Extended, modernised and improved?

The Adoption and Children (Scotland) Act 2007 came into force just over three years ago. The stated purpose of the Act was to extend, modernise and improve the system of adoption in Scotland. To mark National Adoption Week (5-11 November), this article examines the extent to which these objectives have been met.

Extending the pool of potential adopters

One of the stated objectives of the Act was to extend the pool of potential adopters for children for whom adoption is appropriate. In 2011 there were 496 adoptions – more than any year since 1999.

The Act permitted (for the first time) same-sex couples to adopt. However, this provision has had limited success in increasing the number of new parents for the many children who are waiting to be adopted. In 2010, only four male and eight female couples adopted. In 2011, the numbers were lower again, with only one male and three female couples adopting.

Modernising the adoption system – the new permanence order

To modernise the adoption system, the Act introduced a new option for the long term care of children who are not able to return to their birth parents. It is open to local authorities to ask the court to grant permanence orders in respect of such children. It was thought that permanence orders would be used widely to provide stability and security to children who were not able to live with their birth parent(s). The perceived benefit of permanence orders is that, at the same time as providing stability and security to children, they are flexible enough to cater for the specific and changing needs of the child by virtue of the fact that the court can make a wide range of ancillary provisions within them.

Permanence orders can contain a provision granting authority for the child to be adopted. Permanence orders with this provision replace the old “freeing orders.”

Only 581 permanence order applications were made in the period from the Act coming into force until 31 March 2012. This is despite the fact that, in 2011, there were around 10,734 children being looked after away from home. This would indicate that permanence orders have been sought in respect of only 5% of children looked after away from home. The largest number of applications (73) was made to Edinburgh Sheriff Court. Surprisingly, only one such application was made to Glasgow Sheriff Court, even though there are more children looked after by Glasgow City Council than by any other local authority. There is no obvious explanation as to why more permanence orders have not been sought.

Modernising the adoption system – contact with birth parents

In a further attempt to modernise the adoption system in Scotland, the Act provided for contact between birth parents and adopted children, or children subject to a permanence order with authority to adopt. While previously adoption almost always involved a complete break (with no contact between the child and their birth family), the Act recognised that children might have a need to maintain a relationship with their birth parents.

Despite the fact that birth parents that have lost their responsibilities and rights through adoption can now apply for a contact order in respect of their adopted child, there are no reported cases of them doing so.

In making a decision about a permanence order (including one with authority to adopt), the court can make arrangements for contact between the child and anyone else. No such arrangements conditions could be made as part of a freeing order under the old legislation. The courts have reported widely on this aspect of the new system. It is clear that the decision in such cases largely depends on the individual circumstances.

In Inverclyde Council v T 2011 GWD 6-170 the Outer House refused to grant contact to the birth parents of three sisters, all under the age of five. The court found that face-to-face contact would be inappropriate as the parents would seek to undermine the proposed arrangements of the new family, causing the children to be disturbed and unsettled. In addition, there had been considerable problems with contact in the past.

In City of Edinburgh Council v X 2011 GWD 27-603 the sheriff found that it would not be in the best interests of a five-year-old child to grant a contact order in favour of her mother. If such an order was granted, there was a real risk that the child could be traced by her birth father, who had a history of aggressive behaviour.

In Fife Council, Petitioner 2012 GWD 17-350 the sheriff was considering whether to grant a permanence order with authority to adopt in respect of a two-year-old child. The mother sought two direct contact visits per year. The sheriff decided that, having regard to the child’s long term interests, it was best to sever her connection with her birth mother now. The birth mother failed to attend contact several times. The child had already been placed with prospective adopters.

However, in Orkney Islands Council v H 2012 GWD 6-110 the sheriff decided that the rights and freedoms of the child (aged two and a half) would be best served by allowing direct annual contact with her birth parents. The birth parents agreed that their child should be adopted. The birth parents had learning difficulties. They struggled with personal care and with caring for the child.

The sheriff’s view was that direct contact, along with indirect contact, would provide the child with an understanding of her identity, which was in her best interests throughout her life. In addition, the sheriff decided that preserving contact would fulfil a need for the child to understand the full background and reality of her parents’ situation. She would also grow up knowing that she was loved and valued by her birth parents.

A further example of a case within which contact was considered appropriate is the recent case C v G 2012 GWD 12-228. This involved granting a permanence order with authority to adopt in respect of an eight-year-old child. The child's mother, a long term drug addict, opposed the petition. The mother had contact with the child once a fortnight. The sheriff found that it was in the child's best interests to continue to have direct contact with her mother. The court found that it was unrealistic to expect the child to forget her mother by virtue of having a new family.

Improving the adoption system

The Act was intended to improve the process of adoption in Scotland. In particular, it was hoped that the duration of proceedings would be shortened. It has long been recognised that delay and lengthy proceedings cause distress to all involved. A review of the reported cases would suggest that this objective has not been met.

In C v G the sheriff opined that the way the local authority handled the case contributed materially to unnecessary delay. He commented that, in the future, the whole process ought to be streamlined. In addition, resources ought to be applied to early intervention techniques and to making the procedures progress more swiftly.

The Supreme Court, in S v L 2012 SLT 961, emphasised the damaging consequences of delay in adoption proceedings. The proceedings began in November 2009, when the child was two years old. By the time the Supreme Court delivered its opinion the child was five. It was observed by Lord Reed that it is imperative that unnecessary delay should be avoided and that it is “in the interests of the welfare of the child and common humanity towards all of the individuals involved” to do so.

Further, the Supreme Court observed that effort is needed to increase the use of case management in adoption cases. Lord Hope emphasised that it was important that relevant individuals should be provided with advice and training as to how the large volume of rules and directions in relation to adoption proceedings should be implemented. He also stressed that the responsibility of conducting the proceedings as expeditiously as possible lies with the solicitors involved in the case as well as the decision-maker.

The purpose of the Act was to extend, modernise and improve Scotland’s adoption system. The extent to which these objectives have been met over the past three years is limited. However, the legislation provides the tools to allow them to be met. Future success (or otherwise) will very much depend on how birth parents, prospective adopters, local authorities and, of course, the legal profession use and apply the legislation.