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COMMENTARY AND CONSULTATION QUESTIONS
Regulation 1 - Citation and Commencement
It is planned that these regulations will come into force in early 2009.
Regulation 2 - Interpretation
Regulation 2 provides for definitions to be used throughout the Regulations. Where an expression is used in these Regulations it will have the same definition as in the Act unless a separate definition is provided.
Regulation 3 - Appointment and composition of adoption panels
This regulation specifies that all adoption agencies should appoint a panel to carry out the functions conferred on them by regulation 6. "Adoption agencies" are local authorities and adoption services which are registered with the Care Commission. Regulation 3 and regulation 4 make a distinction between the adoption panel, which is the wider pool of members who can serve on the adoption panel and a meeting of the adoption panel, which is the group of individuals acting together to make recommendations on any one occasion.
Regulation 3 prescribes the number of members that an adoption panel ( i.e. the wider pool) should have and allows for the appointment of joint adoption panels.
- Is a minimum of 6 members (which reflects the current minimum in the 1996 Regulations) reasonable?
The regulation also specifies that adoption agencies must be satisfied as to the qualifications for membership of an adoption/joint adoption panel
- Do you agree with these provisions?
- Should there be a duty on agencies to review the membership of the panel on a regular basis?
Regulation 4 - Meetings of the adoption panel and joint adoption panel
Regulation 4 makes provision for a quorum for a meeting of an adoption panel with at least one member being a legal adviser when considering whether adoption is in the best interest of the child or whether an application for a permanence order with authority for the child to be adopted should be made under section 80 of the Act.
- The quorum is set at 3 (which replicates the 1996 Regulations). Is this reasonable?
Regulation 5 - Appointment of medical and legal advisers
Regulation 5 specifies that an adoption agency shall appoint such number of persons as it considers necessary for the purposes of providing medical and legal advice in connection with the exercise of its functions.
- Do you agree with this approach (which again replicates the 1996 Regulations)?
Regulation 6 - Functions of the adoption panel
This regulation sets out the functions of an adoption panel. These are to consider whether adoption is in the best interests of a particular child; whether an application for a permanence order with authority to adopt should be made under section 80 of the Act; whether a prospective adopter is suitable to be an adoptive parent; whether a prospective adopter would be a suitable adoptive parent for a particular child; to provide a written report of the consideration given by them to alternatives to adoption and in circumstances where adoption with parental contact is recommended, why adoption is recommended rather than an alternative course of action. The panel can also consider any other matter referred to it which is relevant to the adoption agency's functions under the Act.
- Do you think anything else needs to be added?
We are aware that the Adoption Policy Review Group recommended that all "plans for permanence for children, including adoption, should be looked at by one advisory panel within each local authority". However, it is proposed that while Adoption and Fostering panels should be separate entities, there should be no impediment to the same body of people being able to constitute the membership of both the Fostering Panel and the Adoption Panel. In order to avoid excessive regulation on local authorities and adoption agencies, we propose to cover this possibility in guidance.
- Do you agree with this approach?
The provisions in Regulation 6 do not cover the procedural conduct of the adoption panel hearings. This allows instead for a flexible and individual approach in each case which is being considered by the panel. The panel will consider a range of matters referred to it by the adoption agency. Its role is to make recommendations whilst the final decision making power rests with the adoption agency. Some overriding conditions will apply however. Regulation 6(5) requires the panel to meet with the prospective adopter and to discuss the case with him or her before making a recommendation on the specific issue of whether that prospective adopter is suitable to be an adoptive parent. The views of the child must also be taken into account when a decision relating to their adoption is being made.
Although the Adoption Policy Review Group recommended that children and young people should have a right to make representations to adoption panels and/or attend them, taking into account their age and maturity, section 14(4)(b) of the Act ensures that the adoption agency must have regard in particular to the child's ascertainable views regarding the decision it takes taking into account the child's age and maturity. This duty will therefore apply when an adoption agency makes a decision under regulation 9 following receipt of a recommendation by the adoption panel.
- Is the duty contained in section 14(4)(b) sufficient to give effect to the APRG recommendation or should a requirement be created whereby the adoption agency ascertain the wishes of the child and pass the information to the adoption panel?
- If a requirement should be created should it be extended to cover birth parents?
In regulations 6(4) and (9) "parent" means only those parents with PRR in order to maintain consistency with the 1996 Regulations.
- Should the definition be opened up to include parents whose PRR have been removed by a permanence order with authority for the child to be adopted?
Regulation 7 - Duties of adoption agencies: placing the child for adoption
This regulation sets out what an adoption agency must do and the information it must obtain before placing a child with any prospective adopter. The information which should be obtained is set out in Schedule 1 which is split into 3 parts. Part I covers information about the child. Information about the child's family is covered in Part II. Part III covers information about the prospective adopters.
- Does this cover the requirements? If not, what is required?
- Are the lists in Parts I, II and III of Schedule 1 complete? If not what needs to be added?
Regulation 8 - Duties of adoption agencies: assessment of prospective adopters
This regulation requires an adoption agency to prepare and publish a statement of the general criteria which it will apply for the purpose of considering whether any person may be accepted by the agency for assessment as an adoptive parent.
- This regulation replicates regulation 10 of the 1996 Regulations. Do you have any comments?
Regulation 9 - Adoption agency decisions
Although the adoption panel makes a recommendation, the final decision to approve someone as an adopter and to determine whether adoption is in the best interests of the child or whether an application for a permanence order with authority for the child to be adopted should be made, is taken by the adoption agency. Regulation 9 prescribes the timescales within which a decision must be made and details what the agency has to take into account when making its decision.
Regulation 10 - Notification of adoption agency decisions
This Regulation specifies the notification requirements when an adoption agency makes a decision as to whether (a) adoption is in the best interests of the child, (b) an application for a permanence order with authority for the child to be adopted under section 80 of the Act should be made, or (c) it considers a prospective adopter to be suitable to be an adoptive parent or whether they would be suitable as such for a particular child. Regulation 10 also explains what needs to be done where the agency makes a decision that (a) adoption is not in the best interests of the child and there is a better and practicable alternative to adoption or (b) an application for a permanence order with authority for the child to be adopted should be made under section 80 of the Act.
- Does this cover the requirements in full? If not, what is required?
Regulations 10(1) and (2) distinguish parents (undefined therefore the larger group including natural parents) and non PRR parents.
- Is an "unmarried father" a "parent" in terms of Regulation 10(1)(a) and (2)(a)? If not, is the duty at section 105 of the Act sufficient to protect the unmarried father's interest?
Regulation 11 - Review of adoption agency decisions
If an agency decides that it does not consider a prospective adopter to be suitable to be an adoptive parent, the prospective adopter can request a review of the decision. The request must be made within 28 days of the day on which notice of the agency's decision was made. This regulation explains what an agency is required to do when a request for a review has been received. The agency must refer the case to a freshly constituted adoption panel, which in turn, will consider the case and make a recommendation. The adoption agency must then make a decision within 14 days of receiving the recommendation. There is no right to request any further review once the agency makes its decision following the panel's recommendation.
- Do you have any views on this provision? Could it be strengthened in any way?
- Are the time limits of 28 and 14 days acceptable?
Regulation 12 - Provision of information to parents; decision by adoption agency to make arrangements for adoption
Regulation 13 - Provision of information to parents; decision of adoption agency that an application under section 80 of the Act should be made
These Regulations prescribe the information which must be provided to each parent or guardian and the steps to be taken by an adoption agency where the agency makes a decision (a) that adoption is in the best interests of the child and proposes to make arrangements for the adoption of the child, or (b) that adoption is in the best interests of the child and an application for a permanence order with authority for the child to be adopted should be made under section 80 of the Act.
Schedules 2 and 5 set out the form of memorandum containing information about the legal process depending on whether the decision is to pursue adoption or where an application is to be made to the court for a permanence order seeking authority for the child to be adopted which should be sent to the parent or guardian of the child. Schedules 3 and 6 are the certificates which confirm receipt of the memorandum. Schedule 4 sets out the certificate of agreement, or otherwise, to the child being placed for adoption and Schedule 7 sets out the certificate of agreement, or otherwise, to the child being the subject of an application for a permanence order with authority to adopt and for the child to be placed with adopters.
- Could these provisions be strengthened in any way?
- Do the Schedules cover all the requirements? If not what should be added?
Regulation 12 applies where a decision is made that adoption is in the child's best interests and the adoption agency has taken a further step and decided that arrangements for adoption should be made. Here Regulations 12(1)-(3) apply to all parents whilst Regulation 12(5) refers only to non PRR parents. The effect is that all parents must receive the memorandum and certificates in Schedules 2-4 whilst the adoption agency must take additional steps to obtain the Schedule 1 information and establish whether a parental agreement order under section 4 of the Children (Scotland) Act 1995 is likely to be applied for in the case of non PRR parents.
Regulation 13 applies where a decision is made that adoption is in the child's best interests and that an application for a permanence order with authority for the child to be adopted should be made. This provision effectively mirrors regulation 12.
- Is our understanding of "parent" correct in these Regulations?
Regulation 14 - Consent to placement of the child for adoption for the purposes of section 20 of the Act
Where a child has been placed for adoption with prospective adopters and the child's parents have consented to this,
Section 20(2) of the Act provides that the parents cannot remove the child from the home of the prospective adopters without the leave of the adoption agency or the appropriate court. This regulation sets out the form in which the consent has to be given for those purposes.
"Parent" in section 20 is left undefined therefore the offence applies to all parents to include those with parental rights and responsibilities and natural parents whether or not they have such rights and responsibilities. As the consent certificates in Schedules 4 and 7 are the prescribed forms for the purposes of section 20 it is important that all parents are given the information and these certificates as required by Regulations 12 and 13 so all parents will be asked to consent for the purposes of section 20.
Regulation 15 - Consent certificate; no consent or failure to return consent certificate
This regulation applies where (a) an adoption agency does not receive the certificate confirming the parent's or guardian's agreement, or otherwise, to either the child being placed for adoption or being the subject of an application under section 80 of the Act for a permanence order with authority for the child to be adopted and for the child's placement with adopters, (b) the adoption agency has not been able to carry out the duties referred to in paragraphs (2), (3) and (5) of regulation 12 or 13 because the parent or guardian of the child cannot reasonably be contacted, or (c) the parent or guardian has given written notice that agreement is being withdrawn. Where the adoption agency is a registered adoption service, it must take such steps, if any, it considers appropriate and in the best interests of the child if the agency is a local authority it must make a determination to proceed as though parental consent is not forthcoming.
Regulation 16 - Application for a permanence order; child not subject to supervision requirement
Where a local authority adoption agency is considering making arrangements for the adoption of a child who is not subject to a supervision requirement, this regulation requires the agency to make an application for a permanence order with authority for the child to be adopted under section 80 of the Act before the expiry of 28 days from either the receipt of the certificate confirming that the parent or guardian does not agree with the decision or the date the agency makes a determination to proceed as though agreement is not forthcoming under regulation 15. This regulation does not apply where an application for an adoption order has been made in relation to the child.
- Is 28 days a realistic timescale? If not what do you regard as being a more effective timescale?
"Parent" is left undefined in Regulations 15 and 16 and therefore includes non PRR parents ( i.e. "parent" carries the same meaning as in Regulations 12 and 13).
Regulation 17 - Child subject to supervision requirement; referral to the Principal Reporter
Regulation 18 - Application for a permanence order; child subject to supervision requirement
These regulations deal with applications for permanence orders with authority for the child to be adopted where that child is subject to a supervision requirement and the circumstances under which referral must be made to the Principal Reporter or notification of its decision to make an application for a permanence order with authority for the child to be adopted. Schedule 8 sets out the form of referral to the Principal Reporter.
- Do these Regulations cover the requirements in full? If not, what is required?
- Does the Schedule cover all the requirements? If not what should be added?
- Is 28 days a realistic timescale in Regulation 18? If not what do you regard as being a more effective timescale?
Regulation 19 - Placement for adoption; notification and provision of information
Regulation 20 - Duties of adoption agency following placement for adoption
These Regulations make provision for the placing of a child for adoption when a decision has been made that a prospective adopter is suitable to be an adoptive parent and that person would be a suitable adoptive parent for a particular child. Regulation 19 sets out the information which must be provided to the prospective adopter and who should be notified of the placement. Regulation 20 requires that, where an agency has placed a child with a prospective adopter, the agency must ensure that (a) the child is visited on the agency's behalf within one week of placement and on such occasions thereafter as the agency considers necessary in order to supervise the child's well-being and (b) written reports on such visits are produced and retained on the case record.
- Do these Regulations cover the requirements in full? If not, what else is required?
Regulation 19(5) distinguishes between parents with PRR or PRR removed by a permanence order and non PRR parents. It applies where a child has been placed for adoption. The PRR/ PRR removed by a permanence order with authority to adopt parents are automatically notified of the placement. Non PRR parents, however, are only notified where the adoption agency considers this to be in the child's best interests. Although this reflects the equivalent provision in the 1996 Regulations, the stage reached when Regulation 19 bites should come after the process in Regulations 12 or 13 have been applied and it may appear odd that non PRR parents are asked to consent to placement and sign the appropriate certificate but are not then automatically notified once the placement is made.
- Should non PRR parents receive automatic notification of the placement?
Schedules 2, 4, 5, 7 and 8
- Could these Schedules be simplified? If so, your suggestions would be greatly appreciated.
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