2007 Chapter 4

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These notes relate to the Adoption and Children Act 2007 (asp 4) which received Royal Assent on 15 January 2007

ADOPTION AND CHILDREN ACT 2007

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes are published to accompany the Adoption and Children Act 2007. They have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT

3.     The Adoption and Children (Scotland) Act 2007 modernises, improves and extends the system of adoption in Scotland. Previous legislation relating to adoption lay mainly in the Adoption (Scotland) Act 1978 (which was based on the Adoption Act 1976).

4.     Previous legislation relating to other aspects of adoption is contained in the Children (Scotland) Act 1995 (the "1995 Act"). Legislation relating to intercountry and overseas adoption lies in the Adoption (Intercountry Aspects) Act 1999.

5.     The Act repeals and replaces the Adoption (Scotland) Act 1978, apart from Part IV, which makes provision in respect of the status of children adopted under that Act. Part IV remains in force in order to ensure that the status of such children is unaffected by the repeal of that Act and its replacement by the Adoption and Children (Scotland) Act 2007. The Act also amends the 1995 Act.

6.     The Act maintains the existing adoption service and local authorities continue to have a duty to provide an adoption service for placing children with adopters and assessing adopters. A wider range of people are able to adopt. Provisions modernise and improve the existing service and the broader services available to children who cannot live with their original families. The Act introduces a new court order for accommodating such children (a "permanence order"). Provisions in the Act improve access to a broader range of support services for people affected by adoption, including members of adoptive and original families. The Act contains provisions to ensure that people are able to gain access to services and will be given clear information about the services that will be provided to them by adoption agencies. The Act reproduces existing provisions for intercountry and overseas adoptions, but introduces new restrictions on bringing children into the country in certain circumstances and gives the Scottish Ministers the power to charge for the processing of intercountry adoption casework.

7.     The key provisions of the Act are:

     Unmarried couples are able to adopt jointly.

     Local authorities have a duty to provide a range of adoption services, the meaning of which may be expanded by secondary legislation.

     People directly affected by an adoption (including the child, parents and adoptive parents) have a right to adoption support services, which include both services provided before an adoption order is made and after the making of the order.

     The provision of adoption services is a clearly stated part of the adoption process, which will inform people about the services that are available to them, how they should go about accessing them, and for how long these services are available.

     A new type of order, the permanence order, is introduced for children who cannot live with their families. This replaces freeing orders (provided for by section 18 of the Adoption (Scotland) Act 1978) and parental responsibilities orders (provided for by section 86 of the 1995 Act). The permanence order allows parental responsibilities and parental rights relating to residence and guidance to pass to the local authority and other relevant parental responsibilities and parental rights to be granted to appropriate people, including the child's parents. The permanence order provides flexibility to adapt to a child's changing circumstances.

8.     The Act is in 4 parts. These are:

Part 1 - Adoption

9.     Part 1 makes provision for the adoption of children and is divided into 7 chapters. Chapter 1 requires the provision of adoption services by local authorities. Local authorities may use "registered adoption services" i.e. voluntary organisations to provide these services. "Adoption services" are defined in section 1 of the Act and those persons who may receive them are listed in subsection (3) of that section.

10.     Chapter 1 also provides the Scottish Ministers with the power to make regulations relating to the provision of adoption services by both local authorities and registered adoption services. The Scottish Ministers may also issue guidance in relation to the assessment of needs and local authorities are obliged to have regard to this. This Chapter also enables local authorities to make payments in lieu of adoption support services.

11.     Chapter 2 sets out the adoption process, including the conditions that must be met before an application for an adoption may be granted, the categories of person that are eligible to make an application for an adoption order, restrictions on removing children who have been placed with prospective adopters, and the legal effect of adoption orders. The Chapter also provides for information about adoptions to be kept by adoption agencies and the disclosure of such information.

12.     Chapter 3 makes provision for the legal status of adopted children.

13.     Chapter 4 provides for adoption support plans, which will be used to detail the specific adoption support services to which people will have access after an assessment of needs has been made under section 9

14.     Chapter 5 relates to the registration of adoption orders. It requires the Registrar General of Births, Deaths and Marriages for Scotland to continue to maintain the Adopted Children Register and makes provision for linking records in that register with records in the register of births.

15.     Chapter 6 makes provision in respect of adoptions with a foreign element. It places restrictions on the adoption of children from outside the United Kingdom and on the adoption of children from the United Kingdom outwith this country, and gives the Scottish Ministers the power to charge for processing casework for certain types of adoption with a foreign element.

16.     Chapter 7 relates to miscellaneous issues, including adoption allowances schemes, restrictions as to who may arrange adoptions or place children for adoption, and provides for the effect of certain orders and the placing of children for adoption under the Adoption and Children Act 2002.

Part 2 - Permanence Orders

17.     Part 2 of the Act relates to permanence orders. These are designed to provide long-term security for children who cannot live with their family. A permanence order is also capable of including authority for a child to be adopted. Part 2 establishes the structure of a permanence order, including provision for the distribution of parental responsibilities and parental rights, and also provides for its effect as regards supervision requirements and other types of existing order, and the variation and revocation of permanence orders.

Part 3 - Miscellaneous

18.     Part 3 contains a range of provisions, some of which apply to both adoption orders and permanence orders, including a requirement to notify the father of a child where that father has never had parental responsibilities and parental rights that an application for either type of order is to be made. This Part also contains section 107, a provision which amends section 11 of the 1995 Act to allow people who have lost parental responsibilities and parental rights as the result of the making of an adoption order to make an application under that section for a contact order in respect of the child that has been adopted. In terms of section 110, the Scottish Ministers have power to make regulations to provide for allowances to be paid by local authorities in respect of certain children.

Part 4 - General

19.     This contains a range of technical provisions, including provision for rules of procedure and offences by bodies corporate and partnerships.

20.     The Act also contains 3 schedules, which respectively relate to the registration of adoptions, minor and consequential amendments and repeals.

COMMENTARY ON SECTIONS

CHAPTER 1

THE ADOPTION SERVICE

Section 1 - Duty of local authority to provide adoption service

21.     Subsection (1) places a duty on local authorities to provide an adoption service or, to the extent that they already do so, continue to do so. In practice it is likely that all local authorities will provide their own adoption services, but they may contract with another provider which is a registered adoption service to provide these services, as set out at section 2(2).

22.     For the purposes of this Act, 'adoption service' is defined as services designed to meet the needs in relation to adoption of the persons mentioned in section 1(3).

23.     These persons, listed in subsection (3), are: (a) children who may be adopted (for the purposes of providing adoption support, this includes children who have been placed for adoption); (b) persons who have been adopted (this category includes adults who were adopted as children, as well as children who have been adopted); (c) parents and guardians of children who may be adopted (for the purposes of providing adoption support, this includes children who have been placed for adoption); (d) natural parents of persons who have been adopted; (e) persons who, before the placing of a child for adoption or the adoption of a child, treated the child as their child; (f) siblings (whether of the whole-blood or half-blood), natural grandparents and former guardians of children who may be adopted and persons who have been adopted; (g) persons who may adopt a child; (h) persons who have adopted a child; (i) in relation to persons mentioned in (g) or (h), children of, or children treated as children of, such persons (this includes children of the family of adoptive parents); and (j) any other persons who are affected by the placing, proposed placing or adoption of a child.

24.     By virtue of subsection (4), an adoption service includes or consists of arrangements for assessing children who may be adopted; arrangements for assessing prospective adopters; arrangements for placing children for adoption; the provision of information about adoption to any of the persons mentioned in section 1(3); and adoption support services.

25.     Subsection (5) defines adoption support services as consisting of or including counselling to any of the persons mentioned in section 1(3); guidance about adoption to such persons; and any other assistance in relation to the adoption process that the local authority providing an adoption service in a particular case considers relevant to that case.

Section 2 - Carrying out of duties imposed by section 1

26.     Subsection (1) places a duty on local authorities to provide adoption support services in a way that takes account of other services that they provide in carrying out functions which they have under any of the enactments mentioned in section 5(1B) of the Social Work (Scotland) Act 1968, in particular those relating to children. All local authority functions that relate to children should be coordinated in order to provide a cohesive service in the context of adoption support services.

27.     Under subsection (2) a local authority may carry out its obligation to provide or continue to provide an adoption service by entering into arrangements with a "registered adoption service" for the provision of the service on its behalf. By subsection (3), a "registered adoption service" means an adoption service within the meaning given by section 2(11)(b) of the Regulation of Care (Scotland) Act 2001, which is registered under that Act.

Section 4 - Local authority plans

28.     Section 4 sets out local authorities' duties in relation to plans for provision of their adoption service. The wording parallels that in section 19 of the 1995 Act (local authority plans for services for children). Subsection (1) places a duty on local authorities to prepare and publish plans for the provision of the adoption service which they are required to provide under section 1(1).

29.     Subsection (2) places a duty on local authorities to review the plans created under subsection (1) "from time to time" and to modify or replace completely the plans and publish them as necessary.

30.     Subsection (3) places a duty on local authorities to consult a range of bodies and organisations in making or reviewing plans under subsection (1) or subsection (2). The bodies and organisations that should be consulted are the Health Board in the relevant local authority area, any voluntary organisations which may represent the interests of a person who is likely to use the adoption service, any voluntary organisations which may provide an adoption service and any other persons that may be prescribed by regulations made by Scottish Ministers.+

31.     Subsection (4) allows a local authority to incorporate a plan that is to be published under subsection (1) into any plan published by the local authority in connection with services for children. Under subsection (5) it is not necessary to publish an adoption services plan separately where it is incorporated in this way.

32.     By virtue of subsection (6) the duty to review and modify or replace plans and the right not to publish a separate plan under subsection (5) will apply to any modified or replacement plan as well as plans originally created under subsection (1).

Section 5 - Guidance

33.     This section relates to any guidance issued by the Scottish Ministers concerning the provision of an adoption service. Subsection (2) places a duty on local authorities providing an adoption service to have regard to any such guidance. Subsection (3) specifies what may be included in such guidance. It may include information on how a local authority should assess or re-assess a person's need for adoption support services; how a local authority's power to assess a person's needs under section 9(1) should be exercised; how a local authority should decide the classes of person who may be eligible for an assessment of needs under section 9(1); and how responsibility for providing an adoption service should be transferred between local authorities.

34.     By virtue of subsection (4) the Scottish Ministers may vary or revoke any such guidance.

Section 6 - Assistance in carrying out functions under sections 1 and 4

35.     Subsection (1) allows a local authority to require assistance from an "appropriate person" in carrying out any function set out at section 1 or 4.

36.     Subsection (2) sets out the circumstances in which an appropriate person may refuse to comply with a request made by a local authority under subsection (1). These include where it would not be reasonably practical to do so, where it would be incompatible with the person's functions, statutory or not, and where the person's functions (when the person is not a natural person) would be unduly prejudiced.

37.     Subsection (3) defines an "appropriate person" as including another local authority, a Health Board and such other person as may be prescribed, by regulations made by Scottish Ministers, as an "appropriate person".

Section 7 - Meaning of "adoption service" in Regulation of Care (Scotland) Act 2001

38.     This section provides a new definition of "adoption service" in sections 2(11) and 2(12) of the Regulation of Care (Scotland) Act 2001 as a consequence of the provisions of the Act.

Section 8 - Adoption agencies: regulations about carrying out of functions

39.     Subsection (1) gives the Scottish Ministers the power to make regulations relating to a registered adoption service carrying out its functions.

40.     Subsection (2) gives the Scottish Ministers the power to make regulations relating to a local authority carrying out its functions of making or participating in arrangements for the adoption of children.

41.     Subsection (3) sets out matters which regulations made under this section may, in particular, include being the circumstances in which a local authority proposing to make arrangements for the adoption of a child must apply for a permanence order which includes provision granting authority for the child to be adopted and the period within which such an application must be made.

Section 9 - Assessment of needs for adoption support services

42.     This section relates to the assessment of needs for adoption support services. By virtue of subsection (1), a local authority must provide an assessment of needs for adoption support services when requested to do so by people listed in any of paragraphs (a) to (i) of section 1(3). These include the child, the child's family and the child's adoptive family. The local authority may provide such an assessment for a person listed at paragraph (j) of section 1(3), namely any other person affected by placing of a child for adoption, proposed placing or adoption itself.

43.     Subsection (2) provides that where a local authority carries out an assessment under subsection (1), it must decide whether the provision of adoption support services is required.

44.     Subsection (3) provides that an assessment carried out under this section must be done in such a manner as may be prescribed in regulations made by the Scottish Ministers.

Section 10 - Provision of services

45.     Subsection (1) provides that on the request of a person mentioned in section 1(3) a local authority must provide adoption services of a type listed in section 1(4)(d) to that person, namely information about adoption. Subsection (2)(a) provides that on the request of a person mentioned in section 1(3)(a), (c) or (g) (children who may be adopted, parents and guardians of such children and persons who may adopt a child) a local authority must provide adoption services of a type mentioned in section 1(4)(a), (b) or (c) to that person, namely arrangements for assessing children who may be adopted, arrangements for assessing prospective adopters and arrangements for placing children for adoption. Subsection (2)(b) allows a local authority also to provide adoption support services to such a person.

46.     By virtue of subsection (3), services can be provided under subsection (2) whether or not an assessment of needs has been carried out. This will allow an authority to provide counselling at the same time as making the assessments or arrangements mentioned above without first undertaking an assessment of needs.

47.     By virtue of subsection (4)(a), where a local authority has decided under section 9(2) that the provision of adoption support services is required following an assessment of needs carried out for a person listed in section 1(3)(a) to (i), the authority must provide the service to that person; subsection (4)(b) provides that where an assessment of needs reveals that a service is called for in respect of a person mentioned in section 1(3)(j) (any other person affected), the authority has discretion whether to provide the service to that person.

Section 11 - Urgent provision

48.     While section 9 makes provision for assessment of needs for adoption support services of persons mentioned in section 1(3), section 11(1) allows a local authority that considers that such a person requires adoption support services as a matter of urgency to provide these services without first carrying out an assessment of the person's need for support.

49.     Where support has been provided under this section without an assessment of needs, subsection (2) places a duty on a local authority to carry out such an assessment as soon as is practicable after the support has been provided. This does not apply where a service is provided without an assessment of needs under section 10(2)(b).

Section 12 - Power to provide payment to person entitled to adoption support service

50.     This section relates to the payment of money in lieu of the provision of an adoption support service by a local authority. It applies where a local authority has an obligation to provide, or secure the provision of, an adoption support service, or has a power to do so and decides that it should provide such services.

51.     Subsection (2) gives local authorities power to provide a payment to the person instead of providing specific services having had regard to certain matters set out in subsection (3).

52.     The matters to which a local authority must have regard include the person's eligibility for assistance from another source and the availability of such assistance at the time when the service would have been provided by the local authority.

53.     Under subsections (4) and (5), a local authority may make payment subject to such conditions (including conditions concerning repayment) as the authority considers reasonable, taking account of the person's eligibility for assistance from any other body.

Section 13 - Regulations

54.     This section gives the Scottish Ministers the power to make regulations relating to various aspects of the provision of an adoption service.

55.     In subsection (1), paragraph (a) enables regulations to determine which local authority is responsible for the provision of an adoption service and the making of an assessment of needs.

56.     Paragraph (b) enables regulations to determine when and under what circumstances a local authority's duty to provide an adoption service ends.

57.     Paragraph (c) enables provision to be made about the circumstances in which a local authority can continue to provide an adoption service after the duty to provide such a service has ended.

58.     Paragraph (d) enables regulations to specify the arrangements that may be made by a local authority when a person to whom it is supplying an adoption service moves outwith the authority's area.

59.     Paragraph (e) enables regulations to specify with whom arrangements under paragraph (d) can be made.

60.     Paragraph (f) enables regulations to be made concerning the assessment of needs for adoption support services of someone who has moved or intends to move from one local authority area to another or from outwith Scotland to Scotland.

61.     Regulations made under this section can be exercised to make different provision for different adoption services.

CHAPTER 2

THE ADOPTION PROCESS

Section 14 - Considerations applying to the exercise of powers

62.     This section places various duties on the court or adoption agency when coming to a decision in relation to the adoption of a child including a duty to ensure that the welfare of the child is the paramount consideration, and to ensure that an adoption order is granted only if there is no better alternative for the child.

63.     By virtue of subsection (2), the court or adoption agency must consider all of the circumstances of the case before coming to a decision to place the child for adoption or to make an adoption order.

64.     By virtue of subsection (3), when making a decision about whether or not to place a child for adoption or whether or not to make an adoption order, the court or adoption agency must have as its paramount consideration the best interests of the child throughout his or her life (including after childhood).

65.     In addition to this overarching principle, under subsection (4) the court or adoption agency must, as far as is reasonably practicable, take into account a number of specific considerations. These are (a) the value of a stable family unit in the child's development; (b) the child's own ascertainable views regarding adoption (taking into account the age and maturity of the child); (c) the child's religious persuasion, racial origin and cultural and linguistic background; and (d) the likely effect on the child, throughout his or her life, of the making of the adoption order.

66.     The requirements of paragraph (c) mean that a court or adoption agency must have regard to these factors when placing a child, but do not mean that a child cannot be placed with adopters of other religious persuasions, racial origins and cultural and linguistic backgrounds.

67.     Subsection (5) places a duty on an adoption agency which is placing a child for adoption to have regard, so far as is reasonably practicable, to the views of the child's parents, guardians and other relatives. "Relative" is defined for the purposes of the Act in section 119(1).

68.     In carrying out these duties an adoption agency has a further duty under subsection (6) to consider whether adoption is the best way to meet the interests of the child or whether there is a better alternative. If it considers that there is a better alternative it must not make arrangements for the adoption of the child (subsection (7)).

69.     Subsection (8) provides that a child who is at least 12 years old will be presumed to be capable of expressing his or her views for the purposes of subsection (4)(b). This is without prejudice to the generality of that subsection and therefore allows the court or adoption agency to take into account the views of a child below that age.