To mark Adoption Week Scotland, our Adoption specialist, Emma Letham, has put together a series of blogs, answering commonly asked questions from Prospective Adopters.

Do Prospective Adopters need to take part in the Children’s Hearing process?

The short answer is no. Prospective Adopters do not need to take part in the Children’s Hearing process.

However, it is something to which you might want to give some consideration, particularly if the child’s birth parent(s) are likely to oppose the Adoption Order at Court.

When a child is living with their Prospective Adopters, the child will often be the subject of a Compulsory Supervision Order (“CSO”) through the Children’s Hearing System.

The CSO is required to be reviewed every 12 months from the date it was issued. The CSO is reviewed at a Children’s Hearing and the Panel Members are able to make substantive changes to the CSO. These changes can include the contact which a child has with their birth parent(s).

As a Prospective Adopter, you have no automatic right to attend or contribute to the Children’s Hearing. In addition, unless you are deemed a “Relevant Person” by the Children’s’ Hearing, you are unable to Appeal decisions of the Panel Members. The child’s Social Worker cannot Appeal a decision.

Therefore, some Prospective Adopters wish to be deemed “Relevant Persons” to allow them to attend and contribute to the Children’s Hearings for the child. This also provides them with the right to Appeal a decision if the Panel Members make a decision which the Prospective Adopters do not believe is in the child’s best interests.

The test for being deemed a “Relevant Person” is as follows; –

“The individual has (or has recently had) a significant involvement in the upbringing of the child”.

A Prospective Adopter should therefore easily meet this test (if the child is currently living with the Prospective Adopter).

A child’s birth parents automatically have “Relevant Person” status.

In some Adoption Cases, where the birth parent(s) are opposing the Adoption Petition, the birth parent(s) may request an early Review Hearing to ask the Panel if contact can be re-instated between them and the child.

If the Prospective Adopters are deemed Relevant Persons, then they have a right and duty to attend Children’s Hearings for the child and have their views heard by the Panel Members.

For more information about the Children’s Hearing process or the Adoption legal process, please contact our Adoption specialists – Emma Letham at ell@wjm.co.uk and Roger Mackenzie at rlm@wjm.co.uk

What changes will the Children (Scotland) Act 2020 make for children and young people? 

The Children (Scotland) Act 2020 was passed by the Scottish Parliament in August 2020. The changes have not yet been brought into force to give the Government, Local Authority Courts and Children’s Hearings time to prepare for the changes before they have to start delivering them. 

The new Act covers lots of different things. It:

  • brings the law into line with children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) to ensure that children’s views are heard in family court cases and that the best interests of the children are at the centre of these cases; and 
  • gives more protection to victims of domestic abuse and their children. 

The main changes for children and young people are:

Children and young people will have more opportunity to give their views to court

The courts will have to take the starting point that all children are capable of giving their views no matter how old they are. All children who want to give their views must be given the chance to do so and in a way that they prefer, whether that is speaking to the Judge or other means of setting out their views. 

At the moment, there is a presumption that a child aged 12 and over is mature enough to give an opinion, however, by changing the law there is a clear signal that children of all ages have a right to be heard. Once they have been heard then the person making the decision has to take account of those views and also their age and maturity. 

Courts will explain their decisions to children

When a Judge or a Sheriff makes a decision as to where a child is to live (residence) or time that they have to spend with the other parent (contact), that decision has to be explained to the child in a way that they can understand. 

Every decision doesn’t have to be explained to the child, only major decisions like ones on living and contact arrangements 

Children will have support advocacy workers in family court actions

Advocacy workers will support and represent children when courts are deciding for example where they should live and what contact they should have with the other parent. This will take time to put in place that the Scottish Government now must start setting up these services for children who are giving their views to the court. 

Measures to keep children safe in contact centres

Child Contact Centres are places where children, parents and other people in children’s lives can meet. Contact Centres will have to follow rules which will be put in place. 

Other Matters 

  • Local authorities will have a legal duty to support, care experienced brothers and sisters relationship when they aren’t able to live together; 
  • A register of Child Welfare Reporters (who give a report to the court about a family situation) and Curator ad litems (who can be appointed by the court to represent a child’s interest) is to be set up and rules on how Child Welfare Reporters and Curator ad litems should carry out their duties;
  • Courts will also have to investigate the reason that contact arrangements are not working and give the child an opportunity of giving their views; 
  • Other changes include rules to avoid legal proceedings taking too long where this would affect a child’s welfare and new measures to assist vulnerable witnesses and parties in court actions. 

More information

WJM Partner Tom Quail is here to help with any of your queries about the Children (Scotland) Act 2020, or other family law matters. Get in touch on 0141 248 3434 or email tlq@wjm.co.uk

Get in touch – call us on 03333 661 274