Extending adoption rights

The provisions of the Adoption and Children (Scotland) Act 2007 are currently expected to come into force late this year.

Practitioners should be alert to the far-reaching changes inherent in the Act, which seeks to modernise adoption law and bring it into line with the general framework of child law in Scotland.

The reforms in the Act are based on the recommendations of a two-phase review process carried out by the Adoption Policy Review Group, which considered the changing context of adoption in Scotland. The recommendations were based in part on the findings made following consultation with adopted children, adoptive parents and birth parents.

The 2007 Act represents the first overhaul of the adoption system since the late 1970s, repealing the bulk of the Adoption (Scotland) Act 1978. Indeed, the only part of the 1978 Act to be preserved is Part IV, which relates to miscellaneous and supplementary provisions concerning restrictions on removal of children for adoption outside the UK, and miscellaneous provisions re payments and amending the Children (Scotland) Act 1995.

Section 14(3) of the new Act provides that in reaching a decision relating to the adoption of a child,

“The court or the adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child’s life as the paramount consideration”.

Regard must also be had, so far is reasonably practicable, to the views of the child, having regard to the child’s age and maturity. Consideration must be given to the likely effect on the child, throughout its life, of being an adopted child; as it must to the child’s religious persuasion, racial origin and cultural and linguistic background.

Civil partners will be able to adopt; and unmarried heterosexual and same-sex couples will be able to adopt jointly. Previously, only heterosexual married couples could adopt jointly. In the case of cohabitees, any application required to be in the name of a single applicant. Section 29(3) of the 2007 Act provides that “persons who are living together as if husband and wife in an enduring family relationship”, and “persons who are living together as if civil partners in an enduring family relationship”, can make an application for an adoption order.

Freeing orders and parental responsibilities orders are to be replaced by permanence orders. These will allow parental rights and responsibilities to pass from the parent or parents who hold them to the local authority. The Act allows for the possibility that some parental rights and responsibilities may be reinstated after consideration by the local authority.

The natural father of a child will require to be notified of an application for an adoption or a permanence order, even if he has no parental rights and responsibilities.

Natural parents’ continuing rights

Persons who lose parental rights and responsibilities by virtue of the making of a permanence order will be able to apply for a contact order in respect of a child, where previously any contact post-freeing for adoption could not be provided for in a court order and operated, if at all, at the discretion of the social work department. The ability to attach a contact order to a permanence order should provide a solution to the difficult, but not unusual, situation where the court has considered it appropriate to grant a freeing order but also appropriate for contact to continue with the natural parent. Under the 1978 Act, no formal solution existed to this difficulty and a practice had evolved of agreements being drafted between the local authority and the natural parent for contact (the enforceability of which was very questionable).

The 2007 Act seeks to remedy this, meaning that adopted children will be able to maintain links with their family of origin. This marks a departure from the traditional notion of adoption as a process which severs ties between an adopted child and his or her birth family.

By expanding the categories of persons who can adopt, it is hoped that we will see a rise in the number of adoptions, and the consequent provision of a stable family background for more children.

Amanda Masson and Rachel Shewan, The Morton Fraser Family Law Team