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Adoption in Scotland: A brief overview

September 12, 2019 Family Law

The decision to adopt is one of the most significant decisions a person can make in their lifetime. It can be an intimidating process to begin with and there is lots to consider. In choosing to adopt a child or young person you are accepting the role of their guardian and will eventually assume the legal responsibilities and rights that are central to parenthood in Scotland. The process of adoption is one that is only exceptionally reversed. It formally makes a person a legal member of their new family.

This has far reaching legal consequences such as giving them legal rights and claims in matters of succession. In Scottish Family Law, broadly the welfare of the child is always to be taken as the paramount consideration. This principle and much of the Law surrounding Adoption is set out in the Adoption and Children (Scotland) Act 2007. The tests and considerations that make up the adoption process simply aim to ensure the person(s) hoping to adopt can provide a safe, stable and suitable environment for a child or children.

Any child under the age of 18 who has not been married or in a civil partnership can be adopted. If the person is under 18 at the time of application but turns 18 during the application process the adoption can still go ahead. Children older than 12 must consent to the Adoption. However, if under 12 but they are deemed mature enough to have a view then their view must be taken into account. This would have to be considered on a case-by-case basis. Both the court and an adoption agency may consider the child’s religious persuasion, racial origin and cultural and linguistic background as part of the adoption process also.

If you wish to adopt you must go through a registered adoption agency who will undertake a Home Study. This is except for instances where the child is a close relative or stepchild, where you can go directly to your local authority’s social work department, whom will prepare a report for the court, so the court may consider granting an Adoption Order (see below for more detail).

Being eligible to adopt by the standards above and being deemed suitable to adopt are not one and the same. To determine if someone is suitable a Home Study will be carried out by an adoption agency, this is geared toward ensuring that the applicant is capable of caring for the child physically and emotionally and that the home the child will live in is suitable and safe. This assessment is ordinarily carried out by a social worker and involves a series of visits and meetings over a reasonable period of time, aimed at understanding and checking that certain criteria and conditions are met. Key factors that are considered include:

These are looked at in detail and are not taken as absolutes. It’s far from black and white, being unemployed would not discount someone’s application definitively. Though closer examination would be undertaken to ensure you could meet the child’s needs via other sources such as savings or a pension. The presence of a criminal record would not necessarily prevent an individual from adopting though certain offences would absolutely prohibit some individuals. They will look at the whole picture on a case-by-case basis, with the welfare of the child being the paramount consideration.

Once this process is complete the Agency will reach a decision after speaking to an Adoption Panel. If you are unsuccessful you are entitled to receive feedback in the form of the agency’s reasoning for denying your application. If this reason seems unfair or unsatisfactory you can pursue an appeal or complain to the Care Inspectorate. If successful, your agency will look for a match to place you with and you can enter Scotland’s Adoption Register to help find the right child. Once such a child is placed with you and the relevant body is satisfied that the match works, an Adoption Order should be sought from the Court.

The Adoption Order is the most significant landmark to reach on someone’s adoption journey. It is an Order from the court legally recognising the adopter as the legal parent of the adopted child. It is at this point the adopter gains the legal parental responsibilities and rights over the adopted child, which are enshrined in the Children (Scotland) Act 1995. For an Adoption Order to be made in cases where the child is a close relative, stepchild or placed with the family via an adoption agency the child must be at least 19 weeks old and have lived with the family for the last 13 weeks. In any other case for an Adoption order to be granted the child must have lived with the family for at least 12 months. As discussed previously such an order may require the consent or the opinion of the child to be considered if mature enough. The court in these matters operate a No Order Principle which essentially means that unless an order benefits the child it should not be made (it should never be detrimental or merely cosmetic with no benefit). This usually would not bar someone from obtaining an order as being willing to assume the responsibilities and rights of a child’s legal parent, special circumstances aside, would surely provide additional benefit, support and guidance for the child. Though this is not taken as a given and must be proven to the court. In many ways this is the moment of legal certainty for the process.

The eligibility for adopting from abroad, from a Scottish perspective, is for the most part the same as a domestic adoption, you should go through an adoption agency and undertake a home study as before. It is important to remember that each country has different requirements flavoured by their cultural heritage. Large differences in policy can exist in relation to suitable age, sexual orientation, marital status, income or criminal records that may influence how likely you are to succeed in adopting.

Naturally undertaking an adoption under any circumstances will come with the cost of providing for the child, but when adopting abroad additional costs must be considered. Although the adoption agency cannot charge a fee for its role, in Scotland you must pay a fee to the Scottish Government, this is a means tested fee based on your household income.

On receiving and processing this the Scottish Government will issue a Certificate of Eligibility allowing you to adopt from abroad. Though this is not the end to the additional costs, depending on the country you may have to visit, leading to travel and accommodation expenses, there may be additional administration fees to consider, which could encompass anything from police checks, to medical assessments to interviews. This should be researched thoroughly before undertaking the process and should not be underestimated.

Our team of can help you if you require any further information.

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