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5. Permanence Order

Summary

5.1 The Group considered the legal arrangements for children who cannot safely return home to live with their families. The Group also considered the need for a pre-adoption legal process for those children for whom adoption is planned. There are difficulties with the current legal arrangements for these children, especially Parental Responsibilities Orders ( PROs) and Freeing Orders. The Group therefore concluded that these two orders should be replaced by a new single court order - a Permanence Order - intended to be a gateway to long-term security for children who cannot return home but for whom adoption is not the right answer, and to improve pre-adoption procedures for children for whom adoption is the preferred option.

5.2 The Group's major recommendations are:

• there should be a new Permanence Order to give security to children who cannot live with their birth families in the long-term (5.14)
• the Permanence Order should be very flexible and give rights to the birth parents, carers and local authority (5.14 and 5.22)
• children subject to such an order should remain looked after and only local authorities should be able to apply for a Permanence Order (5.24 and 5.29)
• Permanence Orders should allow children to be placed for adoption (5.28)
• there should be provision for children's hearings to deal with children on Permanence Orders (5.43 and 5.46)
• arrangements to inform unmarried fathers and other birth relatives of permanence proceedings should include Permanence Orders as well as adoption (5.57, 5.62 and 5.63)

Current law

5.3 For those children awaiting adoption, the local authority can apply for a Freeing Order which transfers parental responsibilities and rights to the local authority as an adoption agency. The Freeing Order should be a short-term measure preceding an application for an adoption order. Although originally intended for cases where the birth parents were requesting adoption and wanted a quick legal process, they are now used mainly where it is anticipated that an adoption will be contested. ¹

5.4 There are a number of possible legal arrangements for children who are in long-term fostering. ² Many children in long-term care are subject to supervision requirements made by a children's hearing. These require to be reviewed at least annually and do not give any parental responsibilities or rights to the local authority or the foster carers and suspend, rather than remove, the rights of the birth parents to regulate residence, contact and, possibly, other matters. Foster carers can apply for residence orders under the private law provisions of s.11 of the 1995 Act to secure the residence of the child with them but if they are successful they lose their fostering allowance and support. ³ Local authorities can apply for Parental Responsibilities Orders, which take away most of the parental responsibilities and rights of the birth parents and gives them to the local authority. These orders are not widely used.

Issues with freeing for adoption

5.5 A Freeing Order is commonly applied for by a local authority when a child has not been placed for adoption within the timescales laid down in the 1996 Regulations. ⁴ It is the only possible court application that can be made which in these circumstances can keep the local authority within the requirements of the regulations. Freeing is also beneficial as a legal process which avoids a conflict in court between the birth parents and the eventual adopters. This is particularly beneficial if birth parents and adopters are related.

5.6 However, there are drawbacks to Freeing Orders:

• pending adoption a freed child is left in the difficult position of having no-one, other than the local authority, responsible for him or her. The situation has been described as "an adoption limbo".
• the provisions were based on the view that adoption always and necessarily involved a complete break with a birth family. This need no longer be the case.
• the child may have some residual contact with a member of their birth family, but the law provides no protection for that contact to continue pending adoption.
• if the child is not ultimately adopted, there may be no 'way back'. There is no provision for changing the order into a Parental Responsibilities Order, and revocation is only possible if there is someone able to exercise parental responsibilities.
• They were introduced as a fast process, but now often take a long time to complete.

5.7 The Group recommends that freeing should be abolished. However, the Group recommends that there should be a pre-adoption order to preserve the current advantages of freeing:

• to avoid direct conflict in court between the adopters and the birth parents; and
• to provide a mechanism for birth parents to consent to adoption at an early stage.

Issues with Parental Responsibilities Orders

5.8 A Parental Responsibilities Order ( PRO) is a measure of permanency short of adoption. It removes almost all the birth parents' parental responsibilities and rights and transfers them to the local authority. ⁵ The child remains looked after by the local authority. ⁶

5.9 There are problems with PROs:

• a PRO is seen as an order that indicates the child will not return home. However, the statutory provisions do not say in terms that this is the purpose of the order.
• parental responsibilities and rights are transferred to the local authority rather than a substitute family.
• a PRO automatically transfers almost all parental responsibilities and rights to the local authority. There is no flexibility to vary the parental responsibilities and rights which are transferred to meet the circumstances of the case. ⁷
• a person who has had their parental responsibilities removed by a PRO cannot apply for a contact or residence order at a later date, although they can take the matter back to court under s.86 of the 1995 Act. ⁸
• a local authority can be left trying to justify in court a degree of transfer of parental responsibilities and rights which might not be in the best interests of the child, and which the authority might not want, to achieve a purpose which is not clear from the legislation.

5.10 As a result of these difficulties PROs are not much used. In 2004 there were 341 such orders in place compared to 4,427 children on supervision requirements away from home, some 3,000 of whom have been looked after for over a year. ⁹

5.11 The Group recommends that PROs in their current form should be abolished. However, the Group recognises the need for an order that would:

• secure children in a long-term placement; and
• be flexible enough to meet the needs of individual cases.

A new Permanence Order

5.12 If the Group's recommendations to abolish Freeing Orders and PROs are accepted, the Group recognises the need for a new court order to give legal stability to children who cannot live safely with their birth families but whose future lies with a substitute family. Such long-term legal stability cannot be provided by current supervision requirements. The new court order requires to be flexible since these children will have different needs: for example, they may have varying degrees of contact with their birth families; they may be awaiting adoption; or they may remain in long-term fostering. Foster carers should also be able to use the order to "claim" the child by acquiring some parental responsibilities and rights. The new court order should provide greater legal security and stability for the child and the new family, as well as a mechanism for securing clear rights for birth parents where appropriate.

5.13 The Group considers that the new court order which met the above criteria would meet the principles which governed its work. ¹⁰ In particular, it would allow children to be brought up by substitute parents with greater stability and predictability for the children. The new court order would also allow the interests of children, birth parents and substitute parents to be held in balance and be able to provide individual solutions to be found for individual children.

5.14 The Group recommends there should be a new court order to be known as a Permanence Order. The Permanence Order is intended to provide legal security for children who cannot return home, and require a permanent alternative home. It would cover children who are entrusted to a local authority pending adoption, and children who may spend the rest of their childhood accommodated by the local authority, recognising the common needs of children in these positions. The order should be completely flexible, thus enabling the court to make an order that fits the needs of the individual child, securing the interests of the child, the birth family and the new family.

Views from consultation

5.15 The consultation with young people identified a number of themes which are important to the Group's recommendation for a Permanence Order. ¹¹

5.16 First, it was clear that living in a family and feeling part of a family were important to the young people. The quality of the relationship between young people and their adoptive parents or foster carers is of crucial importance to the provision of long-term security as well as to the solution of problems which may arise from day-to-day. The relationship between young people and their adoptive parents or foster carers were very important to making this successful and to provide long-term security as well as a basis for dealing with everyday situation. However, the young people also identified a difference in their position depending on their status:

When you are fostered you never feel 100% part of that family, there are always things that make you different … that set you apart from them (Young woman, 17 years)

When adopted part of a family - somebody loves you, foster care involves moving about a lot. (Girl, 11 years, adopted)

… obviously adoption is permanent, but it is kind of in a way, you know that it is going to be permanent. But in foster care … you do not really fit in as much…you know that you are not going to stay there forever, there could be other people there, there could be people coming in and out. It's not so stable. (Young woman, 14 years)

5.17 Second, the young people identified factors that could unsettle their sense of security. For example, the involvement of social work and Children's Hearings can be negative:

Meetings (panels, reviews) in adoption there would not be any. Be able to become a closer family without the hassle and interference of meetings and social work. (Young woman, 15 years, foster care)

I do not particularly like having reviews … I just feel that the social work must have better things to do. I do not know if they have to do them by law until I'm 18 or something... I do not feel like I am in a placement, I feel like I am in a family and have done for many years… I do not really feel there is any need for social work involvement, especially when it is not needed for anything. (Young man, 17 years)

5.18 Third, young people saw as problematic the need to get permission from people other than their current carers for certain activities, such as staying over with friends. A number of young people felt that their foster carers were best placed to make these decisions.

5.19 Finally, a number of young people spoke about how a permanent arrangement had never been achieved for them and the difficulties this had caused. A number described their experiences of being moved between foster care, their birth families, and other family members:

I did hear once that I was up for adoption at 4 … It would have been nice instead of having been brought back and forward between care and my Mum ... Because of my Mum and Dad's problems, nothing was ever perfect at my Mum's house … we were not looked after properly … It was like a relief when I went into care, it was like, I knew that I would be looked after, that I would be fed properly. But then I would be put back home. … I think my Dad … would make them believe that he loved his kids and could look after them, and that would be it, back and forth. Until (year) and then it came to a halt. (Young woman, 21 years)

5.20 The views of these young people support the Group's conclusion that there is a need for a legal mechanism to increase the security of such young people within their new families, to reduce the uncertainty that some features of the current system might create, and to increase the responsibilities and rights of foster carers.

Detail of Permanence Order proposals

Effect of a Permanence Order

5.21 A Permanence Order should be extremely flexible to allow the court to tailor the order to meet the needs of the child in each particular case. The court should be able to confer and remove (or prevent the exercise of) parental responsibilities and rights, make provision for residence, contact, and make orders on any other specific issues (such as consent to medical treatment or foreign travel).

5.22 As a minimum a Permanence Order should remove the right of parents to have the child reside with them or to regulate the child's residence. ¹² All Permanence Orders should place parental responsibilities on the local authority and give the local authority the right (subject to any order the court might make) to regulate residence, to control, direct and guide the child, and to act as the child's legal representative where necessary. ¹³ The court should then consider whether the parent should retain some responsibilities and rights. It may be in the child's interests in some cases that the parents continue to share and exercise the responsibility of direction and guidance even if the child cannot live with them. There will be many cases in which the parents should continue to have contact. In other cases it may be crucial for the welfare of the child that the parents have no responsibilities and rights at all, and that contact be limited or terminated.

5.23 In some cases foster carers should be given parental responsibilities and rights to be exercised alongside the local authority. Where carers have day-to-day care, they should, for example, be able to consent to all medical or dental treatment, where the child is unable to do so. Foster carers might also be given the right to regulate the child's residence. While they may not wish to have sole responsibilities and rights in relation to the child, sharing these with the local authority would give the child the chance to be "claimed" and foster carers the opportunity to "claim" the child, as well as providing a stable legal basis for the child's new home with the family. This change in the legal structure would also reflect, in appropriate cases, the reality of the position for children in permanent fostering placements, as well as meeting some of the problems that these children currently face when permission might have to be sought from people other than their current carers.

5.24 Whatever the provisions of the Permanence Order about parental responsibilities and rights, a child on a Permanence Order should remain looked after by the local authority (as a child subject to a PRO does presently ¹⁴). Foster carers with parental responsibilities and rights under a new Permanence Order should retain their entitlement to support, including financial support, from the local authority. This should encourage foster carers to consider plans for Permanence Orders, unlike the current situation with orders under s.11 of the 1995 Act. ¹⁵ Children would also retain their right to services on leaving care. ¹⁶

Test for granting a Permanence Order

5.25 A new Permanence Order should only be granted where the court is satisfied that the child cannot reside with a person who has parental responsibilities and parental rights because:

• there is no-one with parental responsibilities or parental rights; or
• residence with any of the persons who have parental responsibilities or rights is likely to be seriously detrimental to the child's health or development.

There are other circumstances apart from the child's safety in which it may not be desirable for a child to live with its birth family, for example the child may have no relationship with the birth parents because of previous episodes of care. However, the Group considered that a high test was required to justify the making of an order the minimum effect of which would be to remove the right to have the child live with them, or to regulate the child's residence, from the birth parents of a child.

5.26 As its name suggests the Permanence Order is intended to have a long-term effect on the child, at a minimum to remove certain rights, and to provide security in a long-term foster placement, or to authorise a placement with a view to adoption. The test for making an order therefore requires a time component. The Group concluded that the test should be that the order is in the best interests of the child throughout childhood, that is until the age of 18. The new order is not intended to be used when a child requires short-term accommodation away from home in an emergency, nor when efforts are still planned or being made to secure the conditions for returning the child to the birth parents. These cases should remain properly within the jurisdiction of the children's hearing.

5.27 Normal overarching principles concerning orders about children should apply. These are:

• the welfare of the child is the paramount consideration;
• no order should be made unless it is better for child; and
• the views of the child should be taken into account if the child is of an age and maturity to express these (it may be appropriate to seek the consent of a 12 year old where the order includes a provision allowing placement for adoption).

The Group did not believe that the consent of birth parents should be required or dispensed with before a Permanence Order can be made unless a stated purpose of the order is to place a child for adoption. Although the current provisions on PROs have requirements concerning agreement, this provision is modelled on adoption subject to the foregoing exemption, and the Group does not believe that the need for consent is justified in this new order. ¹⁷ The preferred approach follows that of s.11 of the 1995 Act, which does not require consent despite the court making orders about parental responsibilities and rights.

Placement for adoption

5.28 The Permanence Order provisions should allow that an order may be made authorising the local authority to place the child for adoption. Following a Permanence Order which authorises placement for adoption, the birth parents' agreement would not be required for a subsequent adoption (this is how freeing operates at the moment ¹⁸). Such an order should not therefore be made unless every person with parental responsibilities and rights agrees, cannot be found or is incapable of giving agreement, or the child's welfare requires agreement to be dispensed with. This is consistent with the changes recommended in respect of agreement to adoption. ¹⁹ However, pending adoption, the court may make orders, such as a contact order, or any other order which would serve the welfare of the child. As at present, the parent should retain the right to be heard in the subsequent adoption court process, not in relation to consent to adoption, but in relation to contact and similar issues relating to the welfare of the child, unless the court authorising placement has ordered that the parent should not be heard in relation to any such matter.

Application for an order

5.29 Only the local authority should be able to apply for a new Permanence Order. The order is a public law order affecting children in public care. The child would remain looked after under the order and the local authority would be given parental responsibilities and rights. Only a local authority should therefore have the power to apply for a new order. This follows the model of Freeing Orders and PROs. Other parties who might acquire rights as part of a Permanence Order, particularly foster carers, can apply for private law orders under s.11 of the 1995 Act if they do not wish the local authority to be involved.

Revocation and variation

5.30 The procedures for Permanence Orders should balance security and stability for the child with flexibility to meet the child's changing needs. The court therefore needs to be able to vary or revoke the Permanence Order or any related order, or to make a new related order. If a Permanence Order is revoked the court should have a range of powers to make further orders, including orders under s.11 of the 1995 Act if appropriate. The court should also be able to remit the case to the Principal Reporter with grounds for referral established if it considers there may be a need for compulsory measures of supervision.

5.31 In order to protect the child's security and stability by avoiding repeated or vexatious applications to revoke or vary Permanence Orders, the applicant should first be required to show cause why leave of the court should be granted to bring the application. This currently applies to certain applications for revocation of Freeing Orders. ²⁰ This is similar to the Group's recommendation to amend current provisions for applications under s.11 of the 1995 Act following adoption or freeing. ²¹ The requirement for leave should apply to all applications to vary or revoke a Permanence Order or related order, including authorisation to place the child for adoption. However, the local authority should be able to initiate proceedings for variation or revocation or a new order without leave. Local authorities would not make unnecessary or vexatious applications, so this requirement would be unnecessary.

Interim orders and other procedural matters

5.32 Once an application for a new Permanence Order has been made the court should have the power to make any interim orders it sees fit. These interim orders should take precedence over any conflicting supervision requirements under the hearing system. ²²

5.33 Following an application for a new Permanence Order, any other existing or new applications for orders relating to the child should, so far as possible, be dealt with in the context of the Permanence Order. This should also apply when the order is in force. In particular, there should be no separate proceedings under s.11, except for matters which could not be part of a Permanence Order application (for example, the appointment of a judicial factor). The Group has made more detailed recommendations on these matters in Chapter 7. ²³

5.34 Most Permanence Order applications should be brought in the sheriff court, building on the experience of sheriffs built up from dealing with the 1995 Act and in freeing applications. The existing system of child welfare hearings could be adapted to allow consideration of issues such as leave, interim orders and matters referred to the sheriff by a children's hearing.

5.35 The sheriff court should not, however, have exclusive jurisdiction. There are likely to be cases of difficulty or exceptional importance that would justify action in the Court of Session. It might also be useful to retain Court of Session jurisdiction to deal with cases that transcend sheriff court boundaries. There may be children of the same family living apart, or cases raising related issues which could best be dealt with together, and this may not be possible in the sheriff court.

5.36 There will need to be transitional arrangements to deal with existing Freeing Orders and PROs should the Group's recommendations be followed. The Group recommends that under transitional provisions:

• existing Freeing Orders should become Permanence Orders a year after implementation if no adoption order has been made;
• an application to revoke a freeing order should be possible during that year as it would be under current provisions. If a revocation is granted, the court should be allowed to make either a Permanence Order or an order under s.11 of the 1995 Act; and
• existing PROs should become Permanence Orders on implementation.

Permanence Orders and the Children's Hearing system

5.37 The relationship between the proposed new order and the hearing system has been considered carefully by the Group. The demarcation between decisions of hearings and courts has previously been clear. Courts make decisions about the legal status of a child (such as adoption or freeing) and the conferral or removal of legal responsibilities and rights (such as s.11 orders and PROs). Hearings make decisions on measures of supervision necessary for a child's welfare, which can include temporary suspension of the exercise of certain parental responsibilities and rights, particularly contact and the residence of the child. Decisions of hearings currently take precedence over decisions of the courts in the matters within the hearing system's jurisdiction. For example, a hearing can require an adopted child to be looked after away from home. In the case of section s.11 orders, a pre-existing supervision requirement takes precedence over a subsequent court order if the order is inconsistent with the terms of the requirement. ²⁴

5.38 In making a Permanence Order the court would be making decisions on conferring and removing legal responsibilities and rights in the normal way. However, these decisions are intended to secure the status of the child in its new family and bring stability to its legal position by making long-term decisions about exactly the sort of requirements that a hearing could impose, that is contact and residence. Moreover, in the case of a child in long-term fostering, the Permanence Order is intended to remove the child from the hearing system, and the short term legal position provided by a supervision requirement. There is therefore a risk that the purpose of the Permanence Order could be frustrated, or seen to be frustrated, if the hearing system retained its full powers.

5.39 On the other hand, all children are treated the same way by the hearing system at present, and there is an argument for continuing this equality of treatment. It might be more complex and unsettling to have a category of children - those on Permanence Orders - who have to be treated differently by the hearing system or have to be sent to the sheriff court for all decisions relating to the sort of matters that come before a hearing.

5.40 The Group has considered these issues in relation to a child in three distinct phases of a Permanence Order:

• following an application for a Permanence Order;
• on the application for a Permanence Order being granted; and
• after a Permanence Order is made.

Following an application for a Permanence Order

5.41 A child in respect of whom an application for a Permanence Order is made would be a looked after child, most likely subject to a supervision requirement under the hearing system. The hearing system is therefore likely to have knowledge of the child's case which would assist the court in considering the application. The Group recommends that following an application for a Permanence Order a hearing will be asked for its advice by the court in the same way that it is currently asked for advice in applications for Freeing Orders, adoption orders and PROs. ²⁵ The recommendations the Group makes with reference to the preparation of this advice in adoption cases should also apply to applications for Permanence Orders. ²⁶

5.42 The Group has also considered how the courts and the hearing system should deal with the child in the period between the application being made and the court's decision (including interim decisions) on the application. Currently the hearing system continues to have jurisdiction alongside the court, and has the power to make changes to the supervision requirement which might appear to contradict the purpose of the application before the court. This is potentially confusing to the parties in the case. For example, where there is an application for a new permanency order before the courts, which includes an application to place the child for adoption, the hearing could hypothetically increase contact with a birth parent.

5.43 The majority of the Group recommends that following an application for a Permanence Order any existing supervision requirement should continue in force, but any changes should be made by the court rather than the children's hearing that made the supervision requirement. Any interim orders made by the court should supersede inconsistent conditions of the supervision requirement. There should be provision for the court to ask the hearing to deal with particular issues, for example, imposing a condition about attendance at school. If, in considering such a request from the court, a hearing wished to change other aspects of the existing supervision requirement or disagreed with a condition of any interim order, the hearing could offer advice in its preferred approach to the court, which would then make the decision. This approach would clearly give the court primacy in managing processes during the application for a Permanence Order. The minority view was that this proposal was potentially confusing for families and might increase the number of formal proceedings which they have to attend, and extend timescales for decision-making. The minority would prefer each tribunal to retain its normal functions during this period.

On the application for a Permanence Order being granted

5.44 On an application for a Permanence Order being granted the court should have the power to terminate the supervision requirement, to ask the hearing to consider whether the supervision requirement should continue, or to leave the requirement in place. This largely follows the current model for freeing and adoption. ²⁷

5.45 The Group anticipates that in the majority of cases the court will terminate the supervision requirement, because the child should no longer need compulsory measures of supervision in its new home. However, in some cases the supervision requirement, or part of it, will be continued, since the hearing might be better placed to consider a particular issue. If the hearing is asked to consider an issue, it should not be able to make requirements which infringe upon matters dealt with in the Permanence Order.

After a Permanence Order has been made

5.46 A child on a Permanence Order might be referred to a hearing on fresh grounds. The Group agreed that the hearing should have jurisdiction to consider such a referral in the normal way. The Group also agreed that the hearing should be free make a supervision requirement with conditions that do not conflict with the Permanence Order. There is a divergence of view in the Group about what should happen if the hearing wishes to impose a condition which conflicts with the Permanence Order.

5.47 The majority view is that, if all involved in the hearing agree that the condition should be made, the condition should apply immediately, and the court should then be informed. The court can countermand the condition if it disagrees, otherwise the condition would supersede the contrary term of the Permanence Order for as long as the supervision requirement is in place. If, on the other hand, there is disagreement amongst the parties at the hearing, the terms of the Permanence Order would remain in force for the time being, and the matter should be reported to the court by the reporter, which could either remit the issue to the hearing for a decision or make its own decision, varying the Permanence Order or making any other order as it sees fit. This solution recognises the importance of the Permanence Order in securing the position of these children, although it does treat them differently in the hearing system.

5.48 The minority view is that the hearing should retain all its powers in making conditions for these children as it would with any other children. The hearing could therefore specify requirements - including contact arrangements and the residence of the child - that conflict with the Permanence Order. As these are supervision requirements, and short-term in nature, they do not undermine the underlying legal position of the child. The hearing system would take into account the terms of the Permanence Order in its decision, and the local authority and foster carers could have a right of appeal against the decision of the hearing. The minority believe that differentiating a single category of children in Scotland from the jurisdiction of the hearing system is a disproportionate response to the perceived problem, and that the alternative process would introduce confusion over the roles of the hearing and the court.

5.49 The Group agrees that normal emergency provisions should apply to children on Permanence Orders. Safety is an overriding consideration and such measures are in their nature short-term measures. Any conflict with a Permanence Order would be of limited duration.

Special Guardianship

5.50 The Group considered the concept of Special Guardianship being introduced in England and Wales under the Adoption and Children Act 2002. ²⁸ Special Guardianship is intended to meet the needs of children who are in long-term placements away from home but are not being adopted. To an extent, it therefore has the same aim as the Permanence Order. However, Special Guardianship has more features in common with adoption than the Permanence Order. In particular, the child's carer rather than the local authority would apply for the order; and the child will cease to be looked after, and fostering allowances and support will not be available (although other support would be).

5.51 The Group considered that there were similarities between Special Guardianship and an application by a foster or other carer for an order under s.11 of the 1995 Act. An order under s.11 may be applied for by the carer and the child generally ceases to be looked after. This course of action can be attractive to carers and children who do not need the continuing involvement and support of the local authority, and it can be particularly appropriate for kinship care. The Special Guardianship provisions entitle the guardian to support from the local authority, so the Group believes that its recommendation to improve support to carers who have successfully applied for a s.11 order would provide Scotland with a system analogous to Special Guardianship. ²⁹

5.52 The Group strongly believes its proposed Permanence Order complements any changes to orders under s.11 with a different and very important legal mechanism for carers and children who still need the support of the local authority. Under a Permanence Order the child would remain looked after and the local authority would continue to be involved with the child and the carer. Carers would also be able to obtain formal legal responsibilities and rights over the child. The Group believes that this approach would be more attractive to carers than an order under s.11, even with some support. This model also complements existing elements of the Scottish system of looking after children.

Issues for birth families in permanence and adoption

5.53 There are a number of issues around the position in permanence and adoption of unmarried birth fathers (without parental responsibilities and rights) and other birth relatives, in particular their right to be informed of decisions by local authorities and adoption agencies, their right to be notified about forthcoming court proceedings, and their right to attend or be represented. ³⁰ Provisions for a new Permanence Order would also need to address these issues.

Unmarried birth fathers without parental responsibilities and rights

5.54 Unlike other parents, the consent of an unmarried father without parental responsibilities and rights is not required for a court to make an adoption or Freeing Order. However, such fathers do have certain rights to be informed about the adoption or have their views taken into account:

• if an adoption agency knows the identity of an unmarried father without parental responsibilities and rights, the agency should provide him with notification of a decision to proceed with a freeing or adoption, as it would other parents, to the extent that the agency considers it practicable and in the interests of the child to do so. ³¹
• the agency should try to get the same information about the father as it would for other parents and find out, so as far as possible, whether he intends to apply for any parental responsibilities or rights, or enter into a parental responsibilities agreement. ³²
• such a father must be informed of the date of a hearing for a freeing application, if the agency knows of his whereabouts. ³³
• in an application for a Freeing Order, the court must be satisfied that an unmarried father has no intention of either applying for parental rights of responsibilities, or entering into a paternal responsibilities agreement; or that any such intention he does have is unlikely to be realised. ³⁴
• the Second Division of the Court of Session has held that an unmarried father without responsibilities is 'someone who is entitled to be heard, and … to make representations or lead evidence relevant to the welfare of the child.' ³⁵

5.55 Consultation responses indicated that these provisions were confusing. In particular, some requirements referred only to applications for freeings and others to applications for both freeings and adoptions. Some provisions gave a discretion to adoption agencies or courts, leading to inconsistencies in practice across Scotland. The provisions did not apply to the planning process for permanence, but only came into effect once decisions had been made to apply for a freeing or adoption. This could lead to unmarried fathers becoming involved at a late stage, with a consequent risk of delay.

5.56 The Group was aware of the Scottish Executive's proposals to give parental responsibilities and rights to unmarried fathers whose names are on their children's birth certificates. The Group recognised that this measure would reduce the number of unmarried fathers who find themselves without parental responsibilities and rights, but noted that there would still be unmarried fathers whose names did not appear on the birth certificate and so did not receive these responsibilities and rights. The Group needed to make recommendations to deal with this.

5.57 The Group recommends that unmarried fathers without parental responsibilities and rights should be informed by local authorities, adoption agencies and the courts about applications for Permanence Orders and adoption orders. Unmarried fathers would then be aware of developments, and, if they did appear in court proceedings, they could be heard on welfare issues. However, the Group recommends that neither a Permanence Order placing children for adoption nor an adoption order should require the consent of an unmarried birth father without parental responsibilities and rights. There are other legal mechanisms for such fathers to establish their parental responsibilities and rights, and make their agreement necessary, so such a change is not required.

Other birth relatives

5.58 Similar issues can arise over the position of other birth relatives who do not have parental responsibilities and rights, including grandparents, older siblings, uncles and aunts, as well as wider stepfamilies in some cases. Such relatives may have no formal legal rights with regard to the child, and are not separately mentioned in existing adoption legislation, but they can have extensive involvement in the life of the child, as well as an interest in the child's future.

5.59 As a matter of good practice, local authorities should consider involving relatives when making plans for a child to live away from home on a permanent basis. However, practical difficulties can arise, for example when the local authority has little or no knowledge about relatives, or when relatives either appear or change their minds about caring for a child late in the process.

5.60 Consultation responses indicated that there was general agreement that local authorities should consider involving relatives when making plans for a child to live away from home on a permanent basis. Good practice is to engage with families at an early stage and involve them in decision making if possible. Opinion was divided as to whether a legal duty on local authorities/agencies to assess family members for long-term care would be beneficial. Some felt that local authorities have an existing duty to consider alternatives to adoption and this is sufficient in conjunction with clear guidance. An automatic right to an assessment for family members could delay the process. It was agreed that there should be rules about which relatives are included, and tight time-limits within which they can come forward.

5.61 The Group was aware the Scottish Executive does not propose to extend the rights of grandparent and other birth relatives in the forthcoming Family Law (Scotland) Bill, although the Executive is proposing a grandparents' charter to recognise the role played by grandparents.

5.62 The Group recommends that the formal rights of other birth relatives should not be extended. There is an extremely wide range of possible circumstances in which a local authority might plan for permanence. Extending rights to other birth relatives in all such cases would be unnecessarily inflexible. Instead, the Group believes that guidance should emphasise to local authorities and adoption agencies that they should fully consider all alternatives - including long-term care by relatives - at an early stage in planning. The Group did not believe that local authorities or adoption agencies should be under a positive legal duty to inform relatives if a child is to be adopted.

5.63 At present courts have discretion to give notice of adoption hearings to any person. ³⁶ The Group recommends that courts should have discretion to give notice about hearings for Permanence Orders and adoption orders to anyone with an interest in the case. This would give courts the flexibility to identify the interested parties in each individual case.

Restrictions on the removal of children in permanence or placed for adoption

5.64 If a child has been placed with prospective adopters by an adoption agency with the consent of the birth parents, those parents cannot remove the child from the adopters. ³⁷ Similarly, no person can remove a child from a carer who has given notice of intention to adopt having looked after the child for five years. ³⁸ A person who removes a child in breach of either of these restrictions commits a criminal offence. ³⁹

5.65 Consultation responses supported the view that these provisions can be confusing, and do not cover all the circumstances which can arise before an adoption application is raised or granted. ⁴⁰ New provisions would also be required to take account of Permanence Orders.

5.66 The Group recommends that there should be new, simpler provisions to protect children placed for adoption and on Permanence Orders, and their carers. These provisions should cover the whole range of situations which could arise, including children subject to Permanence Orders for whom adoption is not planned. The Group recommends these provisions should include both criminal sanctions and a straightforward civil mechanism to recover children unlawfully removed. ⁴¹ The views of children - particularly those over 12 years of age - should be taken into account in these provisions.

5.67 The Group considers the provisions should cover the following circumstances:

• a child has been placed by an agency for adoption but no application has been made for a Permanence Order placing the child for adoption;
• an application has been made for a Permanence Order (of any sort);
• a Permanence Order (of any sort) has been granted;
• notice of intention to adopt has been given to the local authority.

In these cases, the Group considers the residence of the child should not be changed without either:

• the agreement of the carers (or prospective adopters), the local authority and the child where the child is over 12; or
• the leave of the court or a supervision requirement from a children's hearing (except that in Permanence Order cases, a supervision requirement might only vary the residence if all parties are in favour of the change).

Recommendations of Chapter 5 - Permanence Order

19. The current "freeing" should be abolished. However, there should be a pre-adoption order to preserve the current advantages of freeing. (5.7)

20. Current Parental Responsibilities Orders ( PROs) should be abolished. However, there should be an order that would secure children in a long-term placement and be flexible enough to meet the needs of individual cases. (5.11)

21. There should be a new Permanence Order. Its scope should be sufficiently flexible to enable the court, in making such an order, to fit the needs of the individual child, and should balance the interests of the child, the birth family and the new family. (5.14)

22. As a minimum a Permanence Order should remove the right of the parents to have the child reside with them or to regulate the child's residence. All Permanence Orders should also give to the local authority at least the right to regulate residence, to control, direct and guide, and to act as the child's legal representative. (5.22)

23. A child on a Permanence Order should remain "looked after" by the local authority. (5.24)

24. The Permanence Order provisions should allow an order to be made authorising the local authority to place the child for adoption where that is appropriate. (5.28)

25. Only the local authority should be able to apply for a new Permanence Order. (5.29)

26. In order to protect the child's security and stability by avoiding repeated or vexatious applications to revoke or vary Permanence Orders, there should be a requirement for leave to make an application to be granted by the court on cause shown. (5.31)

27. Under transitional provisions existing PROs should become Permanence Orders, as should existing Freeing Orders after a year, subject to any successful applications to revoke the order. (5.36)

28. Following an application for a Permanence Order, any existing supervision requirement should continue in force, but the majority view is that any changes to it should be made by the court rather than the children's hearing that made the supervision requirement. (5.43)

29. There is a divergence of view in the Group about what should happen if the hearing wishes to impose a condition that conflicts with the Permanence Order if a child on a Permanence Order is referred to a hearing on fresh grounds. (5.46)

30. Unmarried fathers without parental responsibilities and rights should be informed about applications for Permanence Orders and adoption orders. However, their agreement should not be required to place children for adoption, or for an adoption order. (5.57)

31. The formal rights of other birth relatives should not be extended, but courts should continue to have discretion to give notice about hearings for Permanence Orders and adoption orders to anyone with an interest in the case. (5.62 and 5.63)

32. There should be new, simpler provisions to protect children placed for adoption and on Permanence Orders, and their carers. These should include criminal sanctions and a straightforward civil mechanism to recover children unlawfully removed. (5.66)

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