Families come in many different forms, and there may be circumstances where someone caring for a child wants greater legal security or parental responsibility. For stepparents, foster carers and relatives, the right option will depend on the child’s circumstances and the existing family relationships.
Understanding the different options can help you decide what may be right for your family.
What is kinship care in Scotland?
When a child cannot live with their birth parents and lives with a relative or someone with whom they already have a relationship, such as a close family friend, this is known as kinship care. Kinship arrangements can be formal or informal and do not always involve the local authority.
However, if a child has been removed from their birth parents’ care by the local authority, these arrangements are generally more formal and may initially be governed by voluntary agreements or orders made through the Children's Hearings system.
What is a Kinship Care Order in Scotland?
A Kinship Care Order can provide a kinship carer with some or all parental responsibilities and rights for the child in their care. It can also make provision for where the child lives and create orders for specific issues, such as applying for a passport or dispensing with parental consent to be able to travel with the child. Unlike adoption, it does not necessarily remove the birth parents’ parental responsibilities and rights, which may instead be shared with the kinship carer. Any orders made by the court always depend on the specific circumstances and welfare of the individual child. This type of order provides stability and security for the child and sets out what will happen for the duration of the child’s childhood.
What is a Section 11 Order in Scotland?
A Section 11 Order is made under the Children (Scotland) Act 1995. Depending on the order, it can give a carer important legal responsibilities and rights, including the right to have the child live with them. A Kinship Care Order is a type of Section 11 Order. A crucial difference between adoption and Kinship Care Orders is that an Adoption Order is final. It is not subject to ongoing review by the court. A Kinship Care Order can be brought back before the court at a later date via minute to vary procedure. However, this can only happen if the person seeking to vary the order can demonstrate that there has been a material change in circumstances for the child which requires the court to consider the matter again.
Can a stepparent adopt a child in Scotland?
A stepparent may be able to adopt their partner’s child. Adoption is a significant legal step, so the individual circumstances of the family and the effect of adoption on existing parental rights need to be carefully considered.
Stepparents are subject to the same legal framework as any other adoptive parent. In some cases, adoption will be the most appropriate legal step in others, it may be more appropriate for a stepparent to seek parental rights and responsibilities in relation to their stepchild via a Section 11 order.
How does stepparent adoption work in Scotland?
Stepparent adoption involves an application for an Adoption Order. Before an order can be made, particular legal requirements must be satisfied. Scottish adoption legislation includes requirements concerning matters such as parental consent and the making of the Adoption Order.
What is the process for stepparent adoption?
- The stepparent must first notify the relevant local authority of their intention to apply to adopt the child.
- The local authority then investigates and prepares a report for the court. The report normally covers the family circumstances, the stepparent's relationship with the child, the child's relationship with each birth parent, the views of the parents and child, and whether adoption is in the child's best interests.
- An adoption petition is lodged with the court on behalf of the stepparent. The court considers the petition and local authority report and will normally appoint a curator ad litem/reporting officer to report on the application and, where appropriate, obtain the necessary consents.
- Notification must be given to anyone whose consent is required or requires to be dispensed with. Importantly, a birth father who does not have, and has never had, parental responsibilities and rights must nevertheless be notified if he can be found. The notification tells the person that the application has been made, when and where it will be heard, that they are entitled to be heard, and that they need not attend unless they wish to or the court requires it.
Can a stepparent adopt a child without the other parent's consent?
Parental consent is specifically addressed within Scottish adoption legislation. Whether an adoption can proceed without a parent’s consent will depend on the circumstances and the relevant legal tests.
Where the other birth parent (i.e. the parent who is not in a relationship with the stepparent) has parental responsibilities and rights, their consent will ordinarily be required. If consent is withheld, the stepparent can ask the court to dispense with consent on one of the statutory grounds. The case is then likely to require an evidential hearing rather than proceeding as an unopposed adoption. Consent can be dispensed with if the parent is dead, cannot be found or is incapable of giving consent, the parent is unable satisfactorily to exercise their parental rights or discharge their parental responsibilities and is likely to remain unable to do so, or the welfare of the child otherwise requires the consent to be dispensed with.
Can foster parents adopt a child in their care?
In some circumstances, foster carers may go on to adopt a child they have been caring for. However, foster care and adoption have different legal effects, and adoption will not be appropriate in every case.
The same process applies to foster carers who wish to adopt a child in their care as applies to any other adopter. There are broadly two situations in which foster carers may become adopters.
Planned/concurrent placement
The carers are approved both as foster carers and adopters and accept a child on the basis that the child may return to the birth family, but that they may adopt if rehabilitation is not possible. The Scottish Government describes this as concurrent planning.
Existing fostering placement
A child has been living successfully with foster carers and, as permanence planning develops, the carers wish to adopt. The fostering organisation/local authority considers the child's individual circumstances and whether adoption by those carers is the appropriate long-term plan.
The period a child must live with prospective adopters varies depending on whether the child has been placed with the adopters also as foster carers (planned/concurrent placement), or placed with foster carers who at a later stage decide to adopt the child. In the second scenario, the child must have had their home with the foster carers for at least 12 months, whereas the usual time frame is 13 weeks immediately preceding the adoption application being lodged, and the child having attained at least 19 weeks.
The local authority/adoption agency assesses the proposed adopters. This involves social work assessment, home visits and checks concerning matters such as medical history, criminal records, finances and the suitability of the home. An adoption panel will normally consider the assessment before the agency reaches its decision. Existing foster carers therefore should not assume that their previous fostering assessment is itself sufficient for adoption assessment.
The legal status of the child has a bearing on the next steps. There may already be a permanence order granting authority for adoption. Alternatively, the adoption proceedings may require parental consent to be addressed.
Can a family member adopt a child they have been caring for?
Relatives caring for a child may wish to consider adoption, but other arrangements, including a Kinship Care Order, may also provide appropriate legal security.
The best approach will depend on the child’s needs and the wider family circumstances.
What is the difference between adoption and a Kinship Care Order?
Adoption fundamentally changes a child’s legal status and the legal relationship with their birth and adoptive families. By contrast, under a Kinship Care Order, parental responsibilities and rights are not necessarily removed entirely from the birth parents and can be shared with the kinship carer.
When should you speak to a solicitor about adoption or kinship care?
It can be helpful to seek specialist advice before deciding which legal arrangement is right for your family, particularly where there is disagreement between family members or uncertainty about parental responsibilities and rights.
How we can help
Our Family Law team can explain the options available and provide advice tailored to your family’s particular circumstances.
If you would like to understand your position, please get in touch with Danielle Stevenson or a member of our Family Law team.