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ANNEX B: THE ADOPTION (DISCLOSURE OF INFORMATION) (SCOTLAND) REGULATIONS
DRAFT SCOTTISH STATUTORY INSTRUMENTS
2009 No.
CHILDREN AND YOUNG PERSONS
The Adoption (Disclosure of Information) (Scotland) Regulations 2009
Made | - | 2009 |
Coming into force | - | 2009 |
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 38(1) and 117(2) of the Adoption and Children (Scotland) Act 2007( 5) and all other powers enabling them to do so.
In accordance with section 117(5) of that Act, a draft of these Regulations has been laid before, and approved by resolution of, the Scottish Parliament.
Citation and commencement
7. These Regulations may be cited as the Adoption (Disclosure of Information) (Scotland) Regulations 2009 and come into force on 2009.
Interpretation
8. In these regulations-
"the Act" means the Adoption and Children (Scotland) Act 2007;
"the 2002 Act" means the Adoption and Children Act 2002( 6);
"the 2009 Regulations" means the Adoption Agencies (Scotland) Regulations 2009( 7).
Disclosure of information to adopted person
9.-b) Where an adopted person who has attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, applies for counselling under section 9 (assessment of needs for adoption support services) of the Act, or is seeking information under section 60 (disclosing information to adopted adult), 61 (disclosing protected information about adults) or 62 (disclosing protected information about children) of the 2002 Act, an adoption agency may disclose the information, which it has relating to that person's adoption, to that adopted person.
(1) Where an adopted person has not yet attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, an adoption agency may disclose information, which it has relating to that person's adoption, to that adopted person if the agency thinks it appropriate to do so.
(2) In considering whether it is appropriate to disclose or withhold information under paragraph (2) the adoption agency must have due regard, so far as is practicable, to-
(a) the views of the adopted person, taking into account the person's age and maturity and
(b) the welfare of the adopted person.
(3) But notwithstanding paragraph (3) information must not be disclosed to the adopted person under paragraph (2) if that information could, whether taken on its own or together with other information possessed by the adopted person, identify the adopted person's natural parents or other natural relatives.
Disclosure of information to other persons
10. Where an adopted person who has attained the age of 16 years, if in Scotland, or 18 years, if in England or Wales, applies for counselling under section 9 of the Act, or is seeking information under section 60, 61 or 62 of the 2002 Act, an adoption agency may disclose information, which it has relating to that person's adoption, to-
(a) the local authority for the area in Scotland where the adopted person lives, if the adopted person has applied to them for counselling;
(b) the Registrar General for England and Wales;
(c) the local authority for the area in England and Wales where the adopted person lives, if the adopted person has sought information from them; and
(d) the local authority for the area in England or Wales where the court sat which made the order relating to the adopted person, if the adopted person has sought information from that authority.
Disclosure of information for purposes of agency's functions or for research
11. An adoption agency may provide access to its case records and the indexes to them and disclose such information in its possession, as it thinks fit-
(a) for the purposes of carrying out its functions as an adoption agency; or
(b) to a person who is authorised in writing by the Scottish Ministers to obtain information for the purposes of research.
Disclosure of information for inquiries etc.
12. An adoption agency must provide such access to its case records and the indexes to them and disclose such information in its possession, as may be required-
(a) to those holding an inquiry under section 6A of the Social Work (Scotland) Act 1968( 8) (inquiries), or under the Inquiries Act 2005( 9) for the purposes of such an inquiry;
(b) to the Scottish Ministers;
(c) to the Scottish Public Services Ombudsman;
(d) to the persons and authorities referred to in regulations 10 (notification of adoption agency decisions) and 19 (placement for adoption: notification and provision of information) of the 2009 Regulations, to the extent specified in those regulations;
(e) to a court having power to make an order under the Act or under the Children (Scotland) Act 1995( 10); and
(f) to a curator ad litem or reporting officer appointed under rules made pursuant to section 108 of the Act (rules: appointment of curators ad litem and reporting officers) for the purpose of the discharge of their duties in that behalf.
Requirements relating to disclosure
13. The adoption agency must make a written record of any access provided or disclosure made under regulation 5 or 6, which must include-
(a) a description of the information disclosed;
(b) the date on which the information is disclosed;
(c) the person to whom the information is disclosed; and
(d) the reason for disclosure.
Transfer of case records
14.-a) Subject to paragraphs (2) and (3), a registered adoption service may transfer a copy of a case record (or part thereof) to another adoption agency when it considers this to be in the interests of a child or prospective adoptive parent to whom the record relates, and a written record must be kept of any such transfer.
(1) Where a registered adoption service intends to cease to act or exist as such, it must transfer its case records and the indexes to them which it holds in relation to an adopted child or a prospective adoptive parent-
(a) to another registered adoption service, having first obtained the Scottish Ministers' approval for such transfer;
(b) to the local authority in whose area the society's head office is situated; or
(c) in the case of a service which amalgamates with another registered adoption service to form a new registered adoption service, to the new body.
(2) A registered adoption service to which case records or the indexes to them are transferred by virtue of paragraph (2) must notify the Scottish Ministers in writing of such transfer.
[A member of the Scottish Executive]
[Authorised to sign by the Scottish Ministers]
St Andrew's House,
Edinburgh
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations, made under the Adoption and Children (Scotland) Act 2007, make provision concerning the disclosure by adoption agencies of information relating to adoptions.
Regulation 3 provides for disclosure of information to adopted persons. Where the adopted person is under the age of 16 (or 18 if in England or Wales) the adoption agency must, prior to disclosing information, consider the adopted person's views and welfare. However, the agency must not disclose to an adopted person under the age of 16 (or 18 in England or Wales) any information which could identify the adopted person's natural parents.
Regulation 4 provides for disclosure of information to local authorities in Scotland, England and Wales, and to the Registrar General for England and Wales, where an adopted person is applying for counselling or seeking information about their adoption. An adoption agency may disclose information for the purposes of carrying out its functions or to researchers authorised by the Scottish Ministers (regulation 5). Regulation 6 describes persons which an agency must disclose information to, and these include those holding certain inquiries, the Scottish Ministers, the Scottish Public Services Ombudsman, persons authorised under the Adoption Agencies (Scotland) Regulations 2009 and courts. When an agency discloses information under regulations 5 and 6 it must keep a record of the disclosure and the reasons for it (regulation 7). Regulation 8 provides for the transfer of adoption case records, including where adoption agencies dissolve or merge.
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