Act of Sederunt (Rules of the Court of Session 1994) 1994

PART III ADOPTION

Interpretation of this Part

67.19.  In this Part, unless the context otherwise requires, “the petition” means the petition referred to in rule 67.22(1).

Protection of identity of petitioner

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.

Reports by local authority or adoption agency

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.

Applications for adoption order

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.

Notice of petition and appointment of reporting officer and curator ad litem

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.

Duties of reporting officer and curator ad litem

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(1)

(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.

Hearing of adoption petition

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.

Supervision by or committal to care of local authority

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.

Applications under section 49(1) of the Act of 1978

67.27.—(1) An application under section 49(1) of the Act of 1978(2) (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.

Applications for return, removal or prohibition of removal of child

67.28.—(1) An application under section 29 of the Act of 1978(3) (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(4) (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.

Applications to amend or revoke a direction in, or revoke, an adoption order

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(5) (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.

Registration of certified copy interlocutor

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”.

Extract of order

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.

Procedure after intimation to Registrar General or issue of extract

67.32.—(1) After a certified copy of an interlocutor mentioned in rule 67.29 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.

(1)

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).

(2)

Section 49(1) of the Act of 1978 was amended by the Children Act 1989 (c. 41), Schedule 10, paragraph 42.

(3)

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.

(4)

Sections 27(1) and 28(1) of the Act of 1978 were amended by the said Act of 1983, Schedule 2, paragraph 43.

(5)

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).