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

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Chapter 20 Considering Children for Adoption

In this chapter:

1. Introduction
2. Relinquished Infants
3. Adoption by Step Parents and Relatives
4. Adoption of Looked After Children

1. introduction

This chapter address the considerations for the adoption of three groups of children.

  • relinquished infants
  • adoptions by step-parents and relatives
  • adoption of children who are looked after (where this was not a voluntary adoption request from the birth parent or not the plan at the outset).

2. Relinquished infants

There is clearly provision in the legislation and regulations for involving relinquishing birth parents fully in the adoption process, setting out how this will be done and the relevant timescales for notifications and giving consent. The adoption service itself should begin, if possible, well before the infant is born.

Timescales and Delay

The period around the birth and immediately thereafter is recognised as an emotional period. For this reason, the legislation states that any consent by the mother is ineffective if given less than six weeks after the birth of the child. At the same time, the best interests of the infant will be served by ensuring they are settled in their permanent placement as soon as possible. In some instances this may include direct placement after birth on a fostering basis with a family who are also approved to adopt. It is therefore vital both for fairness to the birth parent and to offer the best service to the child that there is ample time to explore all the implications of adoption without undue delay. Considering this approach, and the need to explore all the implications of adoption, apply equally to the other two groups of children.

Response to Birth Parents requesting Adoption

Each local authority, as part of its adoption plan, should be clear about where and how such requests for adoption are handled. This should include the following:

  • written information for birth parents considering adoption;
  • the choices available in seeking advice and counselling; and
  • clear and accurate details about accessing these services.

Services to birth parents may be located within a Local Authority or undertaken by a Registered Adoption Service.

Details of the Services to be provided to Birth Parents prior to the Birth

Services offered pre-birth should include the following:

  • time to reflect on the options available and the implications of these;
  • discussion of any barriers perceived by the mother in considering caring for the child herself;
  • beginning to gather the information in Schedule I Part III with explanation of the reasons for this;
  • consideration of the involvement of the birth father and other family members including whether they could/should be made aware of the birth and whether they could contribute information about the child's origins or be given the opportunity to care for the infant;
  • clear explanation of each step in the process and opportunity to see the memorandum on the adoption of children in Schedule 2 with time to consider all the information contained in it;
  • consideration of the life-long needs of adopted children and the implications of this for a relinquishing birth parent;
  • practical arrangements in preparation for the birth;
  • identification of any matching considerations, both potential issues arising from the information about a child's ethnicity or any genetic or medical concerns and any views expressed by the birth parent.

As far as possible, specific explanations for the birth parent's decision to relinquish the infant should be sought. The subsequent need that the adopted child will have to the make sense and understand the parent's decision should always be kept in mind.

Involving other family members, including Birth Fathers

Where the birth mother is resistant to sharing information about the pregnancy with the birth father or family members every effort should be made to encourage her to think about the importance of this to the child and support her in managing this. This should be carefully recorded as, like many aspects of adoption, there must be a balancing of the potential risks and benefits. In this case the balance is between breaching the confidentiality of the birth mother, deterring her from making what she considers the best plan for her child and questioning her request for a service on one hand; and on the other, losing for the child some potential avenues to pursue to find a place for her/him with birth relatives, missing some sources of knowledge about the child's history and any medical or genetic information.

There is also the potential for legal challenge from anyone who might wish to obtain some parental responsibilities and/or rights. Legal advice in these situations should comment on whether the agency has made sufficient enquiries and has reached a logical and well founded conclusion. On the other hand, from 4 May, 2006 birth fathers named on the birth certificate also have parental rights and responsibilities and should be actively involved in the planning. Efforts should always be made to engage birth fathers, both for the potential long-term benefit for the child in knowing about them and their views and as a possible support to the birth mother.

Where adoption has been requested for an infant, the baby may first be placed in foster care to give the mother time after the birth to reflect on her decision and be confident about proceeding. Most birth parents prefer to have some idea of stages and timescales. The next step will normally be the review at six weeks which coincides with the point at which a birth parent may legally give their consent.

Legal Status of the initial placement in Foster Care

Registered adoption services may offer a direct service to relinquishing birth parents and also have foster carers who specialise in this type of placement. However, this will be in conjunction and under agreements with local authorities. Relinquished children will be looked after by the local authorities. These types of looked after placement will almost always be under section 25 of the 1995 Act, but children may sometimes be subject to supervision requirements in the hearing system.

This will be an appropriate point at which to decide whether to proceed to an adoption panel to confirm the adoption plan for the child. Clearly in a voluntary relinquishment the birth parents can seek more time to be certain of the decision. If the birth parents are ready to proceed, consideration should be given to sharing information about possible families for their child and the possibility of meeting prospective adopters. Encouragement should also be given to them providing information and mementos for the baby.

Assessment of Parenting in relation to Relinquished Infants

The consideration in this part of the legislation is that adoption on request is not dependent on any assessment of the parents' abilities to care for the child. This would only become an issue if at a later stage parents sought the return of an infant and concerns had emerged about the safety or welfare of the child. Once the child is born the adoption agency must ensure that all the next steps are carried out thoroughly, at a pace that is sensitive to the parent's needs but does not cause undue delay for the child. There may well be concerns about the long-term effect of the decision on the birth parent, or a sense that, if a particular hurdle could be removed, then the child could be reunited with birth parents. Realistic planning involves doing the best possible within the confines of the situation and not risking leaving a child in limbo.

Presentation to Adoption Panel

Presenting the plan at panel will require the completion of the necessary reports including legal advice and a full medical examination. The agreement of birth parents should be sought to obtain their medical information as part of the information required in Schedule I part III.

Regulation 12(4) provides for any representations from the child or their parents or guardians. Whether birth parents attend the adoption panel will be part of the wider procedures of the agency, although an increasing number make this provision and as a result of this consider that it should be standard practice for birth parents to be given the opportunity to attend panel. For relinquishing birth parents it is important for the panel to be aware of their wishes for their child. For these birth parents, if they attend the panel this should be seen as a way for them to be actively involved in contributing to making the plan for the child's future well-being and be consistent with the agency approach to supporting and working with parents. The panel chair should ensure that the parents understand the role of the panel in making a recommendation and what will happen next.

Consideration of Potential Match

Regulation 6(6) enables the panel to make more than one recommendation at the same time so it would be possible to consider a potential match with adopters at the same panel. It will depend on individual circumstances whether this should happen or whether there should be a space before moving on to exploring with the birth parent their views on potential adopters.

Legal Challenges to the Proposed Adoption

It would be anticipated that in these adoptions all the stages would move forward with the agreement of the parents and that there would be no need to apply for a PO with authority to adopt. Point 3 in the memorandum in Schedule 2 does however include reference to this possibility if the birth parent does not consent to the adoption. Regulation 16 spells out all the requirements about what needs to be sent to the birth parents and the timescales for this, including both the forms in Schedules 3 and 4 and also the provision for checking whether a parent who does not have parental responsibilities and rights intends to seek these. If challenges to the plan emerge and a PO with authorisation for adoption is considered the best alternative route, this can only be sought by a local authority. Normally, if the service to date had been delivered by a registered adoption agency they would already be doing this in conjunction with a local authority. Otherwise, regulation 15(2) does provide for the referral of the case to the local authority for the area where the child resides.

3. Adoption by step parents and relatives

These are not covered by the Adoption Agencies Regulations (Scotland) 2009. They do not come to an adoption panel or through the adoption agency decision-making process. These are non-agency placements where sections 18, 19 and 75 of the 2007 Act apply. The local authority has not had responsibility for placing the child and the adoption petitioners have not been approved as agency adopters. Section 75 is relevant because it restricts who may arrange adoptions.

The local authority responsibility under the 2007 Act is laid out in section 19, following the notification under section 18. These notifications signal the start of a legal process. What will not be clear, until contact is made with the proposed petitioners, is the extent of discussion, advice and consideration that has already taken place before they took that step. Many will have sought legal advice, although it is possible to lodge a petition without using a solicitor. Some may have sought extensive information as part of their own deliberations or contacted an organisation such as the Citizen's Advice Bureau. Others may have initiated a legal process that makes sense in their circumstances and with a clear intention but may not have had the opportunity to discuss all the implications fully with someone with knowledge of adoption. It is therefore important that there are procedures in place within the local authority to ensure that these notifications receive a prompt response and are directed to the appropriate staff within the authority that have experience and knowledge of these adoptions.

Legal Context of Step Parent Adoptions

The social worker carrying out the enquiries into the situation should be clear about the legal requirements in these situations. In particular one of the changes in relation to step parent adoptions is that the step parent may apply if they are part of a 'relevant couple' and their partner is the parent of the child to be adopted. This means a step parent adoption is now possible if the petitioner is in a civil partnership or living together with the child's parent in an 'enduring family relationship' - using a similar approach to assessing this as in any other adoption application. 'Relative' in adoption is defined in section 119(1) of the 2007 Act.

In other situations where a child is, or will be, placed with approved kinship carers or foster carers who do not meet this definition of relative this may be covered by permanence planning procedures in kinship care leading to an agency placement. However, a proposed adoption by kinship or foster carers may proceed as non-agency adoption, although the adopters are not "relatives" as defined.

Explanation for the Adopted Child

One area that is common to step parent adoptions and adoptions by relatives is the explanations to the child. In agency placements all approved adopters will have had, as part of their preparation, a lot of information about their responsibilities in talking to their child about their adoption which will inevitably prompt discussion. A number of non-agency adoptions concern much older children and if the child is 12 or older the petitioners should be aware that the child must also give their consent. Where petitioners are applying to adopt younger children this is an area which will need active consideration if the child is unaware of the nature of their relationship with the adults parenting them. They may need time and support to consider how to manage this.

Estranged Parents and the Wider Family

Another complex area is the potential views of estranged parents. It will clearly be a legal concern if an estranged parent has parental responsibilities. Some parents in this position struggle with the management of this, especially if the estranged parent has been out of touch for some time. From the point of view of the local authority, consideration about efforts to see an estranged parent and record carefully the decisions made in each circumstance should be made.

Both types of non-agency placements are likely to bring up complex questions about the child's links and possible contact with other family members. This may be about the relationship the child's parent in a step parent adoption had with the separated or estranged parent of the child. Where this has been acrimonious or embarrassing it can be hard to share this with the child. There may be resistance to opening up this area even if the absent parent has parental responsibilities. With adoption by relatives there can be difficulties managing relationships with a birth parent within the broader context of the whole kinship network.

For the reasons outlined above, step parent adoption should not be mistaken for a straightforward or unimportant part of the work of adoption agencies.

4. Adoption of looked after children

The largest, most diverse, group of children for whom adoption services need to be provided are those who initially need to be looked after - where their parents are struggling to offer safe or nurturing care. The decision on the need for adoption as the plan for permanence will come through the Looked After Children reviewing process. This is covered more fully in the guidance in Chapter 15 Review of the Child's Case.

Considerations of the Looked After Child Review

One of the important steps that should have been triggered by the Looked After Child Review is a meeting with the legal section of the local authority. Such a meeting provides an opportunity for both the social worker and the legal adviser to review the robustness of the evidence to dispense with consent if the birth parents do not consent to the adoption.

Dispensing with Parental Consent

The grounds for this are laid out in section 31 of the 2007 Act. This is a complex section and one where early discussions with the legal adviser will help identify the subsections that apply and consider the procedures and processes required. From the perspective of the social worker one of the aspects that will benefit from detailed discussion is the parental responsibilities and rights laid out in sections 1 and 2 of the 1995 Act. This is central to any consideration of the alternatives in planning adoption or permanence.

The following questions may assist with these considerations:

  • Is this parent choosing to surrender all their responsibilities and rights through adoption?
  • If not, for each responsibility and/or right, have they exercised it and if so, was it done in a way which promoted the best interests of the child?

Answering these questions should clarify whether the full transfer of rights through adoption is in the best interests of the child, or whether there are some responsibilities and rights it would be in the interests of the child for the parent to retain or share.

If some sharing of these responsibilities and rights is indicated then there needs to be more detailed working out of how this should be reflected in a PO. This should form part of the advice going to the adoption/permanence panel.

Questions to be Addressed by the Panel when considering the best route to Permanence

Three basic questions that need to be addressed by the adoption/permanence panel are as follows:

  • Is there enough evidence to support the conclusion that the child cannot return home?
  • If the best option is a secure foster placement underpinned by a PO, what sharing of ancillary responsibilities and rights should be reflected in the order?
  • If adoption is the best way of securing the child what is the best legal route? This may be by direct adoption or via a PO with authority to adopt.

The discussion between the social worker and the legal adviser prior to the panel should inform the report and legal advice that is presented.

As part of these discussions there should be clarification of the timescales that apply both to the adoption agency in each step of the process and also within the court rules.

Permanence Order with authority for Adoption

If the parent does not give their consent in by signing either the relevant memorandum under Schedule 4 (adoption) or 7 (permanence order with authority for the child to be adopted) then an application for a PO with authority for adoption is the next step, unless the child is already with adopters who are ready to petition to adopt. The effectiveness of the use of the PO with authority for adoption will depend on all parties working to ensure that the court decision is made fairly and without undue delay.

The aims of this provision are as follows:

  • to avoid the child being in limbo for any length of time;
  • avoiding prolonged uncertainty for the birth parents and giving them their opportunity to make their case in court without unnecessary delay; and
  • reducing the pressure of an unresolved legal situation for the adopters who need to concentrate on caring for the child.

The social workers and the managers responsible for the case, as well as the legal department, need to be well prepared for court and should begin that preparation through meeting to discuss this route as early as possible, and before the adoption/permanence panel. Links with Legal Advisers are important in order to make permanency decisions quickly and robustly. It is also important to ensure that birth parents are advised on their right to seek legal advice and encouraged to do this as soon as possible. Consideration should also be given to appointing separate social workers for the child and the birth family.

Areas to be considered when concluding adoption is in a child's best interests

Regulation 12(2) indicates all the areas that the adoption agency should consider in concluding that adoption is in the child's best interests, from what is required in preparation for the panel, through to presentation to the panel and on to the Agency Decision Maker. National Care Standards 13-17 apply to this area of practice. The adoption agency should consult and record the views of the child, taking account of their age and maturity, and the child's parents from their initial involvement leading to the child becoming looked after. These should be fully reflected in the reports to the panel.

Attendance at Panel by Birth Family Members

An increasing number of adoption agencies are inviting the birth parents of a child to the panel considering adoption or permanence plans and agencies should give positive consideration to this. National Care Standard 14 relates to this area of practice. Consideration should also be given to other people who might be invited in certain circumstances, e.g. older children or key members of the family with significant views on the plan. Where this is done there should be clear procedures about managing this with some flexibility to take account of the range of possible scenarios.

Birth parents should have information in advance, preferably in writing but also through careful explanation, about the purpose of the panel and how they can contribute. Some parents may see it as just another meeting like the LAC reviews or wonder what its purpose is if the decision was made at a review. It is normally most helpful to have a defined period when the panel can concentrate on hearing the views of the parents and have some general areas that they cover for which the parents may be prepared. Usually this is about confirming they have seen the social worker's report to the panel so they can comment on its accuracy and highlight any areas where they feel misrepresented and then establish their views on the plan for their child and any alternatives they propose.

Other ways for Birth Parents to comment on the proposed adoption

If parents are not attending in person there should be evidence that the report was shared with them and if they do not agree to sign the report they should be able to put any contrary views in writing. Some birth parents may need help in accessing or understanding the report and every effort should be made to support them with this. Consideration should also be given to other support services for birth parents or advocacy services to help them express their views to the panel.

Attendance at Panel by Children or those who know them

Where adoption agencies have established procedures for birth parents attending panel it is logical to consider a similar provision for children also. This would apply to children who are old enough to understand the purpose of the panel and wish to express their views directly. Otherwise care needs to be taken by the panel to understand the child's views as demonstrated by their behaviour and responses as well as any views expressed verbally or in writing.

It is usually helpful for the child's current carers to attend the panel, both to explain their perception of the child's views as well as to talk about their overall needs and elaborate on the information about the child that will contribute to careful matching with adopters. A child's emotional stability and their ability to engage with a move to adoption may lag behind the professional assessment of the need for such a plan and this needs to be taken into account both in recommendations about the nature of the plan and the timing for moving forward.

Required Information when considering adoption

The information that the agency is obliged to obtain is in Parts II and III of Schedule I. Much of this will have been gathered when the child became looked after. It should be checked for accuracy and special attention should be paid to the child's development since they were separated from their birth parents.

As the decision following the recommendation from the panel will lead to a legal process it is also vital to ensure that every effort has been made to identify and contact anyone with parental responsibilities and rights, even if they have been out of contact for some time and also clarify the position of any birth parent - usually a father - who may currently have no rights but could seek to obtain them.

If a chronology of the child's life has not been done this should be completed for inclusion with the report and include moves and changes while at home and in the care system. Such a chronology will assist for example in identifying children at risk through repeated, albeit brief periods of accommodation.

The commonly used formats for reports to the panel should cover all the areas specified in Parts II and III of the Schedule. It should be noted that, in addition to the specific medical and educational information required, there is a need to include the personality, social, emotional and behavioural needs of the child. The reality of the children being placed for adoption indicates the importance of good information in these areas to share with prospective adopters.

All the children will have experienced some disruption of care and frequently also neglect, abuse or trauma. For some whose needs have been particularly challenging there may be a Child and Adolescent Mental Health Service ( CAMHS) report from a psychiatrist or psychologist or, through educational services, an educational psychologist's report. For other children the agency should consider ways to get a good profile of the child's needs and who can contribute to this process. The My World Triangle and resilience matrix developed as part of the GIRFEC initiative are important tools in this area.

Medical Information

Medical information is obviously important. At this stage, birth parents may not consent either to a medical examination of the child or to the provision of medical information about themselves and any history of genetically transmissible or other significant disease in the family history of either the father's or the mother's family. The concept of a pre-adoption medical makes sense for relinquished babies but for children who may have already spent some time looked after by a local authority there should already be a body of medical knowledge gathered together to ensure that the child's needs are already being met. Some of this may have been completed earlier by a registered medical practitioner and where a local authority has a Looked After Children nurse they may have a good medical picture of the child. Therefore if the medical practitioner cannot carry out a full examination because there is no medical justification for doing this without consent there should be sufficient information available to proceed. Seeking the views of the medical adviser early on should ensure a view on this and prevent unnecessary delay.

Requirement to Disclose Specified Medical Information

Regulation 11 of the Adoption (Disclosure of Information and Medical Information about Natural Parents) (Scotland) Regulations 2009 provides that where an adoption agency has been unable to obtain information about a transmissible genetic or other significant disease in the family history of the child, any registered medical practitioner holding such information must disclose it to the adoption agency on request where it will be held on the case record relating to the child. Adoption agencies, including medical advisers, need to think about how and when they might make use of this new facility.

Religious and Cultural Identity

Throughout the regulations, as in the legislation, there is reference in different forms to the religious persuasion of the child and parents, including any details of any ceremonies pertinent to that religion, as well as their ethnicity, culture and any linguistic needs. This should form an important part of articulating the child's needs in seeking an adoptive placement. However it should not form a barrier to a placement suitable on other grounds.

Where the agency may have difficulties in identifying adopters who could meet a child's needs arising from their religion, culture, ethnicity or any other needs the panel recommendation should highlight this so that the Agency Decision Maker can authorise the resources for a search for an appropriate family beyond the local authority's own resources. There are many options for this in the different resource sharing mechanisms established to link children with approved families through local consortia, across Scotland and also UK wide. Some adoption agencies might also wish to consider specific recruitment initiatives. This should be identified and acted upon early so that there is no undue delay for the child. It should be remembered that research has shown that a stable, secure placement found early in a child's life is more important to their welfare than delaying for a "prefect" match

Where panels do not have expertise in this area they should be seeking a wider membership sensitive to diversity issues and also providing ongoing training for panel members. For an individual case they should check that the social worker has sought advice and information from the appropriate minority religion, culture or ethnic group.