Adoption is the legal relationship created by an order of court between (an) adoptive parent(s) and a child which replaces the legal relationship with the child's natural parents. It confers upon the adoptive parent(s) rights and responsibilities to allow them to make important decisions for the child. The legal framework is laid down in the Adoption and Children (Scotland) Act 2007. There is a legal mechanism for adoption of step-children by step-parents as well as private adoption of other children.

Today marks the beginning of Adoption Week in Scotland. A series of profile-raising events are being coordinated by Adoption & Fostering Alliance Scotland and Adoption UK.

This is an important year, as the most recently published statistics for adoptions in 2018 indicate that there was a decrease in the number of households approved for adoption and in the number of children adopted when compared to the statistics published for 2017. There appears to have been a decrease of 16% in the applications for adoption of children in Scotland in 2018, with some even describing the situation as somewhat of a crisis.

A key focus of Adoption Week Scotland is to inform the wider community about the process of adoption in the hope of attracting more families. There is a widely held perception that many folk do not consider adopting a child as they wrongly assume that they would not be eligible. This year, the St Andrew's Children's Society has targeted the LGBT+ community to raise awareness that their sexuality does not preclude adoption.

In an attempt to try and demystify adoption in Scotland, here are some common misconceptions:

1. "I'm single, so cannot adopt."

The above is a common misconception. Single persons can adoption children in Scotland. The focus of an assessment is finding an individual or individuals who can offer a child a loving, stable and long-term family home.

2. "We are not married (or in a civil partnership), so we can't adopt."

A couple being unmarried or not in a civil partnership does not preclude a private adoption of a looked after child, nor does it prevent adoption of a step-child. For step-parent adoptions, the prospective adopter must be married to, in a civil partnership with or in an "enduring family relationship" with the child's natural mother or father. Whether a couple have been in an "enduring family relationship" is fact-dependent but generally requires demonstrating a stable and long-term relationship.

3. "I am not the right age to adopt."

There is no upper age limit for adopting a child in Scotland. For private adoptions, the prospective adopter(s) must be over the age of twenty one. For step-parent adoptions, the prospective adopter must be at least twenty one years old and the natural parent must be over the age of eighteen.

4. "I identify as LGBT+, so can't adopt."

Same sex couple and transgendered individuals have been able to adopt in Scotland since 2009. The focus on finding families for children who require an adoptive family is on whether they can provide them a loving home and support needed to thrive.

5. "I can't adopt as I have a disability/health condition."

Disability is not a barrier to adoption in Scotland and there is no statutory requirement to be of good health to adopt a child. When assessing an application for adoption, the court will simply need to be satisfied that the disability or health condition would not impair the individual from caring for the child.

6. "I can't adopt as I have a criminal record."

A criminal record does not, per se, preclude an individual from adopting a child in Scotland. A conviction for an offence against a child or a sexual offence will normally prevent an individual from adopting. Otherwise, the adoption agency will carefully consider the specific circumstances of an offence to assess whether it impacts on their suitability as an adoptive parent.

7. "Adoption is about babies and young children."

There are a number of older children in Scotland waiting for places with suitable families. In fact, the likelihood with adoption is that you won't be matched with a very young baby. The views of a child under twelve of sufficient maturity to have a view will be considered by the court. A child over the age of twelve will require to consent to an adoption.

8. "I'm not a Scottish national, so can't adopt."

The only criteria relating to nationality is that the prospective adopter must have lived in the United Kingdom for at least one year.

9. "We already have a child, so won't be considered for adoption."

Individuals who already have a child or children living with them can still be considered as prospective adopters. The only stipulation is that there needs to be at least a two year gap between the youngest birth child and the adoptive child.

10. "I'd like to adopt more than one child, but don't think I can."

There are a number of sibling groups in Scotland waiting to find families to be placed with together.

11. "I would struggle with explaining to the child about their birth parents and with the possible resentment of not seeing them."

Prospective adopters receive significant training and support from adoption and other agencies to manage difficult conversations with adopted children as they grow and mature. In some cases, adopted children maintain direct contact with their birth parents post-adoption.

12. "I can't afford the costs of adoption."

It is unlawful for an adoption agency to charge you a fee for adoption of a child in Scotland. There may be outlays for police checks that you may require to meet. If a petition for direct adoption is being pursued, there will be court costs and costs for obtaining legal advice. Nonetheless, some agencies may agree to meet those costs.

13. "I'm not a high earner, so can't adopt."

There is no specific criterion regarding occupations or income levels in Scotland in terms of eligibility to adopt. The court will simply be required to be satisfied that (a) prospective adoptor(s) have sufficient means and financial stability to support the child. Some individuals may be eligible for payment of adoption allowance benefit.

14. "I would struggle financially not being eligible for maternity leave or pay."

Prospective adopters may be eligible for statutory adoption leave and statutory adoption pay.

15. "I don't own my own home, so can't adopt."

You do not need to be a home owner to adopt a child in Scotland. All that is required is suitable accommodation and sufficient space needed for a child.

16. "The adoption process takes too long."

Whilst it is recognised that the adoption process can be intense, approval as an adopter can be completed in as little as six months and a child can be placed as soon as three months thereafter.

17. "I want to adopt a child from abroad but don't think I can."

Adoption of a child living outwith Scotland is possible. In such circumstances, a fee of £1,675 is payable to the Scottish Government to obtain a certificate of eligibility stating that you can adopt a child from abroad, with means-tested waivers or discounts available.

The legal process of adoption can appear to be complex. Brodies LLP has a team of Family Law solicitors with experience in providing guidance and representation to all those involved in adoption. Should you wish specialist legal advice on adoption, please do not hesitate to contact one of the team. 


Garry Sturrock

Senior Associate