Intercountry adoption: Scotland's guide for international adoption

2. Policy and legislative context

This section gives an overview of the Scottish Government’s policy on intercountry adoption and associated legislation.

2.1 Policy

Children need loving, safe and stable homes in order to live full lives. Getting it right for every child (GIRFEC) is how Scotland as a nation supports every child to have the best childhood they can, and thrive - not just now, but throughout their lives. GIRFEC is the Scottish Government’s national commitment to promoting and safeguarding the rights and wellbeing of children and young people. It is used across all our public services and developed alongside our local communities and in partnership with families to create cultures, systems and practice with children and young people at the centre. GIRFEC is the golden thread that runs through all the work that Scotland does to support and improve the lives of children, young people, and their families.

GIRFEC underpins both preventative and child protection processes. It includes an identified point of contact to provide early support, advice and access to services; a shared approach to assessment and consideration of wellbeing through the National Practice Model; and a shared response to identified needs, including planning for children across services where needed.

The Scottish Government’s priority, in accordance with GIRFEC and our commitment to Keep the Promise by 2030, is to ensure that the best interests of each child are met.

Each child has different needs and, as set out in Scotland’s Adoption Vision Statement, it is vital that children are placed with prospective adopters who can best meet their needs. Although there are many children in Scotland looking for an adoptive family, there are also children in other countries for whom ICA may be their best opportunity to belong to a permanent family.

The Scottish Government allows ICA to take place, in line with international requirements, where:

• the child cannot be cared for in any suitable manner in their country;
• the adoption would be in the interests of the child, and with respect to the child’s fundamental rights as recognised in international law; and
• the prospective adopters have been assessed and approved as suitable to adopt by an adoption agency.

2.2 Legislation in Scotland

The Scottish Government cannot provide any legal advice, and prospective adopters and practitioners should seek their own legal advice when considering relevant legislation. For general information, the relevant legislation is listed below with a brief description of each:

• The Adoption and Children (Scotland) Act 2007 (‘the 2007 Act’)
  • This legislation outlines and promotes adoption processes aimed at safeguarding the welfare of children. It also creates statutory responsibilities for local authorities, Scottish Ministers and prospective adopters. For example, local authorities must provide adoption services and support, and the Scottish Ministers must establish and maintain a national adoption register.
• The Adoptions with a Foreign Element (Scotland) Regulations 2009 (‘the 2009 Foreign Element Regulations’)
  • These regulations use powers under the 2007 Act to regulate all adoptions with a foreign element, underpinning a number of policy objectives which:
    • establish safeguards to ensure ICA takes place in the best interests of the child, and with respect for their fundamental rights as recognised in international law;
    • ensure prospective adopters have been assessed and approved in accordance with the appropriate procedures; and
    • enable the UK to continue to meet its duties under international law.
• Adoption Agencies (Scotland) Regulations 2009 (‘the 2009 Adoption Regulations’)
  • These regulations govern how adoption agencies exercise their functions in relation to adoption under the 2007 Act. The Regulations provide an essential framework within which adoption agencies are required to take certain steps before making fundamental decisions about individual adoption cases.
• The Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) (Scotland) Regulations 2008 (‘the 2008 Regulations’)
  • These regulations deal specifically with Ministerial processes for handling Exception Requests regarding adoptions from countries on the Restricted List.