As Scottish Adoption Week is marked from 14-18 November 2022, MacRoberts' Family Law team looks at the legal process for adopting in Scotland and the key things you should know if you are thinking about adopting.
What is adoption?
Adoption is the process whereby a child who, for whatever reason, cannot be raised by their birth parents becomes a full and permanent legal member of a new family. By choosing to adopt a child, you are accepting the role of their guardian and will assume the legal responsibilities and rights that are central to parenthood in Scotland.
Who can adopt?
You can adopt in Scotland if you are:
- Aged 21 or over;
- Single or in a couple, including same-sex couples; or
- If you have lived in Scotland for more than one year, whether or not you were born here.
Any child under the age of 18 who has not been married or in a civil partnership can be adopted. If the child is under 18 at the time of application but turns 18 during the application process, the adoption can still go ahead.
An adoption order may not be made unless both of the following conditions are met:
- The child is at least 19 weeks old; and
- At all times during the period of 13 weeks immediately preceding the making of the adoption order, the child’s home has been with the person(s) wishing to adopt.
What is the legal process for adopting?
Adoption is regulated by the Adoption and Children (Scotland) Act 2007 and various sheriff court rules. There are different rules that are in place depending on the circumstances of the child that you are adopting.
Adopting a relative or stepchild – Unopposed adoption petition
If you wish to adopt a relative or a stepchild, there is no need to involve an adoption agency.
1. Give Notice
The first step is to give your Local Authority three months’ notice that you intend to adopt a child. This will then trigger the Local Authority to investigate the matter and submit a report of the investigation to the relevant sheriff court.
2. Petition (an application)
Your solicitor will draft a petition which will be lodged with the sheriff court, together with the child’s birth certificate and any other documents relevant to the adoption application.
3. Curator ad litem/Reporting Officer
The sheriff court will appoint a curator ad litem or a reporting officer to look at the circumstances of the adoption, and to speak with the petitioner(s), the birth parents and the child, if the child is of sufficient age and maturity. The court will then fix a hearing.
4. Consent of Birth Parents
The court must be satisfied that the birth parents or guardian of the child consent to the making of an adoption order, unless his/her consent can be dispensed with on one of the following grounds:
- That he/she is dead;
- That he/she cannot be found;
- That he/she cannot satisfactorily discharge their responsibilities or exercise their parental rights in respect of the child;
- That by the virtue of making a relevant order (permanence order), he/she has no parental responsibilities and rights in respect of the child; or
- If none of the above apply, the welfare of the child otherwise requires for consent to be dispenses with.
5. Consent of Child
If the child is over the age of 12, their views will be taken into consideration, and they will need to consent to the adoption.
On receipt of the report from the curator ad litem or reporting officer, if no opposition to the adoption order is submitted, the sheriff may then make a final adoption order at the preliminary hearing, or they may continue the hearing for further evidence.
Adopting a child through an adoption agency
If you wish to adopt a child because, for example, you cannot have any children of your own, it is likely that you will need to contact an adoption agency. The agency will then need to approve you as an adopter and identify a suitable child. The agency will conduct a home study to check medical history, criminal record, finances, and your home. The decision of matching you with a child will be made by a group of experts on an adoption panel. The adoption agency must submit a report to the relevant court outlining your suitability to adopt and any other matters relevant to the adoption.
If a child is placed with you, this will be monitored by the adoption agency and, if the adoption match is successful, the process for adoption will continue as outlined in numbers 2-6 above.
Going through an adoption can be both an exciting and emotional time. Whatever your situation, MacRoberts' Family Law team can support you in realising your dream of growing your family. We can advise on all the legal aspects of adoption, whether it be liaising with local authorities, Children’s Reporters and the Court, ensuring the process is fully explained to you at each turn.
If you are thinking about adopting, please get in touch with our experienced team who will guide you through the adoption process.
This article was co-written by Shiona Wylie, Trainee Solicitor.