The Scottish Government

Speech to British Adoption and Fostering Scotland Legal Group Conference

Deputy Education Minister Euan Robson, June 10, 2005

I am pleased to have this opportunity to speak to you today at this important event. In November I spoke in Edinburgh at the emerging conclusions conference of the Adoption Policy Review Group and discussed the issues that I expected the Group to address. I am now pleased to say I have received the report of the second phase of the Group's work, and today I can announce the Executive's responses to the Group's major recommendations.

I should start by recording my particular thanks to the Group's members and, particularly, the two chairs of the second phase of the work: Graham Cox and Penny Simpson. I know that they and the other members have given up considerable amounts of their own time to take part in the Group's work. I also know that their work has been thorough and comprehensive and took a radical look at the legal framework for adoption and permanence in Scotland.

The report that has been delivered to Ministers has 107 recommendations covering the whole area of adoption, including permanence, and fostering as well as particular subjects, such as adoption support, the role of the Hearings system, and court procedures. The Executive has published the report today and our detailed response for consultation will be available around the end of this month. I can however tell you that we intend to accept almost all of those recommendations, a few in principle pending further discussion. Today I intend to look in more detail at some of the major recommendations and the Executive's approach to them. This will give you a flavour of our response in advance of its publication before the end of this month.

Background

We know that the number of adoptions has fallen over recent years: from around 1,000 a year twenty years ago around 400 a year today. We also know that there are a large number of children being looked after away from home - 6,500 at any one time - and that many of these young people have been away from home for over a year, and are unlikely to be able to return. The Group has rightly put these children at the centre of its work.

Court procedures

The Group has made several suggestions to improve the handling of adoption cases in court. Some adoption cases can take too long to be resolved which is a barrier to adoption. While adoption cases are, by their very nature, complicated and emotive, it is in the best interests of all involved, particularly children, that they are resolved as quickly and as effectively as possible. The changes to court rules that the Group has proposed would allow adoption cases to be completed faster, while ensuring that they continue to be treated as rigorously as possible. In particular, they would encourage Sheriffs to actively manage cases, as well as looking at expert centres to handle adoption cases.

I believe these recommendations are an integral part of creating a modern and responsive system for looked after children and the Executive will be commending these recommendations to the appropriate judicial authorities.

Permanence Order

The report identifies the importance of permanence - a sense of belonging to a family - to the development of children. It also, crucially, points to the role of the adults who care for a child from day to day in developing this sense of belonging, and the importance of these adults being able to make everyday decisions, such as sleepovers, holidays, and medical treatment, just like other families. The Group has therefore put its proposed Permanence Order at the centre of its recommendations.

I understand that Janys Scott, a member of the Group and one of the key architects of the Permanence Order, will be speaking to you later today about the detail of the Group's proposals. Suffice it for me to say that the Permanence Order will provide long-term legal stability for children who cannot live with their birth families and for whom adoption is not the best option. The Permanence Order will provide the courts with the flexibility required to take into account the different needs of individual children. Parental responsibilities and rights can be allocated or shared by the local authority, birth parents and carer in the most appropriate way to meet the needs of the child. For example, some children may have formed strong bonds with family members and may want to have continued contact with those family members, or, indeed, with other carers. The Permanence Order will allow contact arrangements to be tailored to meet the needs of each individual child. The Permanence Order will also meet the needs of both children who will remain in foster care, and those awaiting adoption. The order will address the shortcomings of existing legal options. Supervision requirements need to be reviewed frequently, with potentially unsettling effects on the child. They do not give responsibilities and rights to carers. Similarly, Parental Responsibilities Orders give rights and responsibilities to a local authority, not to a substitute family. Freeing orders can leave children in "adoption limbo" with only a local authority having rights and responsibility for them.

I understand the Group considers the Permanence Order to be the cornerstone of their recommendations, and I agree. The Executive strongly supports the need for stronger permanence arrangements which we believe have the potential to make a significant difference to the lives of looked after children. The order will provide clarity and security for the children and their carers, as well as providing flexibility to recognise the interests of birth parents and other relatives, providing these are in the best interests of the child. I understand there are a number of detailed aspects of the Permanence Order to be looked at before legislation is finalised, and these points will form an important part of the forthcoming consultation. But let me be clear, the Executive intends to consult on the basis that we will introduce the Permanence Order.

Adoption

I should emphasise that neither the Group nor the Executive sees the Permanence order replacing adoption. Despite changes in society, and the fall in the number of adoptions, the Group has concluded that adoption should remain as part of our legal system in Scotland as it provides a unique form of security - with the best outcomes, such as educational attainment - for looked after children who can benefit from it. The Executive agrees with this conclusion and will therefore consult on the basis that adoption should remain an essential opportunity for some children and young people.

Unmarried couples

The Group also looked at adoption by allowing unmarried couples to adopt a child jointly. Currently an unmarried couple can be assessed together, but only one partner can apply to adopt the child, while the other partner applies for a residence order. In this way, unmarried couples can, today, under current provisions, to all intents and purposes, adopt a child together - including same sex couples - and indeed a number have. However, the fact that they cannot jointly legally adopt a child may prevent some children from obtaining the best outcome in their lives. Changing the law to allow unmarried couples to adopt, as a couple, would not therefore be a radical legal change, nor indeed a significant change of what can be current practice, but it could have a positive impact on the life chances of a number of young people where it is in their best interests.

I want to make certain things clear.

Nothing in these proposals undermines marriage. The Executive recognises and values strongly the institution of marriage. But we also recognise and acknowledge that family composition is diverse. Legislation must be able to accommodate that diversity, support all family units and enable them to play a part in society.

Marriage remains as the most recognisable and widely accepted way of signalling to society a couple's commitment to each other and to their life together as parents.

However, many couples do not marry, but choose to live together. In the right circumstances, this can provide a stable relationship in which many children today are brought up. The interests of the child and stability for children, in whatever form of family relationship exists, must be our key concern in framing policy.

That is why we welcome the recommendation of the group that there should be no doubt that if any unmarried couples wish to adopt it should only be where two people (whether of different sexes or the same sex) are living as partners in an enduring family relationship. We will consult on including those words within our planned legislation.

Any unmarried - and, indeed, married - couple who wished to adopt a child would need to display a depth of commitment to each other, and to the child. That is why, we intend to ensure that in considering any couple as adopters there is rigorous examination of the relationship between the adopters to ensure it provides the conditions suitable for the stability we seek for children as well as exploring in great depth their parenting abilities.

It is against this background, but also the development of new rights for civil partnerships already established, the existing legal position north and south of the border and the unambiguous recommendation of the group, that we will consult with the intention of supporting these recommendations.

We also intend to accept the related recommendation that unmarried and same sex couples should be allowed to foster, where that would be in the best interests of the child.

We believe that this recommendation will tidy up a confused and misleading legal situation. Despite what the current law appears to say, unmarried couples can and do adopt together if not jointly. We believe it is right that our legal system allows such couples to adopt jointly in the best interests of the child, and the law should say so clearly and without complication. Not only will this allow the court to make decisions in the best interests of the child, but will strengthen the legal links between the child and both its parents, which must be right.

Application for contact by birth parents

There is another area in which we would want to ensure the protection of the stability of the child's family setting.

The group have recommended that we relax current provisions which place an absolute bar on birth parents applying to court for access to an adopted child.

We understand the clear reasons why the existing provisions may be drawn too tightly. We are prepared to support the Group's recommendations here on the basis that any application will have to show a court very clearly why it would be in the best interests of the child.

But I also understand that some people -amongst them adopters and adopted children - might be concerned about this recommendation. I also want to make it abundantly clear the Executive will only implement this proposal if we are satisfied that the safeguards recommended by the Group will be sufficient to deter and prevent repeated or vexatious applications to court by birth parents.

Ministers will not be prepared to accept a situation where any child's relationship with their adopted parents and that child's stability and happiness can be compromised by repeated use or abuse of the court system.

We will therefore consult fully on how this protection might be secured while accepting the basis of the groups recommendation.

Adoption support

The Group has also made recommendations to modernise and improve the support services provided by adoption agencies. They have recommended a comprehensive range of support services which will meet the needs of people involved in adoption, and which set out clearly who has responsibility for providing such services, and who is entitled to access them. They also recommend a right to assessment and planning for adoptive families, similar to that in England and Wales. Carol Douglas and Fiona Strachan, of Barnardos and Adoption UK, will be speaking on the subject of adoption support later today, and I hope these recommendations meet with their approval.

I believe that these are particularly important recommendations which will underpin the other recommendations of the Group, and underlines the importance of a long-term commitment to adoption on the part of adoption agencies, local authorities and the Scottish Executive. The Executive therefore intends to consult on the basis that we will accept these recommendations.

Children's Hearings

Another important issue that the Group considered was the role of the Children's Hearings System in permanence planning. There is no doubt that the Children's Hearings System has a central role to play, and the Group has made several recommendations that will clarify and formalise aspects of its role. This includes ensuring that local authorities notify hearings of permanence plans at an early stage in the process, to better provide the most appropriate outcome for children. I believe that Penny Simpson will be saying more on the detail of these later.

The Executive also accepts these recommendations. It is vital that local authorities and the children's hearing system work together to deliver permanence plans that will offer secure and stable lives for children, and I believe that the Group's recommendations will achieve this.

Recommendations to be rejected

I said at the start of my speech that the Executive intended to accept almost all of the recommendations of the Group. Which ones, you might reasonably ask, do we not intend to support. There are three. First, the question of step-parent agreements is being dealt with in the Family Law Bill, and I think many of you will be familiar with the arguments that are taking place about this subject in that context. Second, we do not want to deal as a matter of urgency just with the issue of contact in freeing, because we want, as a matter of urgency, to deal with the whole report. Third, we are not convinced about the need for a national body to administer safeguarders and curator. This would need to be tested further in consultation and in cost-benefit analysis.

There are a number of other recommendations which we will accept in principle, but we recognise will cause debate or need further views from experts or other groups before being implemented. These include: sharing medical information, national fostering allowances, (which we are prepared to look at favourably, but which requires various options to be considered). There will also be detail to be worked out for legislation on the Permanence Order, regulations and guidance generally.

Next steps

That is a brief overview of the main recommendations of the Group and the Executive's intended response to these. What I plan to do next is consult on the Group's recommendations. As I have said, for a number of recommendations we need to have further discussion and interested groups and individuals should be able to make their opinions known. There are some recommendations which will arouse debate. The consultation paper will be published, along with the report, around the end of this month. There will then be four months for responses.

We then intend to move to legislate at the earliest opportunity next year. The Group's major recommendations we believe, will make a real practical improvement to the lives of many looked after children who currently live with insecurity and impermanence. We also think the recommendations will modernise the current system of adoption, and improve the processes in the Hearings and in court. We have no intention of letting this report gather dust on a shelf. But, with your support, we will deliver these changes and make a real difference to the lives of some of the more vulnerable of Scotland's children.