67.1.—(1) This Chapter applies to applications under the Adoption (Scotland) Act 1978(1).
(2) In this Chapter, unless the context otherwise requires–
“the Act of 1978” means the Adoption (Scotland) Act 1978;
“freeing for adoption order” means an order made in accordance with section 18(1) of that Act;
“Her Majesty’s Forces” means the Royal Navy, the regular armed forces as defined in section 225 of the Army Act 1955(2), the regular air force as defined in section 223 of the Air Force Act 1955(3) and the Queen Alexandra’s Royal Naval Nursing Services;
“parental rights” has the meaning assigned in section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986(4);
“section 49 order” means an order made in accordance withsection 49(1) of the Act of 1978(5).
Commencement Information
I1Sch. 2 rule 67.1 in force at 5.9.1994, see para. 1(1)
67.2. Unless otherwise provided in this Chapter, the following rules shall not apply to a petition or note to which this Chapter applies:–
rule 14.5 (first order in petitions),
rule 14.6(1)(d) (period of notice for lodging answers where service by advertisement),
rule 14.7 (intimation and service of petitions),
rule 14.8 (procedure where answers lodged),
rule 14.9 (unopposed petitions).
Commencement Information
I2Sch. 2 rule 67.2 in force at 5.9.1994, see para. 1(1)
67.3. Unless the court otherwise directs, in any cause to which this Chapter applies–
(a)any document lodged in process, including a report by a local authority, an adoption agency, a reporting officer or a curator ad litem, shall be treated as confidential and open only to the court, the parties, the reporting officer and the curator ad litem; and
(b)a reporting officer or curator ad litem shall treat any information obtained by him in relation to the cause as confidential, and shall not disclose any such information to any person unless it is necessary for the proper execution of his duties.
Commencement Information
I3Sch. 2 rule 67.3 in force at 5.9.1994, see para. 1(1)
67.4. Where the court appoints a reporting officer or a curator ad litem, such person shall be selected from a panel established under the Curators ad Litem and Reporting Officers (Panels) (Scotland) Regulations 1984(6) unless the court considers that it would be appropriate to appoint a person who is not on the panel.
Commencement Information
I4Sch. 2 rule 67.4 in force at 5.9.1994, see para. 1(1)
67.5.—(1) An agreement by a parent or guardian–
(a)for the purposes of section 16(1)(b) of the Act of 1978 (agreement to adoption), shall be in form 67.5–A;
(b)for the purposes of section 16(1)(b), by virtue of section 49(7) of that Act (adoption of child abroad), shall be in Form 67.5–A; or
(c)for the purposes of section 18(1)(a) of that Act (agreement to freeing for adoption), shall be in form 67.5–B.
(2) A consent–
(a)by a child for the purposes of section 12(8) of the Act of 1978(8) (consent to adoption), shall be in Form 67.5–C;
(b)by a parent or guardian for the purposes of section 18(2)(a) of that Act (consent to application for freeing for adoption), shall be in Form 67.5–D; or
(c)by a child for the purposes of section 18(8) of that Act(9) (consent to freeing for adoption), shall be inForm 67.5–E.
(3) An agreement or consent referred to in this rule which is executed furth of Scotland shall be witnessed–
(a)where it is executed in England, Wales or Northern Ireland, by a justice of the peace or commissioner for oaths;
(b)where it is executed furth of the United Kingdom–
(i)in the case of a parent or guardian serving in Her Majesty’s Forces, by an officer holding a commission in those forces; or
(ii)by a British consular official or any person authorised, by the law of the country where the agreement or consent is executed, to administer an oath for any legal purpose.
Commencement Information
I5Sch. 2 rule 67.5 in force at 5.9.1994, see para. 1(1)
67.6.—(1) In a cause to which this Chapter applies, the court may, before determining the cause, order–
(a)production of further documents (including affidavits); or
(b)parole evidence.
(2) A party may apply by motion for the evidence of a person to be received in evidence by affidavit; and the court may make such order as it thinks fit.
Commencement Information
I6Sch. 2 rule 67.6 in force at 5.9.1994, see para. 1(1)
67.7. In a cause to which this Chapter applies, the court may make such order as to expenses, including the expenses of a local authority or an adoption agency which prepared a report, a reporting officer, a curator ad litem, or any other person who attended a hearing, as it thinks fit.
Commencement Information
I7Sch. 2 rule 67.7 in force at 5.9.1994, see para. 1(1)
67.8. In this Part, “petition” means the petition referred to in rule 67.9(1).
Commencement Information
I8Sch. 2 rule 67.8 in force at 5.9.1994, see para. 1(1)
67.9.—(1) An application under section 18(1) of the Act of 1978 (freeing child for adoption) shall be made by petition.
(2) The petition shall include averments in relation to, or refer to a report or other documents produced which deal with–
(a)whether the petition is presented with the consent of a parent or guardian;
(b)whether the petitioner is applying for dispensation with the agreement of a parent or guardian under section 18(2)(b) of the Act of 1978 (agreement to freeing for adoption) and the ground on which dispensation is sought;
(c)how the needs of the child came to the notice of the petitioner;
(d)any relevant family circumstances of the child;
(e)a description of the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;
(f)the discussion by the petitioner with the parents or guardians of the child and, if appropriate, with the child about their wishes and the alternatives to adoption;
(g)the knowledge of the petitioner of the position of other relatives or persons likely to be involved;
(h)the search by the petitioner for any parent or guardian who cannot be found;
(i)the likelihood of placement of the child for adoption and whether a petition for an adoption order is likely in the near future;
(j)the arrangements of the petitioner for the care of the child in the event of the granting of the prayer of the petition;
(k)whether the petitioner has given each parent or guardian who can be found an opportunity to make a declaration for the purposes of section 18(6) of the Act of 1978(10) (declaration of preference not to be involved in future questions concerning the adoption);
(l)the enquiries by the petitioner into the circumstances of any reputed father; and
(m)whether the petitioner intends to give notice to a former parent or guardian under section 19(2) and (3) of that Act (progress reports).
(3) On presentation of the petition, there shall be lodged in process as a production–
(a)an extract or a certified copy of any entry in the register of births relating to the child; and
(b)any consent of a parent or guardian required by section 18(2)(a) of the Act of 1978 (consent to freeing for adoption).
Commencement Information
I9Sch. 2 rule 67.9 in force at 5.9.1994, see para. 1(1)
67.10.—(1) On presentation of the petition, the court shall pronounce an interlocutor–
(a)appointing a reporting officer; and
(b)appointing a curator ad litem where it appears desirable in order to safeguard the interests of the child.
(2) Where a curator ad litem is appointed, the court may order–
(a)the petitioner,
(b)a local authority, or
(c)the reporting officer,
to make available to the curator ad litem any report or information in relation to the child and the natural father and mother of the child.
(3) A person may, before presenting the petition, apply by letter to the Deputy Principal Clerk for the appointment of a reporting officer.
(4) An application under paragraph (3) shall–
(a)set out the reasons for which the appointment is sought;
(b)not require to be intimated to any person;
(c)be accompanied by an interlocutor sheet; and
(d)be placed by the Deputy Principal Clerk before the Lord Ordinary for his decision.
(5) The Deputy Principal Clerk shall give written intimation to the applicant under paragraph (3) of the decision of the Lord Ordinary.
(6) The decision of the Lord Ordinary on an application under paragraph (3) shall be final and not subject to review.
(7) The letter and the interlocutor sheet in an application under paragraph (3) shall be kept in the Petition Department and subsequently placed in the process of the petition.
Commencement Information
I10Sch. 2 rule 67.10 in force at 5.9.1994, see para. 1(1)
67.11.—(1) A reporting officer appointed under rule 67.10 shall–
(a)inquire into the facts and circumstances averred in the petition;
(b)ascertain the whereabouts of each parent or guardian and, if practicable, meet him;
(c)witness any execution in Scotland of any agreement in Form 67.5–B by a parent or guardian under section 18(1)(a) of the Act of 1978 (agreement to freeing for adoption) and investigate whether the agreement is given freely, unconditionally and with full understanding of what is involved and, where the reporting officer has been appointed before the petition has been presented, any consent in Form 67.5–D by a parent or guardian under section 18(2)(a) of that Act (consent to freeing for adoption);
(d)where a parent or guardian is furth of Scotland, confirm his views in writing, ensure that any agreement under section 18(1) of the Act of 1978 is witnessed in accordance with rule 67.5(3) and investigate whether the agreement is given freely, unconditionally and with full understanding of what is involved;
(e)ensure that each parent or guardian who can be found and who has executed an agreement for the purposes of section 18(1)(a) of the Act of 1978 understands that he may renounce that agreement at any time before a freeing for adoption order is made;
(f)witness any execution in Scotland of a consent of child in Form 67.5–E under section 18(8) of the Act of 1978 (consent to freeing for adoption) and ensure that he understands the consequences of that consent;
(g)where a child in respect of whom a consent under section 18(8) of the Act of 1978 is required is furth of Scotland confirm his consent in writing and ensure that the consent is witnessed in accordance with rule 67.5(3);
(h)consider whether the petitioner has made every reasonable effort to find every person whose agreement is required;
(i)investigate whether there are any other persons with a relevant interest and whether they should be informed of the petition;
(j)ascertain whether the petitioner has considered the position of any reputed father;
(k)where the father of the child does not have parental rights, consider the prospect of any application by him for parental rights and whether such an application would be likely to be refused;
(l)discuss alternatives to adoption with each parent or guardian who can be found;
(m)explain the consequences of a freeing for adoption order to each parent or guardian who can be found;
(n)ensure that each parent or guardian who can be found understands he may be able to apply under section 20 of the Act of 1978(11) and rule 67.14 for revocation of a freeing for adoption order, and the procedure for making such an application;
(o)ensure that each parent or guardian who can be found has been given an opportunity to make a declaration under section 18(6) of the Act of 1978 that he prefers not to be involved in future questions concerning the adoption of the child;
(p)consider why the application is for a freeing for adoption order and not a full adoption order;
(q)consider whether the account by the petitioner of the likelihood of arranging adoption after a freeing for adoption order is correct;
(r)consider whether any payment or reward prohibited by section 51 of the Act of 1978 (prohibition on certain payments) has been received or agreed upon;
(s)ensure that each parent or guardian who can be found is aware of the date (if known) of the hearing to determine the application if he wishes to appear, and confirm that such person whose agreement is required and has not been dispensed with understands that he may withdraw his agreement at any time before the freeing for adoption order is made;
(t)draw to the attention of the court any matter which may be of assistance; and
(u)prepare a report in relation to the exercise of his duties within such period as the court may specify.
(2) A curator ad litem appointed under rule 67.10(1)(b) shall–
(a)safeguard generally the interests of the child;
(b)inquire, so far as he considers necessary, into the facts and circumstances averred in the petition;
(c)confirm any consent by a child under section 18(8) of the Act of 1978 (consent to freeing for adoption);
(d)inquire into any matters not averred in the petition which appear to him to be relevant to the making of a freeing for adoption order;
(e)ascertain the current circumstances and care of the child;
(f)where the agreement or consent of a parent or guardian or the consent of a child is sought to be dispensed with, consider whether the ground of dispensation has been made out;
(g)consider whether, in his opinion, the child should be present at the hearing to determine the petition;
(h)perform such other duties as appear to him to be necessary or as the court may require; and
(i)prepare a report in relation to the exercise of his duties within such period as the court may specify.
(3) The reporting officer shall, on completion of his report, send to the Deputy Principal Clerk–
(a)the report and a copy of it for each party;
(b)any agreement for the purposes of section 18(1)(a) of the Act of 1978 (agreement of parent or guardian to freeing for adoption);
(c)any declaration for the purposes of section 18(6) of the Act of 1978 (declaration of preference not to be involved in future questions concerning adoption); and
(d)any consent under section 18(8) of the Act of 1978 (consent of child to freeing for adoption).
(4) The curator ad litem shall, on completion of his report, send the report, and a copy of it for each party, to the Deputy Principal Clerk.
Commencement Information
I11Sch. 2 rule 67.11 in force at 5.9.1994, see para. 1(1)
67.12.—(1) A declaration under section 18(6) or 19(4) of the Act of 1978 (declaration of preference not to be involved in future questions concerning adoption) shall be in Form 67.12.
(2) A declaration referred to in paragraph (1) which is executed furth of Scotland shall be witnessed in accordance with rule 67.5(3).
(3) The making of a declaration referred to in paragraph (1) shall be recorded in an interlocutor pronounced by the court.
(4) For the purposes of section 19(4)(a) of the Act of 1978, the adoption agency shall–
(a)lodge the declaration, and
(b)apply to the court by motion,
in the process of the petition to which the declaration relates to have that declaration recorded.
Commencement Information
I12Sch. 2 rule 67.12 in force at 5.9.1994, see para. 1(1)
67.13.—(1) On receipt of the reports mentioned in rule 67.11(3) and (4), the Deputy Principal Clerk shall–
(a)cause the reports and any other documents to be lodged in process;
(b)give written intimation to each party of the lodging of those documents and make them available to each party; and
(c)within 7 days thereafter, cause–
(i)the petition to be put out on the By Order Roll before the Lord Ordinary; and
(ii)written intimation of the date of the hearing on the By Order Roll to be given to each party.
(2) At the hearing on the By Order Roll, the court–
(a)shall pronounce an interlocutor appointing the petition to a hearing to determine the petition; and
(b)may, in such interlocutor–
(i)order any person whose agreement or consent is required to be given or dispensed with to attend the hearing;
(ii)order intimation of the date of the hearing to any person not mentioned in paragraph (3)(a), (b) or (c); and
(iii)order the reporting officer or curator ad litem, as the case may be, to perform any additional duties to assist the court in determining the petition.
(3) The petitioner shall intimate the date of the hearing ordered under paragraph (2)(a) in Form 67.13 to–
(a)every person whose whereabouts are known to him and whose agreement or consent is required to be given or dispensed with;
(b)the reporting officer appointed under rule 67.10(1)(a);
(c)any curator ad litem appointed under rule 67.10(1)(b); and
(d)any person on whom intimation was ordered under paragraph (2)(b)(ii) of this rule.
(4) At the hearing ordered under paragraph (2)(a)–
(a)the petitioner, the reporting officer and, where one has been appointed, the curator ad litem shall, if required by the court, appear and may be represented;
(b)any person required by the court to attend the hearing shall appear and may be represented; and
(c)any other person to whom intimation was made under paragraph (3)(a) or (d) may appear or be represented.
Commencement Information
I13Sch. 2 rule 67.13 in force at 5.9.1994, see para. 1(1)
67.14.—(1) An application under section 20(1) of the Act of 1978 (application for revocation of freeing for adoption order) shall be made by note.
(2) On presentation of a note under paragraph (1), the court shall pronounce an interlocutor–
(a)ordering service of the note on–
(i)the petitioner;
(ii)any person who appeared or was represented at the hearing for the freeing for adoption order except a parent or guardian who has made a declaration under section 18(6) or 19(4) of the Act of 1978 (declaration of preference not to be involved in future questions concerning adoption); and
(iii)the adoption agency having the parental rights and duties in respect of the child or any substitute agency; and
(b)where it appears desirable in order to safeguard the interests of the child, appointing a curator ad litem.
(3) A note under paragraph (1) shall not be intimated on the walls of the court or advertised.
(4) Where a curator ad litem is appointed under paragraph (2)(b), the court may order–
(a)the adoption agency,
(b)a local authority, or
(c)the reporting officer appointed in the petition,
to make available to the curator ad litem any report or information in relation to the child and the natural father and mother of the child.
(5) A curator ad litem appointed under paragraph (2)(b) shall–
(a)inquire into the facts and circumstances averred in the note;
(b)ascertain whether 12 months have elapsed between the making of the freeing for adoption order and the date of presentation of the note;
(c)where a previous application under section 20(1) of the Act of 1978 was refused, inquire whether there has benn any change of circumstances or other reason for the current application of which the court should be aware in determining the note;
(d)inquire into any other matter which appears to him to be relevant for determination of the note;
(e)consider whether, in his opinion, the child should be present at the hearing to determine the note;
(f)perform such other duties as appear to him to be necessary or as the court may require; and
(g)prepare a report in relation to the exercise of his duties within such period as the court may specify.
(6) The curator ad litem shall, on completion of his report, send the report, and a copy of it for each party, to the Deputy Principal Clerk.
Commencement Information
I14Sch. 2 rule 67.14 in force at 5.9.1994, see para. 1(1)
67.15.—(1) Where no curator ad litem has been appointed under rule 67.14(2)(b), the noter shall, within 7 days after the expiry of the period of notice for lodging answers, apply by motion for a hearing to determine the note.
(2) Where a curator ad litem has been appointed under rule 67.14(2)(b)–
(a)the Deputy Principal Clerk shall–
(i)cause the report sent to him under rule 67.14(5) to be lodged in process; and
(ii)give written intimation of the lodging of the report to the noter and any person on whom service was executed by virtue of rule 67.14(2)(a) and make that report available to them; and
(b)within 7 days after receipt of the intimation under sub-paragraph (a)(ii), the noter shall apply by motion for a hearing to determine the note.
(3) Where a noter has previously made an application under section 20(1) of the Act of 1978 (application for revocation of freeing for adoption order) which has been refused by any court, he shall, in his motion under paragraph (1) or (2), seek leave under section 20(5) of that Act to allow the note to proceed.
(4) On a date being fixed for a hearing to determine the note, the noter shall intimate the date of the hearing in Form 67.15 to any person to whom intimation was given by virtue of rule 67.14(2).
(5) At the hearing to determine the note, the noter and any person who received intimation under paragraph (4) shall appear and may be represented.
Commencement Information
I15Sch. 2 rule 67.15 in force at 5.9.1994, see para. 1(1)
67.16. An application under section 20(2) of the Act of 1978 (application by adoption agency for leave to place a child) shall be made by motion.
Commencement Information
I16Sch. 2 rule 67.16 in force at 5.9.1994, see para. 1(1)
67.17. An application under section 21 of the Act of 1978(12) (transfer of parental rights and duties between adoption agencies) shall be made by note.
Commencement Information
I17Sch. 2 rule 67.17 in force at 5.9.1994, see para. 1(1)
67.18. An application under section 29 of the Act of 1978(13) (order to return a child to, or not to remove a child from, the care of the applicant)–
(a)in relation to a breach of section 27(2) of the Act of 1978(14) (restrictions on removal of child where application for freeing for adoption order pending), an application under section 29 of that Act, or
(b)an application for leave under section 27(2) of that Act (leave to remove a child where application for freeing for adoption order pending),
shall be made by note.
Commencement Information
I18Sch. 2 rule 67.18 in force at 5.9.1994, see para. 1(1)
67.19. In this Part, unless the context otherwise requires, “the petition” means the petition referred to in rule 67.22(1).
Commencement Information
I19Sch. 2 rule 67.19 in force at 5.9.1994, see para. 1(1)
67.20.—(1) Where a person, who seeks to apply for an adoption order, wishes to prevent his identity being disclosed to any person whose agreement is required under section 16(1)(b) of the Act of 1978 (agreement of parent or guardian to adoption), he may, before presenting a petition, apply by letter to the Deputy Principal Clerk for a serial number to be assigned to him.
(2) On receipt of such a letter, the Deputy Principal Clerk shall assign a serial number to the applicant and shall enter a note of it opposite the name of the applicant in a register of serial numbers.
(3) Where a serial number has been assigned under paragraph (2)–
(a)the record of the serial number and the person to whom it applies shall be treated as confidential and disclosed only to the court;
(b)any agreement under section 16(1)(b) of the Act of 1978 shall not name or design the petitioner but shall refer to him by means of the serial number; and
(c)it shall be used to name or design the petitioner for all purposes connected with the petition.
Commencement Information
I20Sch. 2 rule 67.20 in force at 5.9.1994, see para. 1(1)
67.21.—(1) A report by a local authority under section 22(2), or by an adoption agency under section 23, of the Act of 1978 shall include the following matters:–
(a)information about how the needs of the child came to the notice of the local authority or the adoption agency;
(b)the family circumstances of the child;
(c)where the child was placed for adoption by an adoption agency, a description of the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;
(d)where the child is not subject to a freeing for adoption order, an account of the discussion with the parents or guardians of the child about their wishes and the alternatives to adoption;
(e)where appropriate, an account of the discussion with the child about his wishes and, if the child is of or over the age of 12 years, his capability to decide to consent to the making of the adoption order;
(f)the position of other relatives or persons likely to be involved;
(g)an account of the search for a parent or guardian who cannot be found;
(h)information about the mutual suitability of the petitioner and the child for the relationship created by adoptiofi n and the ability of the petitioner to bring up the child including an assessment of the personality of the petitioner and, where appropriate, that of the child;
(i)particulars of all members of the household of the petitioner and their relationship to the petitioner;
(j)a description of the accommodation in the home of the petitioner;
(k)where a sole petitioner is married, why the other spouse has not joined in the petition;
(l)whether the petitioner understands the nature and effect of an adoption order and in particular that the order, if made, will make the petitioner responsible for the maintenance and upbringing of the child;
(m)whether the means and standing of the petitioner are such as to enable him to maintain and bring up the child suitably;
(n)what right or interest in property the child has;
(o)whether any payment or reward prohibited by section 51 of the Act of 1978 (prohibition on certain payments), other than an approved adoption allowance, has been received or agreed upon;
(p)whether the life of the child has been insured and for what sum;
(q)the religious persuasion, if any, of the petitioner;
(r)considerations arising from the difference in age between the petitioner and the child if this is more or less than the normal difference in age between parents and children;
(s)whether adoption is likely to safeguard and promote the welfare of the child throughout its childhood; and
(t)any other information which may be of assistance to the court.
(2) On completion of the report referred to in paragraph (1), the local authority or the adoption agency, as the case may be, shall send the report, and a copy of it for each party, to the Deputy Principal Clerk.
(3) On receipt of the report referred to in paragraph (2), the Deputy Principal Clerk shall–
(a)where the petition has been presented, cause the report to be lodged in process; and
(b)where the petition has not yet been presented, cause the report to be retained in the Petition Department for lodging in process when the petition is presented.
Commencement Information
I21Sch. 2 rule 67.21 in force at 5.9.1994, see para. 1(1)
67.22.—(1) An application for an adoption order shall be made by petition in Form 67.22.
(2) On presentation of the petition, there shall be lodged in process as productions–
(a)an extract or a certified copy of any entry in the register of births relating to the birth of the child;
(b)an extract or a certified copy of any entry in the register of births relating to the birth of the petitioner;
(c)where the petition is by a married couple, an extract or a certified copy of the entry in the register of marriages relating to their marriage;
(d)where the child was not placed for adoption with the applicant by an adoption agency, a medical report showing the physical and mental health of the child (including any special needs) and his emotional, behavioural and educational development;
(e)a medical certificate of the health of the petitioner except where the petitioner is a parent of the child; and
(f)where the child has been freed for adoption, a certified copy of the interlocutor granting the freeing for adoption order in respect of that child.
Commencement Information
I22Sch. 2 rule 67.22 in force at 5.9.1994, see para. 1(1)
67.23.—(1) On the presentation of the petition, the court shall pronounce an interlocutor–
(a)requiring the petitioner to serve a notice in Form 67.23–
(i)where the child has been placed for adoption, on the adoption agency which placed the child; and
(ii)where the child has not been placed for adoption, on the local authority within whose area the petitioner has his home;
(b)appointing a reporting officer unless the child is free for adoption and under the age of 12 years; and
(c)appointing a curator ad litem where it appears desirable in order to safeguard the interests of the child.
(2) Where a curator ad litem is appointed under paragraph (1), the court may order–
(a)the adoption agency,
(b)the local authority, or
(c)the reporting officer,
to make available to the curator ad litem any report or information in relation to the child and the natural father and mother of the child.
(3) A person may, before presenting the petition, apply by letter to the Deputy Principal Clerk for the appointment of a reporting officer.
(4) An application under paragraph (3) shall–
(a)set out the reasons for which the appointment is sought;
(b)not require to be intimated to any person;
(c)be accompanied by an interlocutor sheet; and
(d)be placed by the Deputy Principal Clerk before the Lord Ordinary for his decision.
(5) The Deputy Principal Clerk shall give written intimation to the applicant under paragraph (3) of the decision of the Lord Ordinary.
(6) The decision of the Lord Ordinary on an application under paragraph (3) shall be final and not subject to review.
(7) The letter and the interlocutor sheet in an application under paragraph (3) shall be kept in the Petition Department and subsequently placed in the process of the petition.
Commencement Information
I23Sch. 2 rule 67.23 in force at 5.9.1994, see para. 1(1)
67.24.—(1) A reporting officer appointed under rule 67.23(1)(b) shall, where appropriate–
(a)inquire into the facts and circumstances averred in the petition and the report of the local authority or adoption agency;
(b)where the child is not free for adoption, ascertain the whereabouts of each parent or guardian and, if practicable, meet him;
(c)witness any execution in Scotland of any agreement in Form 67.5–A by a parent or guardian under section 16(1)(b) of the Act of 1978 (agreement to adoption), and investigate whether the agreement is given freely, unconditionally and with full understanding of what is involved;
(d)where a parent or guardian is furth of Scotland, confirm his views in writing, ensure that any agreement under section 16(1)(b) of the Act of 1978 is witnessed in accordance with rule 67.5(3) and investigate whether the agreement is given freely, unconditionally and with full understanding of what is involved;
(e)witness any consent of a child in Form 67.5–C under section 12(8) of the Act of 1978(15)
(f)ensure that each parent or guardian whose agreement is required understands that in agreeing to the adoption he is giving up all future claims to the child and that all parental rights and duties will vest in the adopter;
(g)where the child is not free for adoption, consider whether the local authority or adoption agency has made every reasonable effort to find every person whose agreement is required;
(h)investigate whether there are any other persons with a relevant interest and whether they should be informed of the petition;
(i)ascertain from any parent or guardian who can be found whether alternatives to adoption have been discussed with him;
(j)ensure that each parent or guardian whose agreement is required or may be dispensed with is aware of the date (if known) of the hearing to determine the application if he wishes to appear, and confirm that such person whose agreement is required and has not been dispensed with understands that he may withdraw his agreement at any time before the adoption order is made;
(k)draw to the attentfi ion of the court any matter which may be of assistance; and
(l)prepare a report in relation to the exercise of his duties within such period as the court may specify.
(2) A curator ad litem appointed under rule 67.23(1)(c) shall–
(a)safeguard generally the interests of the child;
(b)inquire, so far as he considers necessary, into the facts and circumstances averred in the petition;
(c)ascertain particulars of the condition of, and accommodation in, the home of the petitioner;
(d)ascertain particulars of all members of the household of the petitioner and their relationship to the petitioner;
(e)where a sole petitioner is married, ascertain why the other spouse has not joined in the petition;
(f)ascertain whether the means and status of the petitioner are sufficient to enable him to maintain and bring up the child suitably;
(g)ascertain any rights or interests in property of the child;
(h)ascertain whether a payment or reward prohibited by section 51 of the Act of 1978 (prohibition on certain payments) has been received or agreed upon;
(i)establish that the petitioner understands that the nature and effect of an adoption order is to transfer the parental rights and duties in relation to the child to the petitioner and make him responsible for the maintenance and upbringing of the child;
(j)where applicable, ascertain when the mother of the child ceased to have the care and possession of the child and to whom care and possession were transferred;
(k)ascertain whether the proposed adoption is likely to safeguard and promote the welfare of the child throughout his childhood;
(l)ascertain whether the life of the child has been insured and for what sum;
(m)ascertain whether it may be in the interests of the child that the court should pronounce an interlocutor making an order under section 25 of the Act of 1978 (interim orders), or make an adoption order subject to particular conditions including the making of special provision for the child, or whether an order for custody should be made;
(n)where the petitioner is not ordinarily resident in the United Kingdom, ascertain whether a report has been obtained on the house and living conditions of the petitioner from a reliable agency in the country of his ordinary residence;
(o)ascertain the reasons why the petitioner wishes to adopt the child;
(p)ascertain the religious persuasion, if any, of the petitioner;
(q)where the difference in age between the petitioner and the child is greater or less than the normal difference between parent and child, assess the implications of that difference in relation to the petition;
(r)consider any other matter, including the personality of the petitioner and where appropriate, that of the child which might affect the suitability of the petitioner to be a parent bringing up the child;
(s)ascertain, so far as practicable, the wishes and feelings of the child regarding the proposed adoption;
(t)ascertain, where the father of the child does not have parental rights, the likelihood of the father gaining any such parental rights, whether by marriage or as the result of any order by any court;
(u)where the agreement of a parent or guardian or the consent of a child is sought to be dispensed with, consider whether the ground of dispensation has been made out;
(v)consider whether, in his opinion, the child should be present at the hearing to determine the petition;
(w)perform such other duties as appear to him to be necessary or as the court may require; and
(x)prepare a report in relation to the exercise of his duties within such period as the court may specify.
(3) The reporting officer shall, on completion of his report, send to the Deputy Principal Clerk–
(a)the report and a copy of it for each party;
(b)any agreement for the purposes of section 16(1)(b) of the Act of 1978 (agreement of parent or guardian to adoption); and
(c)any consent under section 12(8) of the Act of 1978 (consent of child to adoption).
(4) The curator ad litem shall, on completion of his report, send the report, and a copy of it for each party, to the Deputy Principal Clerk.
Commencement Information
I24Sch. 2 rule 67.24 in force at 5.9.1994, see para. 1(1)
67.25.—(1) On receipt of the reports referred to in rules 67.21 and 67.24, the Deputy Principal Clerk shall–
(a)cause the reports and any other documents to be lodged in process;
(b)give written intimation to each party of the lodging of those documents and make them available to each party; and
(c)within 7 days thereafter, cause–
(i)the petition to be put out on the By Order Roll before the Lord Ordinary; and
(ii)written intimation of the date of the hearing on the By Order Roll to be given to each party.
(2) At the hearing on the By Order Roll, the court–
(a)shall pronounce an interlocutor appointing the petition to a hearing to determine the petition; and
(b)may, in such interlocutor–
(i)order any person whose agreement or consent is required to be given or dispensed with to attend the hearing;
(ii)order intimation of the date of the hearing to any person not mentioned in paragraph (3)(a), (b), (c) or (d); and
(iii)order the reporting officer or curator ad litem to perform additional duties to assist the court in determining the petition.
(3) The petitioner shall intimate the date of the hearing ordered under paragraph (2)(a) in Form 67.25 to–
(a)every person whose whereabouts are known to him and whose agreement or consent is required to be given or dispensed with;
(b)the reporting officer appointed under rule 67.23(1)(b);
(c)any curator ad litem appointed under rule 67.23(1)(c);
(d)the local authority or adoption agency referred to in rule 67.21; and
(e)any person on whom intimation has been ordered under paragraph (2)(b)(ii).
(4) At the hearing ordered under paragraph (2)(a)–
(a)the petitioner, the adoption agency, the reporting officer and, where one has been appointed, the curator ad litem shall, if required by the court, appear and may be represented;
(b)any person required by the court to attend the hearing shall appear and may be represented;
(c)any other person to whom intimation was made under paragraph (3)(a) or (e) may appear or be represented.
Commencement Information
I25Sch. 2 rule 67.25 in force at 5.9.1994, see para. 1(1)
67.26.—(1) Where, in relation to a child under the age of 16 years, the court refuses to make an adoption order and considers–
(a)that the child should be placed under the supervision of a specified local authority, or
(b)that the child should be committed to the care of a specified local authority,
the court shall order intimation of the terms of the proposed order to be made to the local authority and give the local authority an opportunity to make representations.
(2) Any representations of the local authority shall be made by minute.
(3) On the expiry of the period allowed for answers to a minute under paragraph (2), the cause shall be put out on the By Order Roll before the Lord Ordinary for a hearing to determine the matter.
Commencement Information
I26Sch. 2 rule 67.26 in force at 5.9.1994, see para. 1(1)
67.27.—(1) An application under section 49(1) of the Act of 1978(16) (application to adopt a child abroad) shall be made by petition.
(2) The provisions of this Part shall, with the necessary modifications, apply to an application under section 49(1) of the Act of 1978 as they apply to an application for an adoption order.
(3) Evidence that the child in respect of whom the application is made may be adopted under the law of or in the country in which the petitioner is domiciled may be given by a signed statement by a person qualified in the law of that country.
Commencement Information
I27Sch. 2 rule 67.27 in force at 5.9.1994, see para. 1(1)
67.28.—(1) An application under section 29 of the Act of 1978(17) (order to return a child to, or not to remove a child from, the care of the applicant) shall be made–
(a)in relation to a breach of section 27(1) or 28(1) of that Act(18) (restrictions on removal of child where application for adoption order pending), by note in the process of the petition for an adoption order or a section 49 order to which it relates; or
(b)in relation to a breach of section 28(3) (restriction on removal where child was or is in care of the local authority) of that Act, by petition.
(2) An application for leave–
(a)under section 27(1) or 28 of the Act of 1978 (leave to remove a child) shall be made by note in the process of the petition for an adoption order or a section 49 order to which it relates;
(b)under section 30(2) of that Act (leave to adoption agency to give notice of intention to remove child) shall be made by note in the process of the petition for an adoption order or the application for a section 49 order to which it relates.
(3) Subject to paragraph (4), rule 67.2 (disapplication of certain rules to this Chapter) shall not apply to an application mentioned in paragraph (1) or (2) of this rule.
(4) An application mentioned in paragraph (1) or (2) shall not be intimated on the walls of the court or advertised.
Commencement Information
I28Sch. 2 rule 67.28 in force at 5.9.1994, see para. 1(1)
67.29.—(1) An application–
(a)under paragraph 4(1) of Schedule 1 to the Act of 1978 (amendment, or revocation of a direction in, an adoption order), or
(b)under section 46 of that Act(19) (revocation of an adoption order on legitimation),
shall be made by petition.
(2) Subject to paragraph (3), rule 67.2 (disapplication of certain rules to this Chapter) shall not apply to an application mentioned in paragraph (1) of this rule.
(3) An application mentioned in paragraph (1) shall not be intimated on the walls of the court or advertised.
Commencement Information
I29Sch. 2 rule 67.29 in force at 5.9.1994, see para. 1(1)
67.30. On the court pronouncing an interlocutor making–
(a)an adoption order,
(b)an amendment to, or a revocation of a direction in, an adoption order,
(c)a revocation of an adoption order,
(d)a section 49 order, or
(e)a Convention adoption order,
the clerk of court shall forthwith send a certified copy of that interlocutor to the Registrar General for Scotland in a sealed envelope marked “confidential”.
Commencement Information
I30Sch. 2 rule 67.30 in force at 5.9.1994, see para. 1(1)
67.31. An extract of an adoption order or a section 49 order shall not be issued except by order of the court on an application to it–
(a)where there is a petition for the adoption order or the section 49 order, as the case may be, depending before the court, by motion; or
(b)where there is no such petition depending before the court, by petition.
Commencement Information
I31Sch. 2 rule 67.31 in force at 5.9.1994, see para. 1(1)
67.32.—(1) After a certified copy of an interlocutor mentioned in rule [F167.30] has been sent to the Registrar General for Scotland, the clerk of court or the Extractor, as the case may be, shall–
(a)place the whole process in an envelope bearing only–
(i)the name of the petitioner;
(ii)the full name of the child to whom the process relates; and
(iii)the date of the order; and
(b)seal the envelope and mark it “confidential”.
(2) No person shall open a process referred to in paragraph (1) or inspect its contents within 100 years after the date of the adoption order or the section 49 order, as the case may be, except–
(a)the person adopted under the order after he has reached the age of 17 years;
(b)any other person or body entitled under section 45(5) of the Act of 1978 to access to the registers and books kept under section 45(4) of that Act, with the written authority of the adopted person;
(c)the Deputy Principal Clerk or Extractor, as the case may be, on the written application to him by an adoption agency with the written agreement of the adopted person for the purpose of ascertaining the name of the adoption agency responsible for the placement of that person for adoption;
(d)by order of the court on an application made by petition presented by another court or authority (whether within the United Kingdom or not) having the power to authorise an adoption for the purpose of obtaining information in connection with an application to it for adoption;
(e)by order of the court on an application made by petition presented by any person; and
(f)a person who is authorised in writing by the Secretary of State to obtain information from the process for the purpose of research designed to improve the working of adoption law and practice.
Textual Amendments
F1Word in Sch. 2 rule 67.32(1) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(18)(a)
Commencement Information
I32Sch. 2 rule 67.32 in force at 5.9.1994, see para. 1(1)
67.33.—(1) In this Part–
“Convention country” has the meaning assigned in section 65(1) of the Act of 1978;
“the petition” means the petition referred to in rule 67.35 or 67.41, as the case may be.
(2) Any reference in this Part to the nationality of a person who is not solely a United Kingdom national means the nationality of that person as determined in accordance with section 63 of the Act of 1978.
Commencement Information
I33Sch. 2 rule 67.33 in force at 5.9.1994, see para. 1(1)
67.34. Part III (adoption), except the following rules, shall apply to the petition:–
rule 67.19 (interpretation of Part III),
rule 67.20 (protection of identity of petitioner),
rule 67.27 (applications under section 49(1) of the Act of 1978),
rule 67.29 (applications to amend or revoke a direction in, or revoke, an adoption order).
Commencement Information
I34Sch. 2 rule 67.34 in force at 5.9.1994, see para. 1(1)
67.35.—(1) An application for a Convention adoption order shall be made by petition in Form 67.22.
(2) The petition shall include averments in relation to–
(a)the nationality of the petitioner;
(b)the nationality of the child;
(c)the place and the country where the petitioner habitually resides;
(d)the place and the country where the child habitually resides;
(e)whether the child is, or has been, married;
(f)where the petitioner is a national of a Convention country, or where both petitioners are nationals of the same Convention country, whether there is a specified provision within the meaning of section 17(8) of the Act of 1978 in respect of that country which prohibits the adoption; and
(g)where the child is not a United Kingdom national, any provision relating to consents and consultations, of the internal law with respect to adoption of the Convention country of which the child is a national.
(3) The prayer of the petition shall include a crave that the court direct the Registrar General for Scotland–
(a)to insert the words “Convention Order” in the entry to be made by him in the Adopted Children Register regarding the adoption;
(b)to intimate the terms of the order to the appropriate authorities referred to in rule 67.39(2) or (3) or 67.41(5)(b) (designated authorities of Convention country), as the case may be.
Commencement Information
I35Sch. 2 rule 67.35 in force at 5.9.1994, see para. 1(1)
67.36.—(1) The curator ad litem appointed under rule 67.23(1)(b) by virtue of rule 67.34 (application of Part III to this Part) shall also investigate the averments referred to in rule 67.35(2) and shall include the results of his investigations in his report.
(2) Where in the course of his investigations, the curator ad litem requires a report from any authority outside Great Britain, he shall request the local authority to request that other authority to provide that report.
Commencement Information
I36Sch. 2 rule 67.36 in force at 5.9.1994, see para. 1(1)
67.37. There shall be lodged in process as productions–
(a)any document relied on as evidence of the nationality of the petitioner or that of the child; and
(b)where the nationality of the petitioner or that of the child is of a Convention country, a signed statement by a person qualified in the law of that country confirming such nationality under that law.
Commencement Information
I37Sch. 2 rule 67.37 in force at 5.9.1994, see para. 1(1)
67.38.—(1) This rule applies to a petition where the child is not a United Kingdom national.
(2) On presentation of the petition, there shall be lodged in process as a production a signed statement by a person qualified in the law of the Convention country of which the child is a national setting out the consent or consultation required by the internal law of that country with respect to adoption.
(3) A consent referred to in section 17(7) of the Act of 1978 shall be in a form which complies with any requirement of the internal law with respect to adoption of the Convention country of which the child is a national, but where the court is not satisfied that such consent has been made with full understanding of what is involved, it may call for further evidence.
(4) A document mentioned in paragraph (2) or (3) may be received in evidence without being spoken to.
(5) Where a consent or consultation referred to in paragraph (2) or (3) could properly be dispensed with under the internal law of the country concerned, the court may dispense with that consent or consultation in accordance with the provisions of that law.
(6) Where the court pronounces an interlocutor appointing the petition to a hearing under rule 67.25(2)(a) by virtue of rule 67.34 (application of Part III to this Part), the requirements of rule 67.25(3) (intimation of date of hearing to certain persons) shall include a requirement to intimate the date of the hearing in Form 67.25 to–
(a)any person whose consent is referred to in section 17(7) of the Act of 1978 but who has not given such consent;
(b)any person who, in accordance with the internal law with respect to adoption of the Convention country of which the child is a national, has to be consulted, but does not have to consent to, the adoption.
(7) For the purposes of section 17(7)(a) of the Act of 1978, the proper officer of the court shall be the Deputy Principal Clerk.
Commencement Information
I38Sch. 2 rule 67.38 in force at 5.9.1994, see para. 1(1)
67.39.—(1) The Deputy Principal Clerk shall send to the Registrar General for Scotland–
(a)with any Convention adoption order, a notice specifying the authorities mentioned in paragraph (2) and requesting him to inform them of the terms of the order;
(b)with any order made under section 46(2) of the Act of 1978 revoking a Convention adoption order, a notice specifying the authorities mentioned in paragraph (3) of this rule and requesting him to inform them of the terms of the order under that section.
(2) The authorities referred to in paragraph (1)(a) are the designated authorities of any Convention country–
(a)of which the child is a national;
(b)in which the child was born;
(c)in which a petitioner habitually resides; or
(d)of which a petitioner is a national.
(3) The authorities referred to in paragraph (1)(b) are the designated authorities of any Convention country–
(a)of which the adopted person is a national; or
(b)in which the adopted person was born.
Commencement Information
I39Sch. 2 rule 67.39 in force at 5.9.1994, see para. 1(1)
67.40. Where the petitioner is a national, or both petitioners are nationals, of a Convention country, the court shall take account of any specified provision (as defined in section 17(8) of the Act of 1978(20)) of the internal law of that country before making any order under section 25 of that Act (interim orders).
Commencement Information
I40Sch. 2 rule 67.40 in force at 5.9.1994, see para. 1(1)
67.41.—(1) This rule applies to an application for an order under section 46(2) (revocation of regulated adoption), or section 47 (annulment etc. of regulated adoption, Convention adoption order or overseas adoption), of the Act of 1978.
(2) An application mentioned in paragraph (1) shall be made by petition.
(3) An application under section 47(1) of the Act of 1978 (annulment) shall not, except with the leave of the court, be made later than two years after the date of the regulated adoption F2... to which it relates.
(4) Where the adopted person is under the age of 18 years on the date of the presentation of a petition under this rule, the court shall appoint a curator ad litem with the duties mentioned in rule 67.24(2).
(5) On the court pronouncing an interlocutor making an order referred to in paragraph (1), the Deputy Principal Clerk shall–
(a)send a notice of the order to the Registrar General for Scotland specifying–
(i)the date of the adoption;
(ii)the name and address of the authority which granted the adoption;
(iii)the names of the adopter or adopters and of the adopted person as given in that petition;
(iv)the country in which the adoption was granted;
(v)the country of which the adopted person is a national; and
(vi)the country in which the adopted person was born; and
(b)where any such country is a Convention country, request the Registrar General for Scotland to inform the designated authorities of that country of the terms of the order.
Textual Amendments
F2Sch. 2 rule 67.41(3): comma omitted (5.12.1994) by virtue of Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(18)(b)
Commencement Information
I41Sch. 2 rule 67.41 in force at 5.9.1994, see para. 1(1)
1986 c. 9; section 8 was amended by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), Schedule 1, paragraph 43.
Section 49(1) of the Act of 1978 was amended by the Children Act 1989 (c. 41), Schedule 10, paragraph 42.
S.I. 1984/566, amended by S.I. 1985/1556.
Section 49 of the Act of 1978 was amended by the Children Act 1989 (c. 41), Schedule 10, paragraph 42.
Section 12(8) of the Act of 1978 was substituted by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), section 2(3)(a).
Section 18(8) of the Act of 1978 was substituted by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), section 2(3)(b).
Section 18(6) of the Act of 1978 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2, paragraph 40.
Section 20 was amended by the Children Act 1989 (c. 41), Schedule 10, paragraph 36.
Section 21 of the Act of 1978 (c. 28) was substituted by the Children Act 1989 (c. 41), Schedule 10, paragraph 37.
Section 29 of the Act of 1978 was amended by the Health and Social Services and Social Security Adjudications Act 1983, Schedule 2, paragraphs 43 and 44 and by the Children Act 1989, Schedule 10, paragraph 39.
Section 27(2) of the Act of 1978 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2, paragraph 43.
Section 12(8) of the Act of 1978 (c. 28) was substituted by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), section 2(3)(a).
Section 49(1) of the Act of 1978 was amended by the Children Act 1989 (c. 41), Schedule 10, paragraph 42.
Section 29 of the Act of 1978 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2, paragraphs 43 and 44 and by the Children Act 1989 (c. 41), Schedule 10, paragraph 39.
Sections 27(1) and 28(1) of the Act of 1978 were amended by the said Act of 1983, Schedule 2, paragraph 43.
Section 46(1) of the Act of 1978 was amended by the Law Reform (Parent and Child) (Scotland) Act 1986 (c. 9), Schedule 1, paragraph 18(3).