Adoption law in Scotland and its Interface with Immigration and Asylum Law

The principal Act for adoption in Scotland is the Adoption (Scotland) Act 1978 as amended by the CSA 1995. This is referred to as 'the Act'.

1. What is adoption?

(i) Adoption is a court order, giving all parental responsibilities and rights for the child to the adopter(s) as if the child was born to them. Birth parents lose all responsibilities and rights unless these have already been removed by a freeing order. The child becomes the adopted child of the adopters.

Freeing is a non-mandatory pre-adoption order used in some agency adoptions. The birth parents lose all parental responsibilities and rights and these are given to the local authority. The child is not 'looked after', but the local authority must at least provide services and care as if the child is 'looked after'.
No adoption or freeing can be granted unless the parents agree or their agreement is dispensed with by the court, except in post-freeing adoption where the agreement has already been dealt with.

(ii) The adoption principles are in ss 6, 6A and 24 of the Act. In all adoption and freeing decisions, courts and adoption agencies must:

treat the child’s welfare, throughout the child’s life, as paramount;
take account of the views of the child;
take account of the child’s religious persuasion, racial origin and cultural and linguistic background;
consider alternatives to adoption, and not make an order unless that is the best thing for the child.
Any child of 12 or over involved in freeing and/or adoption must be asked if s/he consents to the action. Without consent, there can be no freeing or adoption unless the court dispenses with it because the child is incapable.

(iii) Adoption is either agency or non-agency.

Agency adoption is where an adoption agency places a child for adoption, usually with strangers to the child.
Non-agency adoption is any other adoption. This includes:
relative adoption by a grandparent, sibling, uncle or aunt;
step-parent adoption by the married partner of the birth mother or father with whom the child lives.

(iv) Strictly speaking, no other adoptions should be arranged. However, courts grant adoption orders in other cases, e.g. foster carer or intercountry adoptions.

There are two types of adoption agencies. Both must be registered with and inspected by the Care Commission from April 1st 2004.
Local authority adoption agencies - every local authority must have one for their area.
Voluntary adoption agencies or registered adoption services.

2. Who can adopt?

There is no upper age limit, although agencies can impose one when assessing agency adopters.
People under 21 cannot adopt unless adopting their own child.
Adopters must either be domiciled in Scotland (i.e. consider it their long-term permanent home, even if not currently resident) or have been habitually resident in Scotland for more than one year before the court application.
Adopters must be either a married couple or a single person. An unmarried couple of whatever sexual orientation cannot adopt together - only one of them may adopt, as a single person.
A step-parent can adopt if married to the birth parent who cares for the child.
In agency adoptions, adopters must be assessed and approved by an adoption agency. After full assessment of applicants, the agency decides whether formally to approve them or not.

3. Who can be adopted?

Only an unmarried child, under 18 when the application is made, can be adopted.
If the adoption is an agency, relative or step-parent one, the child must be at least 19 weeks old and have lived at least 13 weeks with the adopters or one of them. Most children placed by agencies are 'looked after' children, but not all.
In any other case, the child must be at least one year old and have lived at least one year with the adopters or one of them.

4. Pre-court procedures

In a non-agency case, applicants must notify the local authority where they live. The notification must be at least three months before the adoption order is granted. The local authority must prepare a report for the court about the family, the child and all the circumstances of the case.

In an agency adoption, with or without freeing, there are regulations about procedures and timescales, for the child and for placement with prospective adopters. An agency cannot place a child with prospective adopters unless they are approved.

5. Court procedures

Adoption and freeing can be in either the Court of Session or the sheriff court. Procedures are set out in the court rules and are very similar for both types of cases and in both types of courts. The court needs two reports, from the:

agency or local authority depending on the type of case. This covers all the circumstances, including the suitability of prospective adopters; and
curator, an independent court-appointed person. This covers all the circumstances.

The curator must consider the best interests of the child.

After receiving the reports, the court usually fixes a hearing. When there is a dispute about parental agreement, this is a hearing for the judge to take evidence from the parties.

The grounds for dispensing with parental agreement are that the parent:

is not known, cannot be found or is incapable of giving agreement; or
is withholding agreement unreasonably; or
has persistently failed without reasonable cause either to safeguard and promote the child's health, development and welfare or to maintain personal relations and direct contact with the child if he or she is not living with him or her; or
has seriously ill-treated the child who is not likely to be reintegrated into the same household.

If the court decides to dispense with agreement, it must still consider, on the basis of all the principles, whether to grant the freeing or adoption.

6. Issues for refugees and asylum seekers

(i) Adoption is a possibility for:

an unaccompanied child who is a refugee or asylum seeker. S/he should be 'looked after' by a local authority and adoption is one way to secure the child's long-term care and security.
a child who has been brought into the UK legally or illegally and is now being 'looked after' by a local authority for whatever reason.
a child who has been taken into the care system, away from her parents who are refugees and/or asylum seekers, and it is not safe for her/him to return home.

In many ways, these arrangements are the same as for any child who needs permanent care away from her/his family. However, adoption may not be appropriate for older children, who may prefer to be cared for on a long-term fostering basis.

(ii) Where a child is living with his/her family and they are refugees and/or asylum seekers, adoption will not normally be possible. This is because the child has to live with adopters for a period of time:

three months for agency, relative or step-parent adoptions;
one year in all other cases.

If a child is brought into the UK for purposes other than adoption, e.g. health or education, there may be a later application to adopt by carers. This would be a non-agency adoption, outwith the ordinary arrangements with relatives etc. It would be up to the court whether to grant it. If the court saw the adoption as an attempt to avoid immigration laws, it might refuse the adoption.

(iii) The Home Office may be notified by the court about an adoption with possible immigration issues. Sometimes, they will oppose adoptions.

However, adoption decisions are always a matter for the court, which must put children’s welfare, throughout their life, as the paramount consideration.

There is some House of Lord's support for granting adoptions despite immigration issues In re B (a Minor) (A.P.), House of Lords, 11 March 1999. This was decided under the Adoption Act 1976 (current English and Welsh legislation), where the test for the child’s welfare is less than the test in the 1978 Act as amended, because the 1976 Act says that the child’s welfare is only 'the first consideration'. However, the adopters were grandparents, within the definition of 'relative' in the adoption acts.

If a child is adopted in the UK the child will acquire British citizenship if at least one of the adopters is a British citizen.

7. Intercountry adoption

(i) Intercountry adoption refers to adoption where:

the adopter(s) reside in the UK and
the child resides in a country outside the UK (the state of origin) and
the adopter(s) either:
• bring the child into the UK for the purposes of adoption or
• adopt the child in his/her state of origin, and that order is recognised as adoption in UK law.

For intercountry adoption, countries are Convention, Designated or Non-Convention/non-designated ones.

Before seeking an intercountry adoption, adopters must go through the prescribed system of assessment, approval and checking by central government, including the Home Office.

If a child is brought into the UK for the purposes of adoption without going through the intercountry system, the adopters are committing an offence.

(ii) Other adoptions have international aspects but are not intercountry ones: e.g.

adoption of a step-child from overseas now living in the UK; or
adoption by adopters who have returned to live in the UK after working abroad, where they adopted a child but that adoption is not recognised here; or
adoption by carers who have brought the child into the UK for the purposes of education or health and now wish to adopt him/her.

(iii) If a child has been adopted outside the UK in a Designated country, or, through the Hague Convention, in a Convention country, that adoption will be recognised in the UK. The child will usually be able to obtain British citizenship in these cases, but the rules are complicated. Each case should be checked with the Home Office Immigration and Nationality Directorate, website: http://www.bia.homeoffice.gov.uk/ukresidency/eligibility/partnersandchildren/adoptedchild