The Adoption Agencies (Scotland) Regulations 2009: Scottish Government Response to Consultation

Regulation 10 - Notification of adoption agency decisions (now Regulation 14)

Question 14: Does Regulation 10 cover the notification requirements in full? If not, what is required?

Question 15: Is an "unmarried father" a "parent" in terms of Regulation 10(1)(a) and (2)(a)? If not, is the duty at section 105 of the Act sufficient to protect the unmarried father's interest?

Several respondents commented on the need for an agency to notify any other relative who has expressed a view on the placement of the child for adoption. Four respondents thought that there should be a requirement to notify the child, subject to age and maturity.

Four respondents were of the view that an "unmarried father" was a "parent" and four were not but they felt that the duty in section 105 was sufficient to protect the unmarried father's interest. Two respondents were of the view that notification should be at the agency's discretion.

Two respondents found paragraph (4) confusing.

Scottish Government response/action

The need to notify any other relative stems from section 14(5) of the Act which requires an agency, when placing a child for adoption, to have regard to the views of parents, guardians and other relatives of the child. Notifying the child of the agency's decision would be in keeping with the general approach of treating the child as an individual (where they have the capacity to understand). The regulation has therefore been adjusted accordingly.

The "unmarried father" will be included at paragraph (1)(b) and (2)(b) but only where he has parental rights and responsibilities as defined in the Children (Scotland) Act 1995 ( PRR) (in line with paragraph (3)) so this will include a father who has entered into a section 4 (of the 1995 Act) agreement, obtained a section 11 order or is named on the birth certificate. A father with no PRR will only be notified if the agency considers it to be in the child's interests (paragraph (2)(c) of new regulation 14).

Paragraph (4) is a replication of Regulation 12(4) of the 1996 Regulations except that the reference to an application under section 18 of the 1978 Act has been replaced by a reference to an application for a permanence order under section 80 of the 2007 Act. However, Regulation 12(4) prescribed the steps an approved adoption society should take where a decision was made that adoption was not in the child's interests, an application for an order under section 18 of the 1978 Act should be made or they had decided that parental agreement to placing the child for adoption was not forthcoming. Although Regulation 12(4) only applied to approved adoption societies (and subsequently registered adoption services), we feel that it would be useful to have a provision applicable to a local authority specifying what must be done if there is a decision that adoption is not the way forward. Paragraph (4) of draft Regulation 10 is now Regulation 15.