In a series of articles, we discuss topical issues facing industry leaders, all through the lens of diversity, equity and inclusion (D, E & I). Adoption week in Scotland commences on 20th November and this year’s theme is ‘Listening to and supporting the experience of adoption in Scotland’.
In this article we will explain 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.
Adoption: The law and process by Nina Taylor
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. Here is a brief outline:
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.
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.
Nina is a Partner in the Family Law team with Lindsays and she has over 25 years’ experience as a solicitor, principally as a litigator. She is accredited by the Law Society of Scotland as a specialist in family law and is a member of the Family Law Association and Consensus Scotland, being trained in collaborative practice.
How Diverse and Inclusive is Adoption in Scotland? By Anmol Rana
Scottish Adoption week is a heartfelt reminder of the transformative power that adoption has in shaping lives. On that note, let’s take a dive into how we can embrace the theme of Diversity, Equity, and Inclusion in this important space.
This week serves as a prominent occasion to promote adoption, with the goal of providing permanent and loving homes to children in need. The theme this year is ‘Listening to and supporting experience of adoption in Scotland’ with the aim to enhance awareness of the adoption process, encourage prospective adoptive parents, and clear up any misunderstandings and misconceptions associated with the idea of adoption.
It is widely accepted that there is an urgent need to address racial disparities, for example, within adoption centres ethnic minorities are disproportionately overrepresented in the care system.
Current statistics from Adoption Matters (https://www.adoptionmatters.org/naw2023/), highlight that the ‘majority of children waiting for adoption (60%) come from specific groups repeatedly facing the longest delays in finding a home. These groups include those from an Ethnic Minority background (excludes White minorities). Compared to children without these characteristics, children from these groups wait an average of 7 months longer than other children’.
To ensure a better understanding of the unique needs and backgrounds of prospective adoptive parents, and children seeking to be adopted from diverse ethnicities, it is necessary to prioritise ongoing training for the many professionals; social workers, adoption agency staff, solicitors, curators, safeguarders, and judges (to name a few) to enhance their cultural awareness and understanding of the more specific needs of those from ethnic minority backgrounds.
According to the most recent Fostering and Adoption statistics, prepared from data collected by the Scottish Care Inspectorate, in 2022 there were 240 children approved for adoption, 31 more than the previous year. 181 children placed with their new adoptive families and 193 children legally adopted.
Statistics in terms of diversity are very hard to find and most organisations shy-away from drawing attention to the obvious: that there is a lack of diversity in all the roles aforementioned AND virtually no training in D, E & I topics. Board membership and leadership teams of the main agencies providing adoption services and support in Scotland, paint an overwhelming picture of white.
The main voluntary agencies in Scotland, namely: Barnardo’s (https://www.barnardos.org.uk/adopt/scotland), Adoption UK in Scotland (https://www.adoptionuk.org/Pages/FAQs/Site/scotland/Category/scotland-team), Scottish Adoption and Fostering (https://www.scottishadoption.org/community/board-of-trustees/) , St Andrew’s Children’s Society (https://sacsadopt.scot/about/meet-the-team/) and Association for Fostering, Kinship and Adoption Scotland (https://afkascotland.org/about/our-team/) will all recognise the need to have more diverse voices and experiences in their leadership teams and boards. All will undoubtedly have policies in place to promote diversity, equality and inclusion but turning the aims and objectives of those policies into reality can be difficult to do. Harder still if you are not connecting with the diverse communities you wish to serve. More can and should be done to connect with those communities. More can and should be done to have more diverse boards and professionals. More can and should be done to have more learning in place to better equip the professionals working in the field.
There is no legal requirement for children to be placed with parents of the same race as themselves, although adoption agencies must take into account a child’s racial, cultural and linguistic background in making their decisions. Most agencies have a policy of trying first to place children with families of the same ethnic origin as the child. But reliable, Scotland wide statistics on the ethnicity of adoptive parents and children are difficult to find. According to Scotland’s Adoption Register annual report 2022/23, 92% of the children referred to the register were from a white (Scottish or European) background, 2% from an Asian background and 1% from a Black/African background. The general consensus from various adoption services in Scotland, is that prospective parents seeking children from similar minority ethnic backgrounds have to look further afield, one option is England.
Conversely, it is generally accepted that more should be done to educate and raise awareness of the benefits and need for more inter or multi-ethnic adoptions in an effort to be more accepting of different races and cultures, whilst protecting the paramount consideration of what is best for the child.
The Children (Scotland) Act 2020, which received Royal Assent on 1st October 2020, was one opportunity to set a standard for training with the setting up of a Register for Child Welfare Reporters and Curators ad litem. Safeguarders did not feature in the Act and remain under the remit of Children 1st (https://www.children1st.org.uk/help-for-families/safeguarders-panel/. The Act provides that the Scottish Ministers must establish and maintain a register of persons who may be appointed to act as child welfare reporter or curator ad litem and that the Scottish Ministers, 'may by regulations, make provision for or in connection with the requirements that a person must satisfy in order to be included, and remain, on the register (including requirements as to training and qualifications)'. The Register has not yet been established but we would hope that a mandatory training requirements will be to learn about diversity and inclusion and how it impacts in the adoption process.
With the theme for adoption week being ‘Listening to and supporting experience of adoption in Scotland’, we can all play our part in connecting and listening to more diverse communities, better supporting their diverse needs and thereby promoting more inclusivity into the process; at all levels, from boardroom to courtroom.
Anmol is a third-year law student from the University of Glasgow. She is an avid campaigner for Diversity, Equity and Inclusion and in her spare time likes to work with Diversity+. As an aspiring lawyer, she aims to work towards challenging discriminatory practices and breaking barriers for low socioeconomic status individuals. Anmol feels that prioritising diversity in workplaces that provide services for adoption plays a crucial part in embracing the unique perspectives, needs and backgrounds of every individual, allowing for ethnic minority children to have the best possible chance in finding a permanent, secure, and loving family.
At Diversity+ our primary aim is to work in collaboration with organisations that wish to make improvements in their D, E & I offering. Those that believe in an inclusive and fair society. Using our reach to a diverse audience, our learning methods and relatable experience, we hope organisations will work with us to help make much needed improvements for a more inclusive adoption process, which most importantly, better meets the needs of the children from all backgrounds.
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