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Chapter 3 - Adoption
Models of adoption, agreement of birth parents,
revocation
Recommendations of Review Group: 1. Adoption should remain as a legal option
for children needing permanent placements away
from their own families. (3.11) 2. Full adoption (which transfers all
parental responsibilities and rights from the
birth parents to the adoptive parents) should
remain the only model for adoption in Scotland.
However, it may be in the best interests of
some adoptees to allow a degree of contact
between the child and the birth family,
sometimes known as an "open" adoption.
(3.15) 3. Agreement of birth parents to adoption
should continue to be sought. However, there
will be cases where the best interests of the
child would be served by the child being
adopted by an alternative family, despite the
objections of the parents. In these
circumstances, the court should have the power
to dispense with the parents' agreement.
(3.18) 4. The current grounds for dispensing with
the agreement of birth parents should be
changed and those in the Westminster Adoption
and Children Act 2002 should be adopted,
amended to reflect the necessity test in
Article 8 of the European Convention on Human
Rights (
ECHR). (3.23) 5. There should not be any extension of the
statutory grounds for revocation of adoption
orders. (3.30) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Executive agrees that adoption remains an important
option for some children who cannot stay with their birth
families and that full adoption should remain the only
model used in Scotland. The Executive also agrees that
there should be mechanisms for birth parents to agree to
adoption and for the agreement of the birth parents to be
dispensed with by the court, where adoption is in the best
interests of the child. The Executive welcomes the proposed
simplification of the grounds for dispensing with birth
parents' agreement, as the current provisions have been
criticised as complex. The Executive agrees that there
should be no extension of the statutory grounds for
revocation of adoption orders. This underlines the
permanent nature of adoption.
Joint adoption by unmarried couples
Recommendations of Review Group: 6. Joint adoption should be extended to all
unmarried couples, same and opposite sex.
(3.41) 7. The majority of the Group supported the
definition of unmarried couples used in the
2002 Act and is in favour of the law being
substantially similar north and south of the
border. (3.41) 77. The restriction on fostering by adults
of the same sex living in the same household
should be removed. (10.19) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Executive believes that the Group's recommendations
would clarify the current legal situation. Despite the
restriction in current legislation, unmarried couples can
and do adopt together although not jointly. The Executive
believes it is right that our legal system should allow
unmarried couples to adopt jointly, where this is in the
best interests of the child, and the law should reflect
this position clearly and unambiguously. The Executive
believes the most important consideration is that the court
can make decisions in the best interests of the child, and
is not constrained by the status of the relationship
between the adults.
In accepting these recommendations, the Executive
emphasises the importance of ensuring that children are
only adopted by couples with a stable and strong
relationship, whether married or unmarried. For same-sex
couples, the new legal status of civil partnership will
attract the same legal consequences as marriage. The
Executive believes these should include joint adoption.
For unmarried couples, or same-sex couples whose
partnership has not been registered, the Executive believes
it is important that the court should consider the enduring
strength of the relationship in deciding whether to make a
joint adoption order. The Executive therefore supports the
principle of the Group's recommendation that Scottish
legislation adopts the definition of an unmarried couple
from similar English legislation: two people living as
partners in an enduring family relationship. The Executive
would not propose to elaborate on this definition, for
example by including a minimum time qualification. However,
the Executive notes that other definitions of cohabitation
are used elsewhere in Scots law, and there is the potential
for inconsistency in adopting this definition.
The Executive would welcome views on what
would be the appropriate definition of an
unmarried (or unregistered) couple for a
Scottish court to apply in deciding whether to
make a joint adoption order, bearing in mind
the Executive's intention that the court should
consider the enduring nature of the
relationship. |
The Executive would also expect the criteria used by
adoption agencies to assess the suitability of a couple to
adopt to consider the stability of their relationship, as
now. The Adoption and Children Act 2002 gives
UK Government Ministers the power to
make regulations to ensure that, in determining the
suitability of a couple to adopt a child, proper regard is
had to the need for stability and permanence in their
relationship (s.45(2)).
The Group did not make a similar proposal,
but the Executive would welcome views on
whether such a provision should be included in
Scottish legislation. |
There are other issues raised by the
proposal on which the Executive would welcome
views: - What other factors should the court
take into account in deciding whether an
unmarried couple should adopt a child? For
example, should the views of birth parents
or the child be considered?
- Should there be any exceptions or
special rules, for example for faith-based
adoption agencies?
- Should the Executive issue guidance on
considerations to be examined in
determining the best interests of the
child, and what might such considerations
be?
|
The Executive also supports the recommendation that
same-sex couples should be allowed to foster, where that
would be in the best interests of the child. The current
rule against such fostering has caused practical
difficulties in some cases where former foster children
wish to remain in the foster home as adults, and the Group
has found no evidence to support a continuing ban.
Step-parent adoption
Recommendations of Review Group: 8. Step-parent adoption should remain as it
is, as an option for families. Unmarried
step-parents should be able to adopt along with
other step parents. (3.51) 10. In future, only the step-parent should
be shown as an adopter on birth certificates in
step-parent adoptions. (3.54) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Group highlighted concerns that adoption by a
step-parent removes the rights of the absent birth parent,
and this is not always appropriate. The Executive accepts
the Group's suggestion that there should be increased
information and publicity to highlight alternatives to
step-parent adoption.
However, the Executive agrees with the Group's
conclusion that step-parent adoption should remain
available for cases where this is in the best interests of
the child. The Executive also accepts the Group's view that
this should be extended to unmarried partners of birth
parents.
The Executive accepts the Group's recommendation that
only the step-parent should be registered as an adopter.
The Executive will examine how the Adopted Children
Register would best be amended to reflect this
recommendation.
Recommendation of Review Group: 9. There should be step-parent agreement as
an alternative to step-parent adoption.
(3.53) |
The Scottish Executive REJECTS this
recommendation.
A similar proposal has already been rejected following
the consultation on the Family Law Bill.
Other proposed changes to adoption
Recommendations of Review Group: 11. There should be a duty on agencies to
consider parental views on a wider range of
matters than religious upbringing when placing
for adoption. (3.55) 12. There should be a discretion for courts
to require the local authority to see a child
in the home. (3.57) 13. Interim adoption orders should be
abolished. (3.58) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Executive would welcome views on the
issues on which parental views should be
sought. The Executive considers that wider
issues of identity, such as language and
culture, could be included in a revised
provision. |
Interim adoption orders are very rarely granted and
alternatives would be available, particularly under the
Group's other recommendations.
Cross-border provisions
Recommendations of Review Group: 14. Any changes in Scots Law resulting from
this report should be properly reflected in the
legislation for the rest of the
UK to secure cross-border
recognition of Scottish orders. (3.60) |
The Scottish Executive SUPPORTS this
recommendation.
The Executive is working closely with its counterparts
in England, Wales and Northern Ireland on our proposals, as
well as other adoption issues, and will keep them fully
informed as our work progresses to allow them to make any
necessary consequential amendments to their
legislation.
Chapter 4 - Contact and
conditions in orders for permanence
Contact
Recommendations of Review Group: 15. Contact should be for the benefit of the
child not the adults. The purpose of the
contact also should be clear to help shape
decisions on type and frequency of contact.
(4.4) 16. Young people and children should be
enabled to keep in contact with other important
people in their lives, not just birth parents.
In particular, contact with siblings may be
beneficial to everyone and is different from
contact with birth parents. (4.9) |
The Scottish Executive SUPPORTS these
recommendations.
The Group has found that for some children contact with
members of their birth families, particularly siblings, and
other significant people, such as previous carers, is
important, even once adopted.
The Scottish Executive considers that improved guidance
and training would be required to ensure these
recommendations are delivered.
Conditions in adoption orders
Recommendation of Review Group: 17. Conditions - including contact - should
still be possible in adoption orders but this
should remain exceptional. Matters such as
contact should generally be dealt with
alongside the adoption order, and the current
prohibition on parents applying for contact
under s.11 of the Children (Scotland) Act 1995
should be removed. (4.14) |
The Scottish Executive SUPPORTS this
recommendation and proposes to implement it through
legislation.
The Executive agrees with the Group's conclusion that it
is generally better for matters such as contact to be dealt
with through agreements alongside the adoption order,
rather than in court orders. However, there will be
circumstances in which the court should make formal
directions on contact and other matters and the law should
allow this.
The Group's recommendation on s.11 is dealt with under
Recommendations 51 and 52 below.
Conditions in freeing
Recommendation of Review Group: 18. Section 11 of the 1995 Act should be
amended as a matter of urgency to remove the
current restriction on those who have lost
parental responsibilities and rights through
adoption or freeing applying under that
provision. Any application for an order under
s.11 in these circumstances should only be
allowed with the leave of the court, to protect
adoptive families from inappropriate or
vexatious applications. (4.16 and 4.18) |
The Scottish Executive REJECTS this
recommendation.
The Executive understands the reasons the Group has made
this recommendation as a matter of urgency. However, the
Executive now plans to bring forward legislation on all the
Group's recommendations as early as possible, so there will
be no need for separate legislation on this point.
Chapter 5 - Permanence
Order
Problems with the current law and proposals for a
new Permanence Order
Recommendations of Review Group: 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.
The court should have complete flexibility in
making orders to fit the needs of the
individual child, and should secure 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 parent 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.
(5.28) 25. Only the local authority should be able
to apply for a new Permanence Order. (5.29) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Executive strongly supports the Group's proposals
for a flexible Permanence Order which can meet the needs of
individual children in individual cases. Another important
feature of the proposed Order is that foster, and other,
carers can be given legal responsibilities and rights under
a Permanence Order to make decisions for children that
other parents would normally make for their own children,
but which existing orders do not necessarily provide.
The Executive also supports the Group's proposals about
the detail of the Permanence Order. In particular the
Executive agrees that children on Permanence Orders should
remain looked after by the local authority and that only
local authorities should apply for new Permanence Orders.
The Executive also agrees with the Group's procedural
recommendations: that any existing orders (for example
under s.11 of the Children (Scotland) Act 1995), or new
applications for such orders, should be dealt with in the
proceedings for the Permanence Order. The Executive also
agrees that the Sheriff Court should deal with most
applications for Permanence Orders, but that the Court of
Session should also have jurisdiction in appropriate
cases.
The Executive would welcome views on the
principle and details of the Permanence Order,
in particular any practical or procedural
issues that might arise from use of the Orders,
and how these can best be addressed. |
Applications for revocation and variation of
Permanence Orders
Recommendation of Review Group: 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 given by the court
on cause shown. (5.31) |
The Scottish Executive SUPPORTS this
recommendation IN PRINCIPLE and proposes to implement
it through legislation.
The Executive supports the Group's conclusion that
variation or revocation of a Permanence Order should only
be possible if there is a good reason for the court to
consider an application. This is necessary to preserve the
security provided by the Order for the child, and to deter
repeated or malicious applications.
However, the mechanism of seeking the leave of a court
to make an application is not as commonly used in Scotland
as it is, for example, in England and Wales. The Executive
would welcome views on whether this approach would provide
the desired level of protection for children in the
Scottish court system. This is discussed further under
Recommendations 51 and 52 below.
Transitional provisions
Recommendation of Review Group: 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) |
The Scottish Executive SUPPORTS this
recommendation and proposes to implement it through
legislation.
Permanence Orders and the Children's Hearing
system
Recommendations of Review Group: 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) |
The Scottish Executive SUPPORTS the majority
view on these recommendations and proposes to implement
them through legislation.
The Executive understands the reasons for the
differences in view within the Group on these
recommendations. There are clear attractions in treating
all children before the hearing system in the same way.
However, the Executive supports the views of the majority
in both recommendations.
The Executive believes that it is preferable for the
court to have responsibility for all decisions related to a
child between an application for a Permanence Order being
made and the Order being granted. This is only for a
limited period during which the child's case is already
before the court; it would be sensible for the court to
have clear primacy during this period.
Following the granting of a Permanence Order, the
Executive believes that the system should recognise the
special arrangements that have been put in place to protect
the stability and security of the child. The Executive
believes that modifying the approach of children's hearings
in these cases as recommended by the majority of the Group,
by limiting the powers of the hearing to change the
residence and contact arrangements for the child, is a
sensible way of recognising the position of these
children.
The Executive would welcome views on this
issue, in particular any practical difficulties
that would be raised by the recommendations and
further suggestions on how the special
arrangements that have been made for children
on permanence orders can be recognised by the
hearing system. |
Issues for birth families in permanence and
adoption
Recommendations of Review Group: 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) |
The Scottish Executive SUPPORTS these
recommendations and proposes to implement them through
legislation.
The Executive agrees with the Group's conclusion that
there should be no need to seek the consent to an
application for a Permanence or adoption order of an
unmarried father without parental responsibilities and
rights. There are legal steps such fathers can take to
establish parental responsibilities and rights at an
earlier stage. However, the Executive agrees that such
fathers should have a right to be informed of any
applications.
The Executive also agrees that the formal rights of
other birth relatives should not be extended. The
involvement of birth relatives, and other adults, in the
life of a child will vary from case to case and it would be
wrong to lay down rules to cover all cases. The Executive
agrees that the court should be able to recognise the
interests of adults that have been involved with a child in
a specific case by having a discretion to inform all
interested parties of an application for a Permanence or
adoption order.
Restrictions on the removal of children
Recommendation of Review Group: 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) |
The Scottish Executive SUPPORTS this
recommendation and proposes to implement it through
legislation.
Existing provisions are complex and this proposal,
including the detailed circumstances in which the
restrictions would apply, would provide greater clarity and
security for children.
Chapter 6 - Support for
adoption
Support services for adoption and adoption
allowances
Recommendations of Review Group: |
33. There should be adoption support
services that are based on a sound legal
framework, are properly resourced, and that
have commitment from central government, local
authorities and other providers. (6.9) 34. Adoption support services should be:
counselling, advice, information and financial
support, as well as other services prescribed
by regulation. (6.12) 35. Adoption allowances should be paid under
a national scheme, provided for in regulations.
(6.13) 36. The current restriction on adoptive
families receiving cash instead of services
should be removed. (6.14) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive agrees that there is a need for a more
comprehensive legal framework on adoption support as a tool
to improve the delivery of services.
The Executive would welcome views on what
additional services might be prescribed. Those
specified in recent regulations for adoption
support in England and Wales are: - support to groups of adopted children,
adopters and birth parents;
- assistance, including mediation, in
arrangements for contact between adopted
children and their birth parents, siblings
and other relatives;
- services to meet the therapeutic needs
of adopted children;
- assistance to adopters such as training
to meet special needs and respite
care;
- mediation and other services if there
is a disruption in an adoption placement,
or risk of one.
|
Adoption allowances are currently decided by local
authorities, under a general framework set by regulations.
The Group recommended that the current arrangements should
be revised and that there should be a national scheme for
adoption allowances across Scotland. The Executive agrees
that the current regulations should be revised, and the
restriction on receiving assistance in cash should be
removed. However, the Executive does not believe there
should be a national scale of allowances, or set levels, as
the circumstances of adoptions differ from case to case.
Local authorities are in a better position to judge the
level of allowance appropriate in each case.
Local authority adoption support services
Recommendations of Review Group: 37. The adoption service provided by every
local authority should clearly include adoption
support services. (6.15). 38. Each local authority should have an
adoption support officer within the senior
management team for social services who has
lead responsibility for service provision.
(6.16) 39. There should be a Code of Practice for
the provision of adoption support services.
(6.17) |
The Scottish Executive SUPPORTS these
recommendations.
The Executive believes that these recommendations should
be implemented through guidance, which should make clear
that the local authority plan for providing adoption
support should be included in the integrated children's
services planning framework for the local authority area.
Any guidance would need to be consistent with this wider
planning framework and National Care Standards for adoption
agencies.
The Executive recognises the recommendation
on local authority senior management is
prescriptive. The Executive would welcome views
on this recommendation. |
Specialist adoption support agencies
Recommendation of Review Group: 40. Legislation should allow for voluntary,
specialist adoption support agencies to be
established. (6.18) |
The Scottish Executive SUPPORTS this
recommendation, and proposes to implement it through
legislation.
The Executive believes that specialist adoption support
agencies, provided by the voluntary sector, would provide a
useful complement to local authority services. Such
agencies would need to be subject to inspection and
approval by the Care Commission for Scotland.
Adoption support for families that move
Recommendation of Review Group: 41. In general, a local authority placing a
child for adoption should have responsibility
for providing adoption support services to the
child and the adoptive family for three years
after the adoption order is made, or until the
child is 18, whichever is sooner, at which
point the responsibility should transfer to the
local authority where the adopted person and
the family lives, if this is different.
(6.19) |
The Scottish Executive SUPPORTS this
recommendation, and proposes to implement it through
legislation.
The Executive agrees that this would be an important
clarification of the existing position, which can be
confusing when an adoptive family move or a child is placed
outside a local authority's area. This is the same
arrangement being introduced in England and Wales which
would facilitate cross-border moves. However, the Executive
will need to ensure that the arrangements that are put in
place for adoption support work in conjunction with
arrangements already in place under the Additional Support
for Learning Act.
The Executive would welcome views on this
recommendation, in particular whether the
period of three years is appropriate. |
Who should receive adoption support services?
Recommendation of Review Group: 42. Adoption support services should be
available for all parties involved in adoption.
(6.21) |
The Scottish Executive SUPPORTS this
recommendation, and proposes to implement it through
legislation.
The Executive agrees that entitlement to various forms
of adoption support should be widened to all parties
involved with an adoption.
| However, the Executive would welcome views on
how widespread any entitlement should be - for
example, should grandparents and siblings have a
right to support - and on what services different
groups of people should receive - for example
whether birth relatives should have a right to any
services beyond counselling. |
Assessment and planning of adoption support
needs
Recommendations of Review Group: 43. Each party to an adoption should be
entitled to an assessment of their need for
adoption services. The local authority should
then plan how any assessed needs are to be met
(6.22) 44. Following assessment and a plan, there
should be a contract between the local
authority adoption agency, the adopters, and
any adopted child who is aged 12 or over,
detailing the services that the agency will
provide. (6.23) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive supports these recommendations which will
be important in ensuring that the necessary adoption
support services are delivered to those involved in an
adoption, particularly the adopted child.
The Executive notes that, as in England and Wales, the
Group has not recommended that there should be a duty on a
local authority to meet any assessed need. The Executive
supports this approach, which recognises the need for local
authorities to have some discretion.
Chapter 7 - Improving court
procedures and avoiding delays
Proposed changes to the court rules
Recommendations of Review Group: 45. All Sheriffdoms should have a Practice
Note for adoption, related proceedings and
other permanence cases. (7.9) 46. In the long-term, the Group recommends
that the provisions of these Practice Notes
should be incorporated in new court rules made
following primary legislation. (7.10) 47. The Group believes that that active case
management is crucial and that this should be
clearly reflected in new court rules.
(7.11) 48. Court rules should include provision for
"Adoption Centres", so that pre-proof
proceedings are held in courts where there is a
sheriff with some specialist knowledge.
(7.12) 49. There should be a statutory scheme for
dealing with situations where there is more
than one type of case pending for a child with
the aim of consolidating all court actions in
respect of the child and giving an opportunity
for those with an interest to take part in the
process. (7.14 and 7.15) 50. There should be a bar on new, separate
applications to the court on matters that can
be dealt with in the Permanence Order.
(7.16) 53. There should a number of detailed
changes to the court rules, to improve the
system and reduce delays. (7.19) |
The Scottish Executive SUPPORTS these
recommendations.
The Executive supports the aim of the Group in reducing
the time taken by courts to handle permanence cases, as it
is clearly not in the best interests of a child for these
cases to take too long.
The proposed changes to Court Rules are for the
appropriate judicial authorities to consider in detail. The
Executive commends these recommendations to those
authorities and hopes that the recommendations can be taken
forward to achieve the aims of the Group.
Removal of the current bar on birth parents
applying for contact and other orders
Recommendations of Review Group: 51. The leave of the court should generally
be required for new applications in respect of
children on Permanence Orders or adopted.
(7.17) 52. The current absolute ban on applications
under s.11 of the 1995 Act by people whose
parental responsibilities and rights have been
removed by freeing or adoption should be ended.
(7.18) |
The Scottish Executive SUPPORTS these
recommendations IN PRINCIPLE, and proposes to implement
them through legislation.
There could be cases in which the current bar on
applications following an adoption could lead to injustice,
for example if voluntary contact arrangements are stopped
by the adopters. The recommendations would allow the court
to consider an application in these circumstances, and make
an order if that was in the best interests of the child.
However, the Executive is aware that this proposal could
cause anxiety to some adopted children and their adoptive
families because of the risk of repeated or malicious
applications to court. Adoptive families might also be
concerned about the legal costs of resisting
applications.
The Executive is prepared to support this recommendation
in principle, but wants to ensure that there would be
effective safeguards to deter or prevent repeated
applications and protect families from abuse of the legal
system.
The Group has proposed that applicants should have to
seek the leave of the court to make an application. In
seeking leave, the applicant would have to show reasons why
the application should be allowed to proceed. This system
is not as commonly used in Scotland as it is in England and
Wales.
The Executive would welcome views on whether
this system would be effective in providing the
protection sought for adoptive families. The Executive would also welcome views on
whether other statutory measures would make the
system of leave a more effective safeguard. For
example: - Should the legislation require the
applicant to produce new evidence, or
evidence of a significant change in
circumstances to support an application for
leave?
- Should there be a minimum period
between new applications for leave in
respect of the same child?
|
Some potential applicants might not have sufficient
information about an adopted child to enable them to pursue
a case, for example they might not be aware of the child's
current address or surname. Legislation could limit the
circumstances in which an applicant could seek such
information from the court, which could in practice prevent
applications if there has been no contact for many years
after the adoption.
Views are also sought on this issue. |
This recommendation is linked to that to the procedures
for varying or revoking Permanence Orders (Recommendation
26).
Chapter 8 - Curators, reporting
officers and safeguarders
Appointment and duties of curators, reporting
officers and safeguarders
Recommendations of Review Group: 54. There is no reason to believe
safeguarders are being appointed unnecessarily
or disproportionately by the hearings system in
permanence cases. (8.12) 55. The rules should continue to allow the
court to appoint separate individuals to the
roles of curator and reporting officer if this
is the most practical approach in particular
cases. (8.15) 56. The role of safeguarders should not be
merged with that of curators and reporting
officers. (8.16) 57. Curators and reporting officers should
continue to be appointed in all applications
for adoption, freeing and
PROs (except post-freeing
adoptions). If a Permanence Order is
introduced, curators and reporting officers
should be appointed in all applications for
Permanence Orders, unless a court decides a
curator is unnecessary in the particular
circumstances of a case. (8.19) 58. The hearing must always have the option
of appointing a safeguarder if it considers it
necessary to do so. (8.20) 59. The involvement of safeguarders should
not be extended either to all permanence cases
or throughout a case. (8.21) 60. Court rules concerning appointments and
duties of curators and reporting officers
should be amended in line with detailed
proposals. (8.23) |
The Scottish Executive SUPPORTS these
recommendations.
The Executive notes that the Group's recommendations are
largely supportive of the current rules on the appointment
and duties of curators, reporting officers and
safeguarders.
Getting it right for every child will also produce
proposals on the role of safeguarders.
The Executive commends the recommendations concerning
Court Rules to the appropriate judicial authorities.
National system for curators, reporting officers
and safeguarders
Recommendation of Review Group: 61. There should be a centralised national
system to appoint and train curators, reporting
officers, and safeguarders from which
individual case appointments are made locally.
Remuneration should be paid centrally and
should take account of the varying amounts of
work required in individual cases (8.31) |
The Scottish Executive REJECTS this
recommendation IN PRINCIPLE.
The Executive is not convinced by the case for a
national system for these appointments, nor for central
payments. The Executive regards this as a function best
organised and funded locally.
The Executive would welcome views on this
proposal and its advantages to allow it to come
to a final decision. |
Chapter 9 - Role of the
Children's Hearing System in permanence cases
Improvements to the role of the children's hearing
system
Recommendations of Review Group: 62. The hearing system should continue to be
involved in permanence planning and decision
making for children, and this role should be
improved. (9.10) 63. There should be a formal requirement to
inform the hearing system of permanence
planning by the local authority at an earlier
stage. (9.12) 64. If a child has been looked after away
from home for a year, the hearing should
consider asking the local authority about
permanence planning at the next review of the
child's case. (9.15) 65. The roles of both the local authority
adoption or permanence panel and the children's
hearing in permanence cases should be preserved
as they are valuable and distinctive.
(9.17) 66. Reports from the adoption/permanence
panel to the hearing in considering permanence
cases should be improved and standardised.
(9.19) 67. The provisions on providing advice from
the hearing to the court should be reviewed in
regard to who has responsibility for each step,
and to allow the court to ask for updated
advice from the hearing. (9.21) 68. The review and advice hearing should
remain one process but that better information
for all parties involved would address the
concerns that have been expressed. (9.22) 69. There should be a standardised form for
the hearing to provide advice to the court.
(9.23) 70. There should be nationally developed and
quality assured joint training between key
agencies, the hearing, social work departments,
safeguarders and others. (9.25) 71. Each hearing should, if possible,
contain one member from a previous hearing
throughout the progress through the system of a
permanence case. (9.29) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive agrees with the conclusion of the Group
that the children's hearing has an essential role to play
in planning for permanence for children, as the body which
is intended to play a central role in decision making for
children. The Executive accepts the recommendation that
this role can be played best if the hearing is formally
involved in permanence planning at an earlier stage, and
that there should be a statutory provision to ensure that
such involvement starts consistently across Scotland.
The Executive would welcome views on the
stage of the process that should trigger the
formal involvement of the hearing. The Group
has suggested it should be after a looked after
child review has decided to proceed towards
permanence. The Executive would also welcome
views on the steps to be followed after the
hearing is informed. The Group has suggested
following the model currently used when a
decision is taken to place a child for
adoption. |
The Executive agrees that the communication between the
local authority adoption or permanence panel, the
children's hearing and the court should be improved, and
there should be clear ownership of the process for the
court to seek advice from the hearing. The court should
also be able to ask for updated advice from the hearing.
The Executive also accepts the need for joint training and
will consider how best this can be provided.
The Executive believes that a number of these
recommendations, for example on the make-up of hearings or
the form of reports, would better be dealt with through
guidance, rather than primary and secondary legislation
which would be too prescriptive.
Review of the Children's Hearings system
Recommendation of Review Group: 72. These recommendations on the role of
hearings in permanence cases should be taken
into account in the review of the hearing
system. (9.32) |
The Scottish Executive SUPPORTS this
recommendation.
The recommendations of the Group are consistent with the
principles established by the review of the children's
hearing system. Any legislative proposals in this area will
be based on both the Group's recommendations and the
detailed proposals in
Getting it right for every child. The Group's
recommendations on assessment of children and adopters and
foster carers will also be considered in the light of the
integrated assessment planning and recording framework, on
which the Executive is also consulting.
Publication of proceedings of children's
hearings
Recommendation of Review Group: 73. Legislation should allow publication of
details about children by local authorities and
adoption agencies in planning for permanence.
(9.35) |
The Scottish Executive SUPPORTS this
recommendation and proposes to implement it through
legislation.
Chapter 10 - Fostering issuesSupport following Permanence and s.11 orders
Recommendations of Review Group: 74. The support needs of the child and the
carer should be assessed on the making of a
Permanence Order for a child in foster care,
and new plans should be put in place to meet
those needs. (10.7) 75. When a s.11 order has been granted for
the long-term security of a looked after child,
the local authority should assess and plan to
meet the support needs of the child and the
carers. (10.11) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
It is clearly vital that children on Permanence Orders
and their carers should receive the support they need to
ensure the success of the placement. The Executive agrees
that there should be a clear requirement to review support
needs when a Permanence Order is made.
The Executive accepts that some carers will want to
apply for s.11 orders, instead of a Permanence Order being
sought by the local authority. This can be more appropriate
for some children, as explained by the Group. The Executive
agrees that such carers should also have their support
needs assessed by the local authority. The Executive does
not believe that carers should be deterred from seeking an
order that best meets the needs of the child because of the
risk of losing their support. The Executive notes that
these provisions would give Scotland similar arrangements
to Special Guardianship, to complement the Permanence
Order.
Fostering allowances
Recommendation of Review Group: 76. A nationally agreed scheme of adequate
allowances should be introduced for foster
carers. (10.14) |
The Scottish Executive SUPPORTS this
recommendation IN PRINCIPLE.
Levels of fostering allowances are currently set by
local authorities to meet local conditions and needs,
although authorities are encouraged to meet national
scales. However, the levels of fostering allowances vary
across Scotland, and are not adequate in some areas. There
is also an inconsistent approach to the reward payments for
foster carers.
The Executive believes that the current situation cannot
continue. As existing guidance makes clear, the costs of
fostering children should not differ markedly across
Scotland, and greater consistency of payment levels would
be fairer and more comprehensible to foster carers. The
Executive is therefore prepared to consider giving central
direction on appropriate levels of allowances for foster
carers. There are a number of options:
- The Executive annually sets mandatory national
scales of fostering allowances.
- The Executive annually issues guidance containing
national scales of allowances.
- Legislation requires local authorities to publish
their fostering allowances and explain any variations
from national scales.
The Executive would welcome views on these
options, as well as any other suggestions for
achieving this objective. |
Fostering by same-sex couples
Recommendation of Review Group: 77. The restriction on fostering by adults
of the same sex living in the same household
should be removed. (10.19) |
The Scottish Executive SUPPORTS this
recommendation, and proposes to implement it through
legislation.
This is discussed under Recommendations 6 and 7
above.
Emergency and immediate placements
Recommendations of Review Group: 78. The emergency placement provision should
be clarified and should be self-contained,
without cross-reference to other regulations.
(10.21) 79. Immediate placements should last for up
to four months, subject to an interim
assessment and approval, during which time a
full assessment and approval should be carried
out. (10.24) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive agrees with the conclusion that children
should not remain in the long term with carers who have not
been properly assessed, including placements made under
supervision requirements from children's hearings.
Accommodation under s.25 of the Children (Scotland)
Act 1995
Recommendation of Review Group: 80. Clear guidance should be issued by the
Scottish Executive to local authorities on the
circumstances in which children should be
regarded as accommodated under s.25 and the use
of s.25 for respite care. (10.30 and 10.33) |
The Scottish Executive SUPPORTS this
recommendation.
The Executive will consider what further guidance should
be made available in addition to existing guidance on the
Children (Scotland) Act 1995.
Assessment and approval of foster carers
Recommendation of Review Group: 81. The regulations should allow all
fostering providers, whether local authorities
or voluntary organisations, to carry out their
own assessment, approval, reviewing and
de-registration processes. (10.37) |
The Scottish Executive SUPPORTS this
recommendation, and proposes to implement it through
legislation.
In accepting this recommendation, the Executive notes
that fostering agencies would be subject to inspection and
approval by the Care Commission in this function, as with
their other roles.
Assessment of partners of foster carers
Recommendation of Review Group: 82. There should be clear guidance from the
Scottish Executive to local authorities on the
procedures when a prospective foster carer
acquires a new partner during or after the
assessment process. (10.39) |
The Scottish Executive SUPPORTS this
recommendation.
The guidance should reflect current best practice, and
possible improvements. The Executive will now consider how
best to gather views on the contents of the guidance and
draft a practical and useful document for
practitioners.
Checks on friends of looked after children
Recommendation of Review Group: 83. The issue of checks on those in contact
with looked after children should be dealt with
by the current consultation and guidance
process being carried out by the Scottish
Executive. (10.45) |
The Scottish Executive SUPPORTS this
recommendation.
The relevant guidance will be issued by the Executive
later this year.
Kinship care
Recommendation of Review Group: 84. The issues surrounding kinship care
should be examined following the current
research being carried out by the Scottish
Executive. (10.48) |
The Scottish Executive SUPPORTS this
recommendation.
The Social Work Inspection Agency expects to publish
this research later this year.
Private fostering
Recommendation of Review Group: 85. A Working Party should be set up to
carry forward further investigation and
discussion on private fostering. (10.52) |
The Scottish Executive SEEKS VIEWS on this
recommendation.
The Care Commission is inspecting this function of local
authorities for the first time this year, and the Executive
is conducting an awareness-raising campaign. The Executive
believes that it would be better to consider the effects of
these initiatives before proceeding with a working
party.
In the meantime, the Executive would welcome
views on this proposal, and on the possible
remit of such a group. |
Chapter 11 - Procedures within
local authorities and agencies
Principles of permanence planning by local
authorities and adoption agencies
Recommendations of Review Group: 86. The principles for permanence planning
should remain the same, with the addition of a
duty to consider the effect on the child of
having ceased to be part of the original family
and becoming an adopted person. (11.9) 87. There should not be a national adoption
service, but, as recommended in Phase I, there
should be centralisation of some services.
(11.13) |
The Scottish Executive SUPPORTS these
recommendations.
The Executive agrees with the Group's conclusion that
the paramount consideration in decision making should
remain the welfare of children. However, the proposed
addition would be useful to underpin planning for support
in adoption cases.
Proposals for improvements to procedures within
local authorities and agencies
Recommendations of Review Group: 88. All plans for permanence for children,
including adoption, should be looked at by one
advisory panel within each local authority.
(11.19) 89. Adoption/permanence panels should be
attended and/or hear representations from: - children and young people, taking into
account their age and maturity.
- birth parents (unmarried fathers at the
discretion of the local authority/adoption
agency).
- adopters.
(11.24) 90. There should be statutory timetables for
the procedures between adoption/permanence
panels and court applications and clear
guidance from the Scottish Executive (or the
Care Commission) about other parts of the
process. (11.29) 91. The authority/agency decision-making
role on permanence and adoption cases should be
exercised by senior managers and every
organisation should have more than one agency
decision maker. (11.36) 92. Additional written or oral
representations should be made to agency
decision makers after an adoption panel's
recommendations only if new information comes
to light. (11.36) 93. There should be an independent review
body (external to agencies) to consider appeals
against the decisions of agency decision makers
on adopters and adoptions but there should be
no automatic review of cases where the decision
maker disagrees with the adoption panel.
(11.36) 94. Fostering applicants and existing carers
on review should have the right to make oral or
written representations to fostering panels,
including the right to attend the panel.
(11.40) 95. Fostering panels should be involved in
reviews of foster carers every three to five
years. (11.40) 96. Fostering applicants should be given a
right to receive a copy of their assessment
report, excluding confidential third party
information. (11.42) 97. There should be an independent system
for appeals by prospective foster carers and
existing foster carers. (11.50) 98. There should be general guidance from
the Scottish Executive on fostering and
adoption/permanence panels covering: - the composition of panel meetings (man
and woman wherever practicable; reflect
child's ethnicity and related
matters);
- qualifications of panel members;
- the format of panel minutes; and
- the meaning of "panel" and "panel
meeting".
(11.54) 99. There should not be a list of prescribed
offences that prevent a person from adopting or
fostering. However, enhanced criminal record
certificates should be sought for all
applicants. (11.57) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive accepts the detailed improvements to local
authority and adoption agency procedures proposed by the
Group. The Executive particularly supports the proposals to
increase the flexibility of local authority adoption and
fostering panels while maintaining their distinct roles.
The Executive also supports the need for an independent
element in appeals and complaints procedures for adopters,
birth parents and foster carers who are unhappy with either
the decisions or the conduct of the authority or agency, or
its staff. At this stage, the Executive would not favour a
separate, independent body but would prefer local panels of
independent people, who would consider appeals and
complaints with senior managers of the local authority or
agency.
A number of these recommendations would require primary
or secondary legislation, but the Executive intends to
include others in guidance to avoid excessive regulation on
local authorities and adoption agencies, while introducing
the changes the Group recommends consistently across
Scotland.
Chapter 12 - Access to
information
Access to information about adoptions
Recommendations of Review Group: 100. Only adopted people aged 16 or over
should have an automatic right to information
about their adoption. Adopted people under 16
should also have clear though limited rights to
have access to appropriate information from
their adoption agency records. (12.9) 101. There should be a support service for
tracing and accessing information as a distinct
part of the overall adoption support system.
(12.10) 102. Voluntary agencies should be allowed to
provide those adoption support services that
involve tracing and access to records.
(12.11) |
The Scottish Executive SUPPORTS these
recommendations, and proposes to implement them through
legislation.
The Executive agrees with the Group's conclusion that
only adopted people should have the right to access
information about their adoption. While adoption agencies
would retain a discretion to pass information to other
people affected by adoption, the Executive would expect
agencies to release information rarely, perhaps when the
adopted person has died.
The Executive would prefer other people affected by
adoption to access information through voluntary contact
registers, such as that already operated by Birthlink in
Scotland. The Executive supports the suggestion that this
function is put on a statutory basis.
Sharing of medical information
Recommendations of Review Group: 103. There should be primary legislation to
allow the release of medical information about
birth parents in permanence cases, with or
without consent, where this is necessary to
plan properly for children. However, there
should not be a right of access to medical
information about the wider family.
Professionals should consider carefully the
need to disclose such medical information to
adopted people and adopters. (12.17 and
12.21) 104. There should be clearer interagency
guidance for general practitioners and
consultants dealing with prospective adopters,
possibly requiring doctors to disclose all
information to adoption agencies. (12.23) 105. Courts and those representing birth
parents should only make and grant such
requests to see medical information about
adopters where the information could be shown
to be relevant. (12.25) 106. Regulations should make it clear that
the term "registered medical practitioner"
includes nurse practitioners as well as
doctors. (12.27) |
The Scottish Executive SUPPORTS these
recommendations IN PRINCIPLE, and proposes to implement
them through legislation.
The Executive supports the principle that medical
information about birth parents should be available,
without consent, to assist in planning for the best
interests of children. However, this principle needs to be
balanced with the right of the birth parent to medical
confidentiality. Any legal changes would also have to
satisfy the requirement of the Data Protection Acts and the
ECHR. There is a need for clear
procedures to ensure that the information shared is only
used for the purposes it is released, and that information
is only shared between those with a need to know.
The Executive would welcome views on the
proposal. Particular issues include: what sort
of information could be shared; who could have
access to the information; and whether any
information should be communicated to the
adopted person or the adoptive parents. |
The Executive notes the Group's views on applications
for medical information about adopters during court
proceedings and commends their recommendation to the
appropriate judicial and legal authorities.
Release of information to adopters
Recommendation of Review Group: 107. Existing regulations on the disclosure
of information about children to adopters are
satisfactory, but there should be further
guidance to agencies to ensure that all
relevant information about children is passed
on to prospective adopters, in written form as
well as orally. (12.30) |
The Scottish Executive SUPPORTS this
recommendation.
The Executive will consider what guidance should be
issued following any primary legislation on sharing
information resulting from the preceding
recommendations.
SUMMARY OF CONSULTATION
QUESTIONS
General
1. The Executive welcomes general comments on the
recommendations of the Group and the Executive's proposed
responses. Views on those recommendations requiring
legislation are particularly welcome.
2. 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.
Adoption
3. The Executive would welcome views on the appropriate
definition of an unmarried (or unregistered) couple for a
Scottish court to apply in deciding whether to make a joint
adoption order, bearing in mind the Executive's intention
that the court should consider the enduring nature of the
relationship. (Recommendations 6 and 7)
4. The Executive would welcome views on whether there
should be a power for Ministers to make regulations to
ensure that, in determining the suitability of a couple to
adopt a child, proper regard is had to the need for
stability and permanence in their relationship.
(Recommendations 6 and 7)
5. The Executive would welcome views on:
There are other issues raised by the proposal on which
the Executive would welcome views:
- What other factors should the court take into
account in deciding whether an unmarried couple should
adopt a child? For example, should the views of birth
parents or the child be considered?
- Should there be any exceptions or special rules,
for example for faith-based adoption agencies?
- Should the Executive issue guidance on
considerations to be examined in determining the best
interests of the child, and what might such
considerations be?
(Recommendations 6 and 7)
6. The Executive would welcome views on the issues on
which parental views should be sought in placing a child
for adoption. (Recommendation 11)
Permanence Order
7. The Executive would welcome views on the principle
and details of the Permanence Order, in particular any
practical or procedural issues that might arise from use of
the Orders, and how these can best be addressed.
(Recommendations 19 - 25)
8. The Executive would welcome views on the role of the
hearing system in Permanence Orders, in particular any
practical difficulties that would be raised by the
recommendations and further suggestions on how the special
arrangements that have been made for children on permanence
orders can be recognised by the hearing system.
(Recommendations 28 and 29)
Support for adoption
9. The Executive would welcome views on what additional
adoption support services might be prescribed.
(Recommendations 33 - 36)
10. The Executive would welcome views on the
recommendation that local authorities should have an
adoption support officer within the senior management team.
(Recommendation 38)
11. The Executive would welcome views on the
recommendation that a local authority placing a child for
adoption should have responsibility for providing adoption
support services to the child and the adoptive family for
three years after the adoption order, in particular whether
the period of three years is appropriate. (Recommendation
41)
12. The Executive would welcome views on how widespread
any entitlement to adoption support should be - for
example, should grandparents and siblings have a right to
support - and on what services different groups of people
should receive, for example should birth relatives have a
right to any services beyond counselling. (Recommendation
42)
Improving court rules and avoiding delays
13. The Executive would welcome views on whether a
system of leave to apply to court would be effective in
providing the protection from repeated or vexatious
applications for children and adoptive families.
(Recommendations 26, 51 and 52)
14. The Executive would also welcome views on whether
other statutory measures would make the system of leave a
more effective safeguard. For example:
- Should the legislation require the applicant to
produce new evidence, or evidence of a significant
change in circumstances to support an application for
leave?
- Should there be a minimum period between new
applications for leave in respect of the same
child?
(Recommendations 26, 51 and 52)
15. The Executive would welcome views on whether
legislation should limit the circumstances in which an
applicant could seek information about an adopted child in
support of an application to court. (Recommendations 26, 51
and 52)
Curators, reporting officers and safeguarders
16. The Executive would welcome views on the
recommendation that there should be a centralised national
system to appoint and train curators, reporting officers,
and safeguarders from which individual case appointments
are made locally. (Recommendation 61)
Role of the children's hearing system in permanence
cases
17. The Executive would welcome views on the stage in
permanence planning at which there should be a statutory
requirement on the local authority to inform the children's
hearing of its intention. The Executive would also welcome
views on the steps to be followed after the hearing is
informed of the local authority's intention, for example
the model currently used when a decision is taken to place
a child for adoption. (Recommendations 62 - 71)
Fostering issues
18. The Executive would welcome views on the options for
a national scale of fostering allowances. (Recommendation
76)
19. The Executive would welcome views on the proposed
working group on private fostering, and what the remit of
such a group might be. (Recommendation 85)
Procedures within local authorities and
agencies
20. The Executive would welcome views on the detailed
proposals of the Group on local authority and adoption
agency procedures, particularly on the issue of independent
appeals and complaints. (Recommendations 88 - 99)
Access to information
21. The Executive would welcome views on the proposal
that medical information about birth parents and families
should be shared, without consent, to plan properly for a
child. Particular issues include: what sort of information
could be shared; who could have access to the information;
and whether any information should be communicated to the
adopted person or the adoptive parents. (Recommendations
103 - 106)
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