Adoption of Children Act 2006

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Adoption of Children Act 2006
FA E R
N

AT F
TQUO U

BERMUDA

ADOPTION OF CHILDREN ACT 2006

2006 : 39

TABLE OF CONTENTS

PART 1
INTERPRETATION AND PRINCIPLES

Short title
Interpretation
Adoption principles

PART 2
ADMINISTRATION

Adoption Coordinator
Director's power to delegate functions
Adopter's Register
Adopted Children Register

PART 3
PROCESS LEADING TO ADOPTION

Division 1: Placement for Adoption

Persons who may place children
Director’s duties
Home study report
Placement overseas
Notice to Director
Information with placement
Agreement for continuing contact

Division 2: Consents

Required consents
Parent under 18

1
2
3

4
5
6
7

8
9
10
11
12
13
14

15
16

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ADOPTION OF CHILDREN ACT 2006

Child or other person consenting must be counselled
Form of consent
Dispensing with consent
Revocation of consent

Division 3: Care, Custody and Guardianship

Transfer of care and custody to Director
Transfer of care and custody by Director
Custody during placement
What care and custody includes

PART 4
COURT PROCEEDINGS

Jurisdiction
Child's views
Application to adopt
Who may apply to adopt a child
Step-parent exemption
Age of applicant
Application documents
Post-placement report
Court ordered reports
Right of access to reports
Dispensing with notice of hearing
Hearings to be in private
Persons entitled to be heard
Adoption order
Secrecy of previous identity
Child's name
Effect of adoption order
Notice of adoption order
When an adoption order may be revoked
Care and custody of child in the event of refusal of application
Confidentiality of court files

PART 5
OVERSEAS ADOPTIONS

Effect of overseas adoption
Approval to bring child into Bermuda for adoption
Approval of overseas adoption of Bermudian child

PART 6
OPENNESS AND DISCLOSURE

Disclosure of information
Requirement for counselling
Request for identifying information
Request by minor for information

17
18
19
20

21
22
23
24

25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45

46
47
48

49
50
51
52

2

ADOPTION OF CHILDREN ACT 2006

PART 7
GENERAL PROVISIONS

Appeal to Supreme Court
Security of adoption records
Protection from liability
Payment prohibited
Advertising prohibited
Making a false statement
Limitation
Regulations
Rules
Repeal of Adoption of Children Act 1963
Savings
Commencement

WHEREAS it is expedient to enact the Adoption of Children Act 2006:

Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:

PART 1

INTERPRETATION AND PRINCIPLES

Short title
This Act may be cited as the Adoption of Children Act 2006.

Interpretation
In this Act—

“Adopter's Register” means the Adopter’s Register referred to in section 6;

“Adopted Children Register” means the Adopted Children Register referred to in
section 7;

“adoption order” means an order for the adoption of a child made under section 38;

“applicant” means a person who applies to the court for an adoption order;

“child” means a person under 18 years of age, but does not include a person who
is or has been married;

“Director” means the Director of Child and Family Services;

“former Adoption Act” means the Adoption Act 1963;

“guardian”, in relation to a child, means a person appointed by deed or will, or by
a court of competent jurisdiction, to be the guardian of the child;

53
54
55
56
57
58
59
60
61
62
63
64

1

2 (1)

3

ADOPTION OF CHILDREN ACT 2006

“health care” means anything that is done for a therapeutic, preventative, palliative,
diagnostic, cosmetic or other health related purpose, and includes a course of
health care;

“health care professional” includes a medical practitioner and any person licensed,
certified or registered in Bermuda to provide health care;

“lawyer” means a barrister and attorney who has been admitted to practise law
under section 51 of the Supreme Court Act 1905;

“Minister” means the Minister responsible for Child and Family Services;

“place” means to transfer the custody of a child from one person to another for the
purpose of adoption;

“prescribed” means prescribed by the Adoption Rules 1964 or by rules or
regulations, as the case may be, made under this Act;

“professional counsellor” means a person with knowledge of this Act, who has a
professional certification or designation in the field of psychiatry, psychology,
social work or counselling;

“Regulations” means regulations made under this Act;

“relative” means a parent, grandparent, aunt, uncle or sibling of a child by birth or
adoption;

“Rules” means the Adoption Rules 1964;

“step-parent” means the spouse of the custodial parent of a child where the spouse
has been cohabiting with that parent for a continuous period of not less than
one year immediately preceding an application to adopt the child.

For the purposes of exercising jurisdiction under this Act, the "court" shall be
a Special Court established under the Magistrates Act 1948.

Adoption principles
In making a decision about the placement or adoption of a child under this Act,

the Director, the court or any other person involved in the adoption process (“the decision-
maker”) shall act in accordance with the following principles—

the best interests of the child shall be the paramount consideration;

priority shall, where it is reasonable to do so, be given to the placement and
adoption of children who are resident in Bermuda; and

there should be the opportunity for openness in adoption, but every
person's choice of anonymity shall be respected.

In determining the best interests of a child under subsection (1), the decision-
maker shall have regard to the following matters—

the child's safety;

(2)

3 (1)

(a)

(b)

(c)

(2)

(a)

4

ADOPTION OF CHILDREN ACT 2006

the child's maturity, level of understanding, gender or other characteristics
which the decision-maker considers relevant;

the child's physical and emotional needs including any special need for
care and treatment and the child’s level of development;

the child's need for continuing parental care and guidance, the importance
of continuity in the child's care and the possible effect on the child of
disruption of that continuity;

any views or preferences expressed by the child;

the relationship that exists between the child and each person to whom the
custody of the child is or might be entrusted;

the capacity of the parties involved to properly discharge parental
obligations;

continuity of the child's cultural, racial and religious background or
heritage;

the relationship that the child has with their relatives; and

the effect on the child if there is delay in making a decision.

PART 2

ADMINISTRATION

Adoption Coordinator
Subject to this Act, the Director is responsible for the administration of

adoptions in Bermuda.

The Director may, with the approval of the Public Service Commission,
designate a public officer to be the Adoption Coordinator to exercise such functions as the
Director may delegate under section 5.

The Director may give the Adoption Coordinator such directions as the Director
sees fit and the Adoption Coordinator shall comply with any such directions.

Director's power to delegate functions
Subject to subsection (2) and the Rules and the Regulations, the Director may

delegate to the Adoption Coordinator any of the Director's powers, duties or functions under
this Act or the Regulations.

The delegation of the powers, duties or functions of the Director shall be in
writing and may include any terms or conditions the Director considers advisable.

Adopter's Register
The Minister shall continue to maintain the Adopter's Register that was

established pursuant to section 4 of the former Adoption Act in which shall be recorded the

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

4 (1)

(2)

(3)

5 (1)

(2)

6 (1)

5

ADOPTION OF CHILDREN ACT 2006

name and address of any person who intends to apply for an adoption order, and such other
particulars as the Minister may consider expedient.

Every person who intends to apply for an adoption order in relation to any child
shall, before assuming the care and custody of that child, apply to register his name and
address in the Adopter's Register in accordance with this section.

The Minister may instruct the Director to undertake investigations respecting
any person who is registered in the Adopter’s Register, and such investigations may include
medical examination of the person concerned.

On receipt of an application for an adoption order, the court shall notify the
Director of the particulars of the application and the Director shall forthwith submit to the
court a report setting out the result of any home study the Director may have carried out
in respect of the applicant.

No adoption order shall be made in favour of an applicant unless the applicant
has been registered in the Adopter’s Register as provided in subsection (1) for a period of at
least three months immediately preceding the application.

Subsection (5) shall not apply where at least one of the parents of the child is
the applicant for the adoption order.

Adopted Children Register
The Registrar-General shall continue to maintain the Adopted Children

Register that was established by section 17 of the former Adoption Act, in which shall be
made such entries as may be directed to be made therein by adoption orders, but no other
entries.

Every adoption order shall contain a direction to the Registrar-General to make
an entry in the Adopted Children Register recording the adoption in such form as may be
prescribed.

If, on an application for an adoption order, there is proved to the satisfaction
of the Court the birth date of the child to be adopted and the identity of that child with a
child to which an entry in the general register of births relates, the adoption order shall
contain a direction to the Registrar-General—

to cause such entry in the general register of births to be marked with the
word “Adopted”; and

to include in the entry in the Adopted Children Register that records the
adoption date, as stated in the order, particulars of the adopted child’s
birth in such manner as may be prescribed.

In making entries in the Adopted Children Register, the Registrar-General,
shall make a notation as to whether the adoption order makes the previous identity or
parentage of the child open or indicates if it is intended to be kept secret.

The court shall cause every adoption order to be communicated to the
Registrar-General who shall comply with the directions contained in such order.

(2)

(3)

(4)

(5)

(6)

7 (1)

(2)

(3)

(a)

(b)

(4)

(5)

6

ADOPTION OF CHILDREN ACT 2006

A certified copy of an entry in the Adopted Children Register if purporting to be
sealed or stamped with the seal of the Registrar-General shall, without any further or other
proof of such entry,—

where the entry does not contain any record of the date of the birth of the
adopted child, be received only as evidence of the adoption to which the
entry relates; and

where the entry contains a record of the date of the birth of the adopted
child, be received not only as evidence of the adoption to which the entry
relates but also as evidence of the date of the birth of the adopted child to
which the entry relates, in all respects as though the entry were a certified
copy of an entry in the general register of births.

The Registrar-General shall make and keep an index of the Adopted Children
Register.

Any person shall be entitled to search the index of the Adopted Children
Register and to have a certified copy of any entry in the index, subject to the same terms
and conditions—

as to payment of fees as under the Registration (Births and Deaths) Act
1949 in respect of searches in other indexes kept in the office of the
Registrar-General; and

in respect of the supply from the office of the Registrar-General of certified
copies of entries in the general register for births and deaths.

The Registrar-General shall, in addition to the Adopted Children Register and
the index of that Register, keep such other registers and books and make such entries in
those registers and books as may be necessary to record and make traceable the connection
between any entry in the general register of births that has been marked with the word
"Adopted" pursuant to this Act and any corresponding entry in the Adopted Children
Register. Other registers and books, and any index of those registers and books, shall not
be open to public inspection or search.

PART 3

PROCESS LEADING TO ADOPTION

Division 1: Placement for Adoption

Persons who may place children
The following persons may, in accordance with this Part, place a child for

adoption—

the Director;

the parent of the child; or

the guardian of the child.

(6)

(a)

(b)

(7)

(8)

(a)

(b)

(9)

8

(a)

(b)

(c)

7

ADOPTION OF CHILDREN ACT 2006

Director’s duties
Before placing a child for adoption, the Director shall—

provide information about adoption and alternatives to adoption to the
parent or guardian who requests placement of the child;

if the parent or guardian requesting placement wishes to select the child's
prospective adoptive parents, provide the parent or guardian with non-
identifying information about prospective adoptive parents registered in
the Adopter's Register who have been approved on the basis of a home
study completed in accordance with section 10;

obtain such information as is reasonably ascertainable from the parent or
guardian who requests placement about the medical and social history of
the child's biological family and preserve the information for the child;

give the prospective adoptive parent information about the medical and
social history of the child's family;

where no person is named or registered as the father of the child, make
reasonable efforts to determine whether a presumption of paternity arises
under section 18I of the Children Act 1998;

ensure that the child—

if sufficiently mature, has been counselled by a professional counsellor
about the effects of adoption; and

if 12 years of age or over, has been informed about their right to consent
to the adoption;

make reasonable efforts to obtain any consents required under section 15;

make reasonable efforts to give notice of the proposed adoption to anyone
who is named by the mother of the child as the child's father if the consent
of the father is not already required under section 15; and

ensure that consent in the prescribed form signed by the person placing
the child has been entered in the adoption record unless the court has
dispensed with such consent.

The Director may only place a child for adoption with prospective adoptive
parents who have been approved by the Director on the basis of a home study conducted
under section 10 and whose names are entered in the Adopter's Register.

The Director shall do all things necessary to obtain the documentation required
under section 31.

Home study report
The Director shall complete a home study report of a prospective adoptive

parent.

9 (1)

(a)

(b)

(c)

(d)

(e)

(f)

(i)

(ii)

(g)

(h)

(i)

(2)

(3)

10 (1)

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ADOPTION OF CHILDREN ACT 2006

Where a home study report has been completed under subsection (1), the
Director may, based on that report, give approval for a prospective adoptive parent to have
a child placed in their home for the purpose of adopting that child.

Placement overseas
No person shall place a child for adoption overseas except with the permission of

the Director in accordance with such criteria and conditions as the Director may determine.

Notice to Director
A person, other than the Director, who places a child for adoption shall—

notify the Director of the intention to place the child or, if it is not
immediately known that the purpose is adoption, notify the Director of the
placement as soon as practicable after it becomes evident that the child is
in fact being placed for adoption; and

provide the Director with such information in respect of the identity and
circumstances of the parties to the placement as may be specified by the
Regulations.

Information with placement
A person, other than the Director, who places a child for adoption shall provide

in writing to the person receiving the child a summary of non-identifying information
concerning the background and circumstances of the child including cultural heritage,
medical history, family history that might affect the child's rearing, the reasons for the
placement, and such other information as may be prescribed.

The person placing the child shall not provide to any person information that
identifies the parentage of the child except when—

it is agreed to by the person who gives up the child for placement; or

the release of the information is authorized by the Director.

The person placing the child shall provide to the Director a copy of information
given pursuant to subsections (1) and (2).

Agreement for continuing contact
A parent or guardian and prospective adoptive parents who wish for continuing

contact, after an adoption, between the parent or guardian and the child, shall enter into
an agreement for continuing contact.

An agreement under subsection (1) shall be legally binding where—

the parties to the agreement have obtained independent legal advice prior
to entering into the agreement;

the agreement is made in writing and duly executed by the parties; and

(2)

11

12

(a)

(b)

13 (1)

(2)

(a)

(b)

(3)

14 (1)

(2)

(a)

(b)

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ADOPTION OF CHILDREN ACT 2006

a copy of the agreement is deposited with the Director and included with
the documents submitted to the court under section 31 when an
application is made for an adoption order.

An agreement for continuing contact made under this section may be amended
or terminated—

by agreement of the parties as evidenced in writing; or

in accordance with any provision in the agreement for amendment or
termination.

An amendment or termination of an agreement for continuing contact shall be
deposited with the Director and the court.

Division 2: Consents

Required consents
Except as otherwise provided in this Act or ordered by the court, the consent

of each of the following persons shall be required for the adoption of a child—

the child, if the child is 12 years of age or over;

each parent of the child; and

any guardian of the child.

The consent of the Director shall be required if—

there is no other person entitled to give or withhold consent; or

the applicant resides outside of Bermuda.

A parent's consent to the adoption of his child is valid only if the child is at least
six weeks old when the consent is given.

For the purpose of giving consent to an adoption, the child's father is anyone
who—

is or was the child's guardian or joint guardian with the mother of the child;

has acknowledged paternity and has custody or access rights to the child
by court order or by agreement;

has acknowledged paternity and has supported, maintained or cared for
the child, voluntarily or under a court order;

has acknowledged paternity and is named by the mother of the child as the
child's father;

is acknowledged by the mother of the child as the child’s father;

is recognised in law as the child’s father pursuant to section 18I of the
Children Act 1998; or

(c)

(3)

(a)

(b)

(4)

15 (1)

(a)

(b)

(c)

(2)

(a)

(b)

(3)

(4)

(a)

(b)

(c)

(d)

(e)

(f)

10

ADOPTION OF CHILDREN ACT 2006

maintains and has proved to the satisfaction of the Director that he is the
father of the child and is willing and able to exercise care and custody of
the child.

If the child is in the continuing custody of the Director, the only consents
required are—

the Director's consent; and

the child's consent, if the child is 12 years of age or over.

For the purposes of subsection (5), a child is deemed to be in the continuing
custody of the Director if the child is in the care of the Director pursuant to a care order
made under Part 4 of the Children Act 1998, in which case the Director may, for the purpose
of adoption—

place the child with a relative or guardian of the child, where the child has
been in the care of the Director for at least 6 consecutive months without
parental contact;

place the child with a relative or guardian of the child, where the child has
been in the care of the Director for at least 3 consecutive months without
parental contact and where the parent or guardian of the child has
previously had another child removed from their care pursuant to a care
order as a result of their being unable or as unwilling to care for that other
child;

place the child with a suitable person, where the child has been in the care
of the Director for at least 12 consecutive months without parental contact;
or

place the child with a suitable person as soon as practicable, where the
parent or guardian of the child is deceased, or otherwise unable or
unwilling, within a reasonable period, to care for the child and there is no
other relative of the child willing or able to assume the care of the child
within a reasonable period.

Parent under 18
A parent who is under 18 years of age may give valid consent to the adoption of

their child.

Child or other person consenting must be counselled
Prior to giving consent to the adoption of a child, a child or other person whose

consent is required shall be counselled in accordance with this section.

A person is counselled in accordance with this section if—

a lawyer explains to the person the legal effect of giving his consent to the
adoption and the period for revoking the consent; and

(g)

(5)

(a)

(b)

(6)

(a)

(b)

(c)

(d)

16

17 (1)

(2)

(a)

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ADOPTION OF CHILDREN ACT 2006

a professional counsellor counsels the person on the alternatives to
adoption including, in the case of the parent of the child, the feasibility of
keeping the child.

Form of consent
A consent to adoption shall be given in writing in the prescribed form supported

by the prescribed documents.

The consent document shall state that consent is freely and voluntarily given
to the proposed adoption, and that the effects of the consent and of the proposed adoption
have been explained to and understood by the person consenting.

When a consent to the adoption of a child in Bermuda is required from a person
resident outside of Bermuda, the consent is sufficient for the purposes of this Act if it is in
a form that meets the requirements for consent to adoption in the jurisdiction in which the
person is resident.

Dispensing with consent
On application, the court may by order dispense with a consent required under

this Part if the court is satisfied that it is in the best interests of the child to do so or
that—

the person whose consent is to be dispensed with is not capable of giving
an informed consent;

reasonable but unsuccessful efforts have been made to locate the person
whose consent is to be dispensed with;

the person whose consent is to be dispensed with—

has abandoned or deserted the child;

has not made reasonable efforts to meet their parental obligations to
the child; or

is not capable of caring for the child; or

other circumstances justify dispensing with the consent.

Notwithstanding subsection (1), the court may dispense with the consent of a
child only if the child is not capable of giving an informed consent.

Before making an order under this section, the court may consider any
recommendation in a report filed by the Director.

An application under this section may be made without notice to any other
person and may be joined with any other application that may be made under this Act.

Where an order is made under subsection (1) notice of the order shall be given
to a person whose consent has been dispensed with under this section.

(b)

18 (1)

(2)

(3)

19 (1)

(a)

(b)

(c)

(i)

(ii)

(iii)

(d)

(2)

(3)

(4)

(5)

12

ADOPTION OF CHILDREN ACT 2006

Revocation of consent
A person may revoke their consent to a child's adoption by notice in writing

given to the Director before the expiration of 90 days commencing on the day when the
consent form was signed.

The Director shall give notice to every person who has given a valid consent to
an adoption that, upon the expiration of the period of 90 days, consent cannot be revoked
and an adoption order may be made.

Notice under subsection (2) shall be given not less than 7 days before the
expiration of the period of 90 days.

Division 3: Care, Custody and Guardianship

Transfer of care and custody to Director
A parent who has care and custody of a child may, in writing, transfer care and

custody to the Director before—

the child is placed for adoption by the Director; and

the parent consents to the child's adoption.

When consent to the adoption of a child is given by the parent or guardian who
requested that the Director place the child for adoption, the Director becomes guardian of
the child until an adoption order is made or the consent is revoked.

The Director shall comply with any request in writing, made by a person
referred to in subsection (2), to be notified when an adoption order is made.

Transfer of care and custody by Director
If the Director has care and custody of a child or is guardian of a child under section

21, the Director may—

transfer care and custody of the child to a prospective adoptive parent; or

put the child in the care of a caregiver.

Custody during placement
During the period between the commencement of the placement and the making of

the adoption order or other termination of the placement, custody of the child lies with the
person with whom the placement is made.

What care and custody includes
A person who has care and custody of a child under this Act may—

authorize a health care professional to examine the child; and

consent to necessary health care for the child if, in the opinion of the health
care professional, the health care should be provided.

20 (1)

(2)

(3)

21 (1)

(a)

(b)

(2)

(3)

22

(a)

(b)

23

24 (1)

(a)

(b)

13

ADOPTION OF CHILDREN ACT 2006

A person who has care and custody of a child under this Act may consent to
the child's participation in school, social or recreational activities.

PART 4

COURT PROCEEDINGS

Jurisdiction
The court has jurisdiction to make an adoption order if—

the child to be adopted is a resident of Bermuda or was born in Bermuda;

the person having parental responsibility for the child is a resident of
Bermuda, or is the Director; or

the applicant is a resident of Bermuda.

Child's views
The court shall inquire into the child's capacity to understand and appreciate

the nature of the application, consider the child's views if they can be reasonably
ascertained, and where it is practical to do so, the court shall give the child the opportunity
to be heard.

Before applying to the court for an adoption order relating to a child who is at
least 7 years of age and less than 12 years of age, the applicant shall arrange for a person
authorized by the Regulations to meet the child privately so that the person can make a
written report which shall indicate whether the child—

has been counselled as required by section 9(1)(f)(i);

understands what adoption means; and

has any views on the proposed adoption and on any proposed change of
the child's name.

Application to adopt
A person seeking to adopt a child shall apply to the court for an adoption order

in accordance with prescribed requirements.

Where an application for an adoption order is made and it appears that the
requirements prescribed for an application have been met, the court shall set a date for the
hearing of the application.

The court shall serve the notice of the hearing as prescribed by rules 11 and
12 of the Rules.

A notice served on the Director under subsection (3) shall be accompanied by
the materials or documents that are required to be filed with the court under section 31.

(2)

25

(a)

(b)

(c)

26 (1)

(2)

(a)

(b)

(c)

27 (1)

(2)

(3)

(4)

14

ADOPTION OF CHILDREN ACT 2006

Who may apply to adopt a child
Subject to subsection (2), no application shall be made for the adoption of a

child by more than one person except in the case of a joint application by a married couple.

A relative of the child may apply to the court to jointly become a parent of a
child with a parent of the child so that the child has a mother and a father.

A married couple may apply to the court to adopt a child if they have been living
together for a continuous period of not less than one year immediately before their
application.

Subject to section 29, a person may apply to adopt a child if the child has been
placed with that person for at least three months prior to the application, or such shorter
period as may be authorized by the court.

Step-parent exemption
The step-parent of a child may apply to adopt the child without having to comply

with the requirements regarding placement in section 28(4).

Age of applicant
No person shall apply to adopt a child unless he or she has attained the age of 18

years.

Application documents
Before an adoption order is made, the following documents shall be filed with the

court—

all the required consents to the adoption, or orders dispensing with
consent or an application to dispense with consent;

the child's birth certificate or, if it cannot be obtained, satisfactory evidence
of the facts relating to the child's birth;

if the child is at least 7 years of age and less than 12 years of age, a copy
of the report of the child's views prepared in accordance with section 26 or
a satisfactory explanation of why the report has not been prepared;

any agreement for continuing contact concluded under section 14;

the post-placement report, if required under section 32; and

any additional information that may be prescribed.

Post-placement report
If the Director has placed a child for adoption or has been given notice under

section 27 of an application for the adoption of a child, the Director shall file with the court
a post-placement report that contains—

28 (1)

(2)

(3)

(4)

29

30

31

(a)

(b)

(c)

(d)

(e)

(f)

32 (1)

15

ADOPTION OF CHILDREN ACT 2006

the results of a home study report that has been completed or updated
within the six-month period preceding the date for the hearing of the
application;

either a recommendation that the adoption order should or should not be
made or a statement that there is insufficient information to make the
recommendation; and

the information prescribed.

The Director may file with the court any other evidence or information the
Director considers necessary to enable the court to determine whether the proposed
adoption is in the best interests of the child.

The post-placement report shall provide information and a professional
assessment concerning the suitability of the placement and the likelihood that the welfare
of the child will be satisfactorily provided for in the long term, including—

relevant circumstances of the placement;

the relations between the child and the applicant and members of the
household of the applicant;

the care the child is receiving;

the present and likely future capacity of the applicant to provide for the
welfare of the child; and

such further information and professional opinion as may seem helpful for
the consideration of the court or as the court may require for the purposes
of considering the application.

Court ordered reports
The court may require the Director to inquire into and report to it on any matter

respecting an application for an adoption order that the court considers to be necessary.

Right of access to reports
An applicant is entitled to have access to the reports provided under this Act unless

the court otherwise directs or imposes conditions relating to access.

Dispensing with notice of hearing
The court may dispense with the requirement that notice of the hearing of an

application for an adoption order be given to any person other than the Director or the child
if the court is satisfied that—

the person does not have clear entitlement to consent or to withhold
consent;

the person is not legally competent to make a decision;

the person does not wish to be involved;

(a)

(b)

(c)

(2)

(3)

(a)

(b)

(c)

(d)

(e)

33

34

35

(a)

(b)

(c)

16

ADOPTION OF CHILDREN ACT 2006

the person cannot be contacted, despite reasonable efforts to do so; or

the welfare of the child should override any entitlement of the person to be
involved.

Hearings to be in private
An application under this Act for an order relating to a child placed for adoption,

or an appeal from that order, shall be heard and dealt with in private.

Persons entitled to be heard
The applicant and any person entitled to notice under rules 11 and 12 of the Rules

shall be entitled to be heard at the hearing, personally or through a lawyer.

Adoption order
Before the court decides whether to make an adoption order, the court shall

consider the documents filed under section 31.

The court may make an adoption order if the court is satisfied that—

the child has resided with the applicant for at least 3 months immediately
before the date of the adoption hearing; and

it is in the child's best interests to be adopted by the applicant.

If the post-placement report was completed more than 3 months before the date
of hearing the application, no adoption order shall be made until the applicant files with
the court a written certificate of the Director confirming or modifying the report.

Secrecy of previous identity
Where the child's previous identity or parentage has not been provided to any

person prior to the adoption order, the adoption order shall not show the previous surname,
but shall identify the child by the given name prior to the adoption and a number or other
code referring to the registration of the child's birth.

Subsection (1) does not apply if the court is satisfied that the person or persons
who gave the child up for placement subsequently agreed to the revealing of the child's
previous identity and parentage, and the applicant agrees.

Child's name
The court shall in an adoption order specify the surname the child is to have.

The surname shall be the surname requested by the applicant in accordance
with the rules for registering a child's birth under the Registration (Births and Deaths) Act
1949.

On the request of the applicant the court may also in the order change the
child's given name.

(d)

(e)

36

37

38 (1)

(2)

(a)

(b)

(3)

39 (1)

(2)

40 (1)

(2)

(3)

17

ADOPTION OF CHILDREN ACT 2006

Effect of adoption order
When an adoption order is made—

the child becomes the child of the adoptive parent;

the adoptive parent becomes the parent of the child; and

the previous relationships to other relatives prior to the adoption cease,
and new relationships have effect on the date of the adoption order, in
accordance with the relationships of the adoptive parent.

For the purposes of laws related to incest and the prohibited degrees of
marriage, subsection (1) does not remove a person from a relationship in consanguinity
which, but for this section, would have existed between that person and another person.

Where an adoption order is made in respect of a child, then any maintenance
order in force in respect of the child, and any other agreement to make payments specifically
for the benefit of the child, shall cease to have effect, but without prejudice to the recovery
of any arrears which are due under the order or agreement at the date of the adoption order.

Notwithstanding any provision of law to the contrary, after an adoption order
has been made in respect of a child, no maintenance order shall be made with respect to
that child which would impose an obligation to make payments on a person who was the
child’s parent or guardian before an adoption order was made.

When an adoption order is made, any order or agreement for access to the child
terminates unless the court orders otherwise.

In any disposition of real or personal property made, whether by instrument
inter vivos or by will (including codicil) after the date of the adoption order—

any reference (whether express or implied) to the child or children of the
adoptive parent shall, unless the contrary intention appears, be construed
as, or as including, a reference to the adopted person;

any reference (whether express or implied) to the child or children of the
adopted person's natural parents or either of them shall, unless the
contrary intention appears, be construed as not being, or as not including,
a reference to the adopted person; and

any reference (whether express or implied) to a person related to the
adopted person in any degree shall, unless the contrary intention appears,
be construed as a reference to the person who would be related to him in
that degree as if they were the child of the adopter and were not the child
of any other person.

Where, at any time after the making of an adoption order, the adopter or the
adopted person or any other person dies intestate in respect of any real or personal property
(other than property subject to an entailed interest under a disposition made before the date
of the adoption order), that property shall devolve in all respects as if the adopted person
were the natural child of the adopter.

41 (1)

(a)

(b)

(c)

(2)

(3)

(4)

(5)

(6)

(a)

(b)

(c)

(7)

18

ADOPTION OF CHILDREN ACT 2006

Notice of adoption order
When an adoption order is made, the Director shall make reasonable efforts to

notify the parent or guardian of the child or other guardian who requested the Director to
place the child for adoption that the child has been adopted.

Subsection (1) does not apply if the parent or guardian of the child expressly
states that they do not wish to be notified.

When an adoption order may be revoked
No adoption order may be revoked except—

as a result of an appeal of a decision of the court; or

if the order was obtained as a result of fraud, but only if the court considers
it to be in the child's best interests to revoke the order.

Where an adoption order is revoked under this section, the court shall cause
the revocation to be communicated to the Registrar-General who shall cause to be
cancelled—

the entry in the Adopted Children Register relating to the adopted person;
and

the marking with the word "Adopted" of any entry relating to the adopted
person in the general register of births.

A copy or extract of any entry in any register, being an entry the marking of
which is cancelled under this section, shall be deemed to be an accurate copy if the marking
is omitted therefrom.

Care and custody of child in the event of refusal of application
If the court refuses an application for an adoption order, the court may make such

orders for the care and custody of the child concerned as it thinks fit including an order
declaring the child to be in the care and custody of the Director.

Confidentiality of court files
An application for an order under this Act or any document filed in court in

connection with the application may be searched only—

by order of the court; or

at the request of the Director.

After an adoption order is made, an officer of the court shall send a certified
copy of the order to—

the applicant;

the Registrar-General; and

the Director.

42 (1)

(2)

43 (1)

(a)

(b)

(2)

(a)

(b)

(3)

44

45 (1)

(a)

(b)

(2)

(a)

(b)

(c)

19

ADOPTION OF CHILDREN ACT 2006

PART 5

OVERSEAS ADOPTIONS

Effect of overseas adoption
An adoption made under the law of an overseas jurisdiction that has

substantially the same effect under the law of that jurisdiction as an adoption under this
Act shall have the same effect in Bermuda as an adoption under this Act.

For the purposes of subsection (1), “overseas jurisdiction” means a jurisdiction
other than Bermuda that is a party to the Hague Convention on Intercountry Adoption.

Approval to bring child into Bermuda for adoption
Before a child who is not a resident of Bermuda is brought into Bermuda for

adoption, the prospective adoptive parents shall obtain the approval of the court.

The court shall grant approval if the court is satisfied that—

the parent or guardian of the child who places the child for adoption has
been provided with information about adoption and the alternatives to
adoption;

the prospective adoptive parents have been provided with information
about the medical and social history of the child's biological family;

a home study report of the prospective adoptive parents has been
completed in accordance with the Regulations and the prospective adoptive
parents are approved on the basis of the home study report; and

the consents to the adoption have been obtained as required under the law
of the jurisdiction in which the child is resident.

The Director shall preserve for the child any information obtained about the
medical and social history of the child's biological family.

This section does not apply in the case of a child who is brought into Bermuda
for adoption by a relative of the child or by a person who will become an adoptive parent
jointly with the child's parent.

Approval of overseas adoption of Bermudian child
Except under the authority of an order made by the court, no person shall

permit, or cause or procure the care and custody of a child to be transferred from Bermuda
to a person resident outside of Bermuda ("proposed adopter overseas") for the purpose of
the adoption of the child by that person.

The court may make an order, subject to such conditions and restrictions as
the court thinks fit, authorizing the child to be transferred to a proposed adopter overseas
for the purpose of the adoption of the child by such proposed adopter overseas, but no such
order shall be made unless the court is satisfied—

46 (1)

(2)

47 (1)

(2)

(a)

(b)

(c)

(d)

(3)

(4)

48 (1)

(2)

20

ADOPTION OF CHILDREN ACT 2006

that the consents required by section 15 have been given or the court has
dispensed with such consents;

that the proposed adopter overseas is a suitable person; and

that the transfer is likely to be in the best interests of the child, due
consideration being for this purpose given to the wishes of the child, having
regard to the age and understanding of the child.

Any person who contravenes subsection (1) commits an offence and is liable on
summary conviction to a fine not exceeding $20,000 or to imprisonment not exceeding one
year or to both.

PART 6

OPENNESS AND DISCLOSURE

Disclosure of information
A person who places a child, or the Director, or the court may at any time, if

the circumstances so warrant, provide information concerning the background of the child
at the request of a party to a placement or an adoption.

Notwithstanding subsection (1), in a case where secrecy as to pre-adoption
parentage is kept on making an adoption order, any information which would establish the
child's previous identity or parentage shall not be provided to a party to a placement or an
adoption.

The Director or person who placed a child or the court may at any time provide
to a medical practitioner or other health care professional such health-related information
concerning the child as the practitioner may require for purposes of the child's care.

Where the adoption was effected in Bermuda before the coming into operation
of this Act, the court, the Director or the person who placed the child may provide the
information referred to in this section to—

a parent who adopted a child; or

an adopted child.

Requirement for counselling
A person to whom information may be provided under subsection 49(1) or (4) must

receive counselling from a professional counsellor before the information referred to may
be released.

Request for identifying information
An adult adopted person seeking the identity of, or identifying information

concerning, or seeking to make contact with, a relative of the adopted person shall make a
request in the prescribed form to the Director.

(a)

(b)

(c)

(3)

49 (1)

(2)

(3)

(4)

(a)

(b)

50

51 (1)

21

ADOPTION OF CHILDREN ACT 2006

In considering such a request, the Director shall where feasible attempt to
ensure that the adoptive parents are consulted concerning the request.

The Director shall, subject to subsection (7)—

search the records pertaining to the placement and adoption and, if
possible, ascertain the requested information; and

make contact with the person about whom the request was made.

If a person contacted in accordance with subsection (3)(b) gives permission, the
Director shall—

release to the person making the request the identity or information
requested; and

if the person making the request wishes to make contact, arrange the
contact between the two parties.

If the Director cannot contact the person about whom the request is made, or
if the person is found to be incompetent to give the required permission, the Director may,
considering both the wishes of the person making the request and the wishes or interests
of the person sought, determine whether to provide the requested information.

If it is found that the person about whom the request is made is no longer alive,
the Director shall provide the person making the request with the requested information,
unless there is reason to believe that significant harm would result.

The Director may refuse to disclose identifying information or to facilitate a
reunion if the Director determines that it is not feasible to do so or that it would be likely
to have harmful results for the persons involved in the placement and adoption.

A person to whom information may be provided under this section must receive
counselling from a professional counsellor before the information referred to may be
released.

Request by minor for information
An adopted person who is a minor may, with the written consent of their parent or

guardian, make a request for information under section 51. The Director shall provide the
adopted person with the information if the Director reasonably believes that the information
could be significant to the health or well-being of the adopted person.

PART 7

GENERAL PROVISIONS

Appeal to Supreme Court
The following persons may appeal to the Supreme Court in the manner and subject

to the conditions provided for an appeal in a civil cause or matter —

the applicant, where the court has refused to make an adoption order; or

(2)

(3)

(a)

(b)

(4)

(a)

(b)

(5)

(6)

(7)

(8)

52

53

(a)

22

ADOPTION OF CHILDREN ACT 2006

any person whose consent has been dispensed with by the court under
section 19, where the court has subsequently made an adoption order.

Security of adoption records
All records and documents kept by the court, by the Director and by the

Registrar-General relating to the placement and adoption of a child are confidential and
shall be kept indefinitely in a secure place until they are archived in accordance with the
Regulations.

The information in records and documents kept under subsection (1) shall not
be disclosed, except as provided in this Act or ordered by the court.

Records and documents may be microfilmed or kept electronically or otherwise
preserved and the copies in this other form shall be kept confidential as required by
subsection (1).

The Registrar-General may disclose information from, or provide a copy of, an
original birth registration in respect of an adopted person—

where the notation referred to in section 7(4) indicates that the identity or
parentage is open; or

where the notation indicates that the identity or parentage is to be kept
secret but—

the information is not of a confidential nature or is known to or
available to the adopted person from another source;

disclosure is authorized or required by the Registration (Births and
Deaths) Act 1949; or

the information is communicated only to an adoption agency or an
agency of a jurisdiction outside Bermuda for purposes of performing
functions authorized by law.

Protection from liability
No person is personally liable for anything done, or omitted to be done, in good faith

in the exercise or performance or intended exercise or performance of—

a power, duty or function conferred by or under this Act; or

a power, duty or function on behalf of or under the direction of a person
on whom the power, duty or function is conferred by or under this Act.

Payment prohibited
No person shall give, receive or agree to give or receive any payment or reward,

whether directly or indirectly—

to procure or assist in procuring a child for the purposes of adoption in or
outside Bermuda; or

(b)

54 (1)

(2)

(3)

(4)

(a)

(b)

(i)

(ii)

(iii)

55

(a)

(b)

56 (1)

(a)

23

ADOPTION OF CHILDREN ACT 2006

to place or arrange the placement of a child for the purposes of adoption
in or outside Bermuda.

Subsection (1) does not apply to any of the following—

a lawyer receiving reasonable fees and expenses for legal services provided
in connection with an adoption;

a health care professional receiving reasonable fees and expenses for
medical services provided to a child who is the subject of an adoption or to
the mother of the child in connection with her pregnancy with the child or
the birth of the child;

the Director charging a fee for services provided in the course of a
placement or an adoption; and

any other person prescribed by the Regulations.

A person who contravenes this section commits an offence and is liable on
summary conviction to a fine not exceeding $10,000 or to imprisonment for a period not
exceeding 6 months, or to both.

Advertising prohibited
No person shall publish or have published in any form or manner an

advertisement dealing with the placement or adoption of a child.

Subsection (1) does not apply to—

the publication of a notice under a court order; or

the publication of a notice authorized by the Director.

A person who contravenes this section commits an offence and is liable on
summary conviction to a fine not exceeding $5,000.

Making a false statement
No person shall make a statement that the person knows to be false in an

application or in connection with an application under this Act.

A person who contravenes this section commits an offence and is liable on
summary conviction to a fine not exceeding $5,000.

Limitation
No proceedings for an offence under this Act may be commenced more than two

years after the facts on which the proceedings are based first came to the Director's
knowledge.

Regulations
The Minister may make regulations necessary or expedient to give effect to the

provisions of this Act, including regulations—

(b)

(2)

(a)

(b)

(c)

(d)

(3)

57 (1)

(2)

(a)

(b)

(3)

58 (1)

(2)

59

60 (1)

24

ADOPTION OF CHILDREN ACT 2006

respecting registration under this Act;

respecting adoption consents and the witnessing of consents;

respecting home study and post-placement reports;

respecting the persons who are authorized to meet with a child for the
purposes of making a report under section 26(2);

giving effect to the Hague Convention on Intercountry Adoption to
Bermuda;

respecting eligibility for financial assistance or other assistance in respect
of placements or adoptions, the forms of assistance and the terms to be
included in assistance agreements;

governing the payment of fees for applications, registrations or other things
done under this Act;

prescribing forms, documents and reports for the purposes of this Act; and

respecting any matters necessary for more effectively bringing into
operation the provisions of this Act and for obviating any transitional
difficulties encountered in doing so.

Regulations made under this section shall be subject to the negative resolution
procedure.

Rules
The Chief Justice may make rules in respect of any matter to be prescribed

under this Act—

directing the manner in which applications to the court are to be made;

dealing generally with all matters of procedure and incidental matters
arising out of this Act; and

for carrying this Act into effect.

For the purpose of any application under this Act and pursuant to rule 8 of the
Rules and any other rule made under this section, the court shall appoint the Minister to
act as guardian ad litem of a child upon the hearing of the application, with the duty of
safeguarding the welfare of the child before the court.

On the determination of an application, the court may order the applicant to
pay the costs of the application or such part thereof as the court thinks proper and may
enforce any such order in the manner provided for the enforcement of a judgment or order
of a court of summary jurisdiction under the Summary Jurisdiction Act 1930.

For the purposes of this section, the costs of an application shall (in addition
to any costs that may be awarded by the court under the Magistrates Act 1948) be taken
to include such sum as the court may fix in respect of expenses incurred by the Minister
or the guardian ad litem appointed under subsection (2).

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(2)

61 (1)

(a)

(b)

(c)

(2)

(3)

(4)

25

ADOPTION OF CHILDREN ACT 2006

Section 6 of the Statutory Instruments Act 1977 shall not apply to rules made
under this section.

Repeal of Adoption of Children Act 1963
The Adoption of Children Act 1963 is repealed.

Savings
Any consents given before the repeal of the former Adoption Act that were valid

for the purposes of that Act are valid for the purposes of this Act.

Any order dispensing with an adoption consent that was made before the repeal
of the former Adoption Act is valid for the purposes of this Act.

Rules made under the former Adoption Act and in force immediately before the
commencement of this Act are, until revoked, replaced or amended by rules made under
section 61 of this Act, to continue in force and are deemed to have been made under this
Act provided that such rules are not inconsistent with the provisions of this Act.

For the purposes of this Act all adoption orders made before the
commencement of this Act shall be treated as if the previous identity or parentage of the
child was intended to be kept secret.

Commencement
This Act shall come into operation on such day as the Minister may appoint by

notice published in the Gazette.

Different days may be appointed under subsection (1) for different provisions
of this Act.

[Assent Date: 29 December 2006]

[Operative Date: 04 November 2013]

(5)

62

63 (1)

(2)

(3)

(4)

64 (1)

(2)

26

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