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Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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PART II: ADOPTION PANELS

Part II: Adoption Panels

These Panels must be appointed by each local authority and registered adoption service which is carrying out the functions specified in the regulations. Section 1 of the 2007 Act states the duty of the local authority to provide an adoption service and indicates the range of persons for whom the service is, or may be provided and the nature of the services to be provided. Section 2 enables the local authority to use a registered adoption service to provide or help provide their services under section 1. A registered adoption service is an adoption service or agency as set out in section 2(11)(b) of the Regulation of Care (Scotland) Act 2001 (as amended by the section 7 of the 2007 Act). Only voluntary adoption agencies may be registered in terms of the 2001 Act and only registered adoption services or local authorities may make agency arrangements for adoption.

Part II of the Adoption Agencies Regulations (Scotland) 2009 looks more specifically at those functions which should be scrutinised by an adoption panel and how those panels should be regulated. This applies both to local authorities and to registered adoption services carrying out functions specified in the regulations. In their operation as adoption agencies they are required to make certain decisions for which they must have an adoption panel to consider and make recommendations on particular cases. The key functions are in relation to formally recommending adoption for a child, approving adopters and matching a child with approved adopters. The adoption panel may also consider any other matters referred to them which are relevant to the agency's functions under the 2007 Act such as adoption support plans and adoption allowances. In appointing such panels, agencies need to be clear about the purpose of the panel in relation to these functions. These are major decisions with life-long implications for children, their birth parents and adopters. They may also involve the agency in a legal action and also be open to appeal. The decision-making function of the agency is carried out by a designated Agency Decision Maker and there should always be at least two. The purpose of the panel is to provide an objective view of each case, ensuring that all the work required to reach a decision has been completed and to make a recommendation based on discussion of the information provided. The appointment and review of the panel must ensure that it is fit for that purpose. The following points should be addressed

  • Regulations require there to be at least six panel members appointed and a quorum of at least three for any meeting of the panel. They further require the appointment of a medical and a legal adviser to the panel. These advisers have an important role but they are not included in the quorum for panel business. Agencies therefore need to appoint sufficient members to the panel to cover the requirements.
  • One of the values of an effective panel is the breadth of experience members bring to frequently complex areas. The panel should therefore be drawn from a selection of people with wide professional or personal experience relevant to the task. This may include: experienced social workers with practice or managerial knowledge of child care and family placement; others from allied professions such as education and psychology; counsellors; experienced adopters; and adults who have been adopted or placed a child for adoption. The panel should reflect the community from which children and families may come and may include councillors. Attention should be paid to the balance of membership of the panel - such as gender. The backgrounds of both the children for whom adoption may be planned and the applicants coming forward for assessment as adopters are wide ranging and panels need to be informed and sensitive to issues around ethnicity, beliefs, sexuality and lifestyles. While panel members may be offered anti-discriminatory training there should be some evidence of experience in this area.
  • There should be agency procedures and processes in place for appointing and monitoring panel membership. These could include: recruitment; job and person specifications; disclosure checks on prospective panel members; terms of appointment including expectations of panel members; signing confidentiality statements; period of appointment; and fees and expenses. Regulations allow for the termination of the membership of a panel by giving notice in writing with reasons. Good practice should also include appraisal which recognises any areas for development of panel members alongside recognition of their contribution. Panels should also routinely seek feedback on their operation.
  • Providing a robust framework for the functioning of both adoption and fostering panels is vital to good decision-making. As there are similarities between both - and in small agencies there may be combined panels - it will be useful to look also at the guidance about FOSTERING PANELS in the Looked After Children (Scotland) Regulations 2009 guidance.
  • There should be induction arrangements for new panel members, especially where they are appointed because of particular expertise or understanding they bring but are not routinely involved in adoption arrangements. All panel members should be included in training opportunities to ensure that they are up to date with legislation, best practice and agency policy. They should also have the opportunity, at intervals, to meet as a panel to consider both business and practice issues arising from individual cases. This should be at least annually, but normally six monthly.
  • The objectivity of panels should be transparent. Panel members should be clear about when they need to declare a conflict of interest either because of previous professional involvement in a case or personal prior knowledge. Agencies should provide panel members with guidance on this.
  • Certain roles within the panel need to be defined. The two covered by regulations are the medical and legal adviser. There are also requirements for the provision of a written report, especially in particular areas. This requires high quality accurate minutes. In addition, although it is not specified in regulations, there is an expectation of the appointment of an appropriately qualified chairperson to ensure the effective functioning of the panel.

Medical Adviser

Regulations require this to be a registered medical practitioner. Medical information is required on both prospective adopters and children for whom adoption is planned, therefore the primary role of the medical adviser is to look at all medical reports and interpret any medical issues for the panel. Registered adoption services who principally bring applicants to adopt to panel normally seek someone who will focus on adult health matters and their potential implications for adoptive parenting - this is often a GP with interest in the area. Local authorities in their adoption agency capacity frequently place emphasis on the needs of looked after children and identify a medical adviser through the Health Board, often someone with a community paediatrics background. Some authorities may have more than one medical adviser with different areas of expertise. It is the responsibility of the adoption agency prior to appointment of a medical adviser to ensure firstly that the person understands the context within which they are providing advice and also the extent of the role. With regard to adult medicals, medical advisers may be required to follow up any information with specialists where there are identified medical conditions and some agencies might look to the medical adviser to meet prospective adopters prior to a panel if there are complex issues arising. A paediatrician acting as a medical adviser may carry out a medical examination. Medical advisers may also be expected to speak to adopters about the health needs of a child with whom they are linked. The panel does not need to see the full medical on adoptive applicants as part of the paperwork for the meeting but members should receive the summary sheet giving the medical adviser's view. It is recommended that agencies use a pro forma which will ensure that all relevant health information is brought together and a summary of the short, medium and long-term implications of this. As noted above, the medical adviser is not part of the quorum for the panel. It is up to the agency to decide whether s/he is a voting member of the panel, however, in practice the chair should summarise the views of panel members and ensure these are accurately recorded to make a recommendation rather than 'count votes'. Any dissent would be noted at the time for the information of the Agency Decision Maker and within this context the medical adviser would be able to express their professional view as relevant to the particular recommendation.

Legal Adviser

Regulations require this to be a qualified solicitor with a current Practising Certificate or a practising advocate.

This role will vary considerably between registered adoption services and the local authority as an adoption agency. A registered adoption service may occasionally be providing the service to a relinquishing birth parent and will therefore need to provide legal advice to the panel on the plan for adoption for the infant. Beyond this, their main role in relation to panel business is likely to be about advising the agency on aspects such as application of criteria for accepting applicants for assessment and appeal and complaints procedures. Registered adoption services may also turn to their legal adviser when there is a possibility of adopters approved by the agency being linked or matched with a child where the legal route is highly contentious. Approval may be required in advance for any costs incurred.

Clearly, the role of legal adviser is much greater in local authorities where adoption may be considered for a wide range of children who are already looked after, and where adoption was not the original intention of intervention or the parents' request. The regulations specify a number of areas which the panel must address in reaching its recommendation and which may later be scrutinised in court. It is therefore important that legal advice is clear and robust to ensure that all recommendations are legally competent and that the Agency Decision Maker may be confident in reaching a decision that could involve the authority in a complex legal process. The regulations do not specify how the legal advice should be provided to the panel but wherever possible it is good practice for the legal adviser to attend the panel and be available to clarify any questions for panel members. This should be the expectation for all cases where the consent of parents or those with parental responsibilities and rights may not be forthcoming. Given the number of legal issues that may need to be considered at the panel and the requirement for accuracy, the legal advice should be provided in writing and wherever possible accompany the papers for the panel. This is for the information of panel members and should not be incorporated into the report provided by the social worker and shared with the birth parents.

The regulations state that a panel may only make recommendations that adoption is in the best interests of a child and/or that there should be an application for a PO with authority for adoption if the legal adviser is present or has provided advice to panel members. In practice, this should be in writing.

Similarly to the medical adviser, the legal adviser does not form part of the quorum and because of their potential role in taking forward a legal case they should not be regarded as a 'voting' member.

Chairperson

Although not required by the regulations a chairperson should be appointed by a senior officer of a local authority or the chairperson of the Management Committee in the case of a registered adoption service. The panel chairperson does not have to be present for the panel to be quorate, but a depute chairperson should also be appointed by the agency who can chair the panel in the absence of the chairperson. The adoption agency should have comparable procedures for appointing a chairperson as they have for panel members. To establish credibility in the objectivity of the panel, a growing number of agencies are appointing independent chairs to their panel. Where chairs come from outwith the agency, they should have a thorough understanding of the structure and policies of the agency and be aware of the financial and organisational procedures in respect of adoption. Apart from their ability to chair, the person appointed should have a thorough and extensive knowledge of all aspects of adoption. This is particularly important where agencies have made efforts to bring in a diverse range of skills and experience and need to ensure that these are utilised within a firm framework of understanding all aspects of the functions of the panel. The chairperson must also co-operate with the other staff within the agency to ensure that the recommendation reaches the Agency Decision Maker in a form and within the timescales to enable the decision to be competently made.

Minute Taker

Although this role is not specified in regulations, there is a requirement for a written record of the proceedings of the panel and the reasons for its recommendations and also a written report in relation to particular recommendations. This places importance on the quality of the record or minutes of the panel and what must be covered within them. Agencies need to ensure that minute takers are carefully chosen for the task, that they have the necessary skills and are given appropriate training, support and protected time to complete the task within the necessary timescales.

Role of the Panel

Where the panel considers that they do not have sufficient information to make a recommendation, they may defer doing this pending further discussion once any additional information identified is obtained. This does not require an agency decision as there has been no recommendation. Where the panel has made a recommendation and the Agency Decision Maker wishes further information, they must still make a decision within 14 days, for example, this may be that prospective adopters are not approved on the basis that the agency request further information and request it to be taken back to the panel for reconsideration once the information is obtained. If, after this, the applicants were not approved, they would still have the right to appeal by asking for a further review under regulation 9.

Taking the adoption panel as a focus for both the planning for adoption for children and also for the provision of the adoption service for them - including the approval and matching with adoptive families - there are some general principles and requirements that are highlighted in Part II of the regulations and areas that are covered in more detail later in Parts III-VII. From this, the following are covered in this guidance

I) Principles

  • adoption as meeting the best interests of the child throughout his/her lifetime
  • consideration of the alternatives
  • duties under section 14 of the 2007 Act
  • contact.

II) Key functions of the panel and agency covered in regulations

  • assessment and approval of prospective adopters
  • duties when considering adoption for a child
  • application for a Permanence Order granting authority for adoption
  • matching a child with adopters.

Principles

These principles are separated out as they relate to terminology or tasks within the regulations. In practice, they overlap considerably.

Adoption as meeting the best interests of the child throughout his/her lifetime

Throughout the interventions of agencies into the lives of children there is a general duty to regard the child's best interests as paramount and this clearly continues through to adoption. The duty on the adoption panel is to make a recommendation on whether adoption is in the best interests of the child. To do this there must be positive reasons to recommend this step. The panel should be aware of developing practice and research on the outcomes of adoption and whether and how this can be achieved for the individual children presented to it. For all children discussed at the panel there should be explicit consideration of the benefits of the legal security of adoption for growing children if their birth parents are not able to provide this and a recognition of the life-long aspect of adoption. For each individual child there needs to be clear evidence of why this is not available to them within their birth family or kinship network and sufficient understanding of the needs of the child to be confident that s/he can become a full member of another family. This should be rooted in the history of the child's life thus far and a comprehensive assessment of their future needs. Where it becomes necessary to consider grounds for dispensing with the consent of the birth parents to the adoption, these are listed in section 31 of the 2007 Act. Adoption agencies need to ensure that everyone playing a part in planning adoption has the opportunity to explore these concepts covered by the grounds and consider the evidence to look for and measure against the most up to date knowledge of the effectiveness of adoption. This may be incorporated in the philosophy of the agency and encapsulated in the local authority adoption plan as required in section 4 of the 2007 Act.

Consideration of the alternatives

Regulation 6(3) also requires the adoption panel to provide "a written report of the consideration given by it to the alternatives to adoption". This will normally be part of the minute and confirm what is already contained in the reports presented to the panel or provide further information of how the panel reached their recommendation. This should build logically on the earlier assessment, planning and reviewing which was aimed at establishing safe and sustainable care for the child and avoiding drift. The Looked After Children Review that decided on the need for permanent placement of the child outwith the birth family should have done this on the basis of firm evidence of the need for that level of intervention and exploration of all the possible ways forward. The first key decision that will have been made at the review will have been the conclusion that the previous efforts to return the child to the care of his/her birth parents had not succeeded or that it was never possible in the first place and there was no substantive indication that this was likely to change. The subsequent decisions following on from this should address; firstly, whether for the child in question, given his/her needs and wishes, the best alternative would be to establish them within an alternative permanent family; secondly, whether to provide legal security for the plan, some or all of the parental responsibilities and rights should be transferred. While adoption is one such alternative it is not the answer for every child in these circumstances. It would be in the spirit of the 2007 Act and also good practice therefore that all cases where children cannot return home and need a secure family placement should be treated similarly and be referred to the adoption panel for consideration of the plan for permanence. There will be some children for whom a return home is not foreseen yet they do not require this sort of permanency planning - for example a young person who may not have become looked after until adolescence, who may be subject to a supervision requirement through the Children's Hearing because of troubled behaviour and/or may be appropriately placed in a residential unit. Local authorities should provide guidance for staff on when referral to the adoption panel is indicated - which for this purpose may be regarded as an adoption and permanence panel.

It is recommended that the adoption panel is used in this way because, irrespective of the legal route, the decision to apply for a court order represents a significant change of direction in planning. A presentation to panel will ensure the following

  • birth parents are made fully aware of the plans, their rights and responsibilities in the process, including the right to take legal advice and the likely timescales
  • the child's current carers are aware of the plan and process, able to respond to the child's questions and in a position to help prepare the child
  • identification of the support which a future placement will need
  • clarity about the specific support arrangements, including legal and financial ones which the agency will provide.

The main purpose of the adoption panel is to add an additional objective forum, independent of the case thus far, to look at all the circumstances before it becomes confirmed as the agency decision. It therefore makes sense for this body to be free to consider all the alternatives for permanence for the child. A small piece of research carried out for the first stage of the APRG sought the views of young people who had grown up within the care system. While they expressed clear perceptions of the difference between adoption and fostering, the overall impression was that the different options had not been explored with them. Some indicated that adoption might have been of interest to them if it had been raised while others were clear that it was not for them. Equally, research has shown that while the risks of possible disruption increase with the adoption of older children who have had very difficult early experiences, this is not straightforward and one significant contributory factor in 'older child adoption' is whether the child actively wants to be adopted or still feels a loyalty to his/her birth family.

In considering the alternatives to adoption, in addition to the nature of the placement required, the panel should also ensure that all possibilities of retaining the child within their family network have been checked. The guidance to the LAC regulations contains fuller information about the steps in approving and reviewing kinship care placements. Each local authority should have a process for the approval of kinship carers for looked after children, including the independent scrutiny of their assessment prior to agency approval. The ongoing review of a kinship placement should include confirmation that the kinship carers continue to be able to meet the needs of the child. Where it subsequently emerges that one of these arrangements is likely to be permanent, it is equally useful to ensure that there are clear channels to confirm the plan and clarify that this is the agency decision. Where this plan extends to adoption, the appropriate forum would be the adoption panel. In most instances now, however, adoption by kinship carers, who are frequently grandparents, is not the first choice as it can distort family relationships - but at times this may reflect the wishes of grandparents and children. Other forms of securing the placement may be preferable and the agency may direct these to the adoption and permanence panel but other similar independent foras may be considered, depending on whether the local authority has other arrangements for overseeing kinship care.

Where children are already placed with foster carers when the plan for permanence is made, the question of kinship care should be revisited. Relatives who are at a distance or do not know the child well may not feel it is appropriate to offer care initially but may come forward when adoption is on the agenda. An absent birth parent - especially a birth father with parental responsibilities and/or rights that have not been exercised - may take a more active interest at this stage or his relatives may feel enabled to enter into discussions. Any new interest would need to be assessed and presented to the adoption/permanence panel.

Agencies need to ensure that they have made proper provision for addressing all the alternatives for permanence for a child as the context within which the panel can provide its reasons for recommending adoption. The legal terminology is clear - where there is a better practical alternative for the child the agency must not make arrangements for adoption. Therefore the agency decision must reflect the reasons why adoption is the best option.

Duties under section 14 of the 2007 Act

Section 14 of the 2007 Act lays out all the considerations that the court or adoption agency must bear in mind in making a decision about the adoption of the child.Reference has already been made to the best interests of the child and in section 14(3) this is stated as "the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration". This confirms the life-long dimension that identifies adoption amongst the other options for permanence.

Equally, section 14(4)(d) makes one of the considerations "the likely effect on the child, throughout the child's life, of the making of an adoption order". Central to much of this is what is understood by "the value of a stable family unit in the child's development". In what is now regarded as 'traditional' stranger adoption, this was easier to define when the birth mother's relinquishment of an infant meant that the child's birth family was not available to her/him and the expectation was that adoption would mean the child was accepted into a two parent family who were viewed as conforming to the social and moral values of the time. In deciding whether there is sufficient evidence that the birth parents cannot provide a stable family unit for the child and that this has, or is likely to have a detrimental effect on the child's development, agencies need to demonstrate a robust rational approach to this. Equally, in assessing prospective adopters and long-term/permanent foster carers the information presented to panel and going on to the Agency Decision Maker should pay attention to how the potential for applicants to provide this can be evidenced. The 2007 Act lays out the range of people who may apply to adopt which clearly indicates that 'a stable family unit' is not defined by any specific legal structure of the family. Some useful areas to look for include

  • positive, respectful relationships between adults
  • appropriate relationships and boundaries between adults and children
  • valuing each individual within the family group
  • containing and managing a whole range of behaviours and emotions within the family unit
  • celebrating, supporting and learning to problem solve together
  • valuing family relationships across generations
  • maintaining a sense of being part of the family through challenges and disruptions.

Adoption is not the only option with the potential to provide a secure family environment for a child - this may also be possible through kinship care or long-term fostering with a PO. The question is whether a particular child could respond and would benefit from being transplanted into a new family where they can put down roots, begin to thrive and have a sense of belonging. Section 14(4)(b) also requires the agency to consider the child's ascertainable views. Where a child is not of an age or maturity to convey views directly, consideration should be given in the assessment to what is indicated by his/her responses, behaviour and evidence with regard to their need and ability to form new primary attachments - or consolidate existing ones with foster carers.

In whatever form it takes adoption represents a significant disconnection in a child's life. Section 14(4)(c) restates the principle from the 1995 Act in relation to regard for the child's religious persuasion, racial origin and cultural and linguistic background. This principle has a very immediate impact in temporary care when the child is expected to maintain active contact with the birth family, although they may be living in a different environment. The potential impact in adoption is much more long-term. An infant or very young child may make a transition to a very different family culture with relative ease. As they grow up, over time they will need to integrate their adoption and identity in relation to both their birth and adoptive families. This is one of the life-long issues of adoption. Adopted people will vary considerably in the extent to which this is a concern for them but the responsibility for the agency is, wherever possible, to have regard for the level of discontinuity between the birth and adoptive family, to try and find placements that keep this to a minimum and where this is not possible, to ensure that the adopters are sensitive to the concerns and equipped to meet the child's needs in this respect.

Contact

Contact will have been an important area on the agenda from the time the child became looked after. This is clearly articulated for the adults in the responsibilities and rights in sections 1 and 2 of the 1995 Act. For looked after children who move into the permanence route this may have featured as an area for debate, often in terms of questioning whether parents have fulfilled their responsibilities to their child in 'maintaining personal relations' or in parents seeking an extension to their 'rights' to see their child. From the outset in planning it will be helpful if information about contact also places emphasis upon the purpose of contact and the different ways it can contribute to the welfare of the child. This should be incorporated explicitly in any information to birth parents about the centrality of the best interests of the child and how the 'responsibilities and rights' language of contact will be interpreted in that context. It is this language of the 'best interests of the child' that surrounds any consideration of ongoing contact when planning adoption for the child. This calls for robust evidenced assessments about the value - and potential damage - of contact.

Just as it is helpful to identify how contact may be used to progress the plans towards a positive return home, the purpose of contact in adoption needs to be understood. The information provided to the adoption panel should enable them to provide in writing in the minutes the reasons why any continued contact is in the best interests of the child. The regulations in this respect do not define whether this is direct or indirect contact. They also only refer in regulation 6(4) to continued contact with the child's parent or parents. In practice, any panel considering a plan for adoption should look at all possible contact for a child, direct or indirect with any family members - including siblings elsewhere, grandparents and other relatives - as well as any other significant carers such as the child's foster carers. Some of this contact might have most relevance in the early period of placement to ensure links with familiar people during and following transition. Other contact may have greater possible relevance when the child is older and has questions for which they are seeking answers.

All contact in adoption is seen in the context of the expectation that the child will be aware of their adoption and that it will be the responsibility of the adopters to support their child in understanding their origins. This is confirmed by the requirement in regulation 24(2) about written advice to the adopters on the need to inform the child about their origins. This thread should be running through all preparation and assessment of adopters and every effort made to encourage and enable them in the ongoing task of talking about adoption and life-story work. The information provided to adopters under regulation 24(2)(a) will be what is available at the time of placement. It may not answer all of the child's questions. New information may be relevant to add following the adoption. This may be particularly so if further children are born and may also need an adoptive placement - either to explore the possibility of the new child joining an older sibling or setting up new sibling contacts. Other events may be relevant to share when thinking ahead to offering guidance to an adopted person who is seeking access to further information in their own right and considering tracing their birth parents. Properly managed indirect contact arrangements (often under the heading of 'letter box contact' which greatly underestimates the complexity of this area) will identify channels of communication that may be utilised for the child. This could include consideration of direct contact at some future date if this was agreed to be in the child's best interests. Managing this would be part of the post-adoption support service. Any such steps would need to be well prepared and supported. The distinctive feature about consideration of contact in adoption is that while it may be addressed at the particular time when legal adoption is being considered, the adoption plan itself must address the child's needs, both during their childhood and those that are life-long. Any need or interest in contact is likely to change over time and in relation to developmental needs. This would indicate the need for flexibility and an emphasis on understanding the principles underpinning contact rather than trying to set out specific parameters about its form and frequency. Increasingly the views and wishes of the child will play a greater part as they become more able to express these.

The panel and the Agency Decision Maker should have the following

  • an assessment of the quality, content and pattern of contact over a period of time and what contact tells us about the parent/child relationship - and any other family relationships
  • information about how contact contributes to the child's understanding of their situation
  • a perspective from carers about impact on the child before and after contact and questions raised
  • the parent's ability to keep the child's needs at the centre in contact
  • the potential for compatibility between the permanence plan and the proposed contact.

This will, first of all, inform the nature of the permanence plan for the particular child. Where there is clarity that adoption is in the best interests of the child, the panel and Agency Decision Maker need to distinguish between situations where there should be careful management of contact during a transition period, including resolution of a contested adoption plan and circumstances where some regular ongoing direct contact might be supportive and reassuring for a child. The most effective post-adoption arrangements are those where all parties are positive about its value and make an investment in working together in the child's interests. This indicates a need for some structure to support and monitor any type of contact arrangement and access, where appropriate, to mediation. This is particularly important given that, unlike the provisions for reviews of looked after children and reviews of supervision requirements in the hearing system, there is no similar statutory base for routinely reviewing post-adoption contact.

The regulations place the emphasis on the role of the adoption panel in situations where contact with birth parents is being proposed post-adoption. It is equally important to consider situations where there are clear contra indications to such contact either because of any risk posed to the child by links with their former environment or because of evidence of the potential for contact to threaten the stability of the adoption. In reaching its decision the agency should be explicit about its position in this area. In contentious cases contact may become central, with the possible difficult legacy of a compromise that does not satisfy any of the adults and leaves tensions which continue to unsettle the child. Building sufficient confidence and trust between the adults requires time and skills if, in the longer term, contact can serve its purpose for the child or young person.

The responsibility of the adoption panel is in respect of the permanence plan for the child and the role of contact in adoption. The legislation permits the situation where a child moves to live with a family who can offer adoption before the question of the parents' consent is resolved and this is also reflected in the terminology of the regulations. Agencies often have to consider the best legal route in these situations. One practical consequence is that in the interim, until the full legal decision is made, contact arrangements, usually made by the Children's Hearing, remain in place. Agencies need to ensure that they have mechanisms in place to support all parties in this and to ensure that the changing needs of the child are fully addressed. How will the child understand the contact in the context of the work in preparing them for a move to a new family? Does the level of support need to alter so that the child is not caught up in the tensions? How involved should the proposed adoptive family be given that this is an important time for them to build up trust with the child and demonstrate that they will be there for the child during possibly stressful times in their life? If 'transitional' contact arrangements with birth family continue well into the child's placement with adopters, does this in itself affect the picture? The Looked After Children reviewing system needs to be sensitive to such issues coming up during this new phase in achieving permanence for a child.

Key functions of the panel and agency covered in regulations

Assessment and approval of prospective adopters

Much of this is laid out in Part III of the regulations and Part I of Schedule I. The areas covered in this guidance are

  • who to assess
  • content of the assessment
  • approval process
  • review of approval.

Who to assess

Section 4 of the 2007 Act requires each local authority to prepare and publish their adoption plan, either as a stand-alone document or as part of their Children's Services Plan. This obviously relates to the whole range of adoption services that should be provided across the country but a key part will be about the effectiveness of the authority in completing adoption plans for those children for whom it is in their best interests. This should include information about

  • the numbers and characteristics of the children placed each year
  • children waiting for adoption with no family in mind
  • any children where adoption might have been considered if there was a realistic prospect of finding an adoptive family.

Alongside this there should be information about the number and nature of approved adopters available. On the basis of this the local authority should plan for access to a sufficient pool of adopters to meet the needs of the main group of children likely to be placed and explore ways of extending this pool to encompass the more varied needs of those children who require greater efforts to be made on their behalf. This may include making agreements with registered adoption services about the provision of some of these services or making use of consortia or other arrangements for securing inter-agency placements. On the basis of this plan the local authority and any registered adoption service should firstly decide about the information they offer to prospective adopters who approach them and whether they need to include some minimum requirements about the range of children applicants can consider in their general criteria. Secondly, they should consider the need for active recruitment plans to meet any shortfall, including any specific focus for recruitment. They may do this individually, in partnership with other agencies who have similar needs, or through a local consortium or other established local grouping. Any such planned recruitment should address the necessity for adequate provision for following up all enquiries through the information, preparation, assessment and approval stages.

Each adoption agency must prepare and publish their general criteria for determining whether they will accept persons for assessment as adoptive parents and review these from time to time. There are two sides to this. Firstly, it is an opportunity to ensure that all potential applicants have accurate information about the wide range of people who can legally apply for an adoption order. The most obvious areas are age and marital status where some people may have been deterred from applying in the past by the impression that 'you can't adopt if …' which may not be true. This is where there is an opportunity to explain the changes made by the 2007 Act in relation to who can adopt jointly and how the agency will respond to applications from couples in a civil partnership and those who are living in an "enduring family relationship" as if married or as if civil partners. Updating criteria in light of changing legislation and reviewing this will provide an opportunity to consider

  • Any training needs for staff in carrying out these assessments, both about exploring the stability and security of any relationship given what it is hoped adoption will achieve for a child, and also any practical issues that should be discussed with couples in different types of relationships if their relationship breaks up before the child is adult. There should already be expertise within the agency about assessment of single applicants and families which already include birth or other children such as half or step siblings but any such review of criteria provides a useful prompt for consideration of how well the agency responds to the different family structures amongst potential applicants.
  • Whether those assessing prospective adopters also need to engage in further dialogue with colleagues who may be seeking adoption placements for children. There is already some evidence that certain adopters wait longer for a placement and that this may be influenced not just by perceived capacity but also by views of their family structure, for example single adopters. This is particularly so when there is an expectation of choice for a young, pre-school child. It is very discouraging and ultimately may deter future applicants if approved adopters wait a long time for a placement and feel this is less about their ability than about attitudes to their particular type of family. This is a complex area and touches on how children are prepared for a new family - or a 'new mum and dad' - as well as working with birth parents who may not have thought about the range of people who might apply to adopt or foster. This is where agencies need to think about the channels of communication and joint training between adoption and fostering staff and social workers who concentrate on working with the children and families who may need to use the adoption or fostering service.

Another legal aspect of criteria is whether the applicant(s) is/are able to apply to adopt in Scotland. The 2007 Act says that applicants much either be domiciled in the United Kingdom or have resided in the UK for one year up to the date of the court application, (s.30(6)). When the applicants are a "relevant couple" (s.29(3)), the 2007 Act says that either one of them, at least, must be domiciled in the United Kingdom or they both must have resided in the UK for one year prior to the date of the court application. It is not necessary for prospective adopters to have British Nationality.

Domicile is about which country an applicant is most closely associated with for legal purposes. A person may be domiciled in Scotland without living here as domicile is not the same thing as where someone lives.

A further aspect of criteria concerns those factors that are not legal requirements but come from either knowledge of the needs of children requiring adoption and the care and parenting challenges they bring, or are a way of restricting applications at a time when it is not possible for the agency to assess everyone who approaches them wishing to adopt. Agencies need to be clear about how they express this and check with their legal adviser. Agencies may state certain criteria that are essential for everyone who applies and should be able to state their reasons for these. Potential applicants may not like this or agree but the agency are entitled to state their position. An example would be those agencies who will not accept applications to adopt children under five years of age from smokers and can quote from the research on passive smoking. In other areas, agencies may want some flexibility and the scope to consider applicants with certain issues in their background on a case by case basis - this may be about something that could come up in a police check or a medical that might cause concern but not be an absolute bar. There is also general agreement that any adoption assessment should not start while the potential applicants are actively undergoing infertility treatment. Adoption agencies should keep in touch with their local medical services about this - given advances in possible treatment, more protracted contact with clinics and the possibility of recall as medical knowledge advances there may not be a clear end point in treatment. If this is not an essential criteria applicants may wish an assessment to proceed, even if they recognise that in the end it may not be successful. In this situation an applicant may have grounds for appeal and ultimately, if they felt that the local authority had not handled their case appropriately or fairly, may consider a judicial review. If the agency does not accept an application from someone because he or she does not meet their criteria they must notify that person in writing. Where it seems likely that another agency would accept the application it is helpful to pass this information to the applicant.

Clearly, these general criteria apply where applicants are considering domestic adoption. Where prospective adopters are considering an inter-country adoption they need to be aware of the requirements both within this country and those of the sending country. Adoption agencies should have information available based on eligibility to adopt in the Adoptions with a Foreign Element (Scotland) Regulations 2009 and also the stages depending on whether it is a convention or non-convention country. Any such applicant will also need to be aware of any additional requirements made by the country from which the applicant hopes to adopt. This may change, as may the extent to which any other country will consider adopters from other countries. From time to time there may also be special restrictions placed on adopting from certain countries due to concerns about the situation in 'obtaining' children for adoption. Both staff and enquirers should have information about sources of up to date information to ensure that any such application is realistic. It is clear in the regulations that all inter-country assessments should be handled in accordance with these Adoption Agency regulations.

Alongside laying out their criteria for applicants, agencies should consider the point at which applications may be made. Many people approach adoption with limited understanding both of why there are children needing adoption now - and all the implications of this for potential adopters - and of the extent of the assessment process. It therefore makes sense to provide enquirers with ample information in advance of the point of application. Agencies should have clear procedures covering the provision of written information and the arrangements they make for individual interviews or group information sessions. The point of application should mark a clear move to the next phase, by which time the agency will have ensured that the applicants have a sound understanding of all that is involved and the applicants feel sufficiently informed to make that step. If the applicant's circumstances change or, on further discussion, they conclude that they no longer wish to adopt, they should be asked to state in writing that they wish to withdraw. It should be noted at this point if this was a personal choice and was no reflection on their suitability to adopt. Where concerns are identified during the assessment that could lead to a report to the panel recommending that the applicants are not approved this should be fully discussed with the applicants who may choose to withdraw, which again should be requested in writing and a note made of the circumstances. Where the applicant wants to continue with the application, this should be brought to panel when any areas of concern have been fully explored, including any independent sources of additional information and an evaluation made of the significance of the concern and how it may be balanced against positive aspects of the application. The aim should be to provide sufficient information to enable the panel to conclude whether or not they should recommend that the applicants are not suitable to adopt with reasons that can be stated and are open to review on appeal if the Agency Decision Maker decides against approval.

Content of the assessment

The regulations and the schedule cover the range of information to be gathered and what needs to be submitted to the panel to enable them to make their recommendation. From the perspective of the adoption agency this is about having a well thought out preparation process covering both the challenges of adoption generally and the more specific issues arising from the needs of the majority of the children now needing an adoption placement. This should be followed by more focussed work with applicants to assess and evaluate what they bring to this. The assessing worker for this home study phase should discuss at the outset the main areas that will be covered that are common to all adoptive applicants and how these may be addressed and also spend time identifying with applicants the areas that are specific to their application. For applicants applying for a child known to them it will be important to explore their knowledge of the child and their attitude to his/her family of origin. For prospective inter-country adopters, this includes both the additional factors common to all inter-country adoption, such as the potential risks from limited information and the challenges for children and their parents when a child is separated from their original culture especially where they do not share their adopter's ethnicity and religion, and also any particular issues arising from adoption from the country chosen. For all adopters there may be a number of areas that are relevant to the individual application including

  • their particular family structure and who is in the household
  • extent of their experience of children, and especially the views of any children in the household
  • significant events and experiences in their background
  • any issues likely to come up through third party enquiries.

This initial mapping of the areas for assessment will always be open to adjustment if new issues arise, but setting a broad agenda establishes a way of working together that is open, helps the applicants to think about the relevance of the different aspects of the assessment to the task and to consider their input to the process. The agency should have a range of tools, information and materials they can draw on both in preparation groups and in the home study for staff to use.

Preparation groups form a significant part of the process in most agencies and they will have both tried and tested models to use, adapt and update and will also have patterns that they can monitor about frequency and organisation of such groups. Some of this needs to be flexible to take account of the size and geography of different agencies. This is not prescribed in regulations but is an area that should be kept under review to ensure that prospective adopters are not faced with undue delay and that any groups they attend take account of their needs. This may call for a range of practical and creative solutions such as combined groups for potential foster and adoptive applicants with some sub-division or separate sessions or joining with neighbouring agencies to run a joint group - for example, inter-country adoption. In some areas it may make sense to use some of the group preparation material with a group formed from the family and friends of applicants. Applicants need to be clear at the outset as to whether and how their participation in a group may be part of the assessment. This may be a formal point at the end of the groups when there is discussion of the next steps and the group leaders can identify with both the applicants and their assessing worker any particular issues arising from the preparation groups. Where groups are identified by the agency as a fully integrated part of the assessment they may also incorporate feedback sheets on each session to be picked up in the home study. By this stage applicants should have moved on from awareness of the general criteria for eligibility for assessment to a firm understanding of what the agency will be addressing in considering their suitability to adopt. The National Care Standards: adoption agencies, (March 2005) Standard 23.1 specify six months for the assessment process.

Some considerations arising from Schedule 1 Part 1

Early in the process applicants should be aware of all the information that will be gathered from other records and people and arrangements made for the timing and means of obtaining this. This should cover everything listed in Schedule 1 Part 1(14) as well as medical information and references. Established good practice goes beyond what is included in regulations and has been informed by reports into situations where approved adopters did not provide safe care for children. Clarity about this investigative aspect of the assessment and the need to obtain confirmation of the honesty and accuracy of information should be openly discussed at the outset so that this can be integrated helpfully into the overall process. Agencies must be explicit about expectation in relation to approaching employers for a reference, contacting former partners and adult children who have left home. Where this is unrealistic, attempts should be made to contact other people who can comment on the particular circumstances at that time. Where people have lived abroad for a period there should be early enquiries about possible checks in other countries. If this is not feasible referees or employers may be able to confirm that there were no concerning issues at the time and information about this attached to the report. This will enable the panel to comment on the robustness of the checks.

Where the adoption agency incorporates a competencies approach they will also need to explain this and what sort of evidence of skills and aptitudes could be sought. The assessing worker should review this with their supervisor early in the assessment so that there can be agreement about the information that should be obtained at an early stage as it is anticipated that there will be factors that will need further consideration during the assessment. Agencies may choose to gather the names of a number of potential referees at the beginning and then prioritise who they will follow up at a later stage when there is greater clarity about the areas where comments from referees would be valuable. Applicants should be encouraged to think of possible referees who have known them individually or, if a couple, together over a period of time, including during significant times in their lives. As well as people who are not close relatives as required by the Schedule, consideration should also be given to meeting members of the applicants extended family both because they may have an additional perspective on any difficult areas arising during the assessment and also because of their potential support role.

The question of the confidentiality of this information is complex. Regulation 7(5)(f) provides for the report that is presented to the adoption panel to be shared with the prospective adopters on the basis that it shall exclude any information provided in confidence. Assessing workers should be clear about the different aspects of confidentiality so that they can explain this to applicants at the outset. This includes understanding the perspectives of other agencies and professional bodies as well as their own agency approach. Disclosure Scotland has its own guidelines about the handling of any additional information that may accompany an enhanced check. The medical profession has its own code of practice that addresses both access to medical records and also any restricted reports where there is a duty of care. Personal referees and other individuals may tentatively raise concerns but be reluctant to go further if they were to be identified as the source of negative comment. Regulation 8(6)(b)(i) states that where there is a decision that a prospective adopter is not suitable to adopt, they must be sent the reasons for this decision. It is obviously likely that a concern from third party information may feature here. Any such situation needs a well considered approach with time to attempt to resolve the concerns posed - if necessary by deferring panel consideration. This will require discussion with the individual providing the information in question and exploring ways in which the issue can be opened up with the applicant. In some cases this may be about the provider of the information agreeing to communicate with the applicants, in other situations it may be about thinking of ways of finding out more about the issue from other sources or bringing it into the open without identifying the source. This is often unsatisfactory as the source may be obvious to the applicant or it may divert attention to wondering who might have made an adverse comment. In many situations it is, however, possible to negotiate a way forward that allows a full satisfactory inquiry into the difficulty raised. These situations often cause anxiety for workers who will need support and guidance on ways forward. Agencies may also deliberately leave the choice of referees to follow up with an interview and also the use of a standard visit by a second worker or supervisor to a later stage to provide further opportunity to consider difficult aspects of an application. Ultimately there is no absolute guarantee in these complex situations that confidentiality can be protected if cases are appealed. Every effort should be made in managing these cases to address issues raised thoroughly while respecting as far as possible the concerns of individuals providing information about confidentiality and with sensitivity to their anxieties. A clear record should be held at all stages of the discussion of such issues and the conclusions reached.

The 2007 Act extends the framework for joint applications to adopt to a wider range of couples including civil partners and cohabiting partners. Adoption agencies already have experience of assessing these applications but on the basis of only one partner making the application to adopt while the other partner may look at other alternatives to secure their status in relation to the child. The legislation and regulations help to regularise this position and the Schedule directs attention to some specific pieces of information where there are two prospective adopters. The phrase that will require some consideration is about those who are not defined as a 'married couple' and need to establish they are in 'an enduring family relationship'. Finding ways of testing and articulating this will be helpful in considering any relationship - simply stating that people have been married for a number of years can no longer be taken as any guarantee of this. Adoption agencies will need to keep in touch with other areas of social work and counselling to ensure that they are aware of any models that could inform their practice in this area.

While adoption is still seen as a particular option for families with fertility issues and a high proportion of applicants are childless, there are also a number of applications from those with children already. These will range from those embarking on a second - or subsequent - adoption through families where secondary fertility is an issue to those who have plenty of parenting experience through children born to them and have responded to the needs of children waiting for an adoptive family. There are a growing number of tools now available for use with children in the household when an adoption assessment is being completed. One of the known risk factors in adoption is the impact on a child already in a family of the addition of a child through adoption, especially if they have extra needs in finding their place within the family unit. This should always be carefully and explicitly addressed and attention paid to the way in which children are directly included in the assessment.

Part 1 of Schedule 1 brings in the reference to the prospective adopters religious persuasion and observance. This has been standard for many years but during that time the social context has altered. Originally the main use of 'stranger' adoption was for relinquishing birth parents who often had views on the religious upbringing of their child and may also have chosen to approach an adoption agency with a faith base. These agencies would have been well versed in all aspects of their particular faith. Many faiths have significant rituals that mark stages in a child growing to adulthood as well as going from the cradle to the grave. These are important to families. Some may need confirmation of one stage before moving on to the next or to complete a particular ritual. Where there is discontinuity between the child's life before and after adoption some of this may be lost or fail to be recognised. Assessing workers now may be seeing applicants where they have only limited knowledge of different religious practices and need to ensure that they understand both what is important to the prospective adopters and also the implications for the child.

The specific area of religious practice later became part of the wider interest expressed in the Schedule about the prospective adopter's ability to have regard to the child's religion, ethnicity and cultural and linguistic background. This is mirrored in Part II in the information about the child. Practices - and the language used about these aspects of an application - have changed over time. This began with moves to find adopters for children of different ethnicities for whom it was hard to find sufficient adopters when the emphasis was on willingness to accept a child who was different to a more proactive expectation of adopters in understanding all that surrounds concepts like valuing diversity and the reality of how that applies within adoption. This opens up the whole area of the extent to which the assessment should explore the belief system of the applicants. It may also raise questions for applicants about the basis for any judgements made about their views and attitudes. From the perspective of the adoption agency they need to be sure that their practice is genuinely non-discriminatory and that any exploration of these areas is linked to the needs of children who may be placed. It is easy to use words like 'non-judgemental' and 'tolerance' in this context but for the children the key words that must be considered are 'difference' and 'disconnection'. All adopted children may experience 'difference' - this may simply be about joining a family in a different way from their cousins and most, if not all of their friends. They will also have to manage two very different family histories between their birth family and their adoptive family. This may be accentuated by differences in ethnicity, religion and culture - especially where children are placed trans-racially and through inter-country adoption. Other children may stand out socially or behaviourally which may be attributed to their background and their adoption. This where an individual's belief, faith or ability to empathise with a child's experiences may be a strength - or may be tested.

The adoption agency should be clear about its requirements for financial information. Many agencies now make a point of encouraging applications from a wide group of people and emphasise that no one will be excluded on grounds such as unemployment, not owning their own house or other such factors. It should therefore be clear to applicants from the outset of the assessment that on one hand there will be expectations that the children being placed for adoption will need security and opportunities to reach their full potential and, on the other hand, there are allowances available to adopters who have the skills and capacity to care for children who are awaiting adoption but need some support in making practical provision for them if the children meet the criteria for adoption allowances set by the agency.

The Schedule makes reference to the prospective adopters ability to care for the child throughout childhood. This directs attention in the assessment to the whole period of a child's dependency and their transition to adulthood. Factors such as age and health may be relevant here. This should be understood within the broader context of the life-long dimension of adoption and the full legal intention of adoption.

Approval process

The key steps in this and the timescales are clearly laid out in the regulations. Agencies will have an agreed format for presenting the completed assessment to a panel - which is normally a standard format familiar across agencies to facilitate inter-agency placements and also to ensure that all the requirements in the regulations are covered. This must be shared with the prospective adopters in advance of the panel excluding any information provided in confidence and they should sign it. Agencies should have their own procedures and timescales to ensure that the applicants have sufficient time to look at the report on their application and if necessary add comment on any concerns or inaccuracies and also to ensure the papers reach panel members in plenty of time to prepare for the panel.

The attendance of the applicants for part of the panel is well established practice. Agencies should have information available about the purpose of the panel, when and how the applicants will have the opportunity to meet with the panel and whatever practical information that will help them to participate. This could include written information with some brief details of panel members; opportunity to meet the chairperson before being introduced to the panel; feedback on the positive elements noted by the panel in their application before asking any questions; an indication of the areas that the panel would like to discuss with them at the outset. Their assessing social worker should have discussed with them in advance that the panel can only make a recommendation which goes to an Agency Decision Maker who cannot be a member of the panel and also the timescales for the agency decision to be made. This should be confirmed at the panel itself. The timescales are laid out in regulation 8. The agency should have procedures to ensure that the papers and a minute of the panel covering all the areas that must be in writing reach the Agency Decision Maker in time to make the decision within 14 days. It should be noted that where the recommendation is for approval, and this is agreed by the Agency Decision Maker, there is a further 14 days to write to the applicants confirming this. If, however, the decision is not to approve the applicants, they must be notified within seven days together with the reasons for this and also the adoption panel's recommendation if they had considered the applicants suitable. They should also receive written information about timescales and process if they wish the decision to be reviewed. The agency must therefore be able to demonstrate clear reasoning throughout this process . Applicants should be afforded a period of not less than four weeks and not more than 12 weeks to make representation about the decision.

The regulations are expressed in terms of the applicants' suitability to adopt. In addressing this, there are two further areas that the panel may wish to comment upon and which link with the later function of the panel with regard to the placement of a particular child or children with the adopters. These are

a) The age range and number of children who may be placed in relation to this application. Adoption agencies normally make some recommendation on the parameters of the children who may be placed but the regulations are silent on this. Agencies should therefore decide the extent to which they would seek to add such recommendations to the overall suitability to adopt. The aim of leaving flexibility is that some adopters may develop their confidence in considering a wider range of children once they are approved. Adoption agencies need to continue working with adopters post approval to develop their ability to consider the real needs of children known to be awaiting adoption. Many agencies who use the Form F produced by BAAF use the matching pro-forma provided as part of it during the pre-approval period to start exploring the whole range of aspects of a child that form part of the matching considerations and this will be part of the evidence shared with the panel. This goes beyond age and ability to consider siblings and issues around contact; background factors; developmental concerns, disabilities or health needs; heritage and genetic factors and a wide range of emotional, social and behavioural challenges. The agency should decide whether they will seek to make recommendations within specific parameters or will make reference to the broader ongoing work in relation to matching characteristics which will be continued during the period prior to any proposed match.

b) Anticipated support needs. In any recommendation for approval there should be strong positive reasons to consider that the applicants have the capacity to meet the life-long needs of children awaiting adoption. This places the initial emphasis on the strengths of the applicants. There are always areas where applicants have less experience, are less confident or have personal experiences that may increase their empathy for a child's circumstances but also could leave them vulnerable. A good assessment will evaluate and balance these different attributes to reach a recommendation on 'suitability'. One of the main thrusts of the 2007 Act is the recognition of the level of support that should be available to adoptive families to equip them to manage the child's changing needs and also to address the significant extra challenges that often arise from the background and history of the children placed. The growth of skills and practice in this area highlight the need both for all adopters to recognise their potential need for support at times but also more specific awareness of likely areas where this may be needed. This should be built in to the matching process and should therefore be recognised from the point of approval.

Review of approval

There are two forms of review laid out in regulations 9 and 10 - these provide for situations where the agency decides not to approve applicants and they wish to appeal against this, and agency reviews without request by the adopters where either no child has been placed within two years of their approval or a child has been placed but no application to adopt has been made and the agency considers that a review is necessary to promote or safeguard the welfare of the child. In the latter case agencies should include in their procedures the links between a Looked After Children review of a child placed for adoption where this is not leading to the expected conclusion and the point of referral back to the adoption panel.

Review of agency decisions

The procedure for this is clearly laid out. The adoption agency should have arrangements in place to enable them to have a differently constituted adoption panel within the required timescale. This should also conform to regulation 3. The existing pool of adoption panel members may be sufficiently large to service this if necessary but small agencies may need to establish a reciprocal arrangement with another agency to ensure that there is a sufficient pool to draw on to provide a different chairperson, legal and medical adviser as well as panel members. Most agencies already have provision for an alternative Agency Decision Maker to cover holiday and illness but may also designate their chief executive or similar as an additional Agency Decision Maker for such eventualities. The prospective adopters should be given the opportunity to make representations to the adoption agency, regulations do not specify the means for doing this but a fair process would allow them to put their views in writing, add any other views and comments from other sources in support of their appeal and speak to the adoption panel that is making the fresh recommendation.

Review of approved adopters

Regulation 10 addresses when an adoption agency must review adopters following their approval. Agency procedures should be clear how this will be carried out. Two sets of circumstances are identified when this will be necessary - firstly when adopters have been approved for two years and no child has been placed and secondly where a child has been placed in accordance with regulation 18 for the purpose of adoption, no application for adoption has been made and the agency considers a review of the approval is necessary to safeguard the child. Where and how this will be done will vary depending on the circumstances but the outcome should be formally minuted with reasons.

Where no child has been placed within two years of approval, this should be addressed initially by the team responsible for the assessment and approval of adopters. There may be a number of reasons for this

  • there may have been no children within the parameters the adopters were willing to consider needing adoptive placement
  • there are factors in relation to the adopters which have meant they have not been the family choice for any children needing placement
  • for personal reasons they were unable to consider a placement for part of the time, for example move of house, so they were temporarily unavailable.

The review needs to consider whether their continued approval is realistic and a placement may still be anticipated. In advance of this review, the agency is required to re-assess the adopter's suitability to become an adoptive parent. The adoption agency should maintain contact with all their approved adopters during the time when they are awaiting placement and have established how they will do this. This is particularly important where an assessment has been carried out by an independent worker on behalf of the agency. This is frequently a very productive time during which adopters begin their preparation for such a significant change in their lives and develop their thinking about the reality of the potential needs and characteristics of the child or children who may join them.

If there are significant changes in the prospective adopters' circumstances these should be addressed at the time and where these have implications for their approval, the case should return to panel for re-consideration which would obviously include the views of the adopters. Otherwise, adopters should be aware that if no child has been placed with them, their situation will be reviewed after two years. Their contact with the adoption agency should support them in thinking about the possible reasons for this. In particular, they may need to reflect on whether this relates to their own hopes and expectations or their capacities at the time of approval - and is there any more they can do to address this. The re-assessment required for a two year review should concentrate on any changes and development during the waiting period and its application to the original assessment that led to the adopters' approval. In some instances, agency criteria may also have moved on - for example guidance on passive smoking has led some agencies to change their criteria for placement of young children within non smoking households as the requirement for all under five's rather than under two's.

Attention should also be paid to the efforts made by the agency to find a suitable link for the adopters. There are various arrangements in place to facilitate links between agencies in different parts of Scotland, across the whole of Scotland and the UK. As well as recognising the needs of waiting families, this also acknowledges that a protracted wait for a placement may undermine the confidence of families and in some circumstances the loss of a potentially valuable family for a child. As part of their required plan for the provision of adoption services, local authorities should include in their review of such plans both their approach to resource sharing and any necessary changes to practical arrangements for this. Waiting adopters should be actively involved in how a link may be identified for them and understand the implications of an inter-agency placement.

Agency procedures should also specify the frequency of updating statutory checks and medicals. The most obvious point is to update checks for the two years review but this will require to be monitored in line with any subsequent guidance from Disclosure Scotland and also with the introduction of the Vetting and Barring changes system which comes into force in 2010 under the Protection of Vulnerable Groups (Scotland) Act 2007. Procedures should also be in place for updating medical information. Full medicals should only be necessary after five years or if there has been a significant health issue in the intervening period.

Regulation 10 thereafter lays out the necessary steps to be taken if the conclusion of the review is that the prospective adopter may no longer be suitable and the need to refer the situation back to the adoption panel. In practice, agencies may choose to discuss all reviews of adopters waiting for two years at the panel so that the panel builds its awareness in this area. The review report should provide the panel with a summary of prospective adopters and the panel recommendations at the time of their approval; any change in circumstances; reasons why no placement has been made with them; the current view of the assessing social worker about their continued approval and the discussion at the review that concluded they may no longer be suitable. The regulations provide for the sharing of that report with the prospective adopters and their opportunity to submit representations. They should be encouraged to provide their views in writing prior to the panel and the agency should consider the provision of the opportunity to meet the panel as in their original approval. The route thereafter is similar to the initial approval process including the possibility of appeal if the Agency Decision Maker decides the prospective adopters are no longer suitable to adopt.

The regulations do not define the need for further reviews but this should be clear within agency procedures. Where the agency and the panel, if involved, are happy to recommend the continued approval of the adopters they should indicate when any subsequent review should take place if no placement is made. This would normally be within a maximum of two years unless individual circumstances indicate an earlier review.

The situation where a child has been placed, no order has been made and the adoption agency considers a review is necessary to safeguard and promote the child's welfare is more complex. Obviously if any real risk to the child is identified, child protection measures will be implemented and if necessary the child removed. Some of the children placed for adoption have very complex histories with all the challenges to carers that can also occur in foster care. In a similar way prospective adopters may struggle to find appropriate ways to manage very difficult behaviour, be open to allegations and be at risk of secondary traumatic stress. Although these placements may have been with the intention of adoption, the placement initially may have been made on a fostering basis. The child will continue to be looked after and should be reviewed in the normal way. It is this review that should consider the way forward for the child. The challenge for local authorities, whether acting as an adoption agency and with all the wider responsibilities or working in partnership with a registered adoption service, is to find the most effective ways for the looked after reviewing system, the adoption service and the application of different aspects of the general fostering provisions all to work together. A number of agencies specifically approve prospective adopters as foster carers as well if they consider it is likely they will have a child placed through the Children's Hearing. The expectation is that they will only be foster carers for a child who they would hope eventually to adopt. They do, however, need to be clear about all that is involved in acting as a foster carer for an agency and sign a Foster Care Agreement and a Foster Placement Agreement and understand the implications of that. At the same time, a system that is accustomed to handling struggling foster placements and very challenging children must be sensitive to the perspective of prospective adopters who started off wanting to make a child a full member of their family and began by thinking themselves into the role of parents to the child. In the midst of this, decisions may need to be made about whether the point has been reached where alternative arrangements should be made for the child and the placement disrupted or whether the best that can be achieved is the continuation of the placement on a fostering basis. The adoption agency may wish to consider, under regulation 6(2)(e), the extent and role of the adoption panel in these circumstances. The agency may wish to use the panel's experience in permanency issues to consider change of status in these situations or address the need for more extensive adoption support services. This may be at an earlier point than is indicated in regulation 10(3), which would otherwise follow on from a Looked After Children Review at which the liaison worker from the adoption agency who supports the prospective adopters would be present and which concludes that the planned adoption is no longer viable. This should separate out the child's plan from any consequent change needed to the approval of the adopters.

Duties when considering adoption for a child

This section of the guidance relates to those parts of the legislation and regulations that cover the agency's duties in working with children and their birth parents in making an adoption plan. The regulations themselves address the information needed, how the agency makes its decision, the necessary notifications and consent certificates. In planning the agency's services, there are three broad groups of adoptions

  • relinquished infants
  • adoptions by step-parents and relatives
  • adoption of children who are looked after (where this was not a voluntary adoption request from the birth parent or not the plan at the outset).

Relinquished infants

There is clearly provision in the legislation and regulations for involving relinquishing birth parents fully in the process - how this will be done and the relevant timescales for notifications and giving consent. The service itself should begin, if possible, well before the infant is born. The period around the birth and immediately thereafter is recognised as an emotional period which is enshrined in the legislation which states that any consent by the mother is ineffective if given less than six weeks after the birth of the child. At the same time, the best interests of the infant will be served by ensuring they are settled in their permanent placement as soon as possible. In some instances this may include direct placement after birth on a fostering basis with a family who are also approved to adopt. It is therefore vital both for fairness to the birth parent and to offer the best service to the child that there is ample time to explore all the implications of adoption without undue delay. Each local authority, as part of its adoption plan, should be clear about where and how such requests for adoption are handled. This will include written information for birth parents considering adoption, the choices available in seeking advice and counselling and clear and accurate details about accessing these services. This may be about where within the local authority such work is best placed or about choices that include a registered adoption service. Work pre-birth should include

  • time to reflect on the options available and the implications of these
  • discussion of any barriers perceived by the mother in considering caring for the child herself
  • beginning to gather the information in Schedule I Part III with explanation of the reasons for this
  • consideration of the involvement of the birth father and other family members including whether they could/should be made aware of the birth and whether they could contribute information about the child's origins or be given the opportunity to care for the infant
  • clear explanation of each step in the process and opportunity to see the memorandum on the adoption of children in Schedule 2 with time to consider all the information contained in it
  • consideration of the life-long needs of adopted children and the implications of this for a relinquishing birth parent
  • practical arrangements in preparation for the birth
  • identification of any matching considerations, both potential issues arising from the information about a child's ethnicity or any genetic or medical concerns and any views expressed by the birth parent.

The social change that made it possible for so many single mothers to parent their children rather than consider adoption has made it vital to explore fully the mother's personal circumstances for the child's future understanding of the reasons for their relinquishment. A generalised social explanation will not suffice and relinquished infants may still experience a strong sense of rejection, especially if they are not helped to understand the pressures on their particular birth parents. Within certain cultures and in individual families, single parenthood may continue to be an insurmountable problem which needs to be recorded to enable the child at a later date, and in a different social climate, to make sense of their adoption.

Where the birth mother is resistant to sharing information about the pregnancy with the birth father or family members every effort should be made to encourage her to think about the importance of this to the child and support her in managing this. This should be carefully recorded as, like many aspects of adoption, there must be a balancing of the potential risks and benefits. In this case the balance is between breaching the confidentiality of the birth mother, deterring her from making what she considers the best plan for her child and questioning her request for a service on one hand; and on the other, losing for the child some potential avenues to pursue to find a place for her/him with birth relatives, missing some sources of knowledge about the child's history and any medical or genetic information. There is also the potential for legal challenge from anyone who might wish to obtain some parental responsibilities and/or rights. Legal advice in these situations should comment on whether the agency has made sufficient enquiries and has reached a logical and well founded conclusion. On the other hand, from 4 May, 2006 birth fathers named on the birth certificate also have parental rights and responsibilities and should be actively involved in the planning. Efforts should always be made to engage birth fathers, both for the potential long-term benefit for the child in knowing about them and their views and as a possible support to the birth mother.

Normally, where adoption has been requested for an infant, the baby will first be placed in foster care to give the mother time after the birth to reflect on her decision and be confident about proceeding. Most birth parents prefer to have some idea of stages and timescales. The next step will normally be the review at six weeks which coincides with the point at which a birth parent may legally give their consent.

Registered adoption services may offer a direct service to relinquishing birth parents and also have foster carers who specialise in this type of placement. They will also, however, be providing services in agreement with a local authority which will normally be supporting the care of the child financially and the child will become looked after. This will be an appropriate point at which to decide whether to proceed to an adoption panel to confirm the adoption plan for the child. Clearly in a voluntary relinquishment the birth parents can seek more time to be certain of the decision. If the birth parents are ready to proceed, consideration should be given to sharing information about possible families for their child and the possibility of meeting prospective adopters. Encouragement should also be given to them providing information and momentos for the baby.

The assumption in this part of the legislation is that adoption on request is not dependent on any assessment of the parents' abilities to care for the child. This would only become an issue if at a later stage parents sought the return of an infant and concerns had emerged about the safety or welfare of the child. Once the child is born the adoption agency must ensure that all the next steps are carried out thoroughly, at a pace that is sensitive to the parent's needs but does not cause undue delay for the child. There may well be concerns about the long-term effect of the decision on the birth parent or a sense that if a particular hurdle could be removed, then the child could be reunited with birth parents. Realistic planning involves doing the best possible within the confines of the situation and not risking leaving a child in limbo.

Presenting the plan at panel will require the completion of the necessary reports including legal advice and a full medical examination. The agreement of both parents should be sought to obtain their medical information as part of the information required in Schedule I part III.

Regulation 12(4) provides for any representations from the child or their parents or guardians. Whether birth parents attend the adoption panel will be part of the wider procedures of the agency, although an increasing number make this provision and as a result of this consider that it should be standard practice for birth parents to be given the opportunity to attend panel. For relinquishing birth parents it is important for the panel to be aware of their wishes for their child. For these birth parents, if they attend the panel this should be seen as a way for them to be actively involved in contributing to making the plan for the child's future well-being and be consistent with the agency approach to supporting and working with parents. The panel chair should ensure that the parents understand the role of the panel in making a recommendation and what will happen next.

Regulation 6(6) enables the panel to make more than one recommendation at the same time so it would be possible to consider a potential match with adopters at the same panel. It will depend on individual circumstances whether this should happen or whether there should be a space before moving on to exploring with the birth parent their views on potential adopters.

It would be anticipated that in these adoptions all the stages would move forward with the agreement of the parents and that there would be no need to apply for a PO with authority to adopt. Point 3 in the memorandum in Schedule 2 does however include reference to this possibility if the birth parent does not consent to the adoption. Regulation 16 spells out all the requirements about what needs to be sent to the birth parents and the timescales for this, including both the forms in Schedules 3 and 4 and also the provision for checking whether a parent who does not have parental responsibilities and rights intends to seek these. If challenges to the plan emerge and a PO with authorisation for adoption is considered the best alternative route, this can only be sought by a local authority. Normally, if the service to date had been delivered by a registered adoption agency they would already be doing this in conjunction with a local authority. Otherwise, regulation 15(2) does provide for the referral of the case to the local authority for the area where the child resides.

Adoption by step parents and relatives

These are not covered by the Adoption Agencies Regulations (Scotland) 2009. They do not come to an adoption panel or through the adoption agency decision-making process. These are non-agency placements where sections 18, 19 and 75 of the 2007 Act apply - the local authority has not had responsibility for placing the child and the adoption petitioners have not been approved as agency adopters. "Section 75 is relevant because it restricts who may arrange adoptions." The local authority responsibility under the 2007 Act is laid out in section 19, following the notification under section 18. These notifications signal the start of a legal process. What will not be clear, until contact is made with the proposed petitioners, is the extent of discussion, advice and consideration that has already taken place before they took that step. Many will have sought legal advice, although it is possible to lodge a petition without using a solicitor. Some may have sought extensive information as part of their own deliberations or contacted an organisation such as the Citizen's Advice Bureau. Others may have initiated a legal process that makes sense in their circumstances and with a clear intention but may not have had the opportunity to discuss all the implications fully with someone with knowledge of adoption. It is therefore important that there are procedures in place within the local authority to ensure that these notifications receive a prompt response and are directed to the appropriate staff within the authority that have experience and knowledge of these adoptions.

The social worker carrying out the enquiries into the situation should be clear about the legal requirements in these situations. In particular one of the changes in relation to step parent adoptions is that the step parent may apply if they are part of a 'relevant couple' and their partner is the parent of the child to be adopted. This means a step parent adoption is now possible if the petitioner is in a civil partnership or living together with the child's parent in an 'enduring family relationship' - presumably using a similar approach to assessing this as in any other adoption application. 'Relative' in adoption is defined in section 119(1) of the 2007 Act. In other situations where a child is, or will be, placed with approved kinship carers or foster carers who do not meet this definition of relative this may be covered by permanence planning procedures in kinship care leading to an agency placement (Please see guidance on PART V KINSHIP CARE). However, a proposed adoption by kinship or foster carers may proceed as non-agency adoption, although the adopters are not "relatives" as defined. Such adoptions are granted by courts.

One area that is common to step parent adoptions and adoptions by relatives is the explanations to the child. In agency placements all approved adopters will have had, as part of their preparation, a lot of information about their responsibilities in talking to their child about their adoption which will inevitably prompt discussion. A number of non-agency adoptions concern much older children and if the child is 12 or older the petitioners should be aware that the child must also give their consent. Where petitioners are applying to adopt younger children this is an area which will need active consideration if the child is unaware of the nature of their relationship with the adults parenting them. They may need time and support to consider how to manage this.

Another complex area is the potential views of estranged parents. It will clearly be a legal concern if an estranged parent has parental responsibilities. Some parents in this position struggle with the management of this, especially if the estranged parent has been out of touch for some time. From the point of view of the local authority, they need to consider the extent to which they should make efforts to see an estranged parent and record carefully the decisions made in each circumstance.

Both types of non-agency placements are likely to bring up complex questions about the child's links and possible contact with other family members. This may be about the relationship the child's parent in a step parent adoption had with the separated or estranged parent of the child. Where this has been acrimonious or embarrassing it can be hard to share this with the child. There may be resistance to opening up this area even if the absent parent has parental responsibilities. With adoption by relatives there can be difficulties managing relationships with a birth parent within the broader context of the whole kinship network.

Although these may not seem a primary concern for adoption agencies their potential complexity indicates that, in providing adoption services, the needs of this group should be properly accounted for.

Adoption of looked after children

The largest, most diverse, group of children for whom adoption services need to be provided are those who initially require to be looked after - where their parents are struggling to offer safe or nurturing care. The decision on the need for adoption as the plan for permanence will come through the Looked After Children reviewing process. This is covered more fully in the guidance in the Child's plan in the Looked After Children (Scotland) Regulations 2009 guidance.

One of the important steps that should have been triggered by the Looked After Children Review is a meeting with the legal section of the local authority. This has a number of purposes - it is an opportunity for both the social worker and the legal adviser to review the robustness of the evidence to dispense with consent if the birth parents do not consent to the adoption. The grounds for this are laid out in section 31 of the 2007 Act. This is a complex section and one where the legal adviser will be best placed to indicate the subsections that apply. From the perspective of the social worker one of the aspects that will benefit from detailed discussion is the parental responsibilities and rights laid out in sections 1 and 2 of the 1995 Act. This is central to any consideration of the alternatives in planning adoption or permanence. Is this parent choosing to surrender all their responsibilities and rights through adoption - and if not, for each responsibility and/or right have they exercised it and if so, was it done in a way which promoted the best interests of the child? Spelling this out should clarify whether the full transfer of rights through adoption is in the best interests of the child or whether there are some responsibilities and rights it would be in the interests of the child for the parent to retain or share. If some sharing of these responsibilities and rights is indicated then there needs to be more detailed working out of how this should be reflected in a PO. This should form part of the advice going to the adoption/permanence panel. Three basic questions that need to be addressed by the adoption/permanence panel are

  • is there enough evidence to support the conclusion that the child cannot return home?
  • if the best option is a secure foster placement underpinned by a PO, what sharing of ancillary responsibilities and rights should be reflected in the order?
  • if adoption is the best way of securing the child what is the best legal route? This may be by direct adoption or via a PO with authority to adopt.

The discussion between the social worker and the legal adviser prior to the panel should inform the report and legal advice that is presented.

As part of these discussions there should be clarification of the timescales that apply both to the adoption agency in each step of the process and also within the court rules. (see ANNEX C)

The application for a PO with authority for adoption is the next step if the parent does not sign their consent in either Schedule 4 (adoption) or 7 (permanence order with authority for the child to be adopted) on receipt of the relevant memorandum and certificates, unless the child is already with adopters who are ready to petition to adopt. The effectiveness of the use of the PO with authority for adoption will depend on all parties working to ensure that the court decision is made fairly and without undue delay. The aims are to avoid the child being in limbo for any length of time, avoiding prolonged uncertainty for the birth parents and giving them their opportunity to make their case in court without unnecessary delay and reducing the pressure of an unresolved legal situation for the adopters who need to concentrate on caring for the child. The social workers and the managers responsible for the case, as well as the legal department, need to be well prepared for court and should begin that preparation in the meeting before the adoption/permanence panel. It is also important to ensure that birth parents are advised on their right to seek legal advice and encouraged to do this as soon as possible. Consideration should also be given to appointing separate social workers for the child and the birth family.

Regulation 12(2) indicates all the areas that the adoption agency should consider in concluding that adoption is in the child's best interests, from what is required in preparation for the panel, through to presentation to the panel and on to the Agency Decision Maker. This is pulled together in the presentation to panel. The adoption agency should be consulting and recording the views of the child, taking account of their age and maturity, and the child's parents from their initial involvement leading to the child becoming looked after. These should be fully reflected in the reports to the panel.

An increasing number of adoption agencies are inviting the birth parents of a child to the panel considering adoption or permanence plans and agencies should give positive consideration to this. This also opens up consideration of other people who should be invited in certain circumstances - such as older children or key members of a family with significant views on the plan. Where this is done there should be clear procedures about managing this with some flexibility to take account of the range of possible scenarios. Birth parents should have information in advance, preferably in writing but also through careful explanation, about the purpose of the panel and how they can contribute. Some parents may see it as just another meeting like the LAC reviews or wonder what its purpose is if the decision was made at a review. It is normally most helpful to have a defined period when the panel can concentrate on hearing the views of the parents and have some general areas that they cover for which the parents may be prepared. Usually this is about confirming they have seen the social worker's report to the panel so they can comment on its accuracy and highlight any areas where they feel misrepresented and then establish their views on the plan for their child and any alternatives they propose. If parents are not attending in person there should be evidence that the report was shared with them and if they do not agree to sign the report they should be able to put any contrary views in writing. Some birth parents may need help in accessing or understanding the report and every effort should be made to support them with this. Consideration should also be given to other support services for birth parents or advocacy services to help them express their views to the panel.

Where adoption agencies have established procedures for birth parents attending panel it is logical to consider a similar provision for children also. This would apply to children who are old enough to understand the purpose of the panel and wish to express their views directly. Otherwise care needs to be taken by the panel to understand the child's views as demonstrated by their behaviour and responses as well as any views expressed verbally or in writing. It is usually helpful for the child's current carers to attend the panel, both to explain their perception of the child's views as well as to talk about their overall needs and elaborate on the information about the child that will contribute to careful matching with adopters. A child's emotional stability and their ability to engage with a move to adoption may lag behind the professional assessment of the need for such a plan and this needs to be taken into account both in recommendations about the nature of the plan and the timing for moving forward.

The information that the agency is obliged to obtain is in Parts II and III of Schedule I. Much of this will have been gathered when the child became looked after. It should be checked for accuracy and special attention should be paid to the child's development since they were separated from their birth parents. As the decision following the recommendation from the panel will lead to a legal process it is also vital to ensure that every effort has been made to identify and contact anyone with parental responsibilities and rights, even if they have been out of contact for some time and also clarify the position of any birth parent - usually a father - who may currently have no rights but could seek to obtain them. If a chronology of the child's life has not been done this should be completed for inclusion with the report and include moves and changes while at home and in the care system. Such a chronology will assist for example in identifying children at risk through repeated, albeit brief periods of accommodation.

The commonly used formats for reports to the panel should cover all the areas specified in Parts II and III of the Schedule. It should be noted that, in addition to the specific medical and educational information required, there is a need to include the personality, social, emotional and behavioural needs of the child. The reality of the children being placed for adoption indicates the importance of good information in these areas to share with prospective adopters. All the children will have experienced some disruption of care and frequently also neglect, abuse or trauma. For some whose needs have been particularly challenging, there may be a Child and Adolescent Mental Health Service ( CAMHS) report from a psychiatrist or psychologist or through educational services, an educational psychologists report. For other children the agency should consider ways to get a good profile of the child's needs and who can contribute to this process.

Medical information is obviously important. At this stage, birth parents may not consent either to a medical examination of the child or to the provision of medical information about themselves and any history of genetically transmissible or other significant disease in the family history of either the father's or the mother's family. The concept of a pre-adoption medical makes sense for relinquished babies but for children who may have already spent some time looked after by a local authority there should already be a body of medical knowledge gathered together to ensure that the child's needs are already being met. Some of this may have been completed earlier by a registered medical practitioner and where a local authority has a Looked After Children nurse they may have a good medical picture of the child. Therefore if the medical practitioner cannot carry out a full examination because there is no medical justification for doing this without consent there should be sufficient information available to proceed. The medical adviser should provide a view on this.

Regulation 11 of the Adoption (Disclosure of Information and Medical Information about Natural Parents) (Scotland) Regulations 2009 provides that where an adoption agency has been unable to obtain information about a transmissible genetic or other significant disease in the family history of the child, any registered medical practitioner holding such information must disclose it to the adoption agency on request where it will be held on the case record relating to the child. Adoption agencies including medical advisers, need to think about how and when they might make use of this new facility.

Throughout the regulations, as in the legislation, there is reference in different forms to the religious persuasion of the child and parents, including any details of any ceremonies pertinent to that religion as well as their ethnicity, culture and any linguistic needs. This should form an important part of articulating the child's needs in seeking an adoptive placement. Where the agency may have difficulties in identifying adopters who could meet a child's needs arising from their religion, culture, ethnicity or any other needs the panel recommendation should highlight this so that the Agency Decision Maker can authorise the resources for a search for an appropriate family beyond the local authority's own resources. There are many options for this in the different resource sharing mechanisms established to link children with approved families through local consortia, across Scotland and also UK wide. Some adoption agencies might also wish to consider specific recruitment initiatives. This should be identified and acted upon early so that there is no undue delay for the child or a less appropriate link is made before there has been a full exploration of wider options for the child. Where panels do not have expertise in this area they should be seeking a wider membership sensitive to diversity issues and also providing ongoing training for panel members. For an individual case they should check that the social worker has sought advice and information from the appropriate minority religion, culture or ethnic group.