Updated 3 February 2020
As societal norms and family compositions evolve, step-parent adoptions now make up around 20% of all adoptions in Scotland. However for many prospective step-parent adopters, the legal procedure can be daunting and confusing. While you need an experienced family solicitor to assist and guide you through this process, we've put together the answers to some frequently asked questions which a step-parent contemplating adoption should be aware of before embarking on their journey.
What is adoption?
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 natural parent. The natural parent’s status as such, and their parental rights and responsibilities, are extinguished.
Who is eligible to adopt as a step-parent?
A prospective step-parent adopter must be married to, in a civil partnership with, or living in an ‘enduring family relationship’ with the mother or father of the child. The mother or father must have parental rights and responsibilities in respect of the child and be over 18 years old. As in all adoption cases, the adopter must be aged 21 or over. The adopter and the parent must live in Scotland. The child must be under the age of 18, and unmarried if aged 16-18.
What are the legal consequences of adoption?
The adoption Order from the court means that the adopter will be considered in law as the child’s natural parent. The adopter will be vested with parental rights and responsibilities in relation to the child, and share these with his or her spouse, civil partner, or cohabitant (being the mother or father of the child). This means that the adopter will have the right to have the child living with them, be obliged to support them financially, and guide the child in their upbringing. It is important for step-parents, and their spouse or partner, to be aware that should their relationship unfortunately break down after adoption, the adopter’s parental rights and responsibilities will continue after separation in respect of the child.
Does the natural parent have to consent?
Sometimes. The default position is that the natural parent, being the parent the step-parent will effectively replace, does require to consent to the proposed adoption if they have parental rights and responsibilities. However, if the natural parent is dead, cannot be found, is mentally incapable of giving consent, is unable satisfactorily to discharge their parental responsibilities or exercise their parental rights and is likely to continue to be unable to do so, then the court may dispense with their consent. The court may also dispense with their consent if the welfare of the child otherwise requires it to be dispensed with.
What is the process?
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 another report 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 the adoption is in the child’s best interests and will be so throughout their life.
Does the child need to be informed that their step-parent is not their natural parent?
In cases where the child has never known their natural mother or father and has been brought up in the belief that their step-parent is their natural parent, there can be some anxiety surrounding the need for court reports, and often the consent of the child to the adoption. If the child is over 12 years old during the adoption process, their consent to their adoption is required. The only ground for dispensing with their consent is their incapacity.
In previous cases, parents have been ordered to inform the child of the true position, otherwise the adoption cannot proceed as the child’s consent cannot be obtained. For children under 12 years old, while formal consent is not required, the court must ascertain the child’s wishes and views regarding the proposed adoption as far as possible. This is the job of the curator and reporting officer, and it entails the matter of the adoption being broached in some way.
A refusal to inform the child of his or her parentage is not decisive, and the court will still consider the benefits to the child of being adopted. However the court may require the parents to give an undertaking to inform the child at a later date of his or her adoption. Parents and step-parents will therefore have to take this factor into consideration before deciding to begin the legal process of adoption.
What are the alternatives to adoption?
Each family is different and step-parents contemplating adopting a step child should seek legal advice regarding their options. Adoption is not always the most appropriate course of action for step-parents. For instance, in cases where the natural parent is still involved in the child’s life, then it will be unlikely to be considered in the child’s best interests to have their legal relationship with that parent severed by adoption. A step-parent in such a situation can instead consider asking the court for a Residence Order, and/or an Order for Parental Rights and Responsibilities, which would not extinguish the natural parent’s legal relationship with the child.
Get in touch
Our specialist family solicitors are experienced in assisting step-parents formalise their relationships with step-children through adoption, actions for residence, and actions for parental rights and responsibilities. We will be happy to discuss all of your options with you, and assist you throughout the legal process and to reach the end goal, whatever option you decide is best for you and your family.