Regulation 2 - Interpretation
Question 1: In conjunction with the definitions used in the Act, are the definitions in this regulation sufficient?
More than half of the respondents agreed and found the definitions sufficient. However, there were respondents who did not consider the definitions sufficient and felt that some definitions were ' inappropriate' and ' misleading'. Also, the terminology in use throughout these draft regulations was found to be inconsistent and in need of amendment. to be consistent with other regulations. One respondent thought there should be definitions in the regulations for all the terms used.
Adopted Child - It was suggested that the definitions for "adopted child" were too wide and could lead to confusion, as they refer not just to a child where an adoption order has been granted but also to children who have simply been matched or placed for adoption. Thus, these definitions intended to describe matched, placed and adopted children. There is a need for amendment to make it clear what stage of the process a child is at.
The respondents made some suggestions, such as:
There should be separate definitions of "adopted child":
1. "a child in respect of whom an applicant has given notice of their intention to adopt",
2. "a child whom an agency has matched with a prospective adopter" and
3. "a child who has been placed for adoption but is not yet adopted".
and
"Adopted child" should not be used to describe a child who is not yet adopted. This should only refer to a child once an adoption order has been granted. Many of the children referred to during the process who eventually go on to be adopted should not be referred to as adopted before the event. Rather they should be defined as 'a child who has been placed for adoption' or some such wording.
There was also a request for a clearer definition of adopted child both in respect of relative carer and foster carer.
Caution was urged where there is a 'pre- adoptive' placement i.e. the child is matched with a family however not yet formally adopted through the Court process. "This means in practice that the child may be placed on a fostering basis and therefore may be a 'foster child' and not an 'adopted child' at that stage. Would the Court be satisfied with this interpretation?"
Agency Adopted Child - The same comments were raised for agency adopted child.
Adoptive Parent - It was thought helpful to differentiate between adoptive parent i.e. someone who has adopted and prospective adoptive parent i.e. the other definitions of adoptive parent.
Similar caution was expressed for ' prospective adopter matched with a child' (quite different from an adoptive parent) when the process has not been completed in Court. This means in practice that the 'adoptive parent' may in fact be an approved foster carer until the adoption order is granted in Court. Again, would the Court be satisfied with this interpretation?
One respondent commented;
"Although it means more definitions, it would be much clearer for everyone if pre-adoptive and actual adopted children and pre-adoptive and actual adopters were separated out. We are aware that the Adoption Support Services Regulations 2005 for England use these definitions but it is not necessary for the Scottish regulations to duplicate this."
Natural Parent - It was indicated that the term "natural parent" is no longer widely used by practitioners. The responses indicated that this term may have negative connotations in relation to adoptive parents and could imply that other parents are "unnatural". The term "birth parent" was preferred. It was also mentioned that it is unfortunate that the term "natural parent" occurs in the primary legislation and so is repeated here, as this has not been in general use for a long time.
One respondent commented;
"It is difficult to insert a definition of 'natural parent' in the Regulations when there is not one in the Act. However, there will be uncertainty among local authority providers, voluntary services and the public about who is a 'natural parent' and therefore who is entitled to services and assessment under the Act and the regulations.
It is therefore crucial that Guidance is very clear that the term has the wide meaning referred to in the consultation, and includes parents who do not have and/or have never had parental responsibilities and rights. This should also be covered in all public information issued by the Scottish Government about adoption support services. We note the Annex to the current consultation on the draft Adoption Agencies (Scotland) Regulations."
Respondents suggested that, for reasons of clarity, it is also necessary to define "natural parent" or at least by reference to another act. E.g. where a mother is married but the father of her child is not her husband.
It was suggested that it is not clear if the term "natural parent" includes a father without parental rights and responsibilities. Given the confused position about fathers and whether or not they have parental rights and responsibilities, it would be better if the regulations specify whether a birth parent (or whatever term is ultimately used) includes a father without parental rights. A consistency of approach across the range of Regulations flowing from the 2007 Act and with other existing Regulations, e.g. the Looked After Children (Scotland) Regulations 2008, has been suggested.
Kinship Carer/Relative Carer - It has been noted that "relative carer" is the term used here and in the new Looked After Children (Scotland) Regulations, however Getting it Right for Every Child in Kinship and Foster Care refers to "kinship carers".
The respondents considered that the use of the term "relative carer" is potentially confusing as it seems to refer to kinship carers. A consistency of approach was urged and it was suggested that it would be helpful to have just one term used across the board.
One respondent commented saying;
"As previously indicated in our response to the draft Looked After Children (Scotland) Regulations, this term needs to be refined to cover all the carers who need to be included, not just close relatives. Use of the word 'relative' is not helpful in the adoption context, as it only means a narrow range of relatives - s 119(1). The 2007 Act definition is perfectly correct for adoption and is the one traditionally used to restrict placements for adoption. But it is not appropriate for regulations about looked after children and related matters, or in these regulations, when a wider group of people need to be referred to.
We are happy that the term used should be the same in both sets of regulations but, as raised in para 1 above, the terms in these regulations should be in full not just a reference to the other ones."
Other definitions - One respondent was of the opinion that definitions in respect of 'non-agency adoptions', including step-parent adoptions and intercountry adoptions, could have been usefully defined at this section.
Scottish Government response
We have considered the comments made about the definitions and propose to make the following adjustments with respect to the regulations.
Adopted Child
We note that the definitions on "adopted child" and "agency adopted child" caused some confusion in respect of interpreting the regulations. These definitions are designed to ensure that children who have either been matched or placed for adoption by an adoption agency, or adopted (whether through an adoption agency or under section 18 of the 2007 Act) are considered for adoption support correctly. We have considered the use of these terms throughout the regulations and have changed their use to "adoptive child". We consider that a term which covers all points in the process of adoption, from matching through to the adoption order being made would be most appropriate given the access to adoption support being available at any point in the process.
Separate definitions for each point in the process would not only have the potential to inadvertently deny access to adoption support, but also would mean that each regulation would have to repeat each "category" of child, where one term allows this to be avoided.
In the review of the uses of "adopted child" and "agency adopted child" it was found that the terms were essentially the same when the caveats in regulation were applied. We have therefore merged them into one term.
It still remains the case that only children placed/matched by an adoption agency, whether they have been adopted or are awaiting and adoption order are eligible for adoption support out with the agencies area. This will also be the case for certain circumstances when considering adoption allowances.
Natural parent
This term is used throughout the 2007 Act and therefore we cannot change the usage at this point from "natural parent" to "birth parent" as requested. "Natural parent" is used only once in these regulations, to allow access to adoption support to parents who may be residing outside the local authority area, and is used due to it being one of the persons indicated in section 1(3). As the section in the 2007 Act is specific we are required to use this term here.
Relative care
The term relative carer will be amended to reflect the Getting it Right for Every Child in Kinship and Foster Care Strategy.
Question 2: Is there a situation in which the further definition of an agency adopted child would apply, do you think that this further definition should be included in the Adoption Support Services and Allowances (Scotland) Regulations 2009?
Most respondents indicated that they could not identify a situation in which the further definition of an 'agency adopted child' would apply or be needed. They further state that the definition of an agency adopted child as contained in the regulations is clear. However, a few respondents did hold an opposite view.
One respondent explained that there may be a situation in which the further definition of an agency adopted child would apply. For instance: where local authorities oppose an adoption placement on the grounds of e.g. ethnic origin, cultural or religious background and Courts have granted the adoption order as the child has developed an attachment to the family and may have been placed there for a significant period of time.
Scottish Government Response
Given the support of the majority of the respondents, we do not propose to include this further definition in the definition of "adoptive child". We cannot identify under what circumstance s it would be relevant in the regulations.