The Adoption information (Scotland) Regulations
Question 1 - Is the approach in these regulations sufficiently inclusive and comprehensive for the purpose of the collection and creation of a case record?
Opinion was split in the responses to this question. Seven respondents considered the approach to be sufficient and comprehensive and six indicated that further recordings needed to be made or that guidance would be required to support the regulation.
Further clarity or guidance on when a record becomes an adoption record, whether it is at the point the adoption order is made or when the decision that the adoption order is in the best interest of the child is made. Similarly, does all the information collected by the agency prior to any decision or order being made convert into an adoption record or does the record only contain that information collected from the point it is opened. The term "adopted child" implies the record is opened after the order is made.
One respondent felt that "any information" in regulation 2(2)(a) was too wide and that this should be "any case records set up by the agency" instead. Another respondent considered that regulation 2(2) provided too much opportunity to minimise the record and that instead of "or" the regulation should require the all the information be retained.
One respondent also considered whether natural parents should be given the opportunity to add information to the record also.
Scottish Government response
We will amend the regulations to clarify at what point an adoption record should be made. The regulations will now stipulate that an adoption agency is required to keep a case record in respect of a child about whom an adoption panel has made a recommendation. The case record must include information obtained by the agency, reports, recommendations and decisions made by the agency and adoption panel under the adoption agencies regulations. Therefore, while the record will be made in respect of a child who has had a recommendation made about them, it will include all reports submitted to the panel, and all such information collected by the agency with respect to the schedules in the Adoption Agencies (Scotland) Regulations.
The purpose of the adoption case record is that it is the collection of all the information which is pertinent to the adoption, rather than as a repository for information which may be interesting to an adopted person in the future. It is for the adoption agency to consider whether they wish to include any information other than that required by legislation, including such information as may be requested by the natural parents of the child.
Regulation 2(2) of the consultation regulations has now been amended to read "and" instead of "or" between 2(2)(a) and (b) so that all information collected under the Adoption Agencies (Scotland) Regulations must be kept.
Question 2 - Are there any processes in practice that are not covered by this regulation and should be included?
The majority of respondents indicated that they could not identify any other processes which have not been included in regulation 2.
Of those respondents that indicated that there were other processes that should be covered, it was suggested that abbreviations should be avoided in the case record, any work undertaken by the child should be included.
Clarification was sought on whether separate case records are being opened for the adoptive parent and the child or whether one file is open containing information on each party to the adoption. Also, how long the case records should remain open for and who the principal adoption agency is, or whether both the placing and receiving authority should retain files.
Scottish Government response
The clarity requested will be addressed in guidance associated with the implementation of the 2007 Act. The guidance will also include good practice for adoption agencies, and this should include reference to abbreviations.
Question 3 - Is the term "adopted child" confusing? If so, what term should be used?
Seven respondents found the term to be confusing, eight found the term to be appropriate.
It appears from the responses that indicated that the terms was confusing the reason was that "adopted child" is considered to mean a child, or person, about whom an adoption order has been made. These respondents wanted a term such as "a child who is to be adopted" or similar. Respondents indicated that a change to this category of person would ensure that a case record is opened at an appropriate time and ensure any "failed adoptions were captured"
Scottish Government response
The term "adopted child" has been defined in the regulations as "a child in relation to whom an adoption panel has made a recommendation under regulation 6(2)(a) that adoption is in the best interests of the child". This should clear up any confusion about when a case record should be opened.
Question 4 - Is regulation 2(4) necessary?
Ten respondents did not think that regulation 2(4) is necessary, 4 felt it was and 2 had no comment.
The respondents that did consider it necessary indicated that it may be useful in exceptional or unusual circumstances and that guidance would be useful to aid in the decision making.
The majority of respondents felt that the all information should be kept bearing in mind the duty of care towards the person at the time of disclosure of the information. Information should not be discarded, especially not where the decision is based on whether it would be "practicable" to retain it and decisions on what would be appropriate should be made at the time of disclosure on the basis of the maturity and best interest of the child, and not at the time of retention. It was the experience of respondents that adopted people often come across information that a professional may not have considered particularly relevant but which has emotional impact on the recipient.
Scottish Government response
Regulation 2(4) of the consultation regulations has not been amended. While the majority of the respondents considered it was not necessary and that all information should be kept on file, consideration was made to whether the requirement to include all information, including that which might be prejudicial to the child's welfare, should be kept. It was considered that leaving the regulation in and providing guidance on its use would be more appropriate than removing it and not giving agencies the opportunity to consider the effect of certain information on the child.
Question 5 - Is the timescale for preservation of records sufficient? What would be a more appropriate timescale?
Four respondents indicated that the timescales indicated in regulation 3 were sufficient, seven disagreed with the timescales and three respondents raised issues in regard to the retention of records but did not come to a conclusion on the timescales involved.
Each of the respondents who disagreed with the timescales indicated suggested that records should be kept for 100 years. This suggestion was made in light of the increasing life expectancy.
Issues were raised concerning the retention of case records relating to those who had been assessed as unsuitable to adopt or where an adoption order may not have been made. It was considered that these files should also be retained as a source of information in the future. Keeping these files for 10 years was suggested.
Also, consideration was given to ensuring that records and indexes continue to be accessible, especially where they were held electronically as this may become obsolete. Reviewing the records and system every 10 years was proposed for inclusion into the regulations.
Scottish Government response
In line with the majority of the respondents, the timescales for retaining information has been amended to 100 years. Similarly, case records for unsuccessful prospective adopters will now be kept for 10 years as a source of information.
Regulations will now state that case records must be "kept in an accessible form in secure conditions and in particular that all appropriate measures are taken to prevent theft, unauthorised disclosure, damage, loss or destruction". This will address the issues raised about ensuring that records are accessible in light of potentially obsolete storage methods.