A guide to adoption in Scotland

Becoming a parent can be an exciting and daunting prospect for anyone. It may feel even more so if you are embarking upon the journey to adopt a child, particularly if the child is not a family member or step-child. This guide will outline the steps along that journey and hopefully assist with explaining the process.

Who can adopt?

In Scotland, you can seek to adopt a child if you are over the age of twenty one. There is no upper age limit. However, the court will consider whether you are able to care for the child throughout their childhood.

A child can be adopted if they are under eighteen and they have never been married or in a civil partnership.
In terms of your personal circumstances, you can be single, cohabitees, married or in a civil partnership.

Couples can adopt if they are living together in an “enduring relationship”.

You can seek to adopt if you are already a parent.

If you are the partner of the birth parent of the child that you wish to adopt, you must be over twenty one and the parent must be over eighteen.

You do not need to have been born in Scotland to adopt but you must have lived here for over one year.

Starting the process

The steps to adopting through the court are the same, irrespective of whether you are a step–parent, a family member or no relation to the child. The length of time that the process will take, and the stages involved, will differ depending on whether the child is placed in the care of a local authority or not.

If you wish to adopt a child you must first contact an adoption agency unless you are seeking to adopt a family member or step-child. In those circumstances you do not need to use an adoption agency. You will, however, need to advise your local authority of your intention to adopt.

If you are not using an agency you need to provide the local authority with at least three months’ notice that you intend to adopt before you start the court process. This will allow them time to prepare a report for the court.

Court process

Once you are ready to adopt, your solicitor will prepare a document called a “petition” which will be lodged at court — usually your local Sheriff court. Adoptions can also be sought through the Court of Session.

If you are seeking to adopt more than one child from the same family, consideration will have to be given to whether there is one petition or two petitions. A child who is sixteen is entitled to see the petition.

The petition is warranted by the court and served upon anyone whose consent to the adoption is required i.e. the birth parent or parents. If their whereabouts are not known then their relatives can be intimated upon. Anyone wishing to oppose an adoption usually has to do so within twenty-one days of service of the petition.

The court fixes a preliminary hearing which is held in private.

The court will appoint a Curator ad litem and a Reporting Officer (which tends to be the same independent solicitor) to prepare a report including ascertaining if consent is given and taking the child’s views, depending on their age.

Consent

The child’s birth parents need to consent to the adoption unless they are deceased, or the court decides their consent can be dispensed with due to them being unable to discharge their parental rights and responsibilities, them not being able to be located or them being unable to consent due to their incapacity. A mother cannot consent to her child being adopted until six weeks after she has given birth.

If there is no opposition, the adoption order will most likely be granted.

If the petition is contested by a birth or the birth parents, there may need to be a hearing on evidence called a diet of proof in order for the court to be able to dispense with the need for their consent. This can delay matters.

Child’s view

As well as the birth parents’ views, the child’s views are important. If they are aged twelve or over, they will need to consent to the adoption in order for it to be granted. If they are under twelve, their views can be taken and weight attached to those views, depending on their age and level of maturity.

If, ultimately, the court is satisfised that the test is met and there no opposition to the petition, the adoption will be granted. The test is that it is better for the child that an adoption order be granted, rather than not granted.

Effect of an adoption order

Once the petition is granted you will be the child’s parent and have parental rights and responsibilities for the child. The birth parents will no longer have those rights.

We appreciate that you may have questions to ask about the process. Our family law team are here to talk to you whatever stage of your journey you are at and to guide you through the law and the court process.