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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 17. Adopters and Processes for Them
(a)Who can adopt?
At present, only married couples or single individuals can adopt in Scotland. In practice, unmarried couples do apply and are assessed, although only one of them goes ahead and adopts, while the other one can seek a residence order under s.11 of the 1995 Act. Consideration needs to be given to as to whether the law in Scotland should be changed or not. In England and Wales, unmarried couples, including same-sex ones, will be able to adopt together when the 2002 Act is implemented as expected in 2004.
Many of the arguments on both sides of the debate were rehearsed in the House of Lords' Debates on 16 Oct and 5 November 2002: see Hansard, H L Deb (2001-02) Vol. 639, cc 864-912 and H L Deb (2001-02) Vol. 640, cc 567-624. The issues are also discussed in the BAAF Practice Note 44: Assessing Lesbian and Gay Foster Carers and Adopters.
If it is proposed to allow unmarried couples to adopt, there needs to be consideration of what statutory definition should be used. The 2002 Act defines 'a couple' as:
(a) a married couple, or
(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship - s.144(4).
Another way of defining a couple could be to refer to the length of time they have lived in partnership.
(b)Assessment of adopters
There is currently relatively little in the 1996 Regs about how adoption agencies carry out assessments of adopters. The Phase I Report makes a number of recommendations about the recruitment of adopters, but most of these do not require new legislation, although many of them could be assisted by clear guidance.
Recommendation 4 of the Phase I Report states that 'there should be clear, standard, basic information about adoption for answering enquiries. Agencies should manage enquiries effectively and quickly.' Depending on how the Phase 1 Recommendations are taken forward by the Scottish Executive, it would be helpful to translate Recommendation 4 into regulations and/or guidance so that agencies know exactly what is required of them. The draft Guidance on Intercountry Adoptions, issued by the Scottish Executive in June 2002, did cover this type of detail for intercountry cases.
At present, reg.10(1) of the 1996 Regs obliges an agency to 'prepare and make available … a statement of general criteria' which it should apply when considering whether to accept someone for assessment. Obviously, such criteria vary from agency to agency. Further, such information is only about whether someone could be accepted for assessment or not. It is not about providing general information to possible prospective adopters on how the whole system works. It could be helpful, therefore, if regulations and/or guidance included:
- the need to have available clear, standard, basic information about adoption for people interested in being assessed;
- greater clarity about criteria for individual agencies, and how they use them;
- a duty on agencies to deal with general enquiries, and then applications for assessment, within certain timescales, which could either be in regulations or provided for in National Standards. The existing National Care Standards: Adoption Agencies (Scottish Executive, 2002) have six months as the period from initial interview to completed assessment (Standard 23.1) but this may need to be reviewed.
There needs to be consideration about whether there should be tighter provision, in regulations, about checks on previous convictions and related matters. There is a question as to whether there should be a list of convictions which would automatically make an applicant ineligible for approval. In England and Wales, if prospective carers have been convicted of prescribed offences against children, they are usually automatically unable to be approved. This may be harsh, given the huge variety in seriousness of such offences, but consideration has to be given to whether convictions for certain specified offences should automatically rule out prospective adopters. The Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003, (S.S.I. 2003/19), which came into force on 1 June 2003, do provide a prescribed list for prospective convention adopters only, and there is a question about whether the domestic regulations should be the same. If such restrictions are provided in the domestic adoption assessment process, they should be reflected in the rules for assessing foster carers, as the issues apply equally to them: see above, Chapter 16, Foster Carers and Processes for Them, heading (b).
(c)Appeals by prospective adopters
At present, there is no statutory provision for an appeal process for prospective adopters whose application is refused. There is also confusion about the difference between complaints procedures (which are available), reviews of decisions, and appeals. Complaints should be about procedural and other matters arising during the course of an assessment, whether or not the prospective adopter is approved. Review in practice is really about an appeal against a decision which the prospective adopter does not like, namely a refusal to approve.
A statutory procedure for appeals against refusal of approval could be established, possibly on a national basis. Section 12 of the 2002 Act introduces provisions for an independent body to deal with such appeals by applicants in England and Wales. It would be helpful to prospective adopters and to agencies if there was a Scotland-wide system set out; and this could also ensure that, without doubt, the assessment process was E.C.H.R. compatible. In terms of Article 6 of the E.C.H..R, everyone has a right to a fair trial in any determination of their civil rights and obligations. While no-one has a right to be an adopter, if someone has been assessed and turned down, s/he should have some formal appeal process, given that the only other legal option is judicial review, an expensive and time-consuming option.
At present, adoption agencies operate their own review/appeal procedures, but Scotland-wide provisions would greatly assist agencies in knowing what they have to do and assist prospective adopters in knowing what processes they can use. This is also an equally important issue for foster carers: see above, Chapter 16 Foster Carers and Processes for Them, heading (c).
(d)Information provided to prospective adopters about children
At present, prospective adopters must be provided with written information about the child with whom they are matched, in terms of reg.19(1) of the 1996 Regs. Also, medical information must be passed to the prospective adopters' health board and G.P., reg.19(2)(c) and (d). While these provisions and the supporting Guidance, Vol. 3, pgs. 26 and 27, paras. 134-137 and 140 and 141 are quite wide-ranging, adopters have complained that they have not been given full information about a child, particularly about the possibility of future health and other needs. There have been examples of agencies failing to give all the information that they had, so that prospective adopters were not prepared for foreseeable deterioration in the child's health. Some prospective adopters argue that, in some circumstances, they would not have accepted placement of the children in question.
This is a subject needing consideration, including whether existing guidance and regulations should be strengthened, and whether a duty should be inserted in primary legislation. Any duties to pass on information can only, of course, cover what an agency actually knows, so that no breaches of duty or liability would occur if, for example, a child developed a medical condition later about which the agency knew nothing.
In a recent English case, A and B v Essex County Council [2002] EWHC 2707 (QB), the Buckley, J. held that Essex was liable to adopters for failing to pass on information about one of the children they had adopted. This case is under appeal. In the United States, the tort (wrong or delict) of 'wrongful adoption' has been recognised for more than fifteen years: see Freundlich's article in SCOLAG Journal August 2003, reproduced from ChildRight.
Another issue is whether information should be passed to prospective adopters before a match is made, so that they can decide whether to take a child or not. This is an area fraught with practice and legal difficulties, but if it is felt necessary to allow prospective adopters information about one or more children prior to matching, this should be laid out in regulations, as there is no such existing provision.
QUESTIONS:
58. Should there be a change in the law about who can adopt? .
59. Should regulations or guidance include more details about information to be made available by agencies to those thinking of applying for assessment as adopters?
60. Should there be a list of prescribed offences, which would automatically bar applicants from approval?
61. Should there be a statutory appeals procedure for applicants who are refused approval as adopters? Should it be a national one?
62. Should there be clearer, stronger duties on agencies to pass on information when a child is placed?
63. Should there be a duty to provide information before a match is made? If so, how much information should be given?
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