Letter from the Chair to the Minister for Education for Young People
6 June 2005
Peter Peacock MSP
Minister for Education and Young People
Scottish Executive Education Department
Edinburgh EH6 6QQ
In April 2001 the First Minister, then Minister for Education, asked me to carry out a review of adoption practice and law in Scotland. The Adoption Policy Review Group of independent experts in a variety of fields first met in May of that year and we reported on the first phase of our work, on practice issues, early in 2003. Membership of the Group was reformed and we commenced work on the second phase dealing with the legal framework for adoption and permanence in Scotland in the Autumn of that year. It was always anticipated that this phase would take a minimum of eighteen months to complete.
I now have pleasure in enclosing our report. It contains comprehensive recommendations designed to improve, modernise and extend the legal framework for providing security to children and young people who can no longer live with their families. The Group's main finding is that adoption still has an important place in the options for these young people, but that adoption should be complemented by an additional legal mechanism to allow children to feel secure and stable in a new family, and, importantly, allow their new carers to fulfil all the roles that parents normally fulfil. This mechanism we have called "the Permanence Order".
We have also made important recommendations to: increase the range of potential adopters and carers by extending the right to adopt to unmarried couples - including same sex couples; revise the grounds for dispensing with the consent of birth parents to the adoption of their child; ensure that proper support is given to children and families in permanence cases; improve court and children's hearing processes; and to improve arrangements for fostering children. There are other detailed recommendations covering the whole field of adoption law. I believe that these proposals could significantly improve the lives of many of the most vulnerable children in Scotland. I hope that you can act speedily to bring them into effect.
I would like to thank all those who have contributed to this report, in particular Penny Simpson, my fellow chair in the second phase; Lexy Plumtree, the Group's legal consultant, whose expertise has been invaluable; all of the Group members who gave up their own time without complaint to attend many meetings and read many papers; the Group's researchers Peter Selman and Kathy Mason; and the secretariat support from the Scottish Executive Education Department officials, notably Gerald Byrne, Susan Neilands, John McCutcheon, Robert Girvan, and Simon Cuthbert-Kerr.
1.1 Current adoption law in Scotland is contained in the Children Act (1975) and was last updated ten years ago. The nature of society and the use of adoption have since changed considerably and this legal framework no longer meets the needs of the range of children who cannot be brought up by their birth families. This report makes recommendations both to improve the existing system of adoption and to provide alternatives for other children who need a new long-term home, but for whom adoption is not appropriate. The report also makes recommendations to improve the process for finding these children new families - in local authorities, the children's hearings and the courts - and to improve the support the children and their family need to make a success of their new home.
1.2 Evidence shows that the current adoption system is not meeting the needs of the range of children in Scotland who cannot live with their birth families, but need a new stable and secure home. Over the last twenty years, the number of adoption applications has fallen from around 1,000 a year to less than 400, just over half from adopters not related to the child. The number of children adopted under the age of one year old has decreased by some 90% from around 200 a year to around 20. 1 At the same time around 6,500 children are in the care of local authorities away from their homes. Of these, around 3,500 are in foster care, 1,500 with friends or relatives and 1,500 children live in residential homes. Estimates suggest that around 3,000 of these children have been looked after for over a year. 2
1.3 Many consider that the current system of adoption is outdated. The stereotype model of adoption - a baby being given up voluntarily for adoption by the birth parents, and being adopted by a couple who want a child of their own - has been overtaken by changes in society. The children that now need new homes through adoption or some other mechanism are older, and have come into the system after being taken away from their birth parents. The current adoption system struggles to meet the needs of these children and their birth and new families in a number of areas:
- adoption can only offer one form of long-term security and involves severing all existing legal bonds and making new ones, it does not offer flexibility to meet the range of circumstances that older children will present;
- people who might offer to provide long-term homes for older children might be different from those who desire to adopt a baby;
- older children might well have a need to maintain a relationship with their birth parents or other members of their birth family and adoption struggles to provide contact;
- the court procedures for adoption are not well designed for contested cases, which are more likely if parents do not consent to the adoption.
These issues need to be addressed if the system is to be modernised to make it relevant to the needs of the children and adults who use it.
1.4 The Group's focus has been to provide a legal framework to meet the range of needs that older children might have. Older children can be expected to come into the system after a decision has been taken to remove them from their birth family. However, they will have formed a bond with their birth parents or other members of their birth family, and maintaining these relationships can be very important. Some of these children might also have had previous carers within the care system, or have lived with grandparents or friends. These bonds can also be important. Some older children may exhibit behaviour that is characteristic of a difficult upbringing.
1.5 All of these factors mean that adoption - with its finality, its breaking of current links, its substitution of new family for the old - may not be the best option for these children. However, they need some sense of security and stability in their lives. They cannot return home. They need a new family, and that new family must be underpinned by a legal framework that makes the child feel safe and allows the carers to claim the child as their own.
1.6 The Group therefore examined the alternatives to adoption. It did not find the current options satisfactory:
- a supervision requirement from the children's hearing suspends, rather than removes, the rights of the birth parents, but does not give any parental responsibilities or rights to the local authority or the foster carers. It is subject to review at least once a year and does not offer long-term security.
- local authorities can apply for a Parental Responsibilities Order ( PRO) which removes most of the birth parents' parental responsibilities but can only transfer them to the local authority, not to the carer. Although a PRO indicates a child will not return home it does not secure the child in the new home as part of a family. PROs are currently seldom used.
- local authorities can also apply for a freeing order, and normally do so in contested adoptions. The order removes the rights of birth parents and places them with the local authority as a precursor to adoption. If the child is not adopted, only the local authority has parental responsibility. This has been referred to as being in "adoption limbo".
- foster carers can apply for a residence order, which allows them to secure the child's position in their care. However, foster carers who are successful in gaining a residence order lose their fostering support and benefits - an unattractive option.
1.7 To overcome the difficulties with the existing system, the Group suggests the introduction of a new court order which it calls a Permanence Order. This would remove the problems caused by current arrangements as local authorities, carers, and, if appropriate, birth parents would share parental responsibilities and rights. The Permanence Order would provide clear and unambiguous long-term legal security for children and carers. Permanence Orders would also be flexible enough to take account of the different needs of children, and would allow for varying degrees of contact with birth families, where this was preferable. Unlike the current system, Permanence Orders would also be flexible enough to allow for children's circumstances to change. They would also be used as a pre-adoption order.
1.8 The Group also recognised that adoption would remain the right option for a number of children. It offers some unique advantages, particularly forging a life-long bond to the adoptive family. However, with the changing nature of the group of children needing adopters, there was a need to extend to the greatest possible extent the pool of potential adopters. Currently, unmarried couples (whether opposite or same-sex) are unable to adopt a child jointly. Although one partner can adopt, and the other apply for a residence order, the Group considered the fact that an unmarried couple cannot jointly adopt may deter potential adopters. The Group therefore recommends that the law be changed to allow unmarried couples in a stable relationship, whether opposite or same-sex, to adopt jointly. This would increase the number of people who are willing to come forward to be assessed to adopt. Although this is a potentially controversial recommendation, the Group found no evidence to suggest that being raised by an unmarried couple held any disadvantages for a child. Indeed, consultation with children suggested that the most important factor was to be raised in a loving and supportive environment.
1.9 A further area of pressure on the current adoption system is the time taken to make decisions. In this phase the Group has looked at the processes within local authorities, the roles of the children's hearing and the procedures in court. The Group has found that the various parts of the system all play a valuable role in ensuring that these difficult decisions are properly scrutinised before they are taken. However, there are a number of areas for improvement:
- within the local authority the rules governing adoption and fostering panels could be improved to ensure that all permanence plans for children are dealt with together and all the options are considered.
- the children's hearing's formal involvement is too late in the process: the regulations should reflect current best practice by ensuring that the hearing is informed of permanence planning from an earlier stage, reducing the risk of delay.
- there should be better arrangements for advice to flow from the hearing to the court.
- court procedures should be streamlined and dedicated adoption centres introduced, where sheriffs with appropriate experience in family work and active case management can focus on the main issues. This would shorten the length of time that most cases take, and would help to reduce the level of distress typically experienced in contested adoptions.
1.10 Another important area is the help and support offered to families following an adoption or long-term placement. While some older children will have particular needs arising from their experiences as a member of their birth families, all adoptions and long-term placements need some support to ensure their success. The Group has recommended that a more comprehensive legal framework is put in place to ensure that families' needs are properly assessed, and that plans are put in place to provide services to meet them. The needs of birth families should also be addressed.
1.11 The purpose of the Group's recommendations is to create an adoption system that is flexible and responsive to the needs of the children and adults who use it. These proposals will provide long-term security for children who cannot live with their birth families, and will remove many of the uncertainties which currently exist. The proposals will also provide additional support to adopters, foster carers and birth families. Together, these proposals will create a child-centred adoption system that is relevant to today's society.