I’ve had to look up Scottish adoption law today, and found this little piece from the 1995 legislation (Children Act Scotland Act 1995)
96 Duty of adoption agency to consider alternatives to adoption.
After section 6 of the 1978 Act there shall be inserted—
“6A Duty to consider alternatives to adoption.
In complying with its duties under section 6 of this Act, an adoption agency shall, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of that child or whether for him there is some better, practicable, alternative; and if it concludes that there is such an alternative it shall not proceed to make those arrangements.
If you just added “And the Court” each time that this says “adoption agency”, it is a pretty workable solution to the whole “nothing else will do” debacle that has had everyone tied up in knots.
I know that in English family Courts, “the Scottish system” is whispered with an air of dread and menace much like actors referring to “the Scottish play” but I’ll point out that this was in their legislation nearly twenty years ago AND three years before the Human Rights Act was adopted. It looks pretty progressive to me.
[We don’t have anything like that in our English or Welsh adoption statutes – this principle of adoption being last resort is purely as a result of judicial interpretation. Be quite nice to have this principle set out in statute, and particularly in such a clear way.]
I agree that it can be difficult to strike the right balance when making a decision between adoption and kinship care. However, one of the guiding principles of good child care practice is the recognition that children coming into local authority care need to have a permanent home base.
Here is some useful research which explains the dilemmas: ‘Keeping them in the Family: Outcomes for abuse and neglected children placed with family or friends through care proceedings’ http://www.baaf.org.uk/bookshop/keeping-them-family
That really is very clear and neatly put. The key questions for me that arises from that are: i) has there been case law on this issue of a practical alternative and ii) is this provisiom the subject of more frequent appeals now than when introduced? My very limited encounters with Scots law suggests that human rights legislation is differently interpreted and applied, whilst still being compliant. I would very much like to read comparisons of its application in Scotland and in E & W.