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BACKGROUND
The Adoption and Children (Scotland) Act 2007 ('the 2007 Act') introduced a range of reforms into the law relating to adoption of, and permanent care for, children who cannot remain with their birth families.
Once the new legislation is commenced, the existing legislation - the Adoption (Scotland) Act 1978 ('the 1978 Act') - will be repealed, except to the extent necessary to maintain the legality of those adoptions that have already been made under it. One consequence of this is that existing Regulations made under the 1978 Act will no longer be valid. For that reason new Regulations require to be put in place to restate, and amend, extend and improve, existing Regulations. In doing this account will be taken of the report from the Adoption Policy Review Group ( APRG) Adoption: Better Choices for Our Children, which has already shaped the 2007 Act itself.
The present consultation paper deals with the draft Adoption (Disclosure of Medical Information about Natural Parents) (Scotland) Regulations 2009. The Adoption (Disclosure of Medical Information about Natural Parents) (Scotland) Regulations 2009 are subject to affirmative parliamentary procedure and therefore cannot be combined with the Adoption Information (Scotland) Regulations. However, they can be combined with the Adoption (Disclosure of information) Regulations and views on whether they should form a combined set of regulations are appreciated.
While there is provision for the collection of medical information when considering a child for adoption (the currently and future Adoption Agencies Regulations and Adoption Information Regulations), practitioners indicated that access to medical information on the birth parents and child is necessary to plan properly for the child. The APRG identified 3 situations where it proves difficult, in practice, to access medical information: where there is no consent because birth parents have never been asked; where there is no consent because birth parents have disappeared or are otherwise absent and therefore cannot be asked; where there is no consent because birth parents have refused to give it. Guidance from the General Medical Council indicates that medical information on the Natural parents may be disclosed where there is a clear need for this disclosure in the interest of the child's welfare. however there are occasions where this is not forthcoming. These regulations are intended to address this issue where consent is not achievable.
Regulations are intended to supplement primary legislation - in this case the 2007 Act - so they do not generally repeat provision already there. To aid full consideration, therefore, the most relevant provisions in the 2007 Act are reproduced for ease of reference at Annex B.
The full text of the 2007 Act may be found at: http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070004_en_1
The APRG Report Adoption: Better Choices for Our Children may be found at: http://www.scotland.gov.uk/Publications/2005/06/27140607/06107
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