The following information is adapted by the Equality Network from articles by Peter Murrin, solicitor in the Family Law Unit at Maclay Murray & Spens LLP

Background

On 31 July 2011, 16,171 children in Scotland were in the care of local authorities. The largest grouping (37 per cent) was that of children between the ages of 5 and 11 years old and the second largest was between the ages of 12 and 15 years old (32 per cent).

In the year 2009-10 only 466 adoption orders were granted. Of that number 103 were children between the ages 5 and 9, and 7 were between the ages 10 and 14. The majority of the adoptions were by male / female couples, with only 12 being by same-sex couples (8 female / female and 4 male / male).

Adoption and fostering represents an avenue for those couples who cannot have their own, to bring children into their lives and to give them a home as well as love, care and support. More same-sex couples now consider adoption for these reasons, and as more adoption agencies actively promote the availability of adoption to same-sex families, it is worth reviewing what is required to adopt.

What is adoption?

The current adoption law in Scotland is found in the Adoption and Children (Scotland) Act 2007 (the “2007 Act”).

Adoption is the legal process through which a new and permanent family life can be provided to a child who cannot be cared for by their birth parents or biological family.

A court order transfers parental responsibilities and rights (the responsibilities to the child and rights of the parent in respect of the child) from the birth parents to the adoptive parents. What this means is that the person adopted is thereafter treated as the child of the adoptive parents in the eyes of the law.

When deciding whether to make an adoption order a court must have regard to the whole circumstances of the case but specifically shall regard the safeguarding and promotion of the welfare of the child as its paramount consideration. Other considerations will include (but will not be limited to) the child’s views (where appropriate, having regard to age and maturity), religious persuasion, racial origin and cultural and linguistic background as well as the value of the stable family unit in the child’s development. In essence, everything that is relevant will be taken into consideration.

The process

There is no shortage of adoption agencies in Scotland and in most cases the process begins with a simple enquiry. Many adoption agencies are charities such as Barnardo’s or The Scottish Adoption Association (Edinburgh and the Lothians) but most operate on behalf of local authorities. Glasgow City Council’s agency is Families for Children while Dundee City Council’s Change Their Lives provides good advice and assistance for applicants in that region.

Exact details can vary slightly between agencies so individual experiences may differ slightly from what follows but, substantively, the process is uniform. Following the applicant’s enquiry there will be a meeting with the agency. The purpose of this is to exchange information and will hopefully enable an application which will be assessed by a social worker.

The assessment process will include visits to the applicant’s home by the social worker (usually six times), medical history checks, a medical examination and a background check. Three character references are also usually taken. It is generally expected that the process will take a minimum of six months following which the social worker will prepare a Prospective Adopters Report with the applicants. During the period, applicants will often be invited to attend parenting classes and workshops designed to prepare the adoptive parents for the step they are about to take and to familiarise them with common problems which may arise as a result of the change that will take place in their lives.

The applicant will then be invited to attend an adoption panel meeting which will recommend either to approve the applicant or not based on the report and the applicant’s circumstances.

It is worth pointing out that it can take time to be matched with a suitable child – couples will often have preferences in terms of age ranges and the agency will have a duty to ensure that the match of parent to child is suitable.

This can be a frustrating period for the applicant(s) having spent several months in the assessment process. Once the child is found by the agency, a further meeting is held between the agency and the applicants and a report is made by the agency to the adoption panel which will, in turn, make its recommendation on whether the placement should be made.

Following on from that, a series of meetings between the child and the now prospective adopters will usually occur (often in the company of the child’s foster carers) to allow the child and the prospective adopters to get to know one another. If all goes well, the child will then move in with prospective adopters. Once that living arrangement has subsisted for a number of weeks (10 weeks is quoted by some agencies), the prospective adopters may apply to the court for the adoption order in respect of the child. It should be kept in mind that a child’s parent or guardian with parental rights and responsibilities can contest the adoption up to the point where an order is applied for. Nevertheless, once an adoption order is granted by the court, the child legally becomes a part of their adoptive family.

There is no doubting that the process can seem arduous and even frustratingly formal but the welfare of the child is paramount and the purpose is to create a permanent family arrangement. The benefits to the prospective parent and child are beyond measure.

Who can adopt?

Sexual orientation and gender identity are not barriers to adoption but are circumstances which will be taken into account in the ‘whole circumstances’ of the case. The 2007 Act allows for single people, married couples, couples in a civil partnership and cohabiting couples (mixed-sex or same-sex) to adopt. With high profile same-sex couples adopting and raising children, social attitudes surrounding what does and what should constitute a family unit are undoubtedly changing.

The minimum age for applicants is 21 and there is no upper age limit. However, agencies and the adoption panel will take this into account, alongside health and well-being, as part of the assessment process. Being disabled, overweight or having an illness do not preclude an applicant and agencies will often suggest that an applicant discusses the demands and expectations of adoption with an adopter with similar circumstances (Adoption UK’s PAL service is one facility which has a particular focus on this area).

Finance is obviously important for many families. An applicant does not need to be wealthy or a homeowner to adopt. However, it will obviously be necessary to show how a child would be supported going forward. An applicant will be asked to show that there is adequate space and means to care for the child although in some cases assistance from a local authority will be available.

Adoption leave

In terms of leave and payment, the rights in respect of adoption mirror those of maternity. An adopter (or one member of a couple who adopt jointly) may, if they meet the eligibility criteria, take up to 52 weeks adoption leave (made up of 26 weeks ordinary leave and 26 weeks additional leave). Statutory adoption pay will also be available for a maximum of 39 weeks and is currently (2013-14) paid at the rate of £136.78 per week (although some employers may offer better as part of the terms of an individual’s contract). An adopter will be eligible for said leave and pay where they are newly matched for adoption through a recognised adoption agency and where they have been in continuous employment, with their employer, for a period of 26 weeks (ending with the week in which they are notified of the match).

The other member of a couple who are adopting jointly may be eligible for paternity leave or additional paternity leave – despite the terminology, the leave is available to same-sex female couples as well as men – if they meet the required criteria.