UK Offence Report

36 Any person who contravenes or fails to comply with— a regulation 15 (notification to local authority); b…

regulation 36 of The Intercountry Adoption (Hague Convention) Regulations 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

36 Any person who contravenes or fails to comply with—

a regulation 15 (notification to local authority);

b regulation 18(2) (return of child to relevant local authority);

c regulation 18(4) (return of child to relevant authority as ordered by the court); or

d regulation 23 (return of child to relevant authority within period prescribed by court), without reasonable excuse is guilty of an offence and 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 This is the text as originally made; later amendments are not shown here.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
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

d to relevant authority within period prescribed by court), without reasonable excuse is guilty of an offence and 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.

What would breach regulation 36?

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 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)
3 months

this is the level 5 value when the instrument came into force (2003-06-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

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
26 January 2003
In force from
1 June 2003
Extent
E+W

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 that was concluded at the Hague on 29 May 1993. Part 2 makes provision in respect of requirements, procedure, recognition and effect of adoption in England and Wales where the United Kingdom is the receiving State. Part 2 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 7 make provision regarding the application for determination of eligibility, and the assessment of suitability, eligibility and other requirements such as counselling and police checks. Regulations 8 to 11 provide for the assessment of suitability of the prospective adopter, the procedure to be followed and the notification of decision. Regulation 12 sets out the procedure following the receipt of the Article 16 Information from the Central Authority of the State of origin. Regulation 13 imposes duties on the adoption agency in respect of the period before the arrival of the child in England and Wales. Regulations 14 to 20 make provision in respect of the case where a child arrives in the United Kingdom but no Convention adoption has been made. Regulation 21 prescribes the requirements for the purposes of making a Convention adoption order. Regulation 22 makes provision regarding the procedural requirements following a Convention adoption order or Convention adoption. Regulations 23 and 24 respectively make provision in respect of where a court refuses to make a Convention adoption order and the annulment of a Convention adoption order or a Convention adoption. Part 3 makes provision in respect of requirements and procedure in England and Wales where the United Kingdom is the State of origin. Part 3 applies where a child, habitually resident in England and Wales is to be adopted by prospective adopters who are habitually resident in another Contracting State. Regulation 25 imposes duties on an adoption agency in respect of the assessment of a child. Regulations 26 to 30 set out the functions of an adoption panel, provide for the making, and notification, of decisions, the procedure to be followed once the Article 15 Report is received, duties of the adoption panel and the local authority decision in respect of the placement of the child. Regulation 31 sets out the requirements in respect of the Article 16 information and the procedure to be followed in preparing a report and gathering information. Regulations 32 and 33 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 4 makes miscellaneous provisions. Regulations 34 and 35 provide for the application and modification of the Adoption Act 1976 and the Adoption Agencies Regulations 1983 (S.I.1983/1964). Regulation 36 makes it an offence where a person contravenes or fails to comply with regulation 15 (notification to local authority), regulation 18(2) (return of child to local authority), regulation 18(4) (return of child to relevant authority as ordered by the court) or regulation 23 (refusal to return child to relevant authority within prescribed time as ordered by the court). Regulation 37 makes transitional and consequential provisions. Copies of a regulatory impact assessment in relation to these Regulations may be obtained from Adoption and Permanence Team, Room 101 Wellington House, 133 - 155, Waterloo Road, London, SE1 8UG and at www.doh.gov.uk/adoption.

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