Justice 2 Committee, 24 Apr 2001

Meeting date: Tuesday, April 24, 2001

Official Report 282KB pdf

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Adoption

The final agenda item is on adoption. When we first discussed the subjects that we wanted to examine, we decided that we wanted to consider adoption from a justice point of view. Members will know that Jack McConnell, the Minister for Education, Europe and External Affairs, has made a statement in Parliament and is proposing to conduct a review. The Justice 2 Committee has been asked to comment on the review and its remit.

I have a question to which I do not know the answer, although that is probably my fault. I still do not know whether it is mandatory to intimate to the natural father—it usually is the father, although it could be the natural mother—that there is an application for adoption. If that is still not mandatory, I would like a change in primary legislation. Notification should not necessarily be mandatory in all cases. If the natural father is off the scene when the woman is eight months pregnant, it might not be appropriate to intimate any adoption application to him.

However, I would like the weight to fall the other way. I was astonished when dealing with a case to find out that it was not mandatory to intimate that information to the natural father. My client had lived for 10 years with a man. She then married someone else—together they set about adopting the three children of the first man, the natural father. I asked the sheriff whether I was required to intimate that fact to the natural father, with whom the woman had, after all, cohabited for 10 years. The answer was no and the fact was not intimated to him. I do not know whether it is still the case that intimation is not mandatory but, if it is, there is a huge gap. I would like that to be looked at.

My understanding is that the issue has to do with whether the father holds parental rights. That will be covered by the reform of family law, which will clarify the position. That is the difficulty with the case to which you refer.

I still think that, even if a father does not apply for parental rights, it would be just in many circumstances to intimate to him the major change in his child's status. The sheriff might decide that there is no point in that and that the father should not have a say. Nevertheless, we are talking about a major thing and I have always felt that it is unjust not to intimate the information. If other legislation will deal with the issue, let us investigate it.

Secondly, on the list of groups—given under point 9—that the remit of the review would be sent to, who and what are legal interests and

"Professionals close to, but not currently directly responsible for, adoption services"?

We cannot say, "You should also consult X, Y and Z" if we do not know who those groups are. Point 9 is not specific enough.

I agree. It would be useful for the committee to put together a short report for the Education, Culture and Sport Committee covering all the points that have been made and crystallising our input. The report would primarily be on rights and responsibilities, particularly those of parents, as those of children are probably covered by the remit of the Education, Culture and Sport Committee and would not be a matter for us. However, it is clearly part of our remit to look at rights and responsibilities in adoption in terms of family law. We may wish to make that point.

On your previous point, Christine, we can ask the Executive for a legal note on whether there is an issue. I see no harm in flagging up to the minister that that is one of our areas of interest. I also concur with your view that we need to clarify what is meant in point 9 by "Legal interests", and whether that means the Law Society of Scotland or the Scottish Law Commission, for example. We can address all those points by saying that that is where our interest lies and that we would like the remit to reflect our interests in rights and responsibilities.

We can decide at a later date who, be it experts or organisations, should be called to give evidence on our areas of interest. Presumably, when the review is under way, the committee will agree formally to discuss those bits and pieces.

There is not a problem if the lead committee is the Education, Culture and Sport Committee. Our remit would be, for example, court procedures, intimation, the impact on other areas of family law—as Scott Barrie rightly said—and whether there are gaps that create injustice. Once we find out about the issue that I raised, we may find that I am barking up the wrong tree.

Paragraph 13 says:

"The Committee is invited to note the objectives and process for the Review. Ministers will welcome any comments".

Do members object if we say that we have a role to play that is stronger than just commenting and that we feel that there is a particular focus for us that we would like to be recognised?

Members indicated agreement.