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COMMENTARY

THE ADOPTION INFORMATION (SCOTLAND) REGULATIONS

Regulation 1 - Citation, commencement and interpretation

1. -(1) These Regulations may be cited as the Adoption Information (Scotland) Regulations 2009 and come into force on 2009.
(2) In these regulations "the Act" means the Adoption and Children (Scotland) Act 2007.

Regulation 1 provides for the commencement date and definitions to be used throughout the following Regulations. Where an expression is used in these Regulations it will have the same definition as in the Act unless a separate definition is provided.

Most of the terms in this Regulation flow from the 2007 Act and further definitions were not considered necessary.

Regulation 2 - Information to be kept about adoptions

2. -(1) An adoption agency must create a case record in respect of-

(a) an adopted child; and
(b) a prospective adoptive parent.

(2) The following must be placed on the case record relating to an adopted child or a prospective adoptive parent-

(a) any information obtained by that adoption agency; or
(b) any report, recommendation or decision made by that adoption agency, or by an adoption panel or joint adoption panel appointed by that agency, under the Adoption Agencies (Scotland) Regulations 2009, in respect of that adopted child or, as the case may be, that prospective adoptive parent.

(3) An adoption agency must continue to keep the case record set up in respect of an adopted child or prospective adoptive parent under the Adoption Agencies (Scotland) Regulations 1996.

(4) However an adoption agency is not required to keep any information falling within paragraph (2)(a) if the agency considers-

(a) that it would be prejudicial to the adopted person's welfare to keep it; or
(b) that it would not be reasonably practicable to keep it.

Regulation 2 provides for the creation of a case record on an adopted child and prospective adopters. The regulation goes further than the current regulation 23 in that it does not assume the setting up of a case record. The equivalent regulation in the English and Welsh regulations makes provision for specific information to be put on a case record. This information is to supplement the information outlined in their Adoption and Children Act 2002. However, no such list exists in the 2007 Act, therefore, this regulation specifies that any information collected during the adoption process as well as the report, recommendations and decisions by the adoption agency, or panels, should be kept. "Adoption panel" and "Joint adoption panel" have not been defined as this set of regulations may be included with the Adoption Agencies (Scotland) Regulations.

Regulation 2(3) creates a savings provision for adoption records created under the Adoption Agencies (Scotland) Regulations 1996.

Regulation 2(4) replicates Regulation 4(4) of the (English) Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005 ( SI 2005/888) and reflects the need to consider the welfare of the child throughout their life. If, in the view of the adoption agency, it would be contrary to the welfare of the child to keep certain information on record then this information need not be kept by the agency.

Q1 - Is the approach in this regulation sufficiently inclusive and comprehensive for the purposes of the collection and creation of a case record.
Q2 - Are there any processes in practice that are not covered by this regulation and should be included.
Q3 - Is the term 'adopted child' confusing? If so, what term should be used?
Q4 - Is regulation 2(4) necessary?

Regulation 3 - Form and manner in which information is kept

3. -(1) Subject to the Adoption (Disclosure of Information) (Scotland) Regulations 2009 any information, reports, recommendations or decisions referred to in regulation 2(2) above, must be treated by the adoption agency as confidential.

(2) The adoption agency must ensure that all case records, together with the indexes to them, are at all times kept in secure conditions and in particular that all appropriate measures are taken to prevent theft, unauthorised disclosure, damage, loss or destruction.

(3) Subject to the Adoption (Disclosure of Information) (Scotland) Regulations 2009, an adoption agency must-

(a) preserve the indexes to all its case records and the case records in respect of those cases in which an adoption order is made in secure conditions for at least 75 years; and
(b) preserve other case records in secure conditions for so long as it considers appropriate.

(4) Case records and indexes to them may be preserved on computer records or such other system as reproduces the total contents of the case record or index.

Regulation 3 specifies that the information kept must be treated as confidential unless disclosure is permitted by the Adoption (Disclosure of Information) (Scotland) Regulations 2009. The records and indexes should be held in secure conditions, this may be on computer records or other such electronic system. Where an adoption order is made the agency must preserve the records for at least 75 years.

Q5 - Is the timescale for preservation of records sufficient? What would be a more appropriate timescale?

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