Scottish Churches Parliamentary Office

In April 2001, the Executive launched a review of adoption policy, carried out in two phases by an independent Adoption Policy Review Group. The current consultation paper follows publication of the Group's second phase report in June 2005; it affirms the Executive's support for most of the Group's recommendations and invites comments on the way ahead (which will be new legislation replacing the Adoption (Scotland) Act 1978): "we will listen to the consultation, but the legal framework must be reformed if we are to improve stability and security for children in Scotland" said the First Minister.

The Executive support almost all of the Group's proposals. In particular, they "do not believe that anything in these proposals undermines marriage, which remains the most recognisable and widely accepted way for a couple to signal their commitment to each other and to their life together as parents. However, many couples do not marry but choose to live together, which can also provide a stable relationship in which many children are brought up today. The best interest of the child, and stability for children, in whatever form of family relationship exists, are the key concerns in framing policy."

(A) Context

The context for the review, and the driving force for change, is a dramatic change in patterns since the 1978 Act was passed: growing numbers of looked after children, falling numbers of adoptions, and the rising age profile of children seeking adoptive parents (with the number of babies being placed for adoption in Scotland now under 20 annually, from nearly 300 20 years ago). As Cardinal O'Brien has said, "There is no doubt that the current system fails to meet children’s needs. According to official figures, adoption applications in the past 20 years have fallen from 1,000 a year to less than 400, while 6,500 children are in the care of local authorities. Many are in care for long periods." One member of the Working Group stated that the key questions were (a) are decisions being made early enough about when a child should be put forward for adoption; (b) is the process flexible enough; (c) are we recruiting as many prospective adoptive parents as we need; (d) are we supporting people enough.

Although the headlines have been about adoption by unmarried couples of the same or opposite sex, there are other parts of the law on adoption to be "modernised". The Executive agree that there should be provision for birth parents to agree to adoption (although these are now a small minority of cases), but also for their consent to be dispensed with by the court "where it is in the best interests of the child"; grounds for dispensing with parental consent are to be "simplified" (presumably in line with the thinking expressed by a member of the Working Group that "too much time and money is spent trying to see if a child can remain in the home in cases where it is unlikely things will change and in that time a lot of damage could have been done as three months is a long time in terms of the development of a 2 year old child").

Earlier proposals (in the first phase of the Working Group's work) sought to stimulate more people into considering adoption, although these do not appear to have had a high priority for action by the Executive. The problem of finding safe and secure homes for increasing numbers of vulnerable children continues.

The Executive believe the proposals would clarify the current legal situation and widen the pool of potential adopters. Despite the restrictions in current legislation, unmarried couples can and do adopt together although not jointly (though current legislation prevents fostering in homes where unrelated adults are living together). The Executive therefore argue that the legal system should allow unmarried couples to adopt or foster jointly, where this is in the best interests of the child; the welfare of the child should, they argue, be the most important basis of decisions "not constrained by the status of the relationship between the adults". However, they also emphasise the importance of a robust vetting process ensuring that children are only adopted by couples with a "stable and strong relationship, whether married or unmarried". For same-sex couples, civil partnership will attract the same legal consequences as marriage, including joint adoption.

For unmarried couples, or same-sex couples whose partnership has not been registered, the Executive believe "it is important that the court should consider the enduring strength of the relationship" in deciding whether to make a joint adoption order. They therefore support in principle the use the definition of an unmarried couple from similar English legislation: "two people living as partners in an enduring family relationship". They do not propose to elaborate on this definition, eg by including a minimum time qualification, although they recognise that other definitions of cohabitation are used elsewhere in Scots law, with potential for inconsistency in using this definition. They would also expect the criteria used by adoption agencies to assess the suitability of a couple for adopting to consider the stability and permanence of their relationship, as now under the Adoption and Children Act 2002 s.45(2) in England.

The Executive also believe that same-sex couples should be allowed to foster, where that would be in the best interests of the child. The current rule against such fostering has caused practical difficulties in some cases where former foster children wish to remain in the foster home as adults, and the Group has found no evidence to support a continuing ban.

At a recent consultation meeting, some church representatives made the point that research had proved that it was in the best interests of children to be placed in a stable married household and asked whether the Group had considered the impact on the child of widening the pool of prospective adoptive parents in the ways suggested. In response it was pointed out that, by opening the criteria up to unmarried couples, some people were being given an opportunity, not an automatic right, to become adoptive parents. All prospective adoptive parents have to go through a robust vetting process. A representative of a Christian adoption agency pointed out that, even when it is accepted that a stable married couple is the ideal choice for adoptive parents, there are simply not enough married couples coming forward, with the result that children are left to bounce around different foster placements, potentially for years. Therefore, adoption agencies have to be pragmatic and look at what is in the best interests of the child – foster placements or matching them with an unmarried couple who want to adopt.

The shortfall in numbers of adoptive parents and of foster carers (500 new foster carers are said to be currently needed) is a real problem that does not have an easy answer. The Executive see their proposed change as one response to this, as it seems people do not come forward because they feel they would not be acceptable adoptive or foster parents. However, it has also been argued that there is little research base for the judgment that these proposals are in the best interests of children; in Children as Trophies (published by the Christian Institute), Patricia Morgan has argued that "if public policy is based on clear research, there is no case for changing the adoption law to allow same-sex couples or unmarried couples to be able to adopt children". The Working Group's review of this and other research found that most studies seem to prove the preconceived views of those initiating them, concluding that "there are no reliable studies of same-sex adoption"; they go on to assert that "there is no strong evidence which suggests that gays and lesbians should be excluded from consideration for adoption". Even statistics of joint and single adoptions seem hard to obtain.

Pragmatically, at least in the short term, the choice for some children may be between adoption by one partner in a relationship and adoption by both, or between bouts of short term fostering and the longer commitment of adoption by an unmarried couple. Cardinal O'Brien has spoken of the dangers of "placing children in an environment that is not conducive to their full human development and is gravely immoral". How do we weigh such moral judgments - not shared by all Christians - on the appropriateness of the relationship between adopting couples (and statistics about the likelihood of their relationship lasting) in focussing on the best interests of children? What weight do we give to longer term signals given by legislation such as this ?

There are important issues also about the consideration to be given to birth parents' wishes and about the rights of adoption agencies to adopt criteria of their own. Currently, adoption agencies are bound to give weight to the views of the parents or guardians as to a child's religious upbringing; while neither the Report nor the Executive propose abolishing this provision, both suggest that views on "a wider range of matters" ("issues of identity such as language and culture") should be taken into account. Although reflecting birth parents' views on the marital status of potential adoptive parents is not specifically mentioned, it is implied in consultation question 5 (see below).

The Executive may be tending to a view against the new legislation being too prescriptive in this respect, but continuing the current legal safeguard may help when faith matters more to the parents and wider family than to those professionals arranging an adoption. Two factors might affect our view of the weight to be given to parental wishes: the circumstances in which the need for adoption arises (which may be because relationships with parents have broken down or even been abusive) and the age of the child (which may mean greater weight to be given to his or her views).

Following early comments by churches, the Executive are also asking whether there should be "exemptions or special rules" for faith-based adoption agencies. The problem is that such agencies might be forced to go against their own values and principles if compelled to treat unmarried same-sex partners on the same basis as married prospective adopters; the end result might be that they have difficulties in getting funding, or even their withdrawal from providing such services at all. On the other hand, it has been argued that this would be equivalent to allowing adoption agencies to judge prospective adopters by racial criteria. The Executive, however, do not believe that prospective adopters turned down on the basis of being unmarried or of the same sex would be able to take legal action against an agency which took a stance on this principle. Again views from the churches on this so far are diverse; the largest faith-based adoption agency is still unsure whether it will seek such an exemption.

Adoption allowances are currently decided by local authorities, under a general framework set by regulations. The Group recommended that the current arrangements should be revised and that there should be a national scheme for adoption allowances across Scotland. The Executive agree that the current regulations should be revised, and the restriction on receiving assistance in cash should be removed. However, the Executive do not believe there should be a national scale of allowances, or set levels, as the circumstances of adoptions differ from case to case and local authorities are in a better position to judge the appropriate levels of allowance. The Executive agree that entitlement to various forms of adoption support should be widened to all parties involved with an adoption, and that this support be put on a more comprehensive legal footing (though the real debate on this is more likely to be about resources).

Levels of fostering allowances, currently set by local authorities to meet local conditions and needs (though authorities are encouraged to meet national scales) vary across Scotland, and are inadequate in some areas, and there is an inconsistent approach to reward payments for foster carers. The Executive believe that greater consistency of payment levels would be fairer to foster carers. They are therefore prepared to consider giving central direction on appropriate payments for foster carers, by mandatory national scales of fostering allowances, or guidelines, or requiring local authorities to publish their allowances and explain any variations from national scales.

The Executive support the principle that medical information about birth parents should be available, without consent, to assist in planning for the best interests of children. However, this principle needs to be balanced with the right of the birth parent to medical confidentiality. Any legal changes would also have to satisfy the requirement of the Data Protection Acts and ECHR. Procedures should ensure that the information shared is only used for the purposes for which it is released, and is only shared between those with a need to know.

Although not figuring highly in the public debate, Permanence Orders are seen as a key part of the proposals, likely to have the most significant impact as a new option for looked-after children who are in care for a long period of time. These would offer an option between adoption and fostering, giving the carers of looked after children the legal authority to make day to day decisions about their lives while still allowing children to have links with their birth families; they would address one of the uncertainties expressed by many looked after children as to who has authority to make parental decisions about their lives. "Freeing orders", which were originally hoped to fulfil a similar function, have not proved successful in doing so. Although not all of the Working Group were convinced by this suggestion, the Executive broadly support the creation of Permanence Orders.

Responses on this consultation are invited by 31 October 2005 and should be sent to: Simon Cuthbert-Kerr, Scottish Executive Education Department, Looked After Children and Youthwork Division, Victoria Quay, Edinburgh, EH6 6QQ; E-mail: aprg_responses@scotland.gsi.gov.uk

1. The Executive welcomes general comments on the recommendations of the Group and the Executive's proposed responses. Views on those recommendations requiring legislation are particularly welcome.

2. The Executive welcomes views on any aspects of adoption and permanence law not covered in the Group's report which should be reflected in future legislation.

3. The Executive would welcome views on the appropriate definition of an unmarried (or unregistered) couple for a Scottish court to apply in deciding whether to make a joint adoption order, bearing in mind the Executive's intention that the court should consider the enduring nature of the relationship. (Recs 6 and 7)

4. The Executive would welcome views on whether there should be a power for Ministers to make regulations to ensure that, in determining the suitability of a couple to adopt a child, proper regard is had to the need for stability and permanence in their relationship. (Recs 6 and 7)

5. There are other issues raised by the proposal on which the Executive would welcome views:

6. The Executive would welcome views on the issues on which parental views should be sought in placing a child for adoption. (eg wider issues of identity, such as language and culture, could be included in a revised provision). (Rec 11)

7. The Executive would welcome views on the principle and details of the Permanence Order, in particular any practical or procedural issues that might arise from use of the Orders, and how these can best be addressed. (Recommendations 19 - 25)

8. The Executive would welcome views on the role of the hearing system in Permanence Orders, in particular any practical difficulties that would be raised by the recommendations and further suggestions on how the special arrangements that have been made for children on permanence orders can be recognised by the hearing system. (Recommendations 28 and 29)

9. The Executive would welcome views on what additional adoption support services might be prescribed.

10. The Executive would welcome views on the recommendation that local authorities should have an adoption support officer within the senior management team. (Rec 38)

11. The Executive would welcome views on the recommendation that a local authority placing a child for adoption should have responsibility for providing adoption support services to the child and the adoptive family for three years after the adoption order, in particular whether the period of three years is appropriate. (Rec 41)

12. The Executive would welcome views on how widespread any entitlement to adoption support should be - for example, should grandparents and siblings have a right to support - and what services different groups of people should receive, for example should birth relatives have a right to any services beyond counselling. (Rec 42)

13. The Executive would welcome views on whether a system of leave to apply to court would be effective in providing the protection from repeated or vexatious applications for children and adoptive families. (Recommendations 26, 51 and 52)

14. The Executive would also welcome views on whether other statutory measures would make the system of leave a more effective safeguard. For example:

15. The Executive would welcome views on whether legislation should limit the circumstances in which an applicant could seek information about an adopted child in support of an application to court. (Recs 26, 51 and 52)

16. The Executive would welcome views on the recommendation that there should be a centralised national system to appoint and train curators, reporting officers, and safeguarders from which individual case appointments are made locally. (Rec 61)

17. The Executive would welcome views on the stage in permanence planning at which there should be a statutory requirement on the local authority to inform the children's hearing of its intention. The Executive would also welcome views on the steps to be followed after the hearing is informed of the local authority's intention, for example the model currently used when a decision is taken to place a child for adoption. (Recs 62 - 71)

18. The Executive would welcome views on the options for a national scale of fostering allowances. (Rec 76)

19. The Executive would welcome views on the proposed working group on private fostering, and what the remit of such a group might be. (Rec 85)

20. The Executive would welcome views on the detailed proposals of the Group on local authority and adoption agency procedures, particularly on the issue of independent appeals and complaints. (Recs 88 - 99)

21. The Executive would welcome views on the proposal that medical information about birth parents and families should be shared, without consent, to plan properly for a child. Particular issues include: what sort of information could be shared; who could have access to the information; and whether any information should be communicated to the adopted person or the adoptive parents. (Recs 103 – 106)

Secure and Safe ?