We have a new website go to gov.scot

Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

Listen

Chapter 17 Adoption - The Legal and Policy Context

In this chapter:

1. Introduction
2. The Regulatory and Legal Context
3. The Adoption Agencies (Scotland)Regulations 2009

1. introduction

This guidance is written to accompany the new sets of regulations introduced following the passing of the Adoption and Children (Scotland) Act 2007. This Act replaces the Adoption (Scotland) Act 1978 and the amendments made to it by the Children (Scotland) Act 1995.

It follows and reflects the work carried out by the Adoption Policy Review Group ( APRG) which operated in two phases between 2001 and 2005. The report of the second phase of this group ' Adoption: better choices for our children' is largely reflected in the subsequent legislation. This recognised first of all that there remained a place for adoption and that while some modernisation was required, a lot of the basic system should remain.

Adoption is no longer exclusively a service for the placement of infants. This guidance attempts to explain how adoption has a role to play alongside other routes to permanence for a broad range of children.

2. The Regulatory and Legal Context

There are a range of regulations and orders about the adoption system, some of which are substantive and others which are brief and specific.

The three major sets of regulations covered in this guidance are:

1. Period to Prepare an Adoption Allowances Scheme (Scotland) Order 2009, SSI 2009/168.

2. Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Permanence Orders) Regulation 2009, SSI 2009/169.

3. Applications to the Court of Session to Annul Convention Adoptions or Overseas Adoptions (Scotland) Regulation 2009, SSI 2009/170.

The transitional provisions for the 2007 Act are also relevant to adoption matters. They provide that any freeing in place on 28 September 2010 became a permanence order with authority for adoption on that date. The deemed Permanence Order with authority to adopt includes the mandatory provisions and provides all other parental rights and responsibilities in the Local Authority. The transitional provisions are in the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009, SSI 2009/267.

Other relevant regulations and orders are referred to where appropriate within the guidance. They are:

1. Period to Prepare an Adoption Allowances Scheme (Scotland) Order 2009, SSI 2009/168.

2. Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Permanence Orders) Regulation 2009, SSI 2009/169.

3. Applications to the Court of Session to Annul Convention Adoptions or Overseas Adoptions (Scotland) Regulation 2009, SSI 2009/170.

4. Adoption and Children (Scotland) Act 2007 (Modification of Subordinate Legislation) Order 2009, SSI 2009/429.

5. Adoption and Children (Scotland) Act 2007 (Modification of Enactments) Order 2010, SSI 2010/21.

6. Adoption and Children (Scotland) Act 2007 (Consequential Provisions) Order 2010, SI 2010/2469, providing for recognition of permanence orders with authority for adoption in England, Wales and Northern Ireland, from 2 November 2010 for eight months.

Intercountry Adoption

There are also a number of regulations and orders about overseas and intercountry adoption. These are:

1. Adoptions with a Foreign Element (Scotland) Regulations 2009, SSI 2009/182, as amended by the Adoptions with a Foreign Element (Scotland) Amendment Regulations 2010, SSI 2010/173.

2. Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008, S.S.I. 2008/303.

3. Special Restrictions on Adoptions from Cambodia (Scotland) Order 2008, S.S.I. 2008/304.

4. Special Restrictions on Adoptions from Guatemala (Scotland) Order 2008, S.S.I. 2008/305.

5. Special Restrictions on Adoptions from Nepal (Scotland) Order 2010, SSI 2010/130.

6. Special Restrictions on Adoptions from Haiti (Scotland) Order 2010, SSI 2010/341.

These will be the subject of separate guidance.

3.Adoption Agencies (Scotland) Regulations 2009

The Adoption Agencies (Scotland) Regulations 2009 have eight parts covering

I General (citation and commencement and interpretations)

II Adoption Panels

III Assessment of Prospective Adopters

IV Duties of an adoption agency when considering adoption for a child

V Consent certificates

VI Application for a Permanence Order giving authority for adoption

VII Placement for adoption

VIII Case Records

While this guidance follows these parts to a considerable extent, there are occasions where it assists to draw in other aspects and cross reference to the appropriate regulations. Some of this reflects the complexity of adoption in its various forms as we know it in the 21st century. Factors contributing to this complexity can be summarised as follows:

  • The application for an adoption order is under private law, an action taken by the prospective adopters, not an application under public law by a public body. There is a distinction between agency and non-agency placements, with one group of non-agency adoptions being by step parents or close relatives as defined in section 119(1) of the 2007 Act. By definition, these non-agency cases do not require the applicants for the adoption order to be approved by an agency as adopters. They do not, therefore, come before the adoption panel or go to the agency decision-maker. The local authority does, however, have a duty, when notified of an intention to adopt by a step parent or a relative, to investigate and report to the court on the welfare of the child.
  • Other non-agency cases concern inter-country adoptions. The prospective adopters require to be assessed and approved in a similar way to domestic adopters so that there is an agency responsibility for this process. There is, however, no agency involvement in the matching and placement of the child as this occurs in the sending country and not in Scotland. There are also separate regulations for adoptions with a foreign element.
  • These regulations cover all agency adoptions of children by non-related adopters. A small number of these will be relinquished infants but an increasing number will be children who are already looked after by a local authority and the plan for adoption comes at a key point in the planning and reviewing process. Much of the stimulus for the change in legislation came from concern about developing a structure which is effective in addressing the needs of the very varied and complex backgrounds of many of the children being placed for adoption now. This structure needs to be sufficiently flexible to accommodate the needs of relinquished infants within a system where this is no longer the predominant type of adoption.

While this guidance relates primarily to regulations, it should be read in conjunction with the 2007 Act and with National Care Standards for Adoption Agencies.