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THE ADOPTION (DISCLOSURE OF INFORMATION) (SCOTLAND) REGULATIONS
Due to the provisions in section 117 of the 2007 Act, these regulations are subject to affirmative procedures in the Scottish Parliament. As the provisions in the Adoption Information (Scotland) Regulations are subject to negative procedures the two sets of regulations being consulted on cannot be made together.
Regulation 2 - Interpretation
2. In these regulations-
"the Act" means the Adoption and Children (Scotland) Act 2007;
"the 2002 Act" means the Adoption and Children Act 2002;
"the 2009 Regulations" means the Adoption Agencies (Scotland) Regulations 2009.
Regulation 2 provides for the definitions to be used throughout the following Regulations. Where an expression is used in these Regulations it will have the same definition as in the Act unless a separate definition is provided.
Most of the terms in this Regulation flow from the 2007 Act and further definitions were not considered necessary.
Q6 - Are there any definitions in these regulations which are required to be included in regulation 2.
Regulation 3 - Disclosure of information to adopted person
3.-(1) Where an adopted person who has attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, applies for counselling under section 9 (assessment of needs for adoption support services) of the Act, or is seeking information under section 60 (disclosing information to adopted adult), 61 (disclosing protected information about adults) or 62 (disclosing protected information about children) of the 2002 Act, an adoption agency may disclose the information, which it has relating to that person's adoption, to that adopted person.
(2) Where an adopted person has not yet attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, an adoption agency may disclose information, which it has relating to that person's adoption, to that adopted person if the agency thinks it appropriate to do so.
(3) In considering whether it is appropriate to disclose or withhold information under paragraph (2) the adoption agency must have due regard, so far as is practicable, to-
(a) the views of the adopted person, taking into account the person's age and maturity and
(b) the welfare of the adopted person.
(4) But notwithstanding paragraph (3) information must not be disclosed to the adopted person under paragraph (2) if that information could, whether taken on its own or together with other information possessed by the adopted person, identify the adopted person's natural parents or other natural relatives.
Regulation 3 allows adoption agencies to disclose information to an adopted person in Scotland who has attained the age of 16 (if the person is in England or Wales then the age for disclosing information is 18). The disclosure of the information to the adoption person is dependant upon their request for counselling.
Certain information may be disclosed to an adopted person who has not yet attained the age of 16, or 18 in England and Wales, if the adoption agency thinks that it is appropriate. The regulation stipulates the consideration the adoption agency must have regard to before disclose information to an adopted person who has not attained the correct age. However, information which might identify the adopted person's birth parent must not be disclosed, whether that identification can be made with the information on its own or together with other information possessed by the adopted person.
Q7 - Should the disclosure of information be triggered only by a request for counselling or are there other circumstances where this disclosure may be suitable, should the disclosure be automatic on the adopter person reaching the appointed age?
Q8 - Is it appropriate for an adopted person who has not attained the age specified to be able to access certain information at the discretion of the adoption agency? Are the caveats concerning the identification of birth parents sufficient, or should there be further caveats to the release of this information?
Regulation 4 - Disclosure of information to other persons
4. Where an adopted person who has attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, applies for counselling under section 9 of the Act, or is seeking information under section 60, 61 or 62 of the 2002 Act, an adoption agency may disclose information, which it has relating to that person's adoption, to-
(a) the local authority for the area in Scotland where the adopted person lives, if the adopted person has applied to them for counselling;
(b) the Registrar General for England and Wales;
(c) the local authority for the area in England and Wales where the adopted person lives, if the adopted person has sought information from them; and
(d) the local authority for the area in England or Wales where the court sat which made the order relating to the adopted person, if the adopted person has sought information from that authority.
Regulation 4 allows adoption agencies to disclose information to certain identified persons when an adopted person in Scotland who has attained the age of 16 (if the person is in England or Wales then the age for disclosing information is 18) applies for counselling.
The purpose of this regulation is to allow the disclosure of information to certain individuals and organisations that may need access to this information to discharge their duties in relation to that adopted person. These duties are statutory.
Q9 - Does this regulation sufficiently cover the organisations that may need access to the information in order to support an adopted person?
Regulation 5 - Disclosure of information for purposes of agency's functions or for research
5. An adoption agency may provide access to its case records and the indexes to them and disclose such information in its possession, as it thinks fit-
(a) for the purposes of carrying out its functions as an adoption agency; and
(b) to a person who is authorised in writing by the Scottish Ministers to obtain information for the purposes of research.
Regulation 5 restates regulation 24(2) of the Adoption Agencies (Scotland) Regulations 1996. This regulation allows adoption agencies to disclose information to those authorized by Scottish Ministers whilst undertaking research. An adoption agency may also disclose information for the purposes of carrying out its functions.
Regulation 6 - Disclosure of information for enquires etc.
6. An adoption agency must provide such access to its case records and the indexes to them and disclose such information in its possession, as may be required-
(a) to those holding an inquiry under section 6A of the Social Work (Scotland) Act 1968 (inquiries), or under the Inquiries Act 2005 for the purposes of such an inquiry;
(b) to the Scottish Ministers;
(c) to the Scottish Public Services Ombudsman;
(d) to the persons and authorities referred to in regulations 10 (notification of adoption agency decisions) and 19 (placement for adoption: notification and provision of information) of the 2009 Regulations, to the extent specified in those regulations;
(e) [to a court under [regulation 22 of the 1996 Regs / sheriff court rules] to the extent specified in that regulation / rules]; and
(f) to a curator ad litem or reporting officer appointed under rules made pursuant to section 108 of the Act (rules: appointment of curators ad litem and reporting officers) for the purpose of the discharge of their duties in that behalf.
Regulation 6 restates regulation 24(1) of the Adoption Agencies (Scotland) Regulations 1996. This regulations describes persons which an agency must disclose information to, and these include those holding certain inquiries, the Scottish Ministers, the Scottish Public Services Ombudsman and persons authorised under the Adoption Agencies (Scotland) Regulations 2009.
Q10 - Taking regulations 5 and 6 together, should information be disclosed to anyone else, and under what circumstance?
Regulation 7 - Requirements relating to disclosure
7. The adoption agency must make a written record of any access provided or disclosure made under regulation 5 or 6, which must include-
(a) a description of the information disclosed;
(b) the date on which the information is disclosed;
(c) the person to whom the information is disclosed; and
(d) the reason for disclosure.
Regulations 7 requires an adoption agency to make a written record of any disclosure it makes under regulations 5 and 6. The regulation specifies what is required is that record.
Q11 - Should anything else be recorded about the disclosure?
Regulation 8 - Transfer of case records
8. -(1) Subject to paragraphs (2) and (3), a registered adoption service may transfer a copy of a case record (or part thereof) to another adoption agency when it considers this to be in the interests of a child or prospective adoptive parent to whom the record relates, and a written record must be kept of any such transfer.
(2) Where a registered adoption service intends to cease to act or exist as such, it must transfer its case records and the indexes to them which it holds in relation to an adopted child or a prospective adoptive parent-
(a) to another registered adoption service, having first obtained the Scottish Ministers' approval for such transfer;
(b) to the local authority in whose area the society's head office is situated; or
(c) in the case of a service which amalgamates with another registered adoption service to form a new registered adoption service, to the new body.
(3) A registered adoption service to which case records or the indexes to them are transferred by virtue of paragraph (2) must notify the Scottish Ministers in writing of such transfer.
Regulation 8 makes provision for the transfer of case records to other adoption agencies in cases where it is thought to be in the best interests of the child or when an agency ceases to exist or act. In cases where the agency ceases to exist or act the regulation stipulates the organisations that could receive the transferred records. Notification of this transfer should be made to the Scottish Ministers.
Q12 - Does this regulations cover the transfer of records sufficiently, are there other occasions when an agency would want to transfer records that is not included in this regulations?
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