The Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009

Made: 25th June 2009

The Scottish Ministers make the following Order in exercise of the powers conferred by sections117(2) and (3) and 121(2) and (3) of the Adoption and Children (Scotland) Act 2007[^f00001].

PART I — GENERAL

Citation and interpretation

1

• (1) This Order may be cited as the Adoption and Children (Scotland) Act2007 (Commencement No.4, Transitional and Savings Provisions) Order 2009.

• (2) In this Order—

• “the Act” means the Adoption and Children (Scotland) Act 2007;

• “the 1978 Act” means the Adoption (Scotland) Act 1978[^f00002];

• “the 1995 Act” means the Children (Scotland) Act 1995[^f00003];

• “the Agencies Regulations 1996” means the Adoption Agencies (Scotland) Regulations 1996[^f00004];

• “the Agencies Regulations 2009” means the Adoption Agencies (Scotland) Regulations 2009[^f00005];

• “the appointed day” means 28th September 2009;

• “the Foreign Element Regulations” means the Adoptions with a Foreign Element (Scotland) Regulations 2009[^f00006];

• “freeing order” means an order granted under section18[^f00007] of the 1978 Act or varied under section21[^f00008] of that Act;

• “the Hague Convention Regulations” means the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003[^f00009];

• “the Overseas Adoption Regulations” means the Adoption of Children from Overseas (Scotland) Regulations2001[^f00010];

• “parental responsibilities order” has the meaning given by section86 of the 1995 Act[^f00011];

PART II — COMMENCEMENT

Appointed day

2

All the provisions of the Act, in so far as not already in force, come into force on the appointed day.

PART III — TRANSITIONAL AND SAVINGS PROVISIONS

CHAPTER 1 — ADOPTION

Applications for adoption orders under the 1978Act

3

• (1) Where, before the appointed day, an application for an adoption order has been made under section14 (adoption by married couple) or 15 (adoption by oneperson)[^f00012] of the 1978Act and not yet determined the provisions of that Act continue to have effect in respect of that application.

• (2) Where a court has postponed the determination of an application for an adoption order made under the 1978 Act and granted an order under section 25 (interim orders)[^f00013] of that Act, that order will continue to have effect.

Restrictions on removal of children: pending applications for adoption

4

Sections28 (restrictions on removal where applicant has provided home for 5years)[^f00014] and 29 (return of child taken away in breach of s.27 or 28)[^f00015] of the 1978 Act continue to have effect where an application for an adoption order has been made under section14 or 15 of the 1978 Act and not yet determined on the appointed day.

Cases in progress under the Agencies Regulations1996

5

• (1) This article applies where a case is still in progress on the appointed day under a provision of the Agencies Regulations1996.

• (2) Any action or decision under a provision of the Agencies Regulations1996 will, on or after the appointed day, be treated as if it were an action or decision under the corresponding provision of the Agencies Regulations2009.

• (3) Where, before the appointed day, an adoption panel has considered—

• (a) whether adoption is in the best interests of the child;

• (b) whether a prospective adopter is suitable to adopt a child; or

• (c) whether a prospective adopter would be a suitable adoptive parent for a particular child,

and no decision on that question has been made by the adoption agency before the appointed day, the Agencies Regulations 1996 continue to apply for the purposes of making that decision.

• (4) Where an adoption agency makes a decision under the Agencies Regulations 1996 (whether before the appointed day or, by virtue of paragraph(3), on or after that day) that a prospective adopter is suitable to adopt a particular child—

• (a) the Agencies Regulations1996 continue to apply for the purposes of placing the child with the prospective adopter; and

• (b) any such placement will be treated as if it were made under the Agencies Regulations2009.

• (5) Where an adoption agency makes a decision under the Agencies Regulations 1996 (whether before the appointed day or, by virtue of paragraph(3), on or after that day) that a prospective adopter is not suitable to be an adoptive parent—

• (a) the Agencies Regulations 1996 continue to apply for the purposes of providing notification of its decision; and

• (b) regulations8 (approval of prospective adopters) and9 (review of adoption agency decisions) of the Agencies Regulations2009 will not apply.

CHAPTER 2 — INTERCOUNTRY ADOPTION

Application for Convention adoption orders

6

Where, before the appointed day, an application for a Convention adoption order has been made in accordance with the Hague Convention Regulations and section17[^f00016] (convention adoption orders) of the 1978 Act and not yet determined, those Regulations and the provisions of that Act continue to apply in respect of that application.

Hague Convention adoption cases in progress

7

• (1) This article applies where a case is still in progress on the appointed day under a provision of the Hague Convention Regulations.

• (2) Any action or decision under a provision of the Hague Convention Regulations will, on or after the appointed day, be treated as if it were an action or decision under the corresponding provision of the Foreign Element Regulations.

• (3) Where, before the appointed day, an adoption panel has considered—

• (a) whether or not adoption by a person habitually resident in a Convention country outside the British Islands is in the best interests of the child; or

• (b) whether a prospective adopter is suitable to adopt a child,

and no decision has been made by the adoption agency before the appointed day, the Hague Convention Regulations will continue to apply for the purposes of making that decision.

• (4) Where an adoption agency makes a decision under the Hague Convention Regulations (whether before the appointed day or, by virtue of paragraph(3), on or after that day) that a prospective adopter is not suitable to adopt a child, regulation8(4) to(9) (adoption agency decision, notification and review procedure) of the Hague Convention Regulations will apply.

Non-Convention adoption cases in progress

8

• (1) This article applies where a case is still in progress on the appointed day under a provision of the Overseas Adoption Regulations.

• (2) Any action or decision under a provision of the Overseas Adoption Regulations will, on or after the appointed day, be treated as if it were an action or decision under the corresponding provision of the Foreign Element Regulations.

• (3) Paragraphs(4) and (5) apply where, before the appointed day, the prospective adopter has received notification from the Secretaryof State that the Secretary of State is prepared to issue the certificate referred to in regulation3(2)(c) of the Overseas Adoption Regulations.

• (4) Where the prospective adopter has visited the child but the child has not entered the United Kingdom before the appointed day regulation4(2)(b) to(d) of the Foreign Element Regulations will not apply.

• (5) Where the child has entered the United Kingdom but the prospective adopter has not, before the appointed day, given notice of intention to adopt in accordance with regulation3(3) of the Overseas Adoption Regulations, regulation4(2)(b) to(d) and(3) of the Foreign Element Regulations will not apply.

Non-Convention adoptions: local authority functions following receipt of notice of intention to adopt

9

• (1) This article applies where notice of intention to adopt is given before the appointed day by a prospective adopter in accordance with regulation3(3) of the Overseas Adoption Regulations.

• (2) For the purposes of regulation5(1)(b) of the Foreign Element Regulations notice is deemed to have been given in accordance with section18(2) (notification to local authority of adoption application) of the Act.

• (3) Where the local authority has not visited the child and the prospective adopter before the appointed day and more than one week has elapsed since the receipt of the notice referred to in paragraph(1) the date of receipt of that notice is deemed to be 28th September 2009 for the purposes of regulation5(2)(f) and (g) of the Foreign Element Regulations.

• (4) Where the local authority has visited the child and the prospective adopter before the appointed day—

• (a) the authority must, if it has not already done so, carry out the functions imposed by regulation5(2)(f) to(i) of the Foreign Elements Regulations; and

• (b) where the review considering the matters referred to in regulation5(2)(h) of the Foreign Elements Regulations has not been carried out before the appointed day, the date of receipt of the notice referred to in paragraph(1) is deemed to be 28thSeptember 2009 for the purposes of regulation5(2)(g) of those Regulations.

Applications under section47 of the 1978Act

10

Where, before the appointed day, an application under section47[^f00017] (annulment etc. of overseas adoptions) of the 1978 Act has been made to the Courtof Session and not yet determined the provisions of the 1978Act have effect in respect of that application.

Applications under section49 of the 1978Act

11

Where, before the appointed day, an application for an order under section49[^f00018] (adoption of children abroad) of the 1978 Act has been made to the court and not yet determined the provisions of the 1978Act have effect in respect of that application.

Designation of Overseas Adoptions

12

Despite the repeal of sections 60(4) (orders, rules and regulations)[^f00019] and 65(2) (interpretation: overseas adoption)[^f00020] of the 1978 Act, the following Orders continue to have effect as they did immediately before the appointed day and are deemed to have been made under section 67 (meaning of “overseas adoption”) of the Act:—

• (a) the Adoption (Designation of Overseas Adoptions) Order 1973[^f00021]; and

• (b) the Adoption (Designation of Overseas Adoptions) (Variation) (Scotland) Order 1995[^f00022].

CHAPTER 3 — PARENTAL RESPONSIBILITIES ORDERS

Parental responsibilities orders made before the appointed day: deemed permanence order

13

• (1) A child who is subject to a parental responsibilities order immediately before the appointed day shall be treated as if they were subject to a permanence order.

• (2) The permanence order will be deemed to consist of—

• (a) the mandatory provision specified in section81(1) (permanence order: mandatory provision) of the Act;

• (b) the following ancillary provisions specified in section82(1) (permanence orders: ancillary provisions) of the Act vesting in the local authority:—

• (i) the parental responsibilities mentioned in section1(1) (parental responsibilities) of the 1995 Act[^f00023]; and

• (ii) the parental rights mentioned in section2(1) (parental rights) of the 1995 Act[^f00024]; and

• (c) any condition in the parental responsibilities order imposed under section86(5) (parental responsibilities order: general) of the 1995 Act which—

• (i) specifies arrangements for contact between the child and any other person; or

• (ii) determines any question in connection with any parental responsibilities or parental rights in relation to the child or any other aspect of the welfare of the child.

• (3) In this article “local authority” means the authority on whose application the parental responsibilities order was made.

Applications for parental responsibilities orders under the 1995 Act

14

• (1) Where, before the appointed day, an application for a parental responsibilities order has been made to the sheriff under section86(1) of the 1995 Act and not yet determined sections86 to 89 of that Act continue to have effect in respect of that application.

• (2) Where the sheriff makes a parental responsibilities order following an application referred to in paragraph(1) the child who is subject to that order shall be treated as if they were subject to a permanence order and article13(2) and (3) applies to that deemed permanence order.

Applications to vary, amend or revoke a deemed permanence order

15

• (1) This article applies where a child is subject to a permanence order by virtue of article13(1) or 14(2) and an application to vary, amend or revoke the permanence order is made under section92 (variation of ancillary provisions in order), 93 (amendment of order to grant authority for child to be adopted) or 98 (revocation) of the Act.

• (2) Section92 of the Act applies as if for paragraph(d) of subsection(3) there were substituted—

(d) any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a parental responsibilities order in respect of the child, vest in a local authority.

• (3) Section93 of the Act applies as if for paragraph(b) in subsection(6) in the definition of “parent” there were substituted—

(b) who, by virtue of the making of a parental responsibilities order, no longer has any such responsibilities or rights.

• (4) In section94 (proceedings) of the Act—

• (a) for the purposes of subsection(1) the reference to any person who is affected by the order includes any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a parental responsibilities order in respect of the child, vest in a local authority;

• (b) subsection(3) applies as if for paragraph(e) there were substituted—

(e) any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a parental responsibilities order in respect of the child, vest in a local authority.

• (5) For the purposes of section98(2)(b) of the Act the reference to any other person affected by the order includes any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a parental responsibilities order in respect of the child, vest in a local authority.

CHAPTER 4 — FREEING ORDERS

Freeing orders made before the appointed day

16

• (1) This article applies where a child is subject to a freeing order—

• (a) immediately before the appointed day; or

• (b) by virtue of an order granted following an application referred to in article 18.

• (2) Subject to section35 (effect of order on existing rights etc.) of the Act the freeing order shall continue to have effect until 28th September 2010.

• (3) Despite their repeal the provisions of the 1978 Act continue to have effect as they did immediately before the appointed day to the extent required for the purposes of paragraph(2).

Deemed permanence order granting authority for the child to be adopted

17

• (1) Where, immediately before 28th September 2010 a child is subject to a freeing order by virtue of article16 that child shall be treated as if they were subject to a permanence order.

• (2) The permanence order will be deemed to consist of—

• (a) the mandatory provision specified in section81(1) of the Act;

• (b) the following ancillary provisions specified in section82(1) of the Act vesting in the local authority:—

• (i) the parental responsibilities mentioned in section1(1) of the 1995 Act;

• (ii) the parental rights mentioned in section2(1) of the 1995 Act; and

• (c) provision granting authority for the child to be adopted.

• (3) In this article “local authority” means the authority in whom the parental responsibilities and parental rights in relation to the child were transferred by virtue of the freeing order or a variation thereof granted under section 21[^f00025] (variation of section18 order so as to substitute oneadoption agency for another) of the 1978 Act.

Applications for freeing orders under the 1978 Act

18

Where, before the appointed day, an application for a freeing order has been made under section18 (freeing child for adoption) of the 1978 Act and not yet determined the provisions of the 1978 Act have effect in respect of that application.

Applications to revoke freeing orders under section20 of the 1978 Act

19

• (1) Where an application to revoke a freeing order under section20 of the 1978 Act has been made immediately before 28thSeptember 2010 and not yet determined by the court, the provisions of the 1978 Act have effect in respect of that application.

• (2) Where paragraph(1) applies and the court determines not to revoke the freeing order the child who is subject to that freeing order shall be treated as if they were subject to a permanence order and article17(2) and (3) applies to that deemed permanence order.

Applications for adoption orders where freeing order in place

20

• (1) This article applies where an application is made for an adoption order under section29 (adoption by certain couples) or 30 (adoption by oneperson) of the Act in respect of a child who is subject to a freeing order.

• (2) Section31 (parental etc. consent) of the Act applies as if for subsection(7) there were substituted—

(7) The second condition is that the child has been freed for adoption by virtue of an order made under section18 of the Adoption (Scotland) Act 1978.

Applications to vary or revoke a deemed permanence order

21

• (1) This article applies where a child is subject to a permanence order by virtue of article17(1) or 19(2) and an application to vary or revoke the permanence order is made under section92 or 98 of the Act.

• (2) Section92 of the Act applies as if for paragraph(d) of subsection(3) there were substituted—

(d) any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a freeing order in respect of the child, vest in a local authority.

• (3) In section94 of the Act—

• (a) for the purposes of subsection(1) the reference to any person who is affected by the order includes any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a freeing order in respect of the child, vest in a local authority;

• (b) subsection(3) applies as if for paragraph(d) there were substituted—

(d) any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a freeing order in respect of the child, vest in a local authority.

• (4) For the purposes of section98(2)(b) of the Act the reference to any other person affected by the order includes any person in whom were vested any parental responsibilities or parental rights which, by virtue of the making of a freeing order in respect of the child, vest in a local authority.

Signed

ADAM INGRAM — Authorised to sign by the Scottish Ministers — 25th June 2009

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order is the fourth Commencement Order made under the Adoption and Children (Scotland) Act 2007 (“the Act”). It also makes transitional and savings provisions.

Part I deals with citation and interpretation.

Part II, article2 brings all those provisions of the Act which are not already in force into effect on 28th September 2009.

Part III makes transitional and savings provision.

Chapter 1 of PartIII concerns adoption. Article 3 saves the provisions of the Adoption (Scotland) Act 1978 (“the 1978 Act”) in cases where an application for an adoption order is made before 28thSeptember 2009 but has not yet been determined by the court or where the court has postponed the determination of such an application and granted an interim order.

Article4 saves sections28 and 29 of the 1978 Act in cases where an application for an adoption order under that Act has not yet been determined.

Article 5 applies to cases where an adoption order has not yet been made but the case is being progressed under the Adoption Agencies (Scotland) Regulations 1996. Any action or decision taken under those Regulations will be deemed to have been taken under the corresponding provision of the Adoption Agencies (Scotland) Regulations 2009 subject to the exceptions set out in paragraphs (3), (4) and (5).

Chapter 2 of PartIII makes transitional and savings provision for intercountry adoption. Article6 saves the provisions of the 1978 Act and the Intercountry Adoption (Hague Convention) (Scotland) Regulations 2003 where an application for a Convention adoption order has been made before the appointed day and not yet determined by the court. Article7 applies to cases being progressed under those Regulations. Articles8 and 9 apply to adoptions outwith the scope of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption[^f00026]. Articles10 and 11 save the provisions of the 1978 Act for applications made under section47 or 49 of that Act which have not yet been determined. Article12 saves the Adoption (Designation of Overseas Adoption) Order 1973 which designates as an overseas adoption those adoptions effected under the law of countries outwith the British Islands, but excluding Hague Convention adoptions.

Chapter3 of PartIII makes provision for cases where a child is subject to a parental responsibilities order made under the Children (Scotland) Act 1995. Article13 provides that on the appointed day all such orders will be deemed to be permanence orders under the Act. Article14 makes savings provision for applications for parental responsibilities orders which have not yet been determined by the court. Article15 makes provision for cases where an application is made to vary, amend or revoke the deemed permanence order.

Chapter4 of PartIII makes provision for freeing orders granted under the 1978 Act. Such orders will continue to have effect until 28thSeptember 2010 unless an adoption order is made in respect of the child (article16) after which time they will become deemed permanence orders granting authority for the child to be adopted (article17). Article18 makes savings provision for applications for freeing orders which have not yet been determined by the court. Article19 saves the provisions of the 1978 Act where an application to revoke a freeing order has been made but not yet determined. Article20 applies section31 of the Act with modifications where a child is subject to a freeing order and an application for an adoption order is subsequently made under the Act. Article21 makes provision for cases where an application is made to vary or revoke the deemed permanence order.

Footnotes

[^f00001]: 2007 asp4.

[^f00002]: 1978 c.28.

[^f00003]: 1995 c.36.

[^f00004]: S.I.1996/3266 as amended by S.I.2002/3135, S.S.I.2003/242 and S.S.I.2005/517. These instruments are made under the 1978 Act and will be revoked on the appointed day.

[^f00007]: Section18 was amended by section88 of, and Schedule10 to, the Children Act 1989 c.41 and by section98(1) of, and Schedule2 to, the 1995 Act.

[^f00008]: Section 21 was amended by section 98(1) of, and Schedule 2 to, the 1995 Act.

[^f00009]: S.S.I.2003/19 as amended by S.S.I.2005/517. S.S.I.2003/19 will be revoked on the appointed day by S.S.I.2009/182.

[^f00011]: Section 86 of the 1995 Act is repealed by section 120(2) of, and schedule 3 to, the Act.

[^f00012]: Sections 14 and 15 were amended by section 15(1) of, and Schedule 2 to, the Adoption (Intercountry Aspects) Act 1999 c.18.

[^f00013]: Section25 was amended by the 1995 Act, Schedule2.

[^f00014]: Section28 was amended and repealed in part by the 1995 Act, Schedules2 and 5.

[^f00015]: Section29 was amended by the Children Act 1989 c.41, Schedule10 and the Adoption and Children Act 2002 c.38, Schedule3.

[^f00016]: Section17 was substituted by section3 of the Adoption (Intercountry Aspects) Act 1999 c.18.

[^f00017]: Section 47 was amended by section 139 of, and Schedule 3 to, the Adoption and Children Act 2002 (c.38).

[^f00018]: Section 49 was amended by section 98(1) of, and Schedule 2 to, the 1995 Act.

[^f00019]: Section60 was amended by the 1995 Act, Schedules2 and 5; the Adoption (Intercountry Aspects) Act 1999 c.18, section15 and Schedule2; the Regulation of Care (Scotland) Act 2001 asp8, section79 and schedule3; and the Adoption and Children Act 2002 c.38, Schedule3.

[^f00020]: Section65 was amended: by the Children Act 1989 c.41, Schedule10; the Age of Legal Capacity (Scotland) Act 1991 c.50, Schedule1; the Local Government etc. (Scotland) Act 1994 c.39, Schedule13; the 1995 Act, section94 and Schedules5 and 9; the Adoption (Intercountry Aspects) Act 1999 c.18, sections13, 15 and 18 and Schedules3 and 9; the Regulation of Care (Scotland) Act 2001 asp8, section79 and Schedule3; the Family Law (Scotland) Act 2006 asp2, Schedule3; and by S.I.1996/2203.

[^f00021]: S.I. 1973/19 as amended by S.I.1993/690 and 1995/1614.

[^f00022]: S.I. 1995/1614.

[^f00023]: Section1(1) is prospectively amended by the Human Fertilisation and Embryology Act 2008 c.22, Schedule6.

[^f00024]: Section2(1) is prospectively amended by the Human Fertilisation and Embryology Act 2008 c.22, Schedule6.

[^f00025]: Section 21 was amended by section 98(1) of, and Schedule 2 to, the 1995 Act.

[^f00026]: Concluded at The Hague on 29thMay 1993.