Key considerations in the adoption process
Adoption Week Scotland 2018 falls this week (17-23 November). The week serves as an opportunity to celebrate adoption nationwide and also highlight the importance of the need for adoptive families in Scotland, and will see a number of events take place across the country.
Going through an adoption can be both an exciting and emotional time, but also a time with an unclear road ahead. Here, we outline some of the main considerations and some topical areas of this important process.
The granting of an adoption order replaces the legal relationship between a birth parent and a child with an equivalent legal relationship between an adoptive parent and that child. In Scotland, the law on adoption is governed by the Adoption and Children (Scotland) Act 2007 which introduced several changes to previous legislation including allowing single persons, unmarried and same sex couples to adopt children.
Who can adopt?
Generally speaking, anyone over the age of 21 can apply to adopt, either on their own or with their partner, civil partner or spouse.
If you are interested in adoption, you will require to contact a recognised adoption agency (such as your local authority, Scottish Adoption or Barnardo’s) who will undertake the relevant checks and offer support through the next steps.
If you are looking to adopt a child who is a relative or a step-child, you do not need to undergo the same process with an adoption agency, but you do require to give notice to your local authority of your intention to adopt. They will then investigate your situation and meet with you in order to prepare a report for the court as part of your court application.
The legal process
Once successfully matched with a child or children, a legal petition seeking a formal request for an adoption order can be lodged with the appropriate court after 13 weeks of the child or children living with their adoptive parent(s). The petition can be lodged in your local sheriff court or the Court of Session. The same legal process applies to step-parent adoptions.
A birth parent must either agree to the adoption order, or the Court must decide that such agreement can be dispensed with following certain conditions. If a birth parent contests the application, a Court timetable will be fixed and ultimately the Court will hear evidence on whether to grant the order. The question of continuing contact between a birth parent and child may also arise during this process, and decisions on such contact are made depending on what is in the best interests of the child.
Where a child is in local authority care, that local authority may have previously applied to the Court for a ‘permanence order’ when concluded that a child will be unable to return to their family. As its name suggests, a permanence order seeks to provide a secure future for the child by vesting parental rights and responsibilities in respect of a child in the local authority and, if required, other relevant persons. If adoption is being proposed as part of a child’s plan, the Court can grant a ‘permanence order with authority for adoption’. The child can then be placed with prospective adopters who can then apply separately to the Court for an adoption order.
Adopting a child from abroad
It is becoming increasingly common for parents to look to adopt children from overseas. The process is necessarily complex to safeguard the needs of the child or children. The process can vary depending on where the child is being adopted from, where you are currently living and whether the adopter has been assessed as eligible and suitable to adopt from overseas by an adoption agency in the UK. Again, notification to your local authority is required and, provided certain criteria are met, the same Court application applies.
The adoption process above relates to children up until the age of 18. There has, however, been recent media focus on the possibility of adult adoptions being introduced. As the law currently stands, an adoption order can be made for a child up to the age of 18. The position is preserved if the adoption application is sent to the Court before the child’s 18th birthday, even if it is not granted until after. However, once a person reaches the age of 18, the Court cannot grant an adoption order. The main reason for this is that the parental rights and responsibilities which are given to a parent fall away when the child reaches 18. This is problematic for many families who wish to formalise their legal relationship in later years but are unable to do so. This could also result in unintended disinheritance of a young person considered part of the family where an adoption application had not taken place in their younger years and there is no Will in place.
MacRoberts’ Family Law team is highly experienced in dealing with all legal aspects of adoption, including liaising with local authorities, Children’s Reporters and the Court where required. Find out more and contact us today.