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

Specific questions

The consultation also asked the following specific questions:-

(i) Given that all children who will be subject to a permanence order are Looked After Children, should those regulations which relate to permanence orders with authority to adopt (principally Regulations 13, 16 and 18 but there are references in several other regulations) be incorporated into the Looked After Children (Scotland) Regulations?

(ii) Where should the provisions relating to permanence orders sit?

(iii) Do you agree with our understanding of what 'parent' means in each of the relevant regulations?

There were 7 responses to question (i). 3 responses felt that the regulations should be incorporated into the Looked After Children (Scotland) Regulations (the LAC Regulations) with one suggesting that there should be clear cross-referencing in those regulations and guidance to guidance on the Adoption Agencies Regulations and 3 felt they should not. One response asked if it would be possible to cover the issue in guidance. There were also 7 responses to question (ii) but there was no consensus on where the provisions should sit. One of the responses also asked about regulations in respect of permanence orders without authority to adopt.

Of the 9 responses to question (iii) the majority found the definitions confusing and wondered whether there could simply be one definition.

Scottish Government response/action

We take the view that the provisions for permanence orders with authority to adopt should be housed in the Adoption Agencies Regulations because those regulations apply where adoption is being considered for a child. An application for a permanence order with authority to adopt should only be made where adoption is considered to be in the child's best interests. There are also a number of provisions in the 1996 Regulations which have been carried over into the Adoption Agencies Regulations and, because of their reference to freeing orders, have been adjusted to reflect the introduction of permanence orders with authority to adopt.

With regard to the response about regulations in respect of permanence orders without authority to adopt, there are no regulation making powers contained in the 2007 Act in relation to permanence orders and the original intention was that permanence orders without authority to adopt would not be regulated as they are court orders. However, an amendment was made to the Social Work (Scotland) Act 1968 to include a reference to the 2007 Act which widened the 1968 Act power to allow the Scottish Ministers to make provision in respect of the performance of local authority functions assigned to them by that Act (this amendment was inserted into the Adoption Bill at Stage 2). This would include scope to regulate the activities of local authorities in their preparation for making a permanence order application. Court rules will prescribe the timescales for making applications to the court for such orders as well as the documentation and evidence which must be submitted. Our view is that there is no current need to regulate any steps in the run up to the application being made by the local authority

As regards question (iii), the Regulations follow the approach taken in the 2007 Act. The 2007 Act does not provide a general definition of "parent" and there are 3 different groups of "parent" (outlined below) which are treated as distinct groups in the draft regulations (these distinctions are derived from the 2007 Act. This means that it would not be appropriate to provide a general definition covering all types of parent.

The approach taken in the draft Regulations also follows, as far as possible, the approach taken in the 1996 Regulations. The 1996 Regulations recognise 2 categories of parent. "Parent" is defined in the Adoption (Scotland) Act 1978 (the enabling legislation for the 1996 Regulations) as the mother or father of the child or both where they have parental rights and responsibilities ( PRR) (which are defined in sections 1 and 2 of the Children (Scotland) Act 1995). The 1996 Regulations also make provision for parents who have no PRR (an example of a parent with no PRR could be a father who is not married to the mother of the child and who is not named on the child's birth certificate. A parent could also have had their PRR removed by a court order.).

The confusion about the definition of "parent" in the Regulations may, in part, be due to the fact that there is a new, third, category of parent which has come about as a result of the 2007 Act. The 3 categories are:-

(i) "parent" undefined. This will include all parents with parental rights and responsibilities as well as all natural parents whether or not they have such rights and responsibilities.

(ii) Parents with PRR

(iii) Parents who have had PRR removed by the making of a permanence order with no authority to adopt (examples of this group are to be found in section 31 (Parental etc. consent) and section 83 (permanence order granting authority for adoption: conditions)) of the 2007 Act.

The 2007 Act also makes some separate provision for natural parents which may be regarded as a fourth category of parent. This group may or may not have parental rights and responsibilities but will exclude persons who have such parental rights and responsibilities if they are not the child's genetic parents. Examples of references to natural parent are found in sections 1 (duty of local authority to provide adoption service) and 30 (adoption by one person) of the 2007 Act. The Regulations do not make any provision specific to this group of parents.

There are 2 main areas where the new Regulations and the 1996 Regulations vary in their approach regarding categories of parent. The first concerns notification of provision of information to parents. The new Regulations include the third category of parents described above when notifying a decision that adoption is in the best interests of the child (Regulation 11 of the 1996 Regulations requires an adoption agency to notify each parent or guardian of the child once a decision has been made regarding adoption or freeing for the child and to provide that parent or guardian with certain information). Where a parent with no PRR is known to the agency they must carry out those same steps but only where reasonably practicable and in the child's interests. In the new Regulations the agency is required to notify PRR parents (1 ^st category) and those parents whose PRR have been removed by a permanence order with no authority to adopt (3 ^rd category) when a decision is made as to adoption or permanence orders) as those parents will be required to consent before the court makes an adoption order (section 31 of the Act) or a permanence order granting authority to adopt (section 83). It is therefore important that this group of parents are given notice that such an application could be made.

The second area where a new approach has been taken concerns provision asking parents to consent to the child being placed for adoption or for an application for a permanence order with authority to adopt being made. Such consent is entirely separate to the parental consent requirements when the court comes to make the order. The new Regulations require adoption agencies to seek parental agreement to the child being placed. If such consent is not forthcoming then they must make an application for a permanence order granting authority to adopt (mirroring the approach in the 1996 Regulations). Section 20 of the 2007 Act makes it an offence for a parent to remove a child who has been placed for adoption where that parent has consented to the placement. The new Regulations prescribe the form of consent for the purposes of that provision.

Section 20 applies to all parents (the 1 ^st category in paragraph 15) whereas the parallel provision in the 1978 Act applies to PRR parents (the 2 ^nd category). The approach in the new Regulations has therefore been to require agencies to provide the consent certificates to all parents. They must also ensure that the certificates are signed and returned but only where reasonably practicable. The 1996 Regulations differ slightly in that the non PRR parents will only receive the consent certificates if it is reasonably practicable and in the child's interests.

In the circumstances, we propose to clarify the different categories of "parent" in guidance. The guidance will explain that where "parent" is not defined, then this will be a reference to the first group of parents (i.e. natural parents and those with parental rights and responsibilities) and where a different group of "parents" needs to be distinguished then a separate definition is given for the purpose of that provision within the Regulations.