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

Regulation 18 - Application for a permanence order; child subject to supervision requirement (now Regulation 23)

Question 22: Do Regulations 17 and 18 cover the requirements in full? If not, what is required?

This question attracted 7 responses. Three respondents felt that the requirements were covered in full and 3 did not. The other respondent commented that they were "uncertain about these regulations and the effect of the whole scheme of the regulations in these matters".

Scottish Government response/action

Where it has been decided that adoption is in the best interests of the child there are 2 distinct routes - an application for a freeing order (now a permanence order with authority to adopt) may be made where the child's parents do not consent to the child being placed for adoption or an application for an adoption order may be made by the prospective adopters. The 1996 Regulations provide that where there is no parental agreement to freeing or making arrangements for adoption, the local authority is bound, depending on whether or not there is a supervision requirement, by either Regulation 17(2) or 18(3) and (5), to proceed down the freeing order route. However, these Regulations do not apply where an application for an adoption order has been made (Regulation 17(3) or (18)(6)). This is because the case has found its way into the court system and, as a result, it will be for the court to determine what is in the child's best interests and the court will address the consent issue in respect of the parents. This is the second route and would seem to be the "Direct Adoption Petition" referred to in one of the responses.

One response suggested that instead of only providing one route where there is no parental agreement to the decision to make arrangements for adoption, the Regulations should allow authorities to determine whether the case should proceed straight to adoption or whether an application for a permanence order should be made as the 1996 Regulations leave authorities with no choice in the matter: they must always make a freeing application (and now the permanence order application) if there is no consent to the placement. The approach taken in the new Regulations is no different from the approach in the 1996 Regulations. There are still 2 routes: the permanence order with authority to adopt (previously freeing) or the straight to adoption (referred to by some consultees as the "Direct Adoption Petition") route. Like the 1996 Regulations, we do not make specific provision for the second route as the application for an adoption order is not within the control of the local authority: it is the prospective adopter.

Some consultation responses had concerns about the confines of the timescales and the requirement to make a freeing order application in every case where the parents do not agree or have not expressed agreement to the adoption arrangements. The expectation appears to be that there should be greater flexibility in allowing local authorities (acting in their capacity as adoption agencies) to avoid freeing (or now permanence order) applications in some cases.

Under the 1996 Regulations a local authority has 28 days to decide whether to lodge an application for a freeing order where parental consent to placing the child for adoption is not forthcoming. The alternative is for the prospective adopters to lodge an application for an adoption order (the "Direct Adoption Petition" route referred to above). Anecdotal evidence is that most prospective adopters prefer to be in control of the adoption process. The difficulty is that prospective adopters would be unlikely to have sufficient time to raise the necessary petition within the 28 day timescale.

While extending the 28 day timescale could give prospective adopters more time to lodge a petition this has to be balanced against the fact that the child's case needs to be progressed and a decision made as to what is in the child's best interests. The Regulations have retained the requirement for the local authority to raise a court action to deal with the question of parental consent (where this is not forthcoming) so that a decision may be made as to the child's future within a reasonable time. The question arises as to how long an extension to the timescale would be appropriate. As indicated above, the adoption application is not within the control of the local authority and we cannot use the Regulations to set time limits for prospective adopters to lodge an adoption application. We also need to ensure that the child's case is progressed appropriately. The more practicable approach is for local authorities to bring prospective adopters 'on board' as early in the process as possible so that they are aware of the fact that parental consent to the placement has not been given and the duty on the local authority to make the application for a permanence order granting authority for the child to be adopted. We therefore intend to deal with this issue in guidance.

Question 23: Does Schedule 8 cover all the requirements? If not, what should be added?

The majority of respondents agreed that this Schedule covered all the requirements.

Scottish Government response/action

No action required.

Question 24: Is 28 days a realistic timescale in Regulation 18? If not, what do you regard as being a more effective timescale?

The majority of respondents agreed with the 28 day timescale.

Scottish Government response/action

No action required.