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Adoption (Disclosure of Information)(Scotland) Regulations
Question 6 - Are there any definitions in these regulations which are required to be included in regulation 2
Seven respondents felt there was no further definitions required, six felt that some further definitions would be useful.
Clarity that the regulations will apply to all adoption records, including those made under previous legislation would be useful to respondents, as would clarity on the right to information held by the Registrar General under s55 of the 2007 Act. Definitions of adopted person and the Data Protection Act were also sought.
Scottish Government response
Definitions requested included those already defined in the 2007 Act as well as a definition of the Data Protection Act. As definitions in the 2007 Act will automatically apply in associated regulations, and the Data Protection Act is not referred to in the regulations we have not included these in the regulations.
These regulations apply to all information which the agency has relating to a person's adoption (regulation 3(1)). As case records under the previous legislation are required to be kept under savings provisions in the information regulations, the disclosure regulations will also apply to such case records.
Disclosure of information held by the Registrar General under s55 of the 2007 Act is covered in that section and does not require to be, and cannot be, covered in regulations.
Question 7 - Should the disclosure of information be triggered only by a request for counselling or are there other circumstances where this disclosure may be suitable, should the disclosure be automatic on the adopter person reaching the appointed age?
Eleven respondents did not think that the disclosure of information should be triggered by a request for counselling alone, three thought that this should be the trigger and two indicated that the regulation as drafted allowed for much wider circumstances than just counselling to trigger disclosure.
Those respondents that agreed with the trigger being counselling identified that this is a person centred approach as disclosure is at a time chosen by the adopted person.
Concern was shown that the term "counselling" now carried a different meaning when used in practice than when it was first used as a trigger for disclosure. There is also a social stigma implied by the term. Most respondents agreed that the time of disclosure should be a matter for the adopted person to decide through requesting the information. Caveats on the disclosure of information if counselling is not the trigger should include an indication that support and counselling services are available to the person.
One respondent indicated that notification of a person's right to access their adoption records should be automatically sent to the adopted person on reaching the specified age. However, most respondents indicated that disclosure should not be an automatic process on reaching a certain age.
Scottish Government response
The term counselling will be replaced by a request for adoption support services. This will allow information to be released on a request for information, or in cases where a person is requesting a service. This will have the same effect as under the previous legislation, without using the potentially negative connotation of counselling. It also allows the adopted person to be the person who decides when they wish the information and will therefore be in charge of the situation.
The regulations will also be amended to ensure that the person requesting the information will be made aware that counselling is available should they wish it. Therefore, if the request is specifically for information they would not be left to consider the information disclosed without assistance.
Question 8 - Is it appropriate for an adopted person who has not attained the age specified to be able to access certain information at the discretion of the adoption agency? Are the caveats concerning the identification of birth parents sufficient, or should there be further caveats to the release of this information?
Eight respondents felt it was appropriate that an adopted person who had not yet reached the age of 16 should be able to access their information at the adoption agencies discretion. Six respondents disagreed.
It was felt that an adopted person under the specified age should have access at the discretion of the adoption agency only. The case for requiring the provision of counselling services for a person under the specified age would be more compelling. It was considered that the regulation should include the views of the adoptive parents when making a decision about disclosing the information.
The caveat on identifying information was considered not to be compatible with modern-day practice of life story books and openness in the adoption process, were many adopted children already have a lot of information about their natural parents. Respondents thought that the "welfare of the adopted person" caveat was sufficient for this purpose and disclosure of identifying information should be at the discretion of the adoption agency.
Scottish Government response
The provision of information to those adopted persons who have not yet attained the age of 16 is a new provision recommended by the APRG. APRG indicated that practice had been that certain information was sometimes shared with adopted people under the age of 16 using discretionary powers given to local authorities. However, there was some confusion over who had rights to access the information. Therefore, APRG recommended that if an adopted person had not yet attained the age of 16 their right to access information should be limited.
Respondents agreed in general that it was appropriate for an adopted person under the age of 16 to have limited access to adoption information at the discretion of the adoption agency. Also views of the adoptive parents should be taken. We will amend the regulations to include the requirement to consider the views of the adoptive parents prior to making a decision about releasing the information.
The caveat on identifying information places the limit on the information that can be disclosed that APRG identified. Despite any information which may or may not identify the natural parents that an adopted person under the age of 16 may have with respect to life story books or other such information, it would not be appropriate for the adoption agency to be providing an adopted person under the age of 16 with information which could lead to that person identifying or approaching their natural parents. We do not think that the welfare caveat alone would be sufficient to ensure that information which could identify a natural parent, who may or may not wish to be approached, is not provided to an adopted person under the age of 16. We propose to retain this paragraph in the regulation.
Question 9 - Does this regulation sufficiently cover the organisations that may need access to the information in order to support an adopted person?
Thirteen respondents indicated that further additions to the organisations in this regulation were required while 3 respondents indicated that they felt the regulation was sufficient.
Almost all of the thirteen respondents who thought further additions were required indicated that the regulation does not sufficiently cover voluntary adoption agencies and other registered adoption services which provide support to adopted people. Also considered by respondents for inclusion were the local authority area where the court which made the adoption order sat and reference to the Northern Ireland Boards.
It was recommended by one respondent that the restriction on information disclosed should be "…an adoption agency may disclose relevant information, which it has relating to that person's adoption…"
Scottish Government response
We will include reference to the local authority area where the court which made the adoption order sat into the organisations which can request access to this information.
This regulation refers to support services (including counselling) which are provided under section 9 of the 2007 Act. A request under this section (or the equivalent sections in the Adoption and Children Act 2002) are made to a local authority or the Registrar General in England and Wales. Services under this section cannot be requested from voluntary or independent agency. Requesting such service from these organisations, without being assessed by a local authority that then contract the service from the agency, would be a private contract between that individual and the agency. It would be up to the individual to access this information through these regulations for the agency prior to or during the provision of the service.
Question 10 - Taking regulations 5 and 6 together, should information be disclosed to anyone else, and under what circumstance?
Nine respondents agreed that further disclosure is required and six respondents disagreed.
All of the respondents who considered further additions indicated that the regulating and inspecting body should be indicated in the regulation for the purposes of carrying out inspections or investigating complaints.
One respondent indicated that intermediary services should have access to information from the Registrar General to facilitate linking an adopted person's birth name and adopted name in the case of private adoptions.
Scottish Government response
We will include a reference to the Scottish Commission for the Regulation of Care into these regulations. Inspections carried out by the Social Work Inspection Agency and Her Majesty's Inspectorate of Education are undertaken by agencies of the Scottish Government and therefore are covered by reference to Scottish Ministers.
Access to adoption information from the Registrar General is correctly restricted to the adopted person, under an order from the Sheriff Court or Court of Session or to a local authority. This is in primary legislation. It would be inappropriate to include reference to any intermediary service accessing information from the Registrar General which requires access to birth records in order to make searching for a link to an adopted person's family in private adoption cases easier for that service.
Question 11 - Should anything else be recorded about the disclosure?
Three respondents indicated that nothing else was required to be recorded on the file when disclosing information and 10 considered there should be some addition to the record.
Additions considered included the name of the officer who disclosed the information, the legislative grounds for the disclosure, the organisation and designation of the person the information was disclosed to, who authorised the disclosure and how it was disclosed, the outcome of the disclosure and a receipt for the information.
It was also considered that consents of the data subject to the disclosure be sought and recorded.
Scottish Government response
It is unclear what relevance recording the name of the person that authorised the disclosure of the information would have with respect to future enquiries. Similarly, we are unclear what relevance the organisation and designation of the person it was disclosed to, how the information was disclosed and the "outcome of the disclosure" would have. We will not include these in the regulations.
The legislative grounds for disclosure have been added to paragraph (d) of this regulation.
Question 12 - Does this regulations cover the transfer of records sufficiently, are there other occasions when an agency would want to transfer records that is not included in this regulations?
Ten respondents indicated that the regulations covered the transfer of records sufficiently. Five respondents thought that further arrangements were required.
It was thought that the individual to who the record applies should be informed of the transfer of the records. Also, it was considered that other agencies and local authorities were informed of the transfer of the records. A clear audit trail may also be required.
Where the interests of a child or prospective adoptive parent to whom the record relates are served by the forwarding of the record to another agency or authority this should be firmed up to a requirement to send the record rather than permission to send them. In the case where the agency continues to hold a record after forwarding a copy to another agency, some clarification of where the archive should be archived was sought.
Society was mistaken used in this draft regulation instead of adoption service.
Scottish Government response
The regulations will be amended to make it a requirement for an agency to transfer a record (or a part of that record) where it is in the best interests of the child.
The regulations will also be amended to ensure that the person to whom the record relates will be notified of any transfer of the record.
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