New adoption law hit by confusion and delay

Scotland’s new adoption law has run into confusion and delays just months after it was supposed to come into effect.

The wording of the Adoption and Children (Scotland) Act 2007 is being disputed in the courts. Guidance for local authorities was issued only last week. The 16-week maximum waiting period for adoption hearings is being delayed because of a rush of applications both before and after the new law came into force in September 2009.

The result has been that many families – perhaps as many as a hundred – who have been approved as adopters and matched with a child are having to wait for months before the child can come to live with them. The hold-up also means that children are being kept in foster homes for longer than necessary, just at a time when there is a drastic shortage of foster home places. The Fostering Network estimates there is a shortfall of 1,700 foster families in Scotland.

The British Association for Adoption and Fostering is putting a brave face on the delays. “There are always teething problems with a new law,” said its Scottish director Barbara Hudson. “Local social work departments are not sure yet how it works and the courts too are feeling their way.

“There is a delicate balance to be struck between the rights of the child and the rights of the birth-family, even though the birth-family have failed to look after that child properly up until now. The UK and the USA are among the few countries in the world where the rights of the birth-family can be taken away when it’s in the interests of the child. It’s a big step and the courts have to be careful how that is done.”

Section 14 of the Act says the court’s paramount consideration must be the welfare of the child “throughout the child’s life”. But section 84 talks only of the welfare of the child “throughout childhood” ie up to the age of 16. The confusion has led to a complicated legal challenge with lawyers for birth-families arguing that the new law breaches the European Convention on Human Rights. A court hearing is expected later this month but meanwhile local authorities are reluctant to seek Permanence Orders – transferring the child from foster care to adopting families – until the issue is cleared up. And sheriffs are reluctant to grant such orders.

“The legal confusion is certainly not good for the welfare of the children involved, we could have done without it,” said Fiona Lettice from Adoption UK. “ Once a decision for permanence has been made it should be acted upon speedily. Most of these children have come from very difficult backgrounds and are extremely vulnerable.

“It is distressing for the families who have been assessed as suitable to adopt to have to wait for months after they have been matched with a child before they can actually take the child home.”

The new law was supposed to make the adoption process easier and more flexible. The new Permanence Order, it was hoped, would balance the rights of all the parties involved … the child, the Children’s Panel, the local authority, the birth family and the adopting family. But now, because of poor drafting and lack of preparation, it’s become bogged down in confusion. And this comes as the shortage of families willing to adopt is running at 200 at any one time and the number of adoptions has halved since the 1990s to around 400 a year.