ADOPTION POLICY REVIEW GROUP -REPORT PHASE I
THE ADOPTION SYSTEM IN SCOTLAND
- This is a brief outline of how the adoption system works. Some of the expressions are defined in the Glossary, others are explained in the text.
What is Adoption?
- Adoption is a legal process. It replaces a child's birth parents with new adoptive parents.
- All adoptions in Scotland are covered by the Adoption (Scotland) Act 1978, as amended by the Children (Scotland) Act 1995. There are also regulations about adoption agencies and adoption allowances, and court rules.
- There are four principles which apply to adoption:
- the child's welfare throughout life is paramount in all decisions by adoption agencies and courts
- the child's views must be taken into account in all decisions by agencies and courts
- the child's religious persuasion, racial origin and cultural and linguistic background must be taken into account in all decisions by agencies and courts
- other options for the child must be considered by agencies and courts and they must only respectively plan for adoption or make an adoption or freeing order if satisfied that it is the best option
- Before the court can grant an adoption, everyone with parental responsibilities and rights must either agree to it or have their agreement dispensed with by the court. The court can only do this if it thinks there is the evidence and there are reasons to do so. In some cases, the agreement is dealt with in an earlier, optional court process called freeing. If the court grants a freeing order, parental agreement is not considered in the subsequent adoption.
- Where the child is 12 or over, the court must seek his or her agreement to the adoption (and any freeing).
- Adoption is one of the 'relevant services' for children which must be covered in Children's Services Plans, produced by all local authorities.
What is Freeing?
- Freeing is a court application, which can only be made by a local authority adoption agency. If granted, the effect is to remove all parental responsibilities and rights from the birth parents, and give them to the agency.
- A child does not have to be freed before he or she is adopted, so freeing is not mandatory. However, timescales in the regulations mean that a local authority agency often has to apply for a freeing if the birth parents are not in agreement and the child has not been placed with prospective adopters.
- Sometimes local authority agencies choose to use a freeing to deal with parental agreement or disagreement before placing with adopters; or to avoid a disputed adoption case between birth and adoptive parents.
Adoption and 'Looked After' Children
- 'Looked after' children are those for whom local authorities have certain duties. Children are either 'looked after' at home or placed away from home. The duties are on the whole local authority. Children's welfare is the paramount concern for local authorities when making decisions about them. See Glossary, Annex 11, for information on 'looked after' children.
- Where a child is 'looked after' away from home, the local authority has to consider longer-term plans for the child and steps to be taken to end the care, including going home. This type of work is often called 'permanence' planning. If a child is not able to return home safely, plans need to be made about how to secure a long-term permanence plan away from home.
- When authorities are planning for a 'looked after' child, they must take account of the principles in the 1978 and 1995 Acts (see para 4 above). Authorities should cover permanence planning in their Children's Services Plans; and can use s.21 of the 1995 Act to seek co-operation from other authorities and Health Boards etc.
- There are 3 legal options for permanence away from home:
- Residence order under s.11 of the 1995 Act. This replaced the old 'custody' order. A child who is the subject of a residence order is not a 'looked after' child, although an authority may pay an allowance. This order can be applied for by anyone claiming an interest in the child and is often used by relatives or friends or foster carers of the child. Birth parents retain most parental responsibilities unless the court thinks there are good reasons for them not to
- Parental Responsibilities Order (PRO) under s.86 of the 1995 Act. This takes the responsibilities and rights away from the birth parents and gives them to the local authority. The child is 'looked after'. The parents retain the rights to consent or not to any later adoption and to go back to court about the PRO. There is an expectation of contact for the child's benefit. PROs can be revoked, unlike adoption
- Adoption. This takes everything away from birth parents and is irrevocable. The child is not 'looked after'.
- Adoption is therefore one option for a 'looked after' child who cannot return home. It is one of the options for permanence for such a child.
- If an authority decides at a 'looked after' review that adoption is the best option for a child, the case must go to the adoption panel, for it to recommend the plan or not. After the adoption panel has made its recommendation, the agency decision maker decides whether or not the case will go on to a court application. In all cases, the court makes the decision about whether the adoption will be granted or not. (See below, paras 39-42).
- There are two types of adoption agencies:
- Local authority adoption agencies. Every local authority has an agency. From 1 April 2002, these will have to be registered with and inspected by the Commission for the Regulation of Care
- Voluntary adoption agencies, otherwise called approved adoption societies. These are voluntary organisations approved by the Scottish Executive under the 1978 Act. From 1 April 2002, these will be called 'registered adoption services' and will be registered with and inspected by the Commission for the Regulation of Care
- Local authorities have a duty to provide an adoption service for their area. They must do so along with the authorities' other social services and approved societies in their area. Every agency must have an adoption panel.
Types of adoption
- The Act provides for 2 types of adoption:
- agency adoptions
- relative and step-parent adoptions
- Agency adoption is where an adoption agency (see above) places a child for adoption. The child is usually but not always, a 'looked after' child.
- Relative adoption is where the child is adopted by a relative. Relative is defined as a grandparent, sibling, uncle or aunt, including those of the half blood. Step-parent adoption is where the child is adopted by the married partner of the birth mother or father with whom the child lives. The step-parent then shares parental responsibilities and rights with his or her partner.
- Strictly speaking, no other adoptions should be arranged. However, courts grant adoption orders in other cases, e.g.:
- foster carers may adopt a child who was placed with them under the fostering regulations; or
- the adoption may be an inter-country one.
- Legal requirements and processes for all adoptions are similar, although there are some differences. Any adoption which is not an agency one may be referred to as a non-agency adoption.
Who Can Adopt
- There is no upper age limit in the Act, although agencies can impose one in their criteria for assessing prospective adopters.
- There is a lower age limit: people under 21 years of age cannot adopt (except that a birth parent who is 18 or over can adopt his or her child with the married step-parent, although the step-parent can now adopt on his or her own).
- Adopters must either be domiciled in Scotland (i.e. consider Scotland to be their long-term permanent home, even if they do not currently live in Scotland) or have been habitually resident in Scotland for more than one year before applying to the court.
- Adopters must be either a married couple or a single person. An unmarried couple, whether heterosexual or homosexual, cannot adopt together; only one of them may adopt, as a single person.
- In step-parent adoptions, the step-parent can adopt if he or she is married to the birth parent who cares for the child and who consents to the adoption.
- In agency adoptions, adopters must have been assessed and approved by an adoption agency. A full assessment report about the applicants is prepared, with references, background information and details of discussions, training and preparation. All the report except confidential third party information is shared with them. The assessment is then discussed at the agency's Adoption Panel and the applicants are invited to attend. The Panel recommends approval or not, and then the agency decision-maker decides whether to approve or not. Once applicants are approved, any agency can consider placing a child with them.
Who Can Be Adopted
- Only an unmarried child, under 18 years of age when the application is made, can be adopted
- The child must be a certain age and live with adopters before the adoption is granted. There are rules about how long this period must be, depending on the type of case.
- If the adoption is an agency, relative or step-parent one, the child must be at least nineteen weeks old and have lived at least thirteen weeks with the adopters or one of them
- In any other case, the child must be at least one year old and have lived at least one year with the adopters or one of them
- If a child is placed for adoption by an agency, that agency's adoption panel must have recommended adoption for the child, and the agency decision-maker must have decided that adoption is the best option for the child. Most children placed by agencies are 'looked after' children, but not all. If a 'looked after' child is adopted, the adoption is usually an agency one, but does not need to be: e.g. a relative or foster carer may adopt without the child's case being considered by the adoption panel.
- Where applicants want to adopt a child in any non-agency case, they must notify the local authority where they live about their intention to do so. The notification must be at least 3 months before the adoption order is granted. The local authority must prepare a report for the court about the family, the child and all the circumstances of the case.
- Where an agency wants to place a child for adoption, with or without freeing, there are complicated regulations about procedures and timescales, for the child and for placement with prospective adopters. An agency cannot place a child with prospective adopters unless they are approved.
- The agency has to take the child's case to its adoption panel for a recommendation about the plan. Then the agency decision-maker has to make a decision about the plan, whether to go ahead with adoption or not. The agency has timescales within which to make this formal decision about the child and tell birth parents and other relevant parties. If the birth parents indicate within a certain time that they agree to the plan for adoption, the agency is able to go ahead without further timescales. It can place the child with adopters if this has not already happened, and an adoption application to court can be made in due course.
- Where there is no agreement from the birth parents, there are further timescales on local authority agencies within which a court application must be made, for adoption or freeing. A freeing application will have to be made if the child has not been placed or has only just been placed.
- If the child is subject to a supervision requirement from the Children's Hearing system, there must be a report from the hearing (usually called 'Advice') for the court dealing with the adoption or freeing. The regulations provide that there must be a hearing to give this Advice and there are timescales for this when the birth parents do not agree to the plan. The Advice is lodged in the court and is one of the reports it has to consider before making the final decision.
- The procedures are similar for all types of adoption, with variations as mentioned below. There are detailed court rules.
- Adoption and freeing cases can be dealt with in either the Court of Session or the sheriff court. Procedures are very similar for both types of cases and in both types of courts. Applications are made on forms provided in the court rules. The court needs:
- a report from the agency when it is an agency adoption; or the local authority where the child and adopters live in all other cases. This covers all the circumstances of the case, including the suitability of the prospective adopters in an adoption application
- a report from the curator, who is an independent court-appointed person. This covers all the facts and circumstances of the case, and particularly has to consider the best interests of the child as the curator's paramount duty. When the child is twelve or over, it is the curator who asks whether she or he agrees to the adoption
- if the child is subject to a supervision requirement, the Advice from the children's hearing
- if the case is
not a post-freeing adoption, a report from the
reporting officer about whether the birth parents agree or not
There are detailed court rules about the duties of the curator and reporting officer, and what should be in the reports.
- After getting the reports, the court usually fixes a hearing. Where there is a dispute about the adoption or freeing, there will be a proof, when evidence will be led, to see if parental agreement is to be dispensed with or not. The court should have a timetable in a disputed case, to avoid delay.
- The grounds for dispensing with agreement are that the parent:
- is not known, cannot be found or is incapable of giving agreement; or
- is withholding agreement unreasonably; or
- has persistently failed without reasonable cause either to safeguard and promote the child's health, development and welfare or to maintain personal relations and direct contact with the child if he or she is not living with him or her; or
- has seriously ill-treated the child who is not likely to be reintegrated into the same household.
- If the court decides to dispense with the agreement, it still has to consider, on the basis of the child's welfare as paramount and the other principles, whether to grant the freeing or adoption.
Effects of a Freeing Order
- If a child is freed for adoption, the birth parents have all parental responsibilities and rights removed and the local authority are given them. The child is not a 'looked after' child, but the local authority are expected to provide at least the same level of service and exercise the same level of care as if the child is 'looked after'.
Effects of an Adoption Order
- When an adoption order is granted, it gives all parental responsibilities and rights for the child to the adopter(s) as if the child had been born to them. If birth parents have not previously lost all responsibilities and rights after a freeing, they will now do so.
- A court order giving contact to a birth relative (a 'contact order') is possible with an adoption order, but is not very common. However, contact, direct or indirect, is often agreed informally, without an order.
Post Placement and Post Adoption
- There is a duty on local authorities to provide counselling and assistance to adopted children and adopters, after placement and adoption. There is also a duty to provide counselling to others affected by adoption, including birth relatives. The duty:
- applies to the whole authority
- is on the authority where the person lives
- applies to all adoptions, agency and non-agency ones
- whether the child came from another area or not
- whether the child was 'looked after' or not
- whether the child lives in the area or not, when eg. a birth parent wants help in tracing a child.
Access to Birth Records After Adoption
47. In Scotland, when an adopted person reaches 16, she or he has an automatic right of access to:
- her or his original birth certificate
- the court process from the adoption case and any freeing
- Where an agency placed the child, she or he can also ask the agency for information from its records. It can release information from its records, with or without counselling.
- Birth families have no automatic right of access to information. However, they are able to obtain help about ways of tracing family members who have been adopted. The duty on local authorities to provide counselling to those who 'have problems relating to adoption' clearly covers providing help to birth families.