Today (20 November 2023) is the start of Adoption week in Scotland and Nina Taylor, Partner in our Family Law team explains the law and process governing adoptions in Scotland followed by an analysis of how diverse and inclusive we are and where improvements could be made.
This article is part of a series of articles published by Diversity+.
The law of Adoption in Scotland is complex, and the process requires to be treated with sensitivity and respect, no matter which ‘side’ you are on.
The law in brief
The legislation governing the adoption of children is the Adoption and Children (Scotland) Act 2007.
The starting point for all adoptions is a Petition to the court, which can be either the Court of Session or, most commonly, the Sheriff Court. Usually, the Sheriff Court district chosen to deal with the matter is the one local to the prospective adopters but if there is good reason, a Sheriff Court in a different area can be used. For instance, it may be that it is known that the adoption will be opposed and that the majority of witnesses live in another Sheriff Court district which would be more convenient.
The court procedure itself is governed by specific court rules, being the Sheriff Court Adoption Rules 2009 and the Rules of the Court of Session 1994.
The process
Given the nature of the subject matter, expeditious progress of the case is the fundamental principle underpinning the rules. We will deal principally with proceedings in the Sheriff Court, but it should be noted that there are corresponding rules in the Court of Session.
In the Sheriff Court proceedings take the form of a Summary Application. There are a number of specified issues which require to be addressed within the Summary Application, for instance if there are more than two children from the same family being adopted, there will have to be a decision taken as to whether or not there should be a single Petition or separate Petitions for each child. It must be borne in mind that every adopted person is entitled at the age of 16 to see the adoption process so it may be more appropriate that there are separate Petitions. The court still does have the ability to hear evidence together even if there are separate Petitions progressed as often there will be witnesses in common when the children are from the same family.
The court rules set out very specifically the documents which must be lodged with each Petition. Primarily, these include the child’s birth certificate, marriage or civil partnership certificate if appropriate, the report of the adoption agency which placed the child for adoption or in the case of a non-agency placement, the report of the local authority, and other relevant documents.
If a child is being adopted abroad there are a number of additional documents which are required.
In certain circumstances there may be reason for a prospective adopter to have their identity protected. In such circumstances a serial number is assigned.
Once the Adoption Petition is lodged the court will grant a warrant and will appoint Curator ad litem and a Reporting Officer which can be the same person. The roles are slightly different. The Reporting Officer is tasked with ascertaining the whereabouts of any person whose consent is required and making sure that they fully understand the making of an order. The Reporting Officer also requires to witness the agreement of the parents or guardians to the adoption and any agreement from the child if the child is aged twelve or over. The Curator ad litem will make enquiries in relation to all the circumstances of the child and the prospective adopters and requires to ascertain whether it would be better for the child that the court should make the order than not and ascertain whether the order will safeguard and promote the welfare of the child throughout his life. The Curator ad litem must also ascertain whether or not the child has a view. The court rules detail the very specific enquiries which must be undertaken in terms of both roles.
A timescale, usually four weeks, is then set down for the lodging of the report of the Reporting Officer and the Curator ad litem. The Curator ad litem can convey the views of the child to the Sheriff orally and once the report is lodged the court must take it into consideration.
In the event that the report by the local authority or adoption agency is not available at the time of lodging the Petition the court would usually order that it be lodged within fourteen days or such other appropriate timescale.
Intimation is then made of the service copy of the Petition. Intimation must be made to certain categories of persons, and this includes every person whose consent is required, or if there are no such persons, any known relative whose whereabouts are known or can be ascertained. Any intimation must confirm the date of the Preliminary Hearing and that the person is entitled to be heard but does not require to attend. It should be noted that a copy of the application must also be sent to a father who does not have parental rights and responsibilities but whose whereabouts are known.
Any person wishing to oppose the application must do so within twenty-one days after intimation unless the court has specified a different period.
The court will have assigned a Preliminary Hearing, and this is heard in private. The purpose of this hearing is to identify disputed issues, the admissibility of evidence, scope for the lodging of Affidavits or expert reports and the potential for a Joint Minute.
The Sheriff has discretion as to the conduct of the proceedings which should be heard in private unless the court otherwise directs. The Sheriff does have power to continue the Preliminary Hearing if doing so would further expedite progress.
If there is no form of response opposing the Petition lodged, and no-one appears at the Preliminary Hearing to dispute the order, the court may grant an Adoption Order or make such other order as they see fit.
If the adoption is opposed then the court requires to fix a Diet of Proof, at which witnesses will appear and evidence will be lead. It must be borne in mind that it is for the person seeking to adopt to prove the case and it is not for the person opposing it to justify why an order should not be made.
This article was published on 20 November 2023.
