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Publication - Publication

Adoption: better choices for our children

Published: 29 Jun 2005
Part of:
Children and families, Communities and third sector
ISBN:
0 7559 4486 0

The report of the Adoption Policy Review Group makes 107 recommendations to improve the legal framework for adoption and permanence.

225 page PDF

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225 page PDF

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Contents
Adoption: better choices for our children
Page 3

225 page PDF

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3. Adoption

Summary

3.1 The Group considered whether adoption in its current form should be retained given modern social conditions, and if so what model should be preferred. The Group also considered detailed changes to current adoption law, including whether joint adoption should be extended to unmarried couples, revocation of adoption orders, the need for parental consent to adoption and step-parent adoptions.

3.2 The Group's major recommendations are:

  • full adoption should be retained in Scotland (3.12 and 3.16)
  • the agreement of birth parents to adoption should still be sought but the grounds for dispensing with their agreement should be simplified (3.19 and 3.24)
  • unmarried couples, including same-sex couples, should be allowed to adopt jointly (3.42)
  • step-parent adoption should continue, including adoption by unmarried step parents, but step-parents should be made aware of alternatives to adoption, eg step-parent adoptions (3.52 and 3.53)

Current law

3.3 Adoption is a legal process that creates a "new status of parent and child …between an adult and a child, whether they are related to each other or not". 1 An adoption order vests the parental responsibilities and rights in relation to a child in the adopters and extinguishes any existing parental right or responsibility held by a birth parent who is not an adopter. 2 Adoption therefore breaks the legal relationship between the child and the birth parents, and in law the child becomes the child of the adopters for legal purposes.

3.4 Adoption orders are made on the application of the adopters, who can either be a married couple or a single person. 3 The birth parents, and others with parental rights or responsibilities, must agree to the child being adopted, or their agreement must be dispensed with by the court in the course of a freeing or adoption process. 4 Children aged 12 or over must also be asked if they consent to the order being made if they are capable of giving such consent. 5

3.5 Adoption orders are considered final, subject to normal rights of appeal. Apart from one narrow exception, there is no statutory provision for revocation. 6 Adoption orders may contain whatever terms and conditions the court thinks fit, including provision for contact with the birth family, but conditions can be made only "in exceptional circumstances". 7

Advantages of adoption

3.6 The advantages of adoption for children who cannot be brought up with their birth families are well rehearsed. Adoption provides life-long family connections for children with parents who are fully committed to them. Adoption legally secures children within their new families. Adoption combines the roles of carer and person with legal responsibility, allowing the adopter to "claim" the children. Adoption therefore provides an answer to three of the principles that underpin the Group's work:

  • children benefit from being brought up in families by a parent or parents committed to them in parent/child relationships.
  • children generally benefit when the three 'roles' of birth parent, person with daily care and person with legal responsibility are combined in the same person.
  • those children who cannot be safely brought up by their birth parents should be brought up by substitute parents.
  • children generally require stability, predictability, and the opportunity to form secure attachments, in order to develop into healthy adults. 8

3.7 Available evidence on outcomes suggests that adopted children do considerably better in a range of indicators than children who remain in long term foster care or in residential care, and, in some cases, as well as or better than children who live with their birth families. These indicators include forming relationships with their adoptive families and friends; intellectual development; social adjustment; and securing and maintaining employment in adulthood. One study has suggested that adopted children fared better in self-esteem, mental health and school achievement than non-adopted children. 9 With time, adoption can help to overcome behavioural problems caused by disruptions in the birth family or in previous placements. 10 By contrast, outcomes for looked after children, for example in education and employment, are poor. 11

Issues raised by adoption

3.8 Despite these advantages the number of adoptions in Scotland has fallen over the last twenty years for a number of possible reasons. 12 Among these are a number of issues with adoption in its current form:

  • adoption is not suitable for all children, and can have disadvantages and difficulties for children with a well established link to their birth parents, or other carers. Such children may suffer if there is a complete social break.
  • the radical effects of adoption can inhibit early or timely decision-making and the prospect of permanent severance can lead to long, contested actions by the birth parents.
  • the secrecy that surrounds adoption can be damaging.
  • an adoption, if it is to be successful, requires from its outset professional help from social work, education and health services.

These issues are considered in more detail in subsequent chapters: Chapter 5 looks at alternatives to adoption, Chapter 6 at adoption support, Chapter 7 at court procedures and Chapter 12 at information issues.

Views from consultation

3.9 Advantages of adoption are illustrated by the comments of young people who participated in the consultation carried out by the Group:

I feel more safe when I am with my (adoptive) Mum (than when in foster care)… because she is my Mum, she is the only person who has been there for me (Young woman, aged 14 years)

When I was younger I had issues with where I came from and where I belonged. I am completely happy with my situation now though. My adoptive parents are my parents: they are the ones who have been with me through the ups and downs. (Young woman, 17 years)

When adopted part of a family - somebody loves you, foster care involves moving about a lot. (Girl, 11 years, adopted)

… being adopted is part of your choice, being put in care is not. (Young woman, 16 years, foster care)

…obviously adoption is permanent, but
it is kind of in a way, you know that it is going to be permanent. But in foster care … you do not really fit in as much … you know that you are not going to stay there forever, there could be other people there, there could be people coming in and out. It's not so stable.
(Young woman, 14 years) 13

3.10 Some of the young people did point out drawbacks to adoption from their point of view. For example, relationships with birth families were viewed to be different between foster care and adoption:

When you're adopted you have to stay with the family … in foster care you sometimes get to go home. (Boy, 10 years, foster care)

3.11 Many young people thought that adoption provided more stability, security and permanence, and felt that these factors were important in enabling close family relationships to develop.

Continuing need for adoption

3.12 The Group concluded that adoption offers unique advantages to children needing a long term alternative family: their position is legally secure and their adoptive parents fully claim them as part of their family. The evidence from consultation with young people and from outcomes in education, health, and employment supports the view that adoption can bring advantages. The Group recommends that adoption should remain as a legal option for children needing permanent placements away from their own families.

Models of adoption

3.13 The Group discussed two separate models of adoption:

"full adoption", in which there is a complete legal break with birth parents; and

"simple adoption", in which the adoptive parents acquire legal rights without cutting ties with the birth family. 14

3.14 Simple adoption is used in France and some other European legal systems. 15 In France the child retains its birth family name and inheritance rights. Other countries have different rules. The Group considered whether this model might be more suitable in family (including step-parent) adoptions, but decided against making a recommendation to this effect. It would be confusing to have two different types of adoption. Where full adoption is not appropriate for a particular child the Group considered that other forms of legal process would be preferable.

3.15 Full adoption has always been the model in Scotland and the rest of the United Kingdom. The concept is also recognised in most of the other jurisdictions examined. As well as a complete legal break with the birth family (including matters of inheritance), full adoption has traditionally involved a complete social break, denying further contact with the birth family and involving a degree of secrecy about the child's new family and whereabouts. This may still be appropriate for adoptions of some infants. However, the Group recognises that older children being considered for adoption may have forged strong ties with their birth parents, the severance of which may not always be in the best interests of children.

3.16 The Group recommends that full adoption should remain the only model for adoption in Scotland. The Group does not favour the introduction of simple adoption into Scots law, considering it to be potentially confusing to have two different forms of adoption. The Group is of the opinion that the term should be reserved for full adoptions, a concept that is well understood by the public. However, the Group recognises that it may be in the best interests of some adoptees to allow a degree of contact between the child and the birth family, sometimes known as an "open" adoption. If the degree of contact required in the best interests of the child is such that adoption is inappropriate the Group recommends that a stable placement is sought and monitored via a Permanence Order, which would provide security for the child without severing the legal and social bond between the birth parent and child. 16 The Group also prefers alternative legal approaches to step-parent and family situations where adoption might otherwise be considered. 17

Agreement by birth parents to adoption and dispensing with parental agreement

Need for parental agreement to adoption

3.17 In general no adoption or freeing order can be granted in Scotland unless either the birth parents voluntarily consent or the court, usually after a contested hearing, dispenses with their consent on specific grounds. 18 A parent giving consent can opt to take no further part in the adoption process.

3.18 By contrast, in some countries, for example Sweden and the Netherlands,
no adoption order can generally be made unless the birth parents voluntarily consent. 19 This can be for legal reasons - in Sweden there is no legislation to deprive birth parents of their rights -or because social work practice in these countries emphasises preserving families and is reluctant to remove children from their birth families. The Group considered whether adoption should be possible without the agreement of the parents, the court as at present being able to dispense with consent in suitable cases.

3.19 The Group recommends that the agreement of the parents to adoption should continue to be sought in the first instance. If parents consent to adoption they should be entitled to elect to take no further part in the process. Their consent should be recorded. If parents object to the adoption this should also be clearly recorded and their views given due weight. However, there will be cases where the best interests of children would be served by them being adopted by alternative families, despite the objections of the parents. In these circumstances the Group recommends that the court should retain the power to dispense with the parents' agreement. The Group believes this accords with its principles to respect and balance the rights of parents and children with the welfare of children being paramount.

Proposals to change grounds for dispensing with parental agreement

3.20 Currently the court can dispense with agreement if the parent:

  • is not known, cannot be found or is incapable of agreeing;
  • is withholding agreement unreasonably;
  • has persistently failed, without reasonable cause, to carry out one or other of the parental responsibilities:
    • to safeguard the child's welfare or
    • to maintain contact;
  • has seriously ill-treated the child, who is not likely to return to live with the parent. 20

In considering whether to dispense with the agreement of the parents, the court will consider whether there is evidence to support one of these grounds and then whether the agreement should be dispensed with. 21

3.21 The current Scottish grounds for dispensing with agreement have been criticised as complicated and difficult to apply, despite case law as to their interpretation. The last three grounds usually mean that evidence has to be led to show that birth parents have failed or are inadequate in their parenting or have seriously ill-treated the child. On the other hand, the current grounds are familiar to practitioners and therefore well understood.

3.22 In England and Wales the grounds for dispensing with the parents' agreement - which had been much the same as those in Scotland - are radically changed by the Adoption and Children Act 2002. 22 That Act provides only two grounds for dispensing with consent:

  • that the parent or guardian cannot be found or is incapable of giving consent; or
  • that the child's welfare requires the consent to be dispensed with. 23

The Group considered whether the existing Scottish grounds should be amended or extended.

3.23 The grounds being introduced in England and Wales under the 2002 Act have the attraction of simplicity. It is also desirable in an issue such as adoption that the approach taken on both sides of the border should be broadly similar. There is, however, an issue about whether the welfare test gives sufficient weight to birth parents' interests. The Group believed that the test must be more stringent than whether the prospective adopters would give the child a better life than the birth parents (sometimes known as "a beauty parade"). The welfare of the child must require the birth parents' consent to be dispensed with. This test should be at least equivalent to that in Article 8 of the European Convention on Human Rights ( ECHR), which requires that any interference in private or family life must be in accordance with law and necessary to protect health or the rights and freedom of others. The Group considered that the test in the 2002 Act would be improved if it reflected Article 8 more exactly. The Group also considered that there must be a clear distinction between the tests the court applies in deciding whether to dispense with parental agreement and the factors which instruct its decision on whether the adoption order should be made. Otherwise there is a risk that these separate considerations will be treated as one issue.

3.24 The Group recommends that the current grounds for dispensing with the agreement of birth parents should be changed and that those in the 2002 Act should be adopted, amended to reflect the "necessity test" in Article 8. These grounds are clear and straightforward and give due consideration and protection to the rights of birth parents.

3.25 Similar arguments apply to the need for consent in freeing and other pre-adoption procedures. 24

Revocation of adoption orders

The current position

3.26 Adoption orders can be appealed within the normal time limits but are otherwise considered final. There is only one statutory provision for revocation of an order, which is where an order is made in favour of one birth parent and that parent later marries the other birth parent, in consequence of which the child is legitimised. 25

3.27 The courts have held that adoption affects a child's status and an adoption order cannot therefore be set aside because the adopters were misled, for example by the adoption agency withholding information in its possession regarding the child's mental or physical health. Where the court has set aside an adoption order, it has done so in the context of a late appeal being allowed against the granting of the adoption order in the first place. It has not been in response to an application for revocation of the order. 26 The common law remedy of reduction might, however, also be available in some circumstances, for example when the order was incompetent because the person adopted was overage.

Proposals for change

3.28 The Group discussed whether there should be a limited right to seek revocation of an adoption, and on what grounds. In Australia and New Zealand, there are provisions that allow discharge of an order for reasons such as duress, fraud or material mistake. The New Zealand Law Commission has also suggested that an adult adoptee should be able to apply for an adoption order to be set aside where the adoptive relationship has irretrievably broken down. 27

3.29 The responses to Choices for Children indicated that the question of revocation was most relevant for young adoptees, rather than those who were now adults. There was general support for revocation in exceptional circumstances so long as the security of children was protected. The responses identified a number of possible grounds for revocation: fraud; material misrepresentation or mistake; procedural irregularity; and compromise of the children's welfare. The New Zealand Law Commission's proposal for revocation in cases of family breakdown was supported in step-parent or other family adoptions, but there were reservations for stranger adoptions (to prevent the introduction of a "divorce culture" into adoption). The responses indicated that the order should only be revoked if it is necessary for the children's welfare throughout their life. Overall, the responses considered that any change in the law would need to keep the balance firmly on the side of adoption being for life.

3.30 The 2002 Act provides for revocation on the same statutory grounds as the 1978 Act, that is on legitimation through the marriage of children's birth parents. 28 It does not provide for any other statutory grounds of revocation. It is questionable whether revocation on legitimation should be retained as it is no longer necessary due to other changes in the law on children and parents.

Conclusion

3.31 The Group recommends that there should not be any extension of the statutory grounds for revocation of adoption orders. Adoption orders involve a change in children's status for life. Even in exceptional circumstances of fraud or grave irregularity, this change in status should not be revoked. The question of damage is a separate issue. The irrevocable nature of adoption orders is important in underpinning the security and stability that adoption is intended to provide. It also emphasises that adopted children are in a similar position to other children.

Extension of categories of those eligible to adopt - joint adoption by unmarried couples

3.32 Under Scots law only single persons or married couples can adopt. An unmarried couple (opposite or same sex) cannot jointly adopt a child although they can be assessed together and one partner can adopt as a single person. The other partner can then apply for responsibilities and rights regarding the child under different provisions, such as s.11 of the 1995 Act. Using this approach unmarried couples, both opposite and same sex, have, in effect, adopted under the current law.

3.33 There has been considerable public and political debate on this subject, particularly in relation to adoption by same sex couples. The Group's discussion paper attracted about 400 responses of which about 350 commented solely on this issue. 29

Research

3.34 To assist in the Group's consideration of the issue of joint adoption by same-sex couples, it commissioned research from the University of Newcastle to survey the available findings on same-sex parenting. Their report is reproduced in full the annexes to this report. 30 The survey reviewed the legal position in a number
of countries and the available research
on same sex parenting. The conclusion was that there is no strong evidence from objective sources which suggests that same sex couples should be excluded from consideration for adoption if a decision is taken to extend the right to apply to adopt to unmarried partners.

Law in England and Wales

3.35 The law in England and Wales is being changed by the 2002 Act with effect from 30 December 2005. Its provisions allow an unmarried couple to adopt jointly. It also makes provision for a new unmarried partner of a birth parent to adopt a child in the same way as a married step-parent. The Act defines a couple as two people (whether of different sexes or the same sex) living as partners in an enduring family relationship. 31 The Group studied the Parliamentary debates on these provisions, particularly those in the House of Lords.

Views from consultation

3.36 In the consultation with young people, 15 said that they thought it was important that adoptive parents are married whereas twice as many (28) said that they thought that unmarried couples should be able to adopt children, and 24 supported adoption by single people. Approximately the same number thought that it was acceptable for same-sex couples to adopt children as thought it was unacceptable (15 against 13, with seven answering "don't know"). 32

3.37 The report quoted the following comments:

Any couples would be good adoptive parents as long as they can give the child/children a secure home and secure surroundings. (Young woman, 13 years)

For same sex, it would be wrong to place a child who was going to have issues with that if the child is self conscious. Bullying would also have to be thought of. (Young woman, 17 years)

I think single people should be allowed to adopt as long as they have got enough to support them and that. But I think in the children's interests I would say a couple would be better, to have a mother figure and a father figure. (Young woman, 17 years)

… if I was being adopted again, I wouldn't want to go to an unmarried couple for them to split up again, say a year later.
… If you are a couple and they are partners, it is going to be harder if they split up than if you have always been with the one person.
(Young woman, 14 years)

It shouldn't be too restricted. It doesn't have to be the archetypal family. The important things are consistency and sticking by you … (Young man, 17 years)

The report concludes that the majority
of young people did not appear to be strongly in favour or against different options. 33

Arguments for and against change

3.38 The main argument in favour of change was to increase the number of potential adopters to address the current shortfall of potential family placements for children. The Group considered that a number of unmarried couples, opposite and same sex, might be put off adopting because only one of them would establish a full legal relationship with the child. Although joint adoption could be seen as a small technical change from the current position, it might be of considerable significance to the couples involved. It would also strengthen the position of the adopted child who would have the same legal relationship with both parents.

3.39 Against change, the consultation clearly showed that this issue remained one of conscience for sections of the community in Scotland, particularly some faith groups with regard to same-sex adoption and those who saw joint adoption by unmarried couples as diminishing the value of marriage. Proposals for change should be aware of these sensitivities. For example, currently agencies can set out their own criteria for assessing adopters. Religious adoption agencies might want to deal only with adoption by married couples. Proposals for changes in the law would require to clarify whether this would continue to be possible under adoption law, the care standards for the treatment of potential adopters, arrangements between local authorities and voluntary agencies and any future anti-discrimination legislation.

3.40 A number of other important arguments were considered by the Group:

  • the Group did not believe that there were human rights arguments in favour of a change as adoption is not a right for adults, but should be looked at from the point of view of children.
  • the Group had no doubt that single people should continue to be allowed to adopt, and accepted that this would mean that in effect unmarried couples could continue to adopt if no other change were made to the law.
  • the Group did not believe that the issue would be resolved by extending joint adoption only to same sex couples who had registered their partnership under the Civil Partnership Act 2004. 34 This would not address the issue of unmarried opposite sex couples to whom the provisions of the 2004 Act do not apply, and who were considered by the Group to be the largest potential pool of adopters the changes might attract.
  • the Group also considered that any extension of joint adoption should be limited to unmarried couples living as partners, as in the definition in England and Wales. 35 The majority of the Group did not support further extension to couples who were related to each other, such as sisters, nor to couples in platonic relationships. The majority of the Group also rejected suggestions that more than two adults should be allowed to adopt jointly as the intention of adoption was to place the child in a family analogous to a birth family.
  • the Group considered that a provision in common with England and Wales was important to maintain substantial commonality of adoption law on both sides of the border.

3.41 The Group considered the implications of change for wider family law. The Group was of the opinion that the provisions governing adoptions should be consistent with general family law in areas such as the rights of unmarried couples in breakdown, civil registration and the rights of unmarried fathers in matters of succession and contact. Adoption by unmarried parents would, without further change, result in their adopted child having rights of succession superior to those of birth children of unmarried couples, and to those of the surviving unmarried partner. If this recommendation is accepted these other issues will require to be resolved by legislation.

Conclusion

3.42 The Group recommends that joint adoption should be extended to all unmarried couples, same and opposite sex. The Group believes this change could make a contribution to extending the potential pool of adoptive families. The change does not in fact represent a major change since these couples can in effect adopt already, but the change could be significant to those involved. The majority of the Group supports the definition of unmarried couples used in the 2002 Act and is in favour of the law being substantially similar north and south of the border.

3.43 In making this recommendation, the Group emphasises the importance of the assessment of couples, married and unmarried, to ensure they can offer a stable and secure loving home to child. The consultation with young people shows this to be the most important outcome of adoption for children.

3.44 These conclusions are also relevant to the question of same sex couples fostering. 36

Step-parent adoption

The current position

3.45 About half of all adoptions in Scotland are by step-parents who are married to the birth parents of children. Such adoptions are largely by the step-parent alone, although it is still possible for the birth and step-parent to adopt together. 37 The adoption order treats the child as the child of the birth parent and the step-parent. 38 The parental responsibilities and rights of the other birth parent are removed.

3.46 A step-parent can also gain parental responsibilities and rights by applying to court under s.11 of the 1995 Act. This can be a better option than adoption, which cuts off all legal ties with the absent birth parent and their family. The appropriate legal route will depend on the best interests of the child in all the circumstances of the case. 39

Options for change

3.47 There are some misgivings about the appropriateness of adoption as a legal process to establish parental responsibilities and rights within step-families. While adoption can be the right course, for example if an absent birth parent has died, in other circumstances adoption can be used as a means of excluding completely an absent birth parent from children's lives, whatever the children's ages and relationships with them. It is, however, important that an adult involved in the day-to-day care of a child can obtain the responsibilities and rights they need to perform this function.

3.48 The 2002 Act introduces for England and Wales a new mechanism for absent birth parents to agree to step-parents acquiring parental responsibilities and rights by agreement, without the need for a court order. 40 The process is similar to that by which unmarried fathers can currently obtain paternal responsibilities and rights by agreement with a birth mother. 41 The Scottish Executive has consulted on introducing step-parent agreement in Scotland, most recently in 2004. 42 However, the Executive has not included these provisions in the Family Law Bill introduced following that consultation.

3.49 A further issue is whether a step-parent needs to be married to the birth parent either to adopt or to take advantage of step-parent agreement provisions. The 2002 Act allows the partner of a birth parent to adopt as a step-parent, but the step-parent agreement is restricted to a step-parent married to the birth parent. 43

Views from consultation

3.50 Consultation responses indicated concerns about the step-parent adoption and its use when other options might be more appropriate. Some respondents felt that there should be specific processes for this type of adoption, but there were few clear proposals for these. One suggestion was that step-parent relationships should be assessed against various legal options (for example, no action, or a name change, or a residence order, or simple adoption, or full adoption) and that full adoption should only be used in very specific circumstances. Most respondents supported a form of step-parent agreement as an alternative to court processes.

3.51 Most respondents felt that unmarried step-parents should be able to adopt, if other unmarried couples were able to adopt. Some felt there should be a qualifying length of relationship, but others felt that this would be discriminatory.

Conclusion

3.52 As there will still be circumstances in which adoption by a step-parent is the best outcome for a child, the Group recommends that step-parent adoption should remain as it is, as an option for families. However, the Group was concerned that adoption should only be pursued when it is the best course of action for a child, and that there should be increased information and publicity to encourage step-families to consider other options. The Group recommends that unmarried step-parents should be able to adopt. The Group believed this was the only practical approach. Any alternative would encourage birth parents to re-adopt their own children with their new partner under the general provisions for unmarried couples, re-introducing the anomaly that has previously been removed from adoption by married step-parents. 44

3.53 The Group recommends that step-parent agreements are available as an alternative to step-parent adoption, and noted with disappointment that provisions similar to those in England and Wales had not been included in the Executive's Family Law Bill.

Registration of step-parent adoptions

3.54 A step-parent adoption gives parental responsibilities and rights to the adopting step-parent without extinguishing the rights of the birth parent to whom the adopter is married. 45 However the birth parent may be registered as an adopter in the Adopted Children Register. The Group recommends that in a step-parent adoption, in future only the step-parent is shown as an adopter on the birth certificate.

Other proposed amendments to the Adoption (Scotland) Act 1978

3.55 Section 7 says that when placing a child, adoption agencies must "have regard (so far as practicable to any wishes of the child's parents and guardians as to the religious upbringing of the child." This is reflected in the duties of adoption panels. 46 The Group recommends that there should be a duty on agencies to consider parental views on a wider range of matters than religious upbringing.

3.56 Section 13(3) says (emphasis added):

(3) An adoption order shall not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant, or, in the case of an application by a married couple, both applicants together in the home environment have been afforded-

(a) where the child was placed with the applicant by an adoption agency, to that agency, or

(b) in any other case, to the local authority within whose area the home is.

3.57 The last part of this section has caused difficulties in the small number of adoptions which take place in the Court of Session without the child being in the UK (which can happen if one of the adopters is domiciled in Scotland). In such cases the local authority can incur considerable expense in visiting children in their own homes. The Group recommends that courts should have a discretion to dispense with the requirement on the local authority to see a child in the applicant's home.

3.58 Section 25 allows interim adoption orders to be granted. It is rarely used and there are other orders that courts can make if they do not wish to make a full adoption order. The Group recommends that interim adoption orders should be abolished.

Cross-border provisions and other legislation requiring amendment

3.59 The Group considered the issue of cross-border recognition of Scottish permanence orders and adoptions. The Group believed that future legislation should secure such recognition to ensure that children's plans were not adversely affected by geographical moves. Scottish legislation about children and adoption would be enacted by the Scottish Parliament. This does not have the power to amend legislation applying elsewhere in the UK, but the Group noted that s.104 of the Scotland Act 1998 provides a mechanism by which such consequential amendments can be made by subordinate legislation in Westminster.

3.60 The Group recommends that any changes in Scots Law resulting from this report should be properly reflected in the legislation for the rest of the UK to secure cross-border recognition of Scottish orders.

3.61 The Group recognises that all legislation will need to be examined for possible amendments consequential on new adoption legislation resulting from its recommendations. The Group has identified the following primary and secondary legislation which will need amendment. This list is not exhaustive and includes legislation for England and Wales:

  • Succession (Scotland) Act 1964
  • Social Work (Scotland) Act 1968
  • Registration of Births Death and Marriages (Scotland) Act 1965
  • Foster Children (Scotland) Act 1984 and the Foster Children (Private Fostering) (Scotland) Regulations 1985
  • Child Abduction Act 1984
  • Child Abduction and Custody Act 1985
  • Family Law Act 1986
  • Human Fertilisation and Embryology Act 1990 and the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994
  • Age of Legal Capacity (Scotland) Act 1991
  • Children (Scotland) Act 1995
  • Adoption (Intercountry Aspects) Act 1999
  • Adoption and Children Act 2002.

Recommendations of Chapter 3 - Adoption

1. Adoption should remain as a legal option for children needing permanent placements away from their own families. (3.12)

2. Full adoption should remain the only model for adoption in Scotland. However, it may be in the best interests of some adoptees to allow a degree of contact between the child and the birth family, sometimes known as an "open" adoption. (3.16)

3. Agreement of birth parents to adoption should continue to be sought. However, there will be cases where the best interests of the child would be served by the child being adopted by an alternative family, despite the objections of the parents. In these circumstances, the court should have the power to dispense with the parents' agreement. (3.19)

4. The current grounds for dispensing with the agreement of birth parents should be changed and those in the Adoption and Children Act 2002 should be adopted, amended to reflect the "necessity test" in Article 8 of the ECHR. (3.24)

5. There should not be any extension of the statutory grounds for revocation of adoption orders. (3.31)

6. Joint adoption should be extended to all unmarried couples, same and opposite sex. (3.42)

7. The majority supports the definition of unmarried couples used in the 2002 Act and is in favour of the law being substantially similar north and south of the border. (3.42)

8. Step-parent adoption should remain as it is, as an option for families. Unmarried step-parents should be able to adopt along with other step-parents. (3.52)

9. There should be step-parent agreement as an alternative to step-parent adoption. (3.53)

10. In a step-parent adoption, only the step-parent should be shown as an adopter on the birth certificate. (3.54)

11. There should be a duty on agencies to consider parental views on a wider range of matters than religious upbringing when placing for adoption. (3.55)

12. Courts should have a discretion to dispense with the requirement on the local authority to see a child in the applicant's home. (3.57)

13. Interim adoption orders should be abolished. (3.58)

14. Any changes in Scots Law resulting from this report should be properly reflected in the legislation for the rest of the UK to secure cross-border recognition of Scottish orders. (3.60)


Contact

Email: looked_after_children@gov.scot