Publication - Consultation analysis

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

Published: 11 May 2009
Topic: Communities and third sector
ISBN: 9780755990047

Consultation report on the Adoption Agencies (Scotland) Regulations

Supporting documents

Final version of the Adoption Agencies (Scotland) Regulations 2009

SCOTTISH STATUTORY INSTRUMENTS

2009 No. 154

CHILDREN AND YOUNG PERSONS

The Adoption Agencies (Scotland) Regulations 2009

Made - - - - 22nd April 2009

Laid before the Scottish Parliament - - - - 23rd April 2009

Coming into force - - - - 28th September 2009

ARRANGEMENT OF REGULATIONS

PART I

GENERAL
1. Citation and commencement
2. Interpretation

PART II

ADOPTION PANELS
3. Appointment and composition of adoption panels
4. Meetings of the adoption panel and joint adoption panel
5. Appointment of medical and legal advisers
6. Functions of the adoption panel

PART III

ASSESSMENT OF PROSPECTIVE ADOPTERS
7. Duties of adoption agencies: assessment of prospective adopters
8. Approval of prospective adopters
9. Review of adoption agency decisions
10. Review without request
11. Adoption agency decision on review

PART IV

DUTIES OF ADOPTION AGENCIES WHEN CONSIDERING ADOPTION FOR A CHILD
12. Duties of adoption agencies when considering adoption for a child
13. Adoption agency decisions
14. Notification of adoption agency decisions
15. Decision that adoption should not proceed or to make an application under section 80 of the Act
16. Provision of information to parents: decision by adoption agency to make arrangements for adoption
17. Provision of information to parents: decision of adoption agency that an application under section 80 of the Act should be made
18. Duties of adoption agencies: placing the child for adoption

PART V

CONSENT CERTIFICATES
19. Consent to placement of the child for adoption for the purposes of section 20 of the Act
20. Consent certificate: no consent or failure to return consent certificate

PART VI

APPLICATION FOR PERMANENCE ORDER
21. Application for a permanence order: child not subject to supervision requirement
22. Child subject to supervision requirement: referral to the Principal Reporter
23. Application for a permanence order: child subject to supervision requirement

PART VII

PLACEMENT FOR ADOPTION
24. Placement for adoption: notification and provision of information
25. Duties of adoption agency following placement for adoption
26. Review of child's case where no placement made within 6 months of permanence order granting authority to adopt being made

PART VIII

CASE RECORDS
27. Information to be kept about adoptions
28. Form and manner in which information is kept

SCHEDULE 1
PART I - INFORMATION ABOUT PROSPECTIVE ADOPTERS
PART II - INFORMATION ABOUT THE CHILD
PART III - INFORMATION ABOUT THE CHILD'S FAMILY
SCHEDULE 2 - MEMORANDUM
SCHEDULE 3 - CERTIFICATE
SCHEDULE 4 - PARENT'S AGREEMENT
SCHEDULE 5 - MEMORANDUM
SCHEDULE 6 - CERTIFICATE
SCHEDULE 7 - PARENT'S AGREEMENT
SCHEDULE 8 - FORM OF REFERENCE BY ADOPTION AGENCY TO PRINCIPAL REPORTER FOR ADVICE BY CHILDREN'S HEARING TO THE COURT

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 8, 20(1), 37, 106 and 117(2) of the Adoption and Children (Scotland) Act 2007( ¹) and all other powers enabling them to do so.

PART I
GENERAL

Citation and commencement

1. These Regulations may be cited as the Adoption Agencies (Scotland) Regulations 2009 and come into force on 28th September 2009.

Interpretation

2. In these Regulations-

"the Act" means the Adoption and Children (Scotland) Act 2007;

"the 1995 Act" means the Children (Scotland) Act 1995( ²);

"adoption panel" means an adoption panel established under regulation 3;

"legal adviser" means a member of the adoption panel appointed under regulation 5(2);

"medical adviser" means a member of the adoption panel appointed under regulation 5(1);

"relative" means a grandparent, brother, sister, uncle or aunt of the child (in the cases of a brother, sister, uncle or aunt, whether of the full-blood or half-blood); and includes a spouse or civil partner of any such grandparent, brother, sister, uncle or aunt.

PART II
ADOPTION PANELS

Appointment and composition of adoption panels

3. -(1) Each-

(a) local authority; and

(b) registered adoption service which is carrying out or proposes to carry out functions specified in these Regulations,

must appoint a panel to be known as the "adoption panel" for the purpose of carrying out the functions conferred on it by regulation 6.

(2) The adoption panel must consist of at least 6 members.

(3) An adoption panel may be established jointly by any 2 or more adoption agencies which panel shall be known as a "joint adoption panel" and any reference to an adoption panel in these Regulations shall include a reference to a joint adoption panel.

(4) The persons appointed to an adoption panel shall include-

(a) a medical adviser; and

(b) a legal adviser.

(5) The adoption agency must-

(a) be satisfied that the number of members and qualifications and experience of individual members of an adoption panel will enable it effectively to discharge its functions; and

(b) review the membership of the panel from time to time.

(6) Where the adoption agency is of the opinion that any member of the adoption panel is unsuitable or unable to remain as a member it may terminate membership at any time by giving notice in writing with reasons.

Meetings of the adoption panel and joint adoption panel

4. -(1) No business shall be conducted by an adoption panel unless at least 3 of its members meet as the panel.

(2) The adoption panel may only make a recommendation referred to in regulation 6(2)(a) or (b) where-

(a) a legal adviser is present at the meeting of the panel at which the recommendation is made; or

(b) legal advice has been provided to the panel by such an adviser.

(3) The adoption panel must make a written record of its proceedings and the reasons for its recommendations.

(4) In paragraph (1) "members" does not include any legal adviser or medical adviser.

Appointment of medical and legal advisers

5. -(1) An adoption agency must appoint such number of persons with the qualifications specified in paragraph (3) as it considers necessary for the purpose of providing it with medical advice in connection with the exercise of its functions.

(2) An adoption agency must appoint such number of persons with the qualifications specified in paragraph (4) as it considers necessary for the purpose of providing it with legal advice in connection with the exercise of its functions.

(3) The qualifications referred to in paragraph (1) are that the person is a registered medical practitioner.

(4) The qualifications referred to in paragraph (2) are that the person is-

(a) a solicitor; or

(b) an advocate.

(5) In paragraph (4)-

"solicitor" means a person qualified to practice as a solicitor under section 4 of the Solicitors (Scotland) Act 1980( ³); and

"advocate" means a practising member of the Faculty of Advocates.

Functions of the adoption panel

6. -(1) The adoption panel must consider-

(a) the case of every child;

(b) every proposed placement; and

referred to it by the adoption agency.

(2) The adoption panel must make recommendations on the following matters:-

(a) whether adoption is in the best interests of the child;

(b) whether an application for a permanence order granting authority for the child to be adopted should be made under section 80 of the Act;

(d) whether a prospective adopter would be a suitable adoptive parent for a particular child; and

(e) any other matter referred to the adoption panel which is relevant to the adoption agency's functions under the Act.

(3) Where an adoption panel makes a recommendation under paragraph (2)(a) that adoption is in the best interests of the child it must provide a written report of the consideration given by it to the alternatives to adoption.

(4) Where an adoption panel makes a recommendation that there should be continued contact between the child and the child's parent or parents, it must provide a written report of the reasons why continued contact is in the best interests of the child.

(5) Before making a recommendation under paragraph (2)(c) the adoption panel must give the prospective adopter the opportunity to meet with the adoption panel to discuss the matter with them.

(6) Subject to paragraph (7) the adoption panel may make any of the recommendations in paragraph (2) at the same time or at different times.

(7) Before making a recommendation specified in paragraph (2)(d) the adoption panel must-

(a) at the meeting of the panel at which the recommendation is to be made, be satisfied that adoption is in the best interests of the child; or

(b) be satisfied that an adoption agency decision has been made under regulation 13 that adoption is in the best interests of the child; and

(i) at the meeting of the panel at which the recommendation specified in paragraph (2)(d) is to be made, make a recommendation that the prospective adopter is suitable to be an adoptive parent; or

(ii) be satisfied that an adoption agency decision has been made under regulation 8(1) or 9(5) that the prospective adopter is suitable to be an adoptive parent.

(8) In carrying out its functions the adoption panel must have regard to-

(a) the duties imposed on the adoption agency by section 14 of the Act;

(b) all the information and reports passed to it;

(d) where appropriate, any legal advice in relation to each case.

(9) In paragraph (4) "parent" means a parent who has any parental responsibilities or parental rights in relation to the child.

PART III
ASSESSMENT OF PROSPECTIVE ADOPTERS

Duties of adoption agencies: assessment of prospective adopters

7. -(1) Each adoption agency must prepare and publish a statement of the general criteria applied by it for the purpose of determining whether any person may be accepted for assessment as an adoptive parent.

(2) Each adoption agency must from time to time review the general criteria prepared by it under paragraph (1).

(3) In considering any application by a person to be assessed by the adoption agency as an adoptive parent the adoption agency must-

(a) apply the general criteria under paragraph (1); and

(b) undertake any further steps which it considers necessary to consider and make a determination on the application.

(4) Where the adoption agency determines that a person should not be accepted for assessment as an adoptive parent it must give notice in writing of its determination to that person.

(5) Where the adoption agency determines that a person should be accepted for assessment as an adoptive parent it must-

(a) so far as is reasonably practicable obtain the information in Part I of Schedule 1;

(b) assess the case and prepare a report on the assessment;

(c) refer the case to the adoption panel for a recommendation on whether the prospective adopter is suitable to be an adoptive parent;

(d) provide all relevant information obtained under sub-paragraph (a) and a copy of the report on the assessment to the adoption panel at the same time as making the referral;

(e) notify the prospective adopter that the case has been referred to the adoption panel; and

(f) provide the prospective adopter with a copy of the report provided to the adoption panel which report shall exclude any information provided by any person in confidence.

Approval of prospective adopters

8. -(1) Where an adoption agency receives a recommendation from the adoption panel under regulation 6(2)(c) or (d) it must make a decision on whether the prospective adopter is suitable to be an adoptive parent within 14 days of the date the recommendation was made.

(2) No member of the adoption panel which made the recommendation is to take part in the decision.

(3) Where an adoption agency makes a decision that a person is suitable to be an adoptive parent it must be satisfied that-

(a) it has taken into account the recommendations made by the adoption panel; and

(b) the prospective adopter is a suitable person with whom to place a child or children.

(4) Where the adoption agency makes a decision that is contrary to the recommendation of the adoption panel the agency must record in writing the reasons for that decision.

(5) Where the decision is that the prospective adopter is suitable to be an adoptive parent the adoption agency must notify in writing the prospective adopter of the decision within 14 days of making that decision.

(6) Where the decision is that the prospective adopter is not suitable to be an adoptive parent the adoption agency must-

(a) notify the prospective adopter in writing of the decision within 7 days of making the decision;

(b) send with the notification-

(i) its reasons for the decision; and

(ii) where the adoption panel's recommendation was that the prospective adopter was suitable to be an adoptive parent, a copy of that recommendation;

(c) inform the prospective adopter in writing that they may require the decision to be reviewed within 28 days of the date of notification (the "28 day period"); and

(d) invite the prospective adopter to submit to the adoption agency any representations regarding the decision within the 28 day period.

Review of adoption agency decisions

9. -(1) Where a prospective adopter has, within the 28 day period referred to in regulation 8(6)(c), required a review of the decision made under regulation 8(1) the adoption agency must refer the case to the adoption panel for a recommendation.

(2) A referral under paragraph (1) must be made to a differently constituted adoption panel.

(3) Where a referral is made under paragraph (1) the adoption agency must provide the adoption panel with-

(a) a copy of its decision and reasons made under regulation 8(4);

(b) the report provided to the adoption panel under regulation 7(5)(d);

(d) any other relevant information.

(4) The adoption panel must consider the case referred to it under paragraph (1) and make a fresh recommendation to the adoption agency as to whether the prospective adopter is suitable to be an adoptive parent.

(5) The adoption agency must-

(a) make a decision (the "reviewed decision") within 14 days of the date the fresh recommendation was made under paragraph (4); and

(b) notify the prospective adopter of its reviewed decision within 7 days of making the reviewed decision.

(6) Where the reviewed decision is that the prospective adopter is not suitable to be an adoptive parent the notification under paragraph (5)(b) must-

(a) state the reasons for the reviewed decision; and

(b) where the adoption panel's fresh recommendation was that the prospective adopter was suitable to be an adoptive parent, include a copy of the adoption panel's fresh recommendation.

Review without request

10. -(1) Where an adoption agency has made a decision to approve a person as an adoptive parent that agency must, where paragraph (2) or (3) applies, carry out a review of the approval of the prospective adopter by complying with the requirements in paragraph (4).

(2) This paragraph applies where no child has been placed for adoption within 2 years from the date the adoption agency made the decision to approve that person as an adoptive parent under regulation 8(1) or 9(5)(a).

(3) This paragraph applies where-

(a) the adoption agency has placed a child or children with the prospective adopter in accordance with regulation 18;

(b) no application for an adoption order has been made in respect of the child; and

(c) the adoption agency considers that a review of the prospective adopter's approval is necessary or appropriate to safeguard or promote the welfare of the child.

(4) The requirements are-

(a) to re-assess the prospective adopter's suitability to become an adoptive parent by making such enquiries and obtaining such information as the adoption agency considers necessary in order to review whether the prospective adopter continues to be suitable to be an adoptive parent; and

(b) to seek and take into account the views of the prospective adopter.

(5) If, following the review, the adoption agency considers that the prospective adopter may no longer be suitable to be an adoptive parent it must-

(a) prepare a report on the re-assessment ("the review report");

(b) notify the prospective adopter that the case is to be referred to the adoption panel;

(d) invite the prospective adopter to submit any representations to the adoption agency within 14 days of the report being sent.

(6) At the end of the period of 14 days referred to in paragraph (5)(d) (or earlier if any representations of the prospective adopters are received before that period has expired) the adoption agency must send the review report, together with any such representations, to the adoption panel.

(7) When a referral to the adoption panel is made under paragraph (6) the adoption agency must-

(a) notify the prospective adopter that the case has been referred to the adoption panel; and

(b) provide the prospective adopter with a copy of the report provided to the adoption panel which report shall exclude any information provided by any person in confidence.

(8) The adoption panel must consider the review report, the representations made by the prospective adopter (if any), and any other information passed to it by the adoption agency and make a recommendation as to whether the prospective adopter continues to be suitable to be an adoptive parent.

Adoption agency decision on review

11. -(1) Where an adoption agency receives a recommendation from the adoption panel under regulation 10(8), the adoption agency must make a decision on whether the prospective adopter continues to be suitable to be an adoptive parent within 14 days from the date of the recommendation.

(2) Regulations 8(2) to (6) and 9 shall apply to that recommendation or, as the case may be, decision as if-

(a) references to the recommendation of an adoption panel were references to a recommendation under regulation 10(8);

(b) in regulation 9(1) and (3) references to a decision were to a decision under paragraph (1); and

(c) the reference to the report provided to the adoption panel under regulation 7(5)(d) were a reference to the report provided to the panel under regulation 10(5)(a).

PART IV
DUTIES OF ADOPTION AGENCIES WHEN CONSIDERING ADOPTION FOR A CHILD

Duties of adoption agencies when considering adoption for a child

12. -(1) This regulation applies where an adoption agency is considering adoption for a child.

(2) The adoption agency must, so far as is reasonably practicable and in the child's best interests-

(a) consult and take into account the views of-

(i) the child, taking account of their age and maturity; and

(ii) the child's parents and guardians if their whereabouts are known;

(b) take account of the child's religious persuasion, racial origin and cultural and linguistic background where known;

(d) ensure that arrangements are made for the child to be examined by a registered medical practitioner; and

(e) obtain from the practitioner who has carried out the examination referred to in sub-paragraph (d) a written assessment of the child's health.

(3) Where the adoption agency considers that adoption may be in the best interests of the child it must refer the case to the adoption panel for a recommendation.

(4) Where a referral is made under paragraph (3) the adoption agency must provide the adoption panel with-

(a) the medical report obtained in accordance with paragraph (2)(e);

(b) the information obtained in accordance with paragraph (2)(c);

(d) any other information which the adoption agency considers relevant.

Adoption agency decisions

13. -(1) Where an adoption agency receives a recommendation from an adoption panel, following a referral, on a matter under regulation 6(2)(a), (b) or (e), the agency must make a decision on that matter within 14 days from the date of the recommendation.

(2) No member of the adoption panel which made the recommendation is to take part in the decision.

(3) On making its decision under paragraph (1) the adoption agency must take into account the recommendation of the adoption panel.

(4) Where an adoption agency makes a decision that is contrary to the recommendation of the adoption panel the adoption agency must record in writing the reasons for its decision.

(5) Paragraphs (6) and (7) apply where the child to whom the decision under paragraph (1) relates is subject to a supervision requirement.

(6) For the purpose of determining whether it is satisfied in accordance with section 73(4)(c)(i) or (v)( ⁴) of the 1995 Act (duration and review of supervision requirement) that the best interests of the child would be served by an application for a permanence order or their placing the child for adoption an adoption agency which is a local authority must take into account any recommendation of the adoption panel under regulation 6(2) before making the decision.

(7) For the purpose of determining under section 106 of the Act (child subject to supervision requirement: duty to refer to Principal Reporter) whether the best interests of the child would be served by placing the child for adoption a registered adoption service must take into account any recommendation of the adoption panel under regulation 6(2) before making the decision.

Notification of adoption agency decisions

14. -(1) Where an adoption agency makes a decision under regulation 13(1) as to whether adoption is in the best interests of the child it must within 7 days of making the decision notify-

(a) the child where, taking account of the child's age and maturity, the adoption agency considers that the child is capable of understanding the effect of the decision;

(b) the parent or parents of the child;

(c) where the adoption agency considers it to be in the child's interests any parent or parents of the child who do not have parental rights or parental responsibilities, if their whereabouts are known to the adoption agency;

(d) the guardian of the child if their whereabouts are known to the adoption agency; and

(e) any other relative of the child who has expressed a view on the placement of the child for adoption to the adoption agency.

(2) Where the adoption agency makes a decision under regulation 13(1) as to whether an application for a permanence order granting authority for the child to be adopted under section 80 of the Act should be made the adoption agency must notify-

(a) the child, taking account of their age and maturity;

(b) the parent or parents of the child;

(c) where the adoption agency considers it to be in the child's interests any parent or parents of the child who do not have parental rights or parental responsibilities if their whereabouts are known to the adoption agency; and

(d) the guardian of the child if their whereabouts are known to the adoption agency.

(3) In paragraphs (1)(b) and (2)(b) "parent" means-

(a) a parent who has any parental responsibilities or parental rights in relation to the child; or

(b) a parent who, by virtue of a permanence order granted under section 80 of the Act which does not include provision granting authority for the child to be adopted, has no such responsibilities or rights.

Decision that adoption should not proceed or to make an application under section 80 of the Act

15. -(1) Where the adoption agency makes a decision under regulation 13(1) that adoption is not in the best interests of the child and there is a better and practicable alternative to adoption the adoption agency shall take such steps, if any, in relation to the case as it considers appropriate and in the best interests of the child.

(2) Where a registered adoption service makes a decision under regulation 13(1) that an application for a permanence order granting authority for the child to be adopted should be made under section 80 of the Act, the registered adoption service must refer the case to the local authority for the area in which the child resides.

Provision of information to parents: decision by adoption agency to make arrangements for adoption

16. -(1) This regulation applies where the adoption agency-

(a) makes a decision under regulation 13(1) that adoption is in the best interests of the child; and

(b) proposes to make arrangements for the adoption of the child.

(2) The adoption agency must, within 7 days of making the decision, provide each parent or guardian of the child with-

(a) a memorandum in the form set out in Schedule 2;

(b) a certificate in the form set out in Schedule 3; and

(3) The adoption agency must take such steps as are reasonably practicable to ensure that-

(a) each parent or guardian signs and returns to the adoption agency a certificate in the form set out in Schedule 3 or a form to like effect which certifies that they have read and understood the memorandum; and

(b) each parent or guardian completes and signs the certificate in the form set out in Schedule 4 and returns it to the adoption agency within 28 days.

(4) Paragraph (5) applies where the adoption agency is aware of the identity of a parent who does not have parental responsibilities or parental rights in respect of the child.

(5) The adoption agency must, so far as it considers reasonably practicable to do so, make enquiries and-

(a) obtain in respect of the parent the information in Part III of Schedule 1; and

(b) ascertain, where possible, whether the parent intends to make an application for any parental responsibilities or parental rights in relation to the child or enter into a parental responsibilities agreement under section 4 of the 1995 Act.

Provision of information to parents: decision of adoption agency that an application under section 80 of the Act should be made

17. -(1) This regulation applies where an adoption agency makes a decision under regulation 13(1) that-

(a) adoption is in the best interests of the child; and

(b) an application for a permanence order with authority for the child to be adopted should be made under section 80 of the Act.

(2) The adoption agency must, within 7 days of making the decision, provide each parent or guardian of the child with-

(a) a memorandum in the form set out in Schedule 5;

(b) a certificate in the form set out in Schedule 6; and

(3) The adoption agency must take such steps as are reasonably practicable to ensure that-

(a) each parent or guardian signs and returns to the adoption agency a certificate in the form set out in Schedule 6 or a form to like effect which certifies that they have read and understood the memorandum; and

(b) each parent or guardian completes and signs the certificate in the form set out in Schedule 7 and returns it to the adoption agency within 28 days.

(4) Paragraph (5) applies where the adoption agency is aware of the identity of a parent who does not have parental responsibilities or parental rights in respect of the child.

(5) The adoption agency must, so far as it considers it reasonably practicable to do so make enquiries and-

(a) obtain in respect of the parent the information in Part III of Schedule 1; and

Duties of adoption agencies: placing the child for adoption

18. -(1) An adoption agency must not place or secure the placing of a child with any prospective adopter unless the adoption agency-

(a) is satisfied that the placement is in the best interests of the child;

(b) is satisfied that placement of the child with the prospective adopter is in the best interests of the child;

(d) has, so far as is reasonably practicable, obtained a report prepared within the previous 12 months by a registered medical practitioner as to the health of the child;

(e) has obtained a report prepared within the previous 12 months by a registered medical practitioner as to the health of each prospective adopter;

(f) has (or has had) the prospective adopter interviewed;

(g) is satisfied that the premises within which the prospective adopter intends that the child shall reside are suitable for the needs of the child;

(h) has made inquiries and has in particular inquired of every relevant local authority to satisfy itself that it would not be detrimental to the welfare of the child-

(i) for the child to reside with the prospective adopter in the premises proposed for the child's home; and

(ii) for the proposed adoption to proceed;

(i) has prepared a report with its observations on the matters referred to in sub-paragraphs (a) to (h) and has passed that report and all information obtained by it by virtue of this regulation to the adoption panel or to another adoption agency;

(2) Subject to paragraph (3) in addition to securing the report referred to in paragraph (1)(d), that adoption agency must ensure that arrangements are made for such medical investigations and tests as are considered necessary to be carried out in respect of the child and obtain from a registered medical practitioner a report based on those investigations and tests.

(3) Paragraph (2) does not apply where such investigations and tests have already been carried out in respect of the child and a report an their findings has been made available to the agency.

(4) Wherever practicable any report prepared in accordance with paragraph (2) shall be included in the report obtained by the adoption agency under paragraph (1)(d).

(5) In order to satisfy itself as to the matter referred to in paragraph (1)(g) the adoption agency must arrange for the premises to be visited on its behalf.

(6) In paragraph (1)(h) a "relevant local authority" is the local authority for the area in which-

(i) the child is resident;

(ii) the prospective adopter is resident;

(iii) the premises referred to in that paragraph are situated.

PART V
CONSENT CERTIFICATES

Consent to placement of the child for adoption for the purposes of section 20 of the Act

19. For the purpose of section 20(1)(b) of the Act consent to the placement of a child for adoption by each parent or guardian must be-

(a) made in the certificate in the form set out in Schedule 4 or Schedule 7;

(b) signed by the parent or guardian of the child; and

Consent certificate: no consent or failure to return consent certificate

20. -(1) This regulation applies where-

(a) an adoption agency does not receive the signed certificate referred to in regulation 16(3)(b) or 17(3)(b) within 28 days from the date the certificate was received by the parent or guardian;

(b) the adoption agency has not been able to carry out the duties referred to in paragraphs (2), (3) and (5) of regulation 16 or 17 because the parent or guardian of the child cannot be contacted from reasonable efforts being made to make contact by or on behalf of the adoption agency; or

(c) a parent or guardian has signed and returned a certificate under regulation 16(3)(b) or 17(3)(b) and subsequently notifies in writing to the adoption agency that their agreement is being withdrawn.

(2) Where the adoption agency is a registered adoption service it must-

(a) take such steps, in relation to the case as it considers appropriate and in the best interests of the child; and

(b) refer the case to the local authority for the area in which the child resides.

(3) Where the adoption agency is a local authority it must make a determination to proceed as though parental agreement is not forthcoming.

(4) Where the case is referred to a local authority under paragraph (2) that local authority must make a determination to proceed as though parental agreement is not forthcoming.

PART VI
APPLICATION FOR PERMANENCE ORDER

Application for a permanence order: child not subject to supervision requirement

21. -(1) This regulation applies where an adoption agency which is a local authority is considering making arrangements for adoption in respect of a child who is not subject to a supervision requirement.

(2) The adoption agency must make an application for a permanence order in accordance with paragraph (3) by the end of the period of 28 days from-

(a) the receipt of the certificate specified in regulation 16(3)(b) or 17(3)(b) certifying that the parent or guardian does not agree with the decision; or

(b) the date the adoption agency makes a determination to proceed under regulation 20 as though the parental agreement is not forthcoming.

(3) In making the application for a permanence order the local authority must, in that application, request that the order include-

(a) ancillary provisions vesting in the local authority the parental responsibilities and parental rights referred to in section 82(1)(a) of the Act; and

(b) provision granting authority for the child to be adopted.

(4) Paragraph (2) does not apply where an application for an adoption order has been made in relation to the child.

Child subject to supervision requirement: referral to the Principal Reporter

22. -(1) This regulation applies where-

(a) an adoption agency which is a local authority is under a duty to refer the case of the child to the Principal Reporter under section 73(4)(c)(i) or (v) of the 1995 Act; or

(b) an adoption agency which is a registered adoption service is under a duty to refer the case of a child to the Principal Reporter under section 106 of the Act.

(2) The referral to the Principal Reporter shall not be made unless the adoption agency-

(a) has received the certificate referred to in regulation 16(3)(b) or 17(3)(b) confirming the agreement of each parent or guardian of the child to the decision of the adoption agency; or

(b) regulation 20 applies.

(3) The referral to the Principal Reporter must be made in the form set out in Schedule 8 or in a form to like effect.

Application for a permanence order: child subject to supervision requirement

23. -(1) This regulation applies where an adoption agency which is a local authority, following a decision under regulation 13(1), is considering making arrangements for adoption in respect of a child who is subject to a supervision requirement.

(2) Where the adoption agency has made a determination to proceed as though parental consent is not forthcoming in accordance with regulation 20 the adoption agency must notify the Principal Reporter of its determination within 7 days from the date it made that determination.

(3) Where-

(a) paragraph (2) applies; and

(b) the adoption agency receives a report from a children's hearing under section 73(13) of the 1995 Act which provides advice in support of the decision of the adoption agency made under regulation 13(1) in relation to the child,

the adoption agency must, within a period of 28 days from the date it receives the report from the children's hearing, make an application for a permanence order in accordance with paragraph (7).

(4) Where the adoption agency receives a report from a children's hearing under section 73(13)( ⁵) of the 1995 Act which provides advice which does not support the decision of the adoption agency made under regulation 13(1) in relation to the child the adoption agency must, within 28 days from the date it receives the report from the children's hearing, review its decision.

(5) In reviewing its decision under paragraph (4) the adoption agency must-

(a) take into account the report from the children's hearing;

(b) take into account any further recommendations it may wish to seek; and

(6) Where the adoption agency makes a decision that adoption remains in the best interests of the child following a review under paragraphs (4) and (5) it must make an application for a permanence order in accordance with paragraph (7) within 28 days from the date of the children's hearing.

(7) In making an application for a permanence order the local authority must, in that application, request that the order include-

(a) ancillary provisions vesting in the local authority the parental responsibilities and the parental rights referred to in section 82(1)(a) of the Act; and

(b) provision granting authority for the child to be adopted.

(8) Paragraphs (3), (4), (5) and (6) do not apply where an application for an adoption order has been made in relation to the child.

PART VII
PLACEMENT FOR ADOPTION

Placement for adoption: notification and provision of information

24. -(1) This regulation applies where an adoption agency makes a decision under regulation 8(1) that-

(a) a prospective adopter is suitable to be an adoptive parent; and

(b) the prospective adopter would be a suitable adoptive parent for a particular child.

(2) The adoption agency must provide the prospective adopter with-

(a) written information about the child's background, parentage, health and mental and emotional development;

(b) written advice about-

(i) the need to inform the child of their adoption and origins;

(ii) the rights of adopted persons over 16 to obtain information from the Registrar General under section 55(4) of the Act;

(iii) the rights of adopted persons to whom information is disclosed under section 55(4) of the Act to request and receive counselling;

(iv) the availability of adoption support services on any problems relating to the adoption; and

(c) a copy of the report as to the health of the child obtained under regulation 18(1)(d) and any report obtained under regulation 18(2).

(3) The adoption agency must provide notification of the placement to-

(a) the local authority for the area in which the prospective adopter resides if different from the agency making the placement; and

(b) the Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978( ⁶) which provides services under that Act in the area in which the prospective adopter resides.

(4) In paragraph (3)-

(a) "notification" means notification in writing and shall include particulars of the placement;

(b) where the adoption agency's medical adviser considers the child to have a problem of medical significance or additional support needs within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004( ⁷) notification as required in paragraph (3) must be made before the placement.

(5) When the child has been placed for adoption the adoption agency must notify-

(a) the parent or parents of the child;

(b) where the agency considers this to be in the child's best interests, any parent or parents of the child who do not have parental responsibilities or parental rights if their whereabouts are known to the adoption agency; and

(6) The adoption agency must send a written report as to the health of the child and the history of the child's health to the prospective adopter's registered medical practitioner before the proposed placement together with particulars of the proposed placement.

(7) In paragraph (5)(a) "parent" means-

(a) a parent who has any parental responsibilities or parental rights in relation to the child; or

Duties of adoption agency following placement for adoption

25. -(1) Where a child has been placed for adoption by an adoption agency with a prospective adopter the adoption agency must-

(a) ensure that the child is visited on its behalf within one week of the placement and thereafter on such other occasions as the adoption agency considers necessary in order to supervise the child's well-being; and

(b) ensure that written reports on such visits are produced and retained on the child's case record kept in accordance with regulation 27.

(2) The requirement at paragraph (1)(a) will cease to apply where an adoption order is made vesting parental responsibilities and parental rights in relation to the child in the prospective adopter.

Review of child's case where no placement made within 6 months of permanence order granting authority to adopt being made

26. -(1) This regulation applies where a permanence order granting authority for a child to be adopted has been granted and the child has not been placed for adoption in accordance with the Act and these Regulations after 6 months from the date that permanence order was granted.

(2) The adoption agency on whose application the permanence order was made must carry out a review of the child's case by complying with the requirements in paragraph (3) as soon as reasonably practicable and thereafter at intervals of not more than 6 months until the child has been placed for adoption.

(3) The requirements are-

(a) to consult and take into account the views of-

(i) the child, taking account of their age and maturity; and

(ii) any person with parental responsibilities or parental rights in respect of the child;

(b) to assess-

(i) the child's immediate and long-term needs;

(ii) the reason why no placement has been made; and

(iii) what action, if any, should be taken to safeguard and promote the child's welfare.

(4) Following a review under paragraph (2) the adoption agency must make a written report containing the findings made under paragraph (3) and ensure that the report is produced and retained on the child's case record kept in accordance with regulation 27.

PART VIII
CASE RECORDS

Information to be kept about adoptions

27. -(1) An adoption agency must create a case record in respect of-

(a) 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 ("an adopted child"); and

(b) a prospective adopter.

(2) The following must be placed on the case record relating to an adopted child or a prospective adopter-

(a) any information obtained by that adoption agency; and

(b) any report, recommendation or decision made by that adoption agency, or by an adoption panel appointed by that agency,

under these Regulations, in respect of that adopted child or, as the case may be, that prospective adopter.

(3) An adoption agency must continue to keep the case record set up in respect of an adopted child or prospective adopter under the Adoption Agencies (Scotland) Regulations 1996( ⁸).

(4) However an adoption agency is not required to keep any information falling within paragraph (2)(a) if the agency considers-

(a) that it would be prejudicial to the adopted person's welfare to keep it; or

(b) that it would not be reasonably practicable to keep it.

Form and manner in which information is kept

28. -(1) Subject to the Adoption (Disclosure of Information and Medical Information about Natural Parents) (Scotland) Regulations 2009( ⁹) any information, reports, recommendations or decisions referred to in regulation 27(2) must be treated by the adoption agency as confidential.

(2) The adoption agency must ensure that all case records, together with the indexes to them, are at all times 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.

(3) Subject to the Adoption (Disclosure of Information and Medical Information about Natural Parents) (Scotland) Regulations 2009, an adoption agency must-

(a) preserve the indexes to all its case records and the case records in respect of those cases in which an adoption order is made in secure conditions for at least 100 years;

(b) preserve the case records in respect of a prospective adopter, in relation to whom an adoption order is not made, for at least 10 years; and

(4) Case records and indexes to them may be preserved on computer records or such other system as reproduces the total contents of the case record or index.

ADAM INGRAM
Authorised to sign by the Scottish Ministers

St Andrew's House,
Edinburgh
22nd April 2009

SCHEDULE 1

Regulations 7(5), 12(2)(c), 16(5)(a), 17(5)(a), 18(1)(c)

PART I
INFORMATION ABOUT PROSPECTIVE ADOPTERS

1. Name, date and place of birth.

2. Address.

3. Nationality and ethnicity.

4. Whether the prospective adopter has their home in Great Britain and, if not, the address at which the prospective adopter has their home if different from paragraph 2.

5. Whether the prospective adopter is domiciled or habitually resident in the United Kingdom, the Channel Islands or the Isle of Man and, if not, the country in which they are domiciled or habitually resident. If habitually resident, for how long.

6. Whether the prospective adopter intends to apply for an order under section 59 of the Act.

7. Where there are 2 prospective adopters-

(a) the date and place of the prospective adopters' marriage;

(b) the date and place of the prospective adopters' civil partnership registration;

(d) whether that marriage or civil partnership was dissolved or annulled and, if so, the grounds of divorce, annulment or dissolution;

(e) whether there are any financial commitments in respect of a former spouse or civil partner or children from a previous relationship;

(f) whether the prospective adopters are living together as husband and wife or as civil partners in an enduring family relationship.

8. Where there is only 1 prospective adopter-

(a) whether that person is-

(i) married;

(ii) in a civil partnership;

(iii) living with another person as if husband and wife in an enduring family relationship; or

(iv) living with another person as if civil partners in an enduring family relationship;

(b) if the prospective adopter is married or in a civil partnership-

(i) the reasons for their spouse or civil partner choosing not to join in the application;

(ii) whether the spouse or civil partner cannot be found;

(iii) whether the prospective adopter and their spouse or their civil partner are separated and living apart and whether the separation is likely to be permanent; or

(iv) whether the spouse or civil partner is incapable of joining in the application by virtue of their physical or mental health.

(c) if the prospective adopter is living with another person as if husband and wife in an enduring family relationship or as if civil partners in an enduring family relationship the reasons for their partner choosing not to join in the application.

9. Details of other members of the prospective adopter's household including any children of the prospective adopter whether or not they are resident in the household.

10. Details of the prospective adopter's parents and any of the prospective adopter's siblings and their ages or ages at death.

11. The attitudes to adoption of such other members of the prospective adopter's household and of such of the other members of the prospective adopter's family as the adoption agency considers appropriate.

12. The prospective adopter's personality.

13. Details of the prospective adopter's previous experience of caring for children and an assessment of ability in this respect together, where appropriate, with an assessment of their ability in caring for their own children.

14. Whether the prospective adopter or any other member of their household has previously-

(a) notified a local authority of their intention to adopt a child;

(b) applied to an adoption agency with a view to adopting a child;

(c) had in their care a foster child within the meaning of section 1 of the Foster Children (Scotland) Act 1984( ¹⁰) who has been removed under section 12 of that Act;

(d) been disqualified or prohibited from keeping a foster child under section 7 or section 10 of that Act( ¹¹) or disqualified or prohibited under section 68 or 69 of the Children Act 1989( ¹²) from fostering a child privately;

(e) had in their care-

(i) a child who had been a protected child who had been removed under section 34 of the Adoption Act 1976( ¹³); or

(ii) a privately fostered child within the meaning of section 66 of the Children Act 1989 in respect of whom an emergency protection order under section 44 of that Act has been made or the local authority has taken steps in accordance with section 67(5) of that Act;

(f) been convicted of an offence mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995( ¹⁴) or an offence under Schedule 1 to the Children and Young Persons Act 1933( ¹⁵);

(g) been convicted of an offence under section 11 of the Protection of Children (Scotland) Act 2003( ¹⁶) or has been disqualified from working with children within the meaning of that Act;

(h) had parental responsibilities and rights in respect of one or more of their own children transferred to a local authority under section 86 of the 1995 Act( ¹⁷) or had one or more of such children made subject to care orders under section 31 of the Children Act 1989( ¹⁸);

(i) had parental responsibilities and rights in respect of one or more of their own children transferred to a local authority or any other person under section 81 or 82 of the Act;

(j) been refused registration as a child minder or worker in a nursery under-

(i) the Children Act 1989; or

(ii) Part 1 of the Regulation of Care (Scotland) Act 2001( ¹⁹),

and details of any such occurrence.

15. An assessment of the prospective adopter's ability to raise an adopted child throughout their childhood.

16. Religious persuasion including the degree of religious observance.

17. The ability of the prospective adopter to have regard to a child's religious persuasion, racial origin and cultural and linguistic background.

18. Educational background.

19. Past and present occupations and interests.

20. Details of the prospective adopter's financial circumstances and comments on the living standards of the household.

21. Opinion of the adoption agency as to whether any adoption allowance may be paid.

22. The reasons given by the prospective adopter for wishing to adopt a child and the extent of their understanding of the nature and effect of adoption.

23. Names and addresses of at least 2 referees (who are not close relatives) who will give personal references on the prospective adopter.

24. Name and address of the prospective adopter's registered medical practitioner.

25. A comprehensive medical report on the prospective adopter prepared and signed by a registered medical practitioner including such details as the medical adviser to the adoption agency considers necessary in the circumstances of each prospective adopter.

26. Any other relevant information which the adoption agency considers may assist the panel.

PART II
INFORMATION ABOUT THE CHILD

1. Name, sex, date and place of birth and address.

2. Nationality and ethnicity.

3. Physical description.

4. Religious persuasion of the child including details of any baptism, confirmation or equivalent ceremonies and level of current religious observance.

5. Personality, social, emotional and behavioural development.

6. Any linguistic and cultural needs.

7. Names and addresses of schools attended and educational attainments.

8. Whether the child's father was married to the child's mother at the time of birth or subsequently. If they have not married, whether the child's father has any parental responsibilities or parental rights.

9. Details of any court orders relating to the child, including residence, maintenance, or parental contact or court orders awarding or depriving any person of parental responsibilities or parental rights in respect of the child.

10. Details of any current or previous supervision requirements relating to the child imposed by a children's hearing.

11. Details of any siblings including their dates of birth, addresses, arrangements in respect of residence and contact and whether any sibling is also being considered for adoption and, if so, whether it would be in the child's interests to place them together.

12. The extent of any contact with any member of the child's family including the child's father even where the father has no parental responsibilities and parental rights and details of any court orders relating to contact.

13. Where the child has been looked after by a local authority details, including dates, of placements including particulars of the persons with whom the child has had their home and observations on the care provided.

14. Any particular requirements in relation to the physical or mental health of the child and whether the child has additional support needs or a co-ordinated support plan within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004( ²⁰).

15. The child's views in relation to adoption and whether an application should be made for a permanence order with authority for the child to be adopted under section 80 of the Act taking into account the age and maturity of the child and any wishes in respect of their religious persuasion, racial origin and cultural and linguistic background.

16. Whether the child has any right to or interest in any property.

17. Whether an insurance policy for the payment on the death of the child of money for funeral expenses has been effected.

18. A comprehensive medical report prepared and signed by a registered medical practitioner including such details as the medical adviser to the adoption agency considers necessary as to the circumstances of the child.

19. Any other relevant information which the adoption agency considers may assist the adoption panel.

PART III
INFORMATION ABOUT THE CHILD'S FAMILY

1. Name, date, place of birth and address of each parent and guardian of the child.

2. The marital status and date and place of marriage or date of registration of civil partnership of the child's parents and guardian if applicable.

3. The nationality and ethnicity of the child's parents and guardian.

4. The current and past relationship between the child's parents including an assessment of its stability.

5. The names, addresses, ages and brief details of the personal circumstances of the parents of the child's parents and any siblings of the child's parents.

6. Physical description of the child's parents and guardian.

7. Details of the personality of the child's parents and guardian.

8. Religious persuasion of the child's parents, guardian and other relatives including any wishes they have expressed as to the child's religious upbringing.

9. The educational background of the child's parents and guardian.

10. The past and present occupations of the child's parents and guardian.

11. Whether the child's mother, if she has parental responsibilities and parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act agrees to the child being adopted and, if not, her reasons for not agreeing.

12. Whether the child's father, if he has parental responsibilities and parental rights other than those mentioned in sections 1(1)(c) and 2(1)(c) of the 1995 Act agrees to the child being adopted and, if not, his reasons for not agreeing.

13. Whether there is any history of genetically transmissible or other significant disease in the family history of either the father's or mother's family.

14. A comprehensive medical report prepared and signed by a registered medical practitioner including such details as the medical adviser to the adoption agency considers necessary in regard to each parent and guardian.

15. Any other relevant information about the child's parents and guardian which the adoption agency considers may assist the adoption panel in discharging its functions.

SCHEDULE 2

Regulation 16(2)(a)

MEMORANDUM

ADOPTION OF CHILDREN

This memorandum is addressed to the parent or guardian of a child for whom an adoption application is to be made. This includes the father and mother of a child even though they do not have parental responsibilities or rights in relation to the child. If any part of this memorandum is not clear to you, you should consult the adoption agency (which may be a local authority social work department or a registered adoption service). You may seek advice from the adoption agency on any matter connected with the adoption of your child, and may also wish to consult your solicitors. This memorandum is intended for guidance only and is not to be regarded as an authoritative interpretation of the law.

1. If the court makes an adoption order, your responsibilities and rights (including financial obligations) as a parent or guardian will be transferred to the adopters and they will become in law your child's parents. You will then have no further right to see your child, unless voluntary contact is agreed by the adopters. You may however apply to the court for a contact order although leave of the court to make the application must be granted. You will cease to be the child's parent and will have no right to have your child returned to you.

2. If you wish your child to be brought up in a particular religious faith or have any other views on the upbringing of your child which you wish to be taken into account you should inform the adoption agency. The adoption agency is obliged, however, to make the welfare of the child its paramount consideration.

3. The adoption agency needs to know whether each of the child's parents or guardian agrees with its decision that the child should be adopted. You are asked to complete a certificate (which is enclosed) indicating whether you agree or disagree with the adoption agency's decision. Agreement is sought in relation to the adoption agency's decision, and is quite separate from the agreement required by a court (see paragraph 6) in any subsequent application. You should read the certificate carefully, complete Part A or Part B and return it to the adoption agency within 28 days of receipt. This should provide you with sufficient time to take legal advice should you wish to do so. If you agree with the adoption agency's decision, then the adoption agency will make arrangements to have your child adopted. If you do not agree with the adoption agency's decision or do not reply within the 28 days then the agency, if it decides to proceed, will make an application to the court to have the matter resolved - the timescales depend on your child's circumstances, and the adoption agency or your solicitor will be able to advise you of how long this will take. In the event of an adoption application not being possible or appropriate within the timescale required for an application to be made, the adoption agency will apply to the court for a permanence order with authority for your child to be adopted without any further parental involvement. The adoption agency can provide you with further information on this order.

4. If you sign the form of agreement to the agency's decision and your child is subsequently placed with a person wishing to adopt them, then you will not be entitled to have your child returned to you if you change your mind, unless you obtain the permission of the court or the adoption agency. If you do change your mind you should inform the adoption agency at once.

5. Once your child is placed with adopters, they then have to apply to a court for an adoption order. Before making an order, the court will require to know whether you (except where you are a father or mother of the child who does not have parental responsibilities and rights unless these have been removed by a permanence order which does not grant authority for your child to be adopted) and any other parent or guardian of the child freely and in full understanding of what is involved, agree unconditionally to your child being adopted. The court will also have enquiries made to check that it will be in the best interests of your child that they should be adopted by the proposed adopters.

6. After the adoption application is made to the court, you will be asked to sign a form of agreement which can be shown to the court as evidence of your agreement. The proposed adopters will either be referred to on this form by a number or they will be named. If they are referred to by a number it will not be possible to tell you who they are. The adoption agency arranging the adoption will explain the reasons for this and will be glad to give you information about the personal circumstances and interests of the proposed adopters and to answer your questions about them as far as possible. Do not sign the form of agreement unless you are willing that your child should be adopted.

7. The court cannot make an adoption order without your agreement unless it dispenses with your agreement on certain grounds or if you are a parent who does not have parental rights and responsibilities unless these were removed by virtue of a permanence order which does not grant authority for the child to be adopted. The grounds on which a court can dispense with a parent's agreement are that:-

(a) the parent or guardian is dead;

(b) the parent or guardian cannot be found, or is incapable of giving agreement;

(c) the court is of the opinion that the parent or guardian is unable satisfactorily to discharge parental rights and responsibilities in relation to the child (except the responsibility and the right to maintain personal relations and direct contact with the child on a regular basis) and is likely to continue to be able to do so;

(d) where a permanence order (which does not include authority for adoption) has been made which removes the parental rights and responsibilities from the parents or guardian and it is unlikely that such responsibilities will be imposed on, or rights given to the parent or guardian;

(e) if sub-paragraphs (c) and (d) do not apply the welfare of the child requires the consent to be dispensed with.

8. You are not allowed to receive any money for giving your agreement.

9. When an adoption order is made, the Registrar General for Scotland makes an entry in the Adopted Children Register showing the adopters as the parents of your child. A full extract and an abbreviated certificate of the entry in that Register (which takes the place of your child's original birth certificate) can be obtained by the adopters from General Register Office, New Register House, Edinburgh on payment of a fee. When your child reaches the age of 16, they will be entitled to see the original entry in the birth register and to purchase a certificate of entry if they so wish. This means that when your child is 16 they will be able to find out their original name as well as your name and your address when you registered the birth. Should you wish, the adoption agency will discuss with you the implications this may have for you in the future.

SCHEDULE 3

Regulation 16(2)(b)

CERTIFICATE

ADOPTION OF CHILDREN

To: (name of Adoption Agency)

I hereby certify that I have received from you a memorandum headed "Adoption of Children" from which I have detached this certificate of acknowledgement and that I have read the memorandum and understood it.

Signature ……………………………………...……………………………………...

Name ……………………………………...……………………………………........

Address ……………………………………...…………………………………….....

……………………………………...…………………………………….................

Date ……………………………………...……………………………………..........

SCHEDULE 4

Regulation 16(2)(c), 19(a)

PARENT'S AGREEMENT IN RESPECT OFPLACEMENT OF CHILD FOR ADOPTION

_______________________________________________________________________________

living at

_______________________________________________________________________________

am the mother/father of

_______________________________________________________________________________

who was born on

_______________________________________________________________________________

*A. Agree to my child being placed for adoption and I understand that:

(a) my child will go to live with adopters as that is in my child's best interests;

(b) as a consequence of giving any agreement, I will not be entitled to remove my child from the adopters without the permission of the adoption agency or the court; and

(c) when the court considers an adoption application, it will seek my agreement to the making of an adoption order but only where I am a parent who has parental responsibilities and parental rights or where such responsibilities and rights have been removed from me by virtue of the making of a permanence order which does not grant authority for my child to be adopted**;

*B. Do not agree to my child being placed for adoption and I understand that:

(a) should the adoption agency wish to continue with their plan to have my child adopted, they must make an application to the court for a permanence order with authority for my child to be adopted within set timescales (unless an adoption application has already been made) to have the matter determined;

(b) in the event of an application for an adoption or a permanence order with authority for my child to be adopted being made, the court will seek my agreement to the making of the order but only where I am a parent who has parental responsibilities and parental rights or where such responsibilities and rights have been removed by virtue of the making of a permanence order which does not grant authority for my child to be adopted**.

Signature:

_______________________________________________________________________________

Date:

_______________________________________________________________________________

*Delete as appropriate.

NOTE:

You should delete either A or B and sign both copies of this form. You should keep one of them yourself in a safe place, and the other one will be kept by the agency. If you change your mind and decide against adoption, you should tell your social worker and your solicitor immediately. Once your child has gone to live with adopters the length of time she or he lives with them may influence the court's decision as to whether it is in your child's best interests to stay there. If you have not already consulted a solicitor you are advised to do so. You should show this document to your solicitor and anyone else advising you.

** You may wish to seek independent advice from a solicitor if you are unsure as to your status as a parent with parental rights and responsibilities.

SCHEDULE 5

Regulation 17(2)(a)

MEMORANDUM

APPLICATION FOR PERMANENCE ORDER WITH AUTHORITY FOR A CHILD TO BE ADOPTED

This memorandum is addressed to the parent or guardian of a child where an application is to be made to the court for a permanence order seeking authority for the child to be adopted. If any part of this memorandum is not clear to you, you should consult the adoption agency. You may seek advice from the adoption agency on any matter connected with the adoption of your child, and you may also wish to consult your solicitor. This memorandum is intended for guidance only and is not to be regarded as an authoritative interpretation of the law.

1. If the court makes an order called a "permanence order" granting authority for the child to be adopted:

- your responsibilities and rights as a parent or guardian to regulate the child's residence and to provide guidance appropriate to the child's stage of development will be transferred to the local authority;

- other rights and responsibilities may be transferred to the local authority or to specified persons;

- the adoption agency will then proceed to make arrangements for the child to be placed for adoption as quickly as possible;

- the court will grant authority for your child to be adopted which means that your consent to the adoption is not required before the making of an adoption order;

- the person wishing to adopt your child will apply to the court in due course and the court, if on investigation considers that this is in your child's best interests, will make an adoption order without being required to consult you first.

2. If you wish your child to be brought up in a particular religious faith or have any other views on the upbringing of your child which you wish to be taken into account you should inform the adoption agency and it will take your wishes into account in selecting new parents for them as far as possible. The adoption agency is obliged, however, to make the welfare of the child its paramount consideration.

3. The adoption agency needs to know whether each of the child's parents or guardian agrees with its decision that an application for a permanence order with authority for the child to be adopted should be made. You are asked to complete a certificate (enclosed) indicating whether you agree or disagree with the application being made. Agreement is sought solely in relation to the adoption agency's decision and is quite separate from the agreement required by the court (see paragraphs 4 and 5) in the subsequent application. You should read the certificate carefully, complete Part A or Part B and return it to the adoption agency within 28 days of receipt. If you do not indicate your agreement within 28 days, the adoption agency will be obliged to make the application for the permanence order seeking authority for the child to be adopted to the court within a set timescale determined by the circumstances of your child - the adoption agency or your solicitor will be able to advise you on how long this will take. If you do agree, and the adoption agency places your child with a person wishing to adopt them, then you will not be entitled to have your child returned to you without permission of the court or the adoption agency if you change your mind. If you change your mind, you should inform the agency at once.

4. The local authority has to apply to a court for a permanence order with authority for the child to be adopted. Before making an order, the court will require to know whether you (except where you are a father or mother of the child who does not have parental responsibilities and rights unless these have been removed by the making of a previous permanence order which does not grant authority for your child to be adopted) and any other parent with parental rights and responsibilities or guardian of the child freely and with full understanding of what is involved, agree unconditionally to your child being adopted. The court will also have enquiries made to check that it is in the best interests of the child for the permanence order with authority for adoption to be made.

5. After the application is made to the court, you will be asked to sign a form of agreement which can be shown to the court as evidence of your agreement. Do not sign the form of agreement unless you are willing that the child should be adopted and you are also willing to give up your right to be party to the court proceedings when application is made for your child to be formally adopted in due course.

6. The court cannot make the permanence order granting authority for adoption without your agreement unless it dispenses with your agreement on certain grounds of if you are a parent who does not have parental rights and responsibilities unless these were removed by virtue of a previous permanence order which does not grant authority for the child to be adopted. The grounds on which a court can dispense with a parent's agreement are that:-

(a) the parent or guardian is dead;

(b) the parent or guardian cannot be found, or is incapable of giving agreement;

(e) if sub-paragraphs (c) and (d) do not apply the welfare of the child requires the consent to be dispensed with.

7. You are not allowed to receive any money for giving your agreement.

Right to apply for a variation of the permanence order

8. Any person who had parental rights and responsibilities in respect of the child immediately before the permanence order was made which were removed by the making of that permanence order may apply to the court for leave to make an application for a variation of certain provisions in the permanence order. The right also applies to any person who claims an interest, the local authority which made the application, the child (if they are over 12 or are capable of understanding the effect of the order) and any person who has had parental rights and responsibilities conferred on them by virtue of the permanence order.

9. An application to have the permanence order revoked may also be made by any person who is affected by the order but only where the leave of the court has been granted.

Birth records

10. When an adoption order is made, the Registrar General for Scotland makes an entry in the Adopted Children Register showing the adopters as the parents of the child. A full extract and an abbreviated certificate of the entry in that Register (which takes the place of the child's original birth certificate) can be obtained by the adopters from General Register Office, New Register House, Edinburgh on payment of a fee. Where the child reaches the age of 16, they will be entitled to see the original entry in the birth register and to purchase a certificate of that entry if they so wish. This means that when the child is 16 they will be able to find out their original names as well as your name and your address when you registered their birth. Should you wish, the adoption agency will discuss with you the possible implications this may have for you in the future.

SCHEDULE 6

Regulation 17(2)(b)

CERTIFICATE

APPLICATION FOR PERMANENCE ORDER WITH AUTHORITY FOR A CHILD TO BE ADOPTED

To: (name of Adoption Agency)

I hereby certify that I have received from you a memorandum headed "Application for permanence order with authority for a child to be adopted" from which I have detached this certificate of acknowledgement and that I have read the memorandum and understood it.

Signature ……………………………………...……………………………………...

Name ……………………………………...……………………………………...

Address ……………………………………...……………………………………...

……………………………………...……………………………………...

Date ……………………………………...……………………………………...

SCHEDULE 7

Regulation 17(2)(c), 19(a)

PARENT'S AGREEMENT IN RESPECT OF ANAPPLICATION FOR A PERMANENCE ORDER WITH AUTHORITY FOR A CHILD TO BE ADOPTED

_______________________________________________________________________________

living at

_______________________________________________________________________________

am the mother/father of

_______________________________________________________________________________

who was born on

_______________________________________________________________________________

*A. Agree to my child being the subject of an application under section 80 of the Adoption and Children (Scotland) Act 2007 for a permanence order with authority for my child to be adopted and for their placement with adopters. I understand that:

(a) my child will go to live with adopters before the permanence order application is made if that is in my child's best interests;

(b) as a consequence of giving any agreement, I will not be entitled to remove my child from the adopters without the permission of the adoption agency or the court; and

(c) when the court considers the permanence order application, it will seek my agreement to the making of the permanence order but only where I am a parent who has parental responsibilities and parental rights or where such responsibilities and rights have been removed from me by virtue of the making of a permanence order which does not grant authority for my child to be adopted**.

*B. Do not agree to my child being the subject of an application under section 80 of the Adoption and Children (Scotland) Act 2007 for a permanence order granting authority for my child to be adopted. I understand that:

(a) should the adoption agency wish to continue with their plan to have my child adopted, they must make an application for a permanence order to the court within set timescales (unless an adoption application has already been made) to have the matter determined;

(b) in the event of an application for an adoption or permanence order with authority for my child to be adopted being made, the court will seek my agreement to the making of the order but only where I am a parent who has parental responsibilities and parental rights or where such responsibilities and rights have been removed from me by virtue of the making of a permanence order which does not grant authority for my child to be adopted**.

Signature:

_______________________________________________________________________________

Date:

_______________________________________________________________________________

*Delete as appropriate.

NOTE:

** You may wish to seek independent advice from a solicitor if you are unsure as to your status as a parent with parental rights and responsibilities.

SCHEDULE 8

Regulation 22(3)

FORM OF REFERENCE BY ADOPTION AGENCY TO PRINCIPAL REPORTER FOR ADVICE BY CHILDREN'S HEARING TO THE COURT

To the Principal Reporter

(Name of adoption agency) as an adoption agency has considered the case of (name and address of child) who is subject to a supervision requirement dated [ ] by a children's hearing for (local authority area), and is satisfied for the reasons set out below that the best interests of (name of child) would be served by an application for a permanence order with authority for the child to be adopted under section 80 of the Adoption and Children (Scotland) Act 2007 [placing (name of child) for adoption]*; and the agency intends to [apply for such an order] [so place (name of child)]*.

The adoption agency has determined that the agreement of a parent to [adoption application for a permanence order granting authority for the child to be adopted under section 80]* of the Adoption and Children (Scotland) Act 2007 is [likely] [unlikely]* to be forthcoming.

REASONS REFERRED TO

(insert reasons)

_______________________________________________________________________________

(officer of adoption agency) ……………………………………...……………………………………...

(place and date) ……………………………………...……………………………………...

*Delete as appropriate

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision for the various functions of adoption agencies under the Adoption and Children (Scotland) Act 2007 ("the Act"). Adoption agencies are registered adoption services and local authorities.

Part 2 makes provision for the establishment of adoption panels whose functions are specified in regulation 6. Regulations 3 and 4 make provision for the constitution, composition and meetings of the adoption panel whilst regulation 5 prescribes the appointment of medical and legal advisers.

Part 3 provides for the duties of adoption agencies in the assessment of prospective adopters (regulation 7) and their approval (regulation 8). Regulations 9, 10 and 11 provide a system for review of such approval.

Part 4 concerns the functions of adoption agencies when adoption is being considered for a child. Regulation 13 prescribes the time within which a decision must be made following a recommendation made by the adoption panel and the requirement to take account of the panel's recommendation and to give reasons where the decision is contrary to that recommendation. Paragraphs (4) to (6) apply where the child is subject to a supervision requirement under the Children (Scotland) Act 1995.

Regulations 16 and 18 prescribe the information which must be provided and the steps which must be taken when a decision is made that adoption is in the child's best interests and arrangements should be made for adoption (regulation 16) or an application for a permanence order with authority for the child to be adopted should be made (regulation 18). Where adoption is not the way forward for the child the adoption agency must take such steps as it considers to be appropriate and in the child's best interests (regulation 15(1)). Where the adoption agency decides that a permanence order with authority for adoption should be sought it must, if it is a registered adoption service, refer the case to the local authority (regulation 15(2)).

Part 5 makes provision for consent certificates and, in particular, the consent requirements for the purposes of section 20(1)(b) of the Act (regulation 19) and the circumstances under which an adoption agency which is a local authority shall determine to proceed as though parental consent is not forthcoming (regulation 20).

Part 6 prescribes the circumstances where an application for a permanence order with authority for the child to be adopted must be made. Where that child is subject to a supervision requirement regulations 22 and 23 prescribe the circumstances under which a referral must be made to the Principal Reporter of the children's hearing or notification of the adoption agency decision to make an application for a permanence order with authority for the child to be adopted.

Part 7 makes provision for the placing of a child for adoption when a decision has been made that a prospective adopter is suitable to be an adoptive parent and that person would be a suitable adoptive parent for a particular child. Regulation 26 creates a requirement for review of the child's case where a permanence order with authority to adopt has been granted but the child has not been placed for adoption.

Part 8 makes provision concerning the information which an adoption agency must keep in relation to adoptions and the form and manner in which such information must be kept.

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