Introduction
The Adoption and Children (Scotland) Act 2007 (the 2007 Act) received Royal Assent on 15 January 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the new legislation is commenced, the existing legislation - the Adoption (Scotland) Act 1978 (the 1978 Act) - will be repealed, except to the extent necessary to maintain the legality of those adoptions that have already been made under it.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.
This report analyses the responses received by the Scottish Government to the Adoptions with a Foreign Element (Scotland) Regulations consultation. This was the fifth of a suite of consultations on regulations associated with the Adoption and Children (Scotland) Act 2007. The consultation period ran from 9 October 2008 to 19 December 2008 and produced 9 responses; of which 6 were from local authorities and 3 were from organisations.
The Adoptions with a Foreign Element (Scotland) Regulations
Question 1 - Should the current exemption of parents, guardians and relatives from the restrictions on the movement of children into or out of Great Britain for the purposes of adoption be removed?
While the respondents agreed that the exemption should be removed, the responses indicated that these groups should be subject to some form of assessment. However, the suggested levels of assessment and what should be covered was fairly close to the full 'home study' which is required for Hague Convention adoptions and non-Hague Convention adoptions by 'strangers'.
Scottish Government action
The Hague Convention sets out the minimum standards or basis rules to be observed within the intercountry adoption process. Since the Convention makes no distinction between relative and 'stranger' adoptions it seems reasonable that non-Hague adoptions by parents, guardians and relatives should be subject to the same level of assessment as adoptions under the Convention.
In the circumstances, the Scottish Government does not propose to make regulations exempting parents, relatives or guardians from the restrictions imposed on the movement of children into or out of the country for the purpose of adoption.
Question 2 - Should any other information be included in regulation 41?
One respondent felt that the information contained in this regulation was comprehensive but commented that there didn't appear to be a requirement for Disclosure (Scotland) checks in (draft) regulation 7(1)(h) of the Adoption Agencies (Scotland) Regulations. Another respondent thought that there was no clear tie-in between this regulation (or regulation 42) and the report mentioned in regulation 7(1)(h) of the Adoption Agencies (Scotland) Regulations. The same respondent thought that paragraph (1) (of regulation 41) should include a requirement on an agency to include information about the child's views and wishes on the proposed adoption.
Scottish Government action
With regard to the Disclosure (Scotland) checks, this would be covered by the information collected under (draft) regulation 7(1)(c) of the Adoption Agencies (Scotland) Regulations. No action required.
Regulation 7 of the Adoption Agencies (Scotland) Regulations makes it quite clear that a report should be prepared and regulation 41 specifies what the report should include. No action required.
The need to include information about the child's views and wishes has now been reflected in the regulations.
Question 3 - Is regulation 54 required?
All respondents felt that this regulation was not required.
Scottish Government action
Delete regulation.
Question 4 - Is regulation 55 required?
All respondents agreed that this regulation was required.
Scottish Government action
No action required.
Question 5 - Is regulation 56(1) required, and if so, under what circumstances should sections 21-23 be disapplied ( e.g. should the disapplication apply only to cases where the child was not placed by an adoption agency)?
Question 6 - Is regulation 56(2) required?
There were six responses to these two questions and there was no real consensus. One of the responses felt that regulation 56 was correct for cases in Chapter 1 of Part 3, but not correct for cases under Chapter 2 when Scotland is the country of origin as, in that situation, anyone applying for an order here would be applying for one under section 59 and not a Convention adoption order. The respondent therefore offered an alternative form of words.
Scottish Government action
Part 3, Chapter 1, applies to adoptions involving prospective adopters who are habitually resident in the British Islands and a child who is habitually resident outwith the British Islands. The adoption can be undertaken in either (a) the country the child comes from or (b) this country. If (a), sections 21-23 wouldn't apply anyway. If (b), regulation 56(1) disapplies sections 21-23 because of the procedure set out in draft regulation 30 which enables a local authority to withdraw the child from the prospective adopter.
Part 3, Chapter 2, applies to adoptions involving a child who is habitually resident in the British Islands and prospective adopters who are habitually resident outwith the British Islands. The adoption can be undertaken either (a) this country or (b) the country the prospective adopters come from. If (a) the adoption would be done as a Convention adoption order. Although draft regulation 53 effectively means that a reference to "adoption order" means a reference to "a Convention adoption order", draft regulation 56(2) is intended to remove any doubt as to what happens to cases which fall within Chapter 2 of Part 3. If (b), a section 59 order would be required. Draft regulation 9(a)(iv) substitutes "order under section 59" for "adoption order" in section 18(2). Section 21 therefore applies as though the "notice" in section 21(1) is a notice of intention to apply for an order under section 59.
The alternative wording suggested is insufficient to enable "adoption order" in section 21(4) to be read as "order under section 59".
The response has, therefore, highlighted an omission in the regulations as there would be nothing to prevent the child from being removed in a section 59 case. This omission has been corrected by including section 21(4) in draft regulation 9(a) as a provision which should apply to orders under section 59.
Question 7 - Is regulation 57 required?
There were 2 responses to this question and both respondents agreed that the regulation was required.
Scottish Government action
No action required.
Question 8 - Is regulation 58 required?
There were 4 responses to this question. Two respondents agreed with the regulation and 1 felt that it was not required. The other respondent was unclear why the regulation was required because the existing provision in the 1978 Act (section 12) was not modified by the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003.
Scottish Government action
No action required. The effect of the modification in the 2003 Regulations was that an adoption order under the Convention could not be made if the person had reached the age of 19. The removal of "or over" as proposed by this regulation has the same effect.
Question 9 - Are regulations 59 and 60 required?
Four responses were received. Two respondents agreed that the regulations were required and 2 felt that the regulations were confused and may not achieve their intention. The latter 2 responses (one of which suggested alternative wording) pointed out that under the Convention, eligibility is about residence in the home country not domicile and referred to draft regulation 12.
Scottish Government action
No action required. Draft regulation 12 applies to the eligibility of adopters habitually resident in the UK who wish to adopt a child who is habitually resident outwith the UK.
Draft regulations 59 and 60 relate to a Convention adoption order. The residence requirements have to be 'removed' from the Act because they are covered in draft regulations 34 and 51. The modifications proposed by one of the respondents would not work because their effect would be that both the child and the prospective adopters would be habitually resident in the British Islands for at least one year. This would mean that the adoption could not be done under the Convention as the Convention requires the child to be habitually resident in one contracting State and the adopters to be habitually resident in another contracting State.
Question 10 - Have the consultees any comments on regulation 61?
Only one response was received and the respondent felt unable to answer the question until the final version of the Adoption Agencies (Scotland) Regulations was available.
Scottish Government action
No action required.
Question 11 - Should any other modifications be included in regulation 61?
One response was received to the effect that it was impossible to say whether this regulation was sufficient until a final version of the Adoption Agencies (Scotland) Regulations was available. Respondent wanted modifications under this regulation to duplicate as much as possible the modifications made by the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003 so that the new intercountry adoption system under the Convention remains as similar as it can be to the existing one.
Scottish Government action
No action required. Intention is to retain existing system but duplication of the modifications in the 2003 Regulations is not always possible/necessary as the wording and intent of the 2007 Act may be different to the 1978 Act.
Question 12 - Should a failure to comply with any other provisions of the regulations constitute a criminal offence?
Four responses were received to this question. Although one of the respondents was uncertain as to whether all necessary offences have been covered, the responses appeared to be content with this regulation. One of the responses suggested that consideration be given to imposing offences in relation to non-Convention adoptions.
Scottish Government action
No action required. Offences in relation to non-Convention adoptions will be covered by section 61 which states that failure to comply with any requirements or conditions imposed by regulations will constitute an offence.
Comments on other regulations
Regulation 4
One respondent suggested that there should be a requirement for the prospective adopters or the local authority to notify the Government of the process of the match and the child's arrival in this country.
Scottish Government action
The only mechanisms currently in place relate to matching details. These details can be sent by the overseas authority either to the Department for Children, Schools and Families, the Scottish Government or to the prospective adopters. The respondents suggestion is reasonable and regulations 5 and 24 have been adjusted to place a requirement on the local authority/adoption agency to notify the Scottish Ministers in writing of the child's arrival into the UK/Scotland.
Regulation 5
The same respondent suggested that it might be helpful to clarify whether or not the private fostering legislation will continue to apply.
Scottish Government action
Private fostering legislation will continue to apply but it is more appropriate to cover this in guidance.
Regulation 15
One respondent expressed a number of concerns in relation to this regulation and the offences in Schedule 1. These concerns appear to cover 4 specific issues i.e.(i) section 13(5)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995 should be excepted from paragraph 2 or provision should specify that offences are restricted to those committed against persons under 17 years of age (ii) references to repealed provisions (iii) an error in Schedule 1, paragraph 3(a) and (iv) separate provision for male rape should be added to the Schedule.
Scottish Government action
Schedule 1 has been adjusted to cover points (i) (so far as practicable - see following paragraph) and (iii). With regard to (ii), the regulations can only refer to the Criminal Procedure (Scotland) Act 1995 Schedule 1 offences and, in turn, to those provisions of the Consolidation Act which are in force at the time the regulations are made. It is correct that some provisions of section 13 in particular have been repealed following legal challenge but, as the provisions cited are now repealed, they are not caught in Schedule 1 to the regulations so there is no question of non- ECHR compliance in this regard.
As indicated above, Schedule 1 has been adjusted to cover point (i) so far as practicable. This is because the issues raised by the respondent in relation to (i) are linked to point (iv) which cannot immediately be resolved. Male rape is not a crime recognised in Scots law. Although this is likely to be addressed in the Sexual Offences Bill which aims to create a new statutory offence of rape against a male, the regulations cannot pre-empt that.
Regulation 17
One respondent suggested that in paragraph (d) "may obtain legal advice" should be changed to "must obtain legal advice".
Scottish Government action
No action required. Legal advice is only required if needed to assist the adoption panel in coming to a decision.
Regulation 20
One respondent suggested that the timescale in paragraph (2) should be extended from 7 days to 21 days as there is a significant amount of information which has to be passed to the Central Authority and this can take around 21 days to prepare.
Scottish Government action
No action required. The 7 day timescale is the same as in the Intercountry Adoption (Hague Convention (Scotland) Regulations 2003. The report being requested should already exist as it is the one which is prepared for and submitted to the adoption panel under regulation 16(6).
Regulation 53
One respondent suggested that the regulation be re-worded to read "Subject to the modifications provided for in this Chapter, the provisions of the Act apply to adoptions within the scope of the Convention unless the context otherwise requires".
Scottish Government action
See Scottish Government action at Part 3 Chapter 3 below.
Other comments
Part 3 Chapter 3
One respondent suggested that a modification to section 31 of the 2007 Act should be included here which would have the same effect in relation to parental consent etc as the modification made to section 16 of the 1978 Act by regulation 31 of and Schedule 3 to the Intercountry Adoption (Hague Convention (Scotland) Regulations 2003 had.
The modification of section 31 was also raised by the Sheriff Court Rules Council Adoption Working Group ( SCRCAWG) as part of their revision of the existing Court Rules.
Scottish Government action
Regulation 53 has been adjusted in order to meet the SCRCAWG concerns. As a result of replacing "adoptions within the scope of the Convention" in regulation 53, this term has been replaced with "Convention adoption order" in regulations 57 and 61 (which is a new regulation). In regulation 62 (which was regulation 61 in the consultation version of the regulations) the term "adoptions to be effected by a Convention adoption order or a Convention adoption" has been used as the various procedures set out in the Adoption Agencies (Scotland) Regulations 2009 are applicable regardless of whether the prospective adopters adopt the child in Scotland or in the child's own State.
Designated List
One respondent asked how the existing Orders ( i.e. the Adoption (Designation of Overseas Adoptions) Order 1973 and the Adoption (Designation of Overseas Adoptions) (Variation) (Scotland) Order 1995) will be dealt with as a result of the repeal of the Adoption (Scotland) Act 1978.
Scottish Government action
The Orders in question will be 'saved' by the Transitional/Savings provisions Order.