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

Regulation 13 - Provision of information to parents; decision of adoption agency that an application under section 80 of the Act should be made (now Regulation 17)

Question 18: Could the provisions in Regulations 12 and 13 be strengthened in any way?

Question 19: Do Schedules 2-7 cover all the requirements? If not, what should be added?

Question 20: Is our understanding of "parent" correct in Regulations 12 and 13?

Several respondents suggested that Regulations 12 and 13 should be combined because where a decision to pursue a permanence order with authority to adopt has been taken, there will always have been a recommendation that adoption is in the best interests of the child.

Two respondents expressed concern at the onus placed on adoption agencies to "ensure" the signature and return of the relevant certificates. It was felt that these Regulations require an agency to coerce or persuade parents to sign and return whereas the obligation should only be to ensure the issue of the certificates.

Two responses commented on the requirement to list the information set out in Part II of Schedule I (information about the child's family). While this reflects the 1996 Regulations, it was felt that the information should have been obtained at the stage of reporting to the panel.

In response to the question as to whether Schedules 2-7 covered all the requirements, the majority of respondents felt that they did. Three respondents thought that parents would have difficulty in understanding Schedules 2 and 5.

Respondents who disagreed with our understanding of "parent" provided the following comments:

"It is not appropriate that all parents be issued with the memorandum and certificates. The Court will not be looking to dispense with the agreement of parents who do not have parental rights and responsibilities. It is unfair to somehow give natural parents without parental rights and responsibilities some expectation that they will be asked to give formal consent to the application. Such individuals will be free to seek to enter the Court process but their agreement will not be dispensed with. Schedule 4 and Schedule 7 require the parent upon whom this form is served will be asked to sign a form that states "I understand that when the Court considers the Permanence Order/Adoption Order application it will seek my agreement". This of course is not the case, if the parent does not have parental rights and responsibilities. It is one thing to decide that in certain cases it is appropriate in the interests of the child that a parent without parental and responsibilities be issued with information regarding decisions but it is not appropriate to ask such a parent to give any consent. Would suggest, therefore, that the definition for the purposes of draft Regulations 12 and 13 should be only those with parental rights and responsibilities. There could then be a statement, much as is contained in draft Regulation 13(5) at the moment, that where the Adoption Agency considers it to be in the best interests of the child it should provide the parent without parental rights and responsibilities with the memorandum, though we not agree the certificate should be issued as, again, it is misleading".

"We have reservations about the interpretation taken within the consultation document that section 20 requires parents without parental responsibilities or rights to be given the opportunity to consent or not to the placement for adoption. Query the approach taken in Regulations 12 and 13 as section 20 simply provides that where a parent has consented to the placement the parent must not remove the child and commits an offence where they do so; it does not in itself require consent to the placement to be sought. Section 31 sets out the conditions one of which must be met before an adoption order may be made. In section 31, the giving of consent or dispensing with consent to the making of an adoption order relates only to parents with parental responsibilities or rights (or who had them pre-permanence order). It is inappropriate to build in the formal seeking of consent from persons whose consent (or not) is not part of the formal process. If the approach in regulation 12 has been taken in order to ensure wide application of the offence in section 20, it should be noted that a parent without parental responsibilities or rights will not have a right to move the child in any event. Further, if the child is required to reside there by virtue of a decision of a children's hearing, a parent who assists or induces the child to abscond may be committing an offence under the Children (Scotland) Act 1995 and the police may have powers to find and return the child. We would suggest that it is inappropriate to build in the formal seeking of consent in order to extend the offence provisions to parents who do not have parental responsibilities or rights. Although there is discretion in Regulation 13 whether to seek the consent of parents who do not have parental responsibilities or rights, it is inappropriate to seek formal consent where that consent (or not) is not part of the formal process.

Accordingly, the seeking of consent in both Regulation 12 and 13 should involve only parents with parental responsibilities or rights. The subsequent process in Regulation 15 should similarly relate only to the seeking of consent from parents with parental responsibilities or rights.

There would continue to be a need for recognition of the rights of, or opportunities for, parents without parental responsibilities or rights to be involved in the decision-making process (as Regulations 12(4) and (5) and Regulation 13(5)(c) do to some extent). It is suggested that the matters referred to in those Regulations might more appropriately be obtained at an earlier stage".

Scottish Government response/action

When a child's case has been referred to the panel there are three possible outcomes. Either adoption is not appropriate for the child (in which case new Regulation 15 applies) or adoption is appropriate and either a permanence order with authority to adopt is applied for or the case could proceed to adoption without the permanence order i.e. a 'normal' adoption. Regulation 12 of the consultation draft covers what could be regarded as the 'normal' adoption route where an adoption agency proceeds with the placement, whereas Regulation 13 of that draft applies where an agency intends to pursue the permanence order route possibly because the parents are refusing to consent to the adoption. In effect, these Regulations refer back to the decisions made under Regulation 9(1) which, in turn, refers back to Regulation 6. It would be inappropriate for these provisions to be combined as there are two distinct processes involved and these processes require different information (certificates and memorandum) to be provided.

The duty to ensure the return of the consent certificates should remain. The requirement is to "take such steps as are reasonably practicable". This is important as a failure to return the certificate carries certain consequences i.e. application for a permanence order. This requirement mirrors the duty in the 1996 Regulations

With regard to the comments in relation to our understanding of "parent", the approach we have taken is also in line with what the 1996 Regulations require. While it is correct to say that non PRR parents do not require to consent to the making of an adoption order, we do not agree that providing the information in the Regulations (and relevant Schedules) is misleading this group of parents in any way. The memoranda and certificates draw out the different status of these parents and the parental agreement forms make it clear that only those with PRR or PRR removed by a permanence order with no authority to adopt will be asked to consent when a court considers an adoption application.

Section 20 of the Act does provide that where a parent has consented to placement that parent must not remove the child without the consent of the court or adoption agency otherwise an offence would be committed. However, this provision is not enabled until regulations prescribe the form of consent which must be given. In short, it has no effect until the Regulations prescribe the consent form for the purposes of section 20. This is entirely separate to the consent requirements under section 31 which concerns the making of the adoption order. Section 20 is concerned with placement for adoption with prospective adopters whereas children who are placed in accordance with a decision of a children's hearing are done so in accordance with the terms of a supervision requirement. The consent issue in the Regulations is not a question of whether or not to involve non PRR parents in the decision making process but whether it should continue to be a requirement to notify them of the decision once it has been taken. The lack of consent will then trigger a duty on the local authority to apply for a permanence order with authority to adopt.