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CONSULTATION ON DRAFT REGULATIONS-INTRODUCTION
The Adoption and Children (Scotland) Act 2007 ('the 2007 Act') introduced a range of reforms into the law relating to the adoption of, and permanent care for, children who cannot remain with their birth families.
As the Act repeals previous legislation (the Adoption (Scotland) Act 1978) the volume of new regulations will be quite large, though most will comprise restated and updated, rather than wholly new, material. There will be four main "packages" of regulations:
- adoption agencies (procedures, appeals etc);
- adoption support (preparation of adoption support plans, responsibility for providing support etc);
- adoption information (keeping of records, disclosure of information to adopted persons; and
- intercountry adoption.
The full text of the 2007 Act may be found at: http://www.opsi.gov.uk/legislation/scotland/acts2007/asp_20070004_en_1
The APRG Report Adoption: Better Choices for Our Children may be found at: http://www.scotland.gov.uk/Publications/2005/06/27140607/06107
This document accompanies the draft Adoption Agencies (Scotland) Regulations 2008. It sets out the policy behind the draft Regulations and seeks your comments on a number of issues within the Regulations. The Regulations will replace the Adoption Agencies (Scotland) Regulations 1996. The consultation period runs until 29 August 2008.
The regulations are broadly similar to the 1996 Regulations with new provisions dealing with the permanence order with authority to adopt which replaces the freeing order. However, it should be noted that the regulations do not contain detailed procedural provisions for permanence orders because the Act does not allow us to go that far. Permanence orders may only be applied for by local authorities and section 8 of the Act allows regulations to be made with respect to the carrying out by local authorities of their functions in relation to adoption. Section 8(3) clarifies that this may include specifying the circumstances in which a local authority proposing to make arrangements for the adoption of a child must apply for a permanence order with authority to adopt. This is why the regulations only deal with authority to adopt. The court rules will deal with procedural aspects such as notification or who may be called to appear during the hearing. They will not, however, be used to prescribe anything in the lead up to the making of the application by the local authority. They are concerned with procedural requirements. The rules could prescribe the form of the permanence order application for example.
While we welcome comments on all of the draft regulations, there are specific questions on which we seek your views and these are highlighted in the document. We would also be grateful for responses to the following questions/issues:
(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) As indicated above, the regulations will not apply to a permanence order which does not include provision granting authority to adopt. The regulations make provision for placing the child for adoption and it is possible that a child may be looked after and accommodated before an application for a permanence order with authority to adopt is made (although in some cases the child will not be looked after and accommodated). The permanence order provisions also flow naturally from the other provisions within the regulations. Regulation 16, for example, applies when the consent certificate has not been returned under regulation 12 or 13 and the adoption agency makes its determination under regulation 15 to proceed as though parental agreement is not forthcoming. The permanence order provisions are therefore housed in these regulations because they fit within the wider adoption planning process being regulated here. They also use the same enabling power at section 8 of the Act.
It must also be remembered that permanence orders are designed to be flexible and tailored to meet the individual needs of the child. The right to regulate the child's residence and the responsibility to provide guidance will always be vested in the local authority as the mandatory provisions. However it is open to the court to confer other parental rights and responsibilities on other named individuals or to allow some of those rights and responsibilities to remain with the child's parents depending on the circumstances of the individual case. Therefore a child who is subject to a permanence order will not always be a fostered child within the definition in the Looked After Children (Scotland) Regulations.
Bearing this in mind your views on where the provisions relating to permanence orders should sit would be appreciated.
(iii) Do you agree with our understanding of what "parent" means in each of the relevant regulations? See Annex A for the reasoning behind this question. There is also an explanation in each regulation as to which group of 'parents' is being covered in that provision.
This document is primarily being distributed electronically and is available on the Scottish Government web-site at www.scotland.gov.uk/adoptionagenciesregs. If, however, you would wish to be sent the document in photocopy please contact Suzanne Allan on 0131 244 0407
or e-mail adoptionregulations@scotland.gsi.gov.uk to arrange for a copy or copies to be sent to you.
Please send your response electronically to the above address or in hard copy to
Adoption Agencies Regulations Consultation, 2-A(N) Victoria Quay, EDINBURGH, EH6 6QQ
Please complete the details on the respondent information form at the end of this document and return it with your response. This will help ensure we handle your response appropriately. Thank you for your help.
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