comply with any of the provisions listed in paragraph (2) commits an offence. Part 4 (regulation 64) revokes the Adoption (Hague Convention) (Scotland) Regulations 2003.

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 “commits an offence”; the provision states liability on summary conviction
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