We are experienced in assisting step-parents, other family members and kinship carers formalise their private adoptions or secure alternative Orders such as those for Residence or Parental Rights and Responsibilities.
Legal advice on adoption in Scotland
Adoption is the legal process by which an Order of the Court creates a new parent-child relationship, and confers parental rights and responsibilities on the adopter. The new relationship effectively replaces the relationship which previously existed in law between the child and their natural parent or parents.
For people looking to adopt, the legal procedure required to formalise an adoption can appear daunting and complex. But with the right adoption lawyer to guide you through this process, it doesn’t have to be.
With Amanda Masson our Adoption Lawyer, and our specialist family team working on a range of family law matters, we recognise through experience that all matters are different. We are problem solvers on hand to assist and guide you through the legal process to reach your end goal, by putting your needs at the heart of everything we do to deliver a stress-free as possible experience.
Common questions about adoption
How adoption works?
Adoption is the legal process in which an Order of the court creates a new relationship of parent and child. It vests in the adopter all of the parental rights and parental responsibilities in relation to the child. The adoption is a permanent step and the child is considered as always having been the child of the adopter. The new parent-child relationship effectively replaces the relationship which previously existed in law between the child and his or her birth parent. The natural parent’s status as such, and their parental rights and responsibilities, are extinguished.
In order to legally adopt a child, certain eligibility criteria require to be satisfied and an application to court is necessary. Depending on your route to adoption, certain reports will be compiled by professionals on your application. This can include social workers and court-appointed reporters. A Petition is lodged at court with other relevant documentation, and at least one hearing will take place at court. If the application is opposed, most commonly by the birth parent(s), there will be several hearings at court and evidence may require to be led. The biological parents’ consent will be required to be given or dispensed with by the court if appropriate. In deciding whether to grant an adoption order, the court will have as its paramount consideration the need to safeguard and promote the child’s welfare.
Can I adopt a child in Scotland?
In order to be eligible to apply for an adoption Order in Scotland, you must meet certain criteria at the outset. You should take advice from an experienced family lawyer who specialises in adoption cases to discuss your eligibility in detail, however, the criteria include:
- You must be aged 21 or over. There is no upper age limit, however, the Court will give some consideration to the difference in age between you and the child.
- You can adopt as one person, or as a couple.
- If you are applying to adopt a step-child, you must be married to, in a civil partnership with, or living in an ‘enduring family relationship’ with the natural mother or father of the child. Whether a couple is considered as living in an ‘enduring family relationship’ will depend on the circumstances of each case, and there is no set period of time you must have been a couple for, but generally you will require to show that you have a stable and lasting relationship The mother or father must be at least 18 years old and have parental rights and responsibilities in respect of the child.
- If you are adopting a step-child, both you and your partner or spouse must be domiciled in Scotland or have lived in Scotland for at least one year.
- If you are applying to adopt as a couple, one of you must be domiciled in Scotland, or both of you must have lived in Scotland for at least one year.
- There is no statutory requirement that you be of good health, and ill health would not of itself preclude the granting of the Order. The Court would, however, give consideration to any health issues which could affect your ability to look after the child. If you are planning to adopt using an adoption agency, they will likely want to review your medical report provided by your GP.
- You may still adopt if you have previous criminal convictions, however again these issues would be considered by the Court and each case will depend on its own circumstances. If, however, you have been convicted of an offence involving children, it is unlikely that your application would be successful. Indeed, if you are adopting through an adoption agency, the agency will not consider you suitable to be an adoptive parent if you have been convicted of specified offences.
What is the official adoption process?
The path to having a step-parent, or private, adoption granted can have some twists and turns along the way, however, the adoption process is generally as follows:
- The local authority is notified of your intention to adopt the child
- A social worker is assigned to your case. He or she will carry out home visits and then produce a report on the suitability of the adoption and any other matters relevant to your application.
- A Petition for adoption is lodged at Court along with the social work Report and other relevant documentation.
- A Preliminary Hearing is fixed between six and eight weeks after the lodging of the Petition.
- A copy of the Petition is sent to child’s natural parents, if appropriate, and any other person the Court considers as entitled to see a copy. The natural parents have 21 days to tell the court if they wish to oppose the adoption application.
- A Curator/Reporting Officer is appointed by the Court to obtain any required consents to the adoption and provide another report on the application.
- If the application is opposed, the Court will order the opposing party to lodge answers, and a timetable regulating the court process will be fixed. The timetable will culminate in an evidential hearing on the adoption.
- If there is no opposition to the application, the Court may grant the adoption Order at the Preliminary Hearing.
If you have any questions about local or international adoption process, contact one of our family lawyers who will be happy to advise.
How long does it take to complete the adoption process?
This depends on your route to adoption. For non-agency adoptions, i.e. step-parent adoptions or other family based adoptions, the process can be complete within a few months. The first step is to notify the local authority of your intention to adopt, and then they will carry out an assessment. After that, your adoption lawyer can lodge a petition at court, and a first hearing will be assigned for 6-8 weeks later. In many unopposed cases, the adoption order is granted at that hearing. If, however, the birth parents oppose, the adoption process will take longer and there will be further hearings at court.
For agency adoptions, where children have been placed for adoption by the local authority or other adoption agency, a home study will be carried out which typically takes a few months. A child can be placed with you as little as three months later, although it could take up to a year. After that, the court process will follow.
You can find out more about agency adoptions locally depending on where in Scotland you live. In Edinburgh, for example, the local authority has a dedicated website which includes a step-by-step guide to adopting a child.
How much does adoption cost?
It depends on your particular circumstances, however in some cases we can offer a fixed-fee package and in other cases the local authority may assist with your costs. Sometimes the cost will relate to the amount of time spent on your case and you also may have to budget for outlays such as court costs or payments to experts. We would have a discussion with you about fees and potential extra costs at the outset of your case.
Legal aid may also be available to you if you are eligible. You can learn more about legal aid eligibility and find experienced adoption lawyers that provide legal aid support on the Scottish Legal Aid Board website.
Who needs to consent to an adoption?
- Any party who has parental rights and responsibilities (usually the child’s birth parent(s))
- The child to be adopted, if he or she is aged 12 or over
A natural parent’s consent, if not forthcoming, may be dispensed with by the Court if that parent is dead, cannot be found, is mentally incapable of giving consent, is unable to satisfactorily discharge their parental responsibilities or exercise their parental rights and is likely to continue to be unable to do so, or if the welfare of the child otherwise requires it to be dispensed with.
If the child is under 12 years old, their formal consent is not required, however, the social worker and the Curator must ascertain the child’s wishes and views regarding the proposed adoption as far as possible.
Are adoption records public?
Adoption processes are confidential, and records are closed to general public access for 100 years. The processes may be opened for access in limited circumstances, such as if the adopted person requests their own records.
How to adopt through private adoption?
For a private adoption, such as a step-parent adoption, the first step in the legal process is to notify the relevant local authority of the step-parent’s intention to adopt. The local authority will then make arrangements for a home visit to be conducted by a social worker, and a report to be compiled on the suitability of the proposed adopter and any other matters relevant to the adoption.
Once the report is complete, an adoption Petition would be lodged at court along with the local authority report and other relevant documentation. The court will then fix a hearing, called a preliminary hearing, for between six and eight weeks afterwards, and send a copy of the Petition to the natural parent, if appropriate, and any other person entitled to see a copy. The court will also appoint a curator ad litem and reporting officer to provide further reports on the proposed adoption to the court within four weeks. The curator and reporting officer are usually the same solicitor.
The natural parent and any other person who has received a copy of the Petition then have 21 days to oppose the adoption. If they do oppose, the court will order answers to be lodged by the opposing party and fix a timetable culminating in an evidential hearing on the adoption. If there is no opposition, however, the court can make a decision regarding the adoption at the preliminary hearing if it is satisfied that all required consents have been given or can be dispensed with, and that the adoption would safeguard and promote the child’s welfare and would do so throughout his or her life.
What is the difference between adoption and fostering?
Adoption is a permanent step to have legal parentage, and all of the rights and responsibilities which flow from that, transferred from existing parents to adoptive parents. Fostering is typically a temporary measure to provide a home for a child.
What is the difference between adoption and guardianship?
A guardian for a child is typically appointed by a parent or parents, in their Will(s), to look after their child in the event of the parent(s) death. Adoption is a permanent step to have legal parentage, and all of the rights and responsibilities which flow from that, transferred from, typically, biological parents to adoptive parents.
Can I adopt my stepchild if they’re over 18?
No. As the law currently stands, a person over the age of 18 cannot be adopted. The petition to adopt must be lodged in court before the child’s 18th birthday.
Contact our adoption solicitors for specialist legal advice
Harper Macleod is a full-service law firm with offices throughout Scotland. Our family law solicitors deal with a range of matters, from separation and divorce through to child related matters. Amanda Masson who leads our Modern Families team is accredited by the Law Society of Scotland as a specialist in Child Law. If you are looking for assistance in relation to adoption, contact our adoption lawyers for specialist legal advice.
“A very professional and proficient service was given by the team. All avenues of my case were covered with complete control and organisation. All relevant information was relayed back to me very quickly and the court hearing itself lasted minutes due to the hard work and endeavour given by my family lawyer. I would highly recommend this organisation.”
“Lynsey and team have been unbelievably supportive and helpful during my adoption case. I would definitely recommend her to anyone looking for legal help.”
“Extremely helpful, very knowledgeable and professional at all times and a pleasure to deal with.”
“Alexis Harper has been a source of huge safety and security in the most difficult personal circumstances. Alexis and her team have made me feel like their number one priority, we have experienced frustrations working with another professional from a different firm, where there have been delays in the process from this.”
“Amanda Masson is an excellent lawyer. I can see from the files she has sent me that she goes above and beyond for her clients, that she gives them clear advice and that they feel fully supported by her. I respect her view – which is always spot on and clever.”
“Jenny asks the difficult questions and very often has the answers.” “She is a very careful operator who really considers what she is trying to achieve for clients and thins through the pros and cons.” “She is a very knowledgeable, proactive realistic and exceptionally hard-working.”
“Karen is very knowledgeable in what she does and is able to reassure and provide support in what are difficult times.” “She has an analytical approach to matters and a no-nonsense approach.”
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