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MINISTERIAL FOREWORD

We in the Executive want the children of Scotland to be confident individuals, effective contributors, successful learners and responsible citizens; and ambitious for themselves. We want all of our children to fulfil this vision, and for some that means we need to provide more stability, security and permanence in their lives.

I welcome the final report of the Adoption Policy Review Group, which focuses on the need to provide greater stability and permanence to one of the most vulnerable groups of children in Scotland - those who can no longer live with their families. The report clearly shows how permanence - a sense of belonging to a family - is an absolute requirement for these children to thrive, and to give them a chance of turning our vision into reality.

The best interests of these children need to inform all our actions. I strongly support the principal recommendation of the report - the need for a new legal status for children to provide stability and complement traditional adoption - as well as almost all of their other proposals. I believe that acting on these recommendations will protect the best interests of a larger number of children who are in need of new secure and safe homes. I am now seeking your views in this consultation paper, following which we will legislate at the earliest suitable opportunity.

I would like to thank the Adoption Policy Review Group - and its chair, Sheriff Principal Graham Cox - for its efforts over the last four years. I believe their recommendations will make real improvements to the lives of real children.

Peter Peacock
Minister for Education and Young People

30 June 2005

ADOPTION POLICY REVIEW GROUP: REPORT OF PHASE TWO
CONSULTATION ON SCOTTISH EXECUTIVE PROPOSALS FOR ACTION

I: Introduction

1.1 On 4 April 2001, the Scottish Executive launched a review of adoption policy. The review was carried out by an independent Adoption Policy Review Group, made up of experts in relevant fields, and chaired by Sheriff Principal Graham Cox. The aim of the review was to identify weaknesses within the current adoption system, and suggest ways to modernise and improve adoption.

1.2 The first phase of the review concentrated on the place of adoption services within the spectrum of services considered for children and young people; the quality of recruitment, selection and assessment procedures for prospective adopters; and the extent and quality of post-adoption support. The report on the first phase was published in June 2002 and its recommendations are being taken forward by the Scottish Executive in partnership with local authorities and voluntary organisations.

1.3 The second phase was launched in March 2003 and looked at the legal framework for adoption and other possible forms of permanence, as well as a wide range of related subjects - some of which had come out of the first phase. The adoption issues examined by the Group included the continuing need for adoption, adoption by unmarried couples and contact with birth families. Other issues explored include: the provision of support services to families; court procedures; and access to information about adoption cases. The Group also considered the role of the children's hearing system.

1.4 Following the delivery of the Group's report on the second phase to Ministers, the report was published by the Scottish Executive on 10 June 2005. On the same day Euan Robson, then Deputy Minister for Education and Young People, announced the Executive's initial response to the recommendations in the report. This consultation paper explains the Scottish Executive's response to the report in more detail and invites comments on the Executive's proposed way ahead.

1.5 Also relevant to the Executive's response to these recommendations are the Family Law Bill currently going through the Scottish Parliament and Getting it right for every child, the Executive's consultation on improving children's services, integrated assessment and planning and proposals for action on the children's hearing system, published on 21 June 2005.

II: Overview of recommendations and Scottish Executive's response

Summary of recommendations

2.1 In its report the Group has considered the needs of children who cannot, for whatever reason, live with their birth families, but require alternative secure and stable permanent homes. Traditionally these have been provided by adoption, but the number of adoptions has fallen over the last twenty years, and there remain many children who are being looked after by local authorities away from their own families for long periods of time, but for whom adoption is not a suitable option. The other legal options for these children are not adequate to provide the sense of permanence, or belonging to a family, which the Group identifies as necessary to allow these children to develop and thrive. The Group's major recommendation is that a new legal status - a Permanence Order - is created to complement adoption and provide more children with this sense of permanence.

2.2 In total the Group has made 107 recommendations across ten chapters of their report. The major recommendations in each area are:

• Adoption should be retained as an option for looked after children, but the law on adoption in Scotland should be modernised. (Chapter 3 - Adoption)
• Legislation should allow joint adoption by unmarried couples (including same-sex couples) and fostering by same-sex couples. (Chapter 3 - Adoption and Chapter 10 - Fostering issues)
• Contact with members of the birth family (including siblings and unmarried fathers) should only be arranged for the benefit of the child and for a clear purpose. (Chapter 4 - Contact and conditions in orders for permanence)
• A Permanence Order should be introduced to complement adoption and provide stability for a wider range of children. (Chapter 5 - Permanence Order)
• There should be an improved legal framework for and better delivery of adoption support services. (Chapter 6 - Support for adoption)
• Court procedures should be improved to ensure that cases are progressed as quickly as possible, and judges and sheriffs should take an active role in managing cases. (Chapter 7 - Improving court procedures and avoiding delays)
• The system of selecting, paying and training curators, reporting officers and safeguarders should be improved. (Chapter 8 - Curators, reporting officers and safeguarders)
• The Children's Hearings System should be formally and consistently involved earlier in permanence planning. (Chapter 9 -Role of the Children's Hearing System in permanence cases)
• Support to foster carers should be improved; in particular there should be national fostering allowances. (Chapter 10 - Fostering issues)
• Local authority procedures for permanence cases and fostering should be improved to clarify processes and provide appeals mechanisms. (Chapter 11 - Procedures within local authorities and agencies)
• Rights to information about adoption, and people involved in adoption, including medical information, should be clarified. (Chapter 12 - Access to information)

Taken together, the recommendations represent a comprehensive review of the adoption and permanence system.

Scottish Executive response

2.3 The Scottish Executive agrees with the overall conclusions of the report. The Executive recognises that it is vital to provide stable and secure new homes for children who cannot live with their families. The Executive accepts that the current legal options other than adoption cannot give these children the sense of permanence they need. The Executive strongly supports giving responsibilities and rights to carers so they can make day-to-day decisions for the child in the same way as other parents. The Executive also recognises the need to provide proper support to adopters and carers to ensure these new families are successful. The Executive believes that these measures will secure the best interests of more children in Scotland.

2.4 The Scottish Executive accepts all of the Group's main recommendations; in particular:

• The Scottish Executive supports the Permanence Order, and agrees that adoption should continue for those children for whom it is suitable.
• The Scottish Executive supports the recommendations on adoption by unmarried couples and fostering by same-sex couples.
• The Scottish Executive supports an improved legal framework for adoption support services.
• The Scottish Executive supports the proposed improvements to the court and children's hearings procedures.
• The Scottish Executive supports the need for better fostering allowances.

Details of all the Group's recommendations and the Executive's response to each are in the annex to this paper. A number of these recommendations will require further work before legislation can be brought forward, for example the procedural requirements for the Permanence Order will have to be worked out in some detail, and the Executive welcomes comments on these issues.

2.5 The Executive is aware of the sensitivities around adoption by unmarried and same-sex couples. An unmarried couple - including a same-sex couple - can already apply to be assessed as adopters, but only one partner can actually adopt the child while the other partner applies for a residence order. In this way unmarried couples can adopt together, if not jointly, under the current law, and a number have. Changing the law to allow unmarried couples to adopt as a couple would not be a radical legal change, but would be significant for those involved, and would allow the court to make a joint adoption order where this is in the best interests of the child.

2.6 The Executive does not believe that anything in these proposals undermines marriage, which remains the most recognisable and widely accepted way for a couple to signal their commitment to each other and to their life together as parents. However, many couples do not marry but choose to live together, which can also provide a stable relationship in which many children are brought up today. The best interest of the child, and stability for children, in whatever form of family relationship exists, are the key concerns in framing policy. The Executive therefore welcomes the recommendation that an unmarried couple wishing to adopt should be living as partners in an enduring family relationship. This consultation invites comments on this definition.

2.7 While supporting the recommendations of the Group, the Executive wishes to hear a full range of views on this issue.

2.8 The Executive proposes to reject three of the Group's recommendations (Recommendations 9, 18 and 61) and consult on one without commitment (Recommendation 85). The Executive intends to support four recommendations in principle only, consulting on the detail (Recommendations 26, 51, 52 and 103). These recommendations are either being considered in other work, or require further views and investigation to justify being implemented.

III: Consultation

3.1 The recommendations of the Group would require a mixture of primary and secondary legislation, guidance from the Scottish Executive, and administrative action by the Scottish Executive, General Registers of Scotland, local authorities, adoption agencies and others to implement fully.

3.2 The Executive welcomes general comments on the recommendations of the Group and the Executive's proposed responses. The Executive has also identified a number of specific questions on which further views are welcome. These are highlighted in the text and summarised at the end of the annex.

3.3 Following this consultation, the Executive will focus on implementing those recommendations that require legislation. These recommendations are indicated in the annex and views on them are particularly welcome.

3.4 The planned legislation is expected to replace the Adoption (Scotland) Act 1978 in its entirety. It will therefore reproduce other provisions in that Act - as well as the Children (Scotland) Act 1995, Adoption (Intercountry Aspects) Act 1999 and the Adoption and Children Act 2002 - about which the Group has not made recommendations, notably on intercountry adoption. In the meantime, the Executive welcomes views on any aspects of adoption and permanence law not covered in the Group's report which should be reflected in future legislation.

3.5 Responses on this consultation are invited by 31 October 2005.

3.6 Responses should be sent to:

aprg_responses@scotland.gsi.gov.uk

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