To discuss the differences, it is first key to understand what is meant by the terms 'adoption' and 'fostering' in Scotland.

Adoption

Adoption involves the creation of a new parent and child relationship by the court. When adopted, a child is treated in law as the child of adopter, as if he or she has never been the child of any other person.

Fostering

Fostering is when a child goes to live with another individual that is not their birth parent. Commonly, the child's birth parent has had to give up their caring duties on a temporary basis, which can be for a variety of reasons.

Legal position

Adoption: The granting of adoption removes the parental responsibilities and parental rights (PRRs) from the biological parents and transfers those PRRs on the adoptive parent(s). These PRRs include the right to decide where the child should live, to consent to medical treatment on behalf of the child and to make decisions in relation to the child's education and wellbeing. Upon the adoptive parent(s) death, the child has the same entitlement to make a claim on their parent's estate as any biological children of the said parent.

Fostering: When a child is fostered, PRRs will be retained by the birth parents. Foster parents do not hold the authority to make serious decisions in respect of the child. Instead, this authority is vested in the local authority. Nevertheless, the foster carer shall retain rights to make day-to-day decisions. While the child will be cared for in a private home with a private family, the essential difference to adoption is that the foster carer is preforming a semi-professional service on behalf of the local authority by caring for the child. To attain the same level of rights as adopting parents or birth parents, foster parents must apply to the court.

Timeframe

Adoption: When the adoption is granted, the adoptive parent(s) become the child's legal parents. It is therefore a lifelong commitment to the child. Because of this, the Adoption and Children (Scotland) Act 2007 requires that there must be a balance between the need to safeguard the child and the respect of family life. To remove a child from their birth family, it must be proven that residence with the birth parents will be "seriously detrimental" to the child's welfare.

Fostering: Conversely, a foster placement will end when the child is returned to the birth parents or when the child becomes old enough to live on their own. Fostering can be for short or long periods – it is not always intended as a permanent arrangement.

Process

Adoption: To adopt a child, a court order is needed. The child will need to have resided with the prospective adopter(s) for a minimum of 13 weeks. After Social Work has been instructed and prepared a report on the prospective adoption, a solicitor acting on behalf of the adoptive parent(s) will make an application for adoption (known as a "petition"). An initial Preliminary Hearing will take place around 2 months' later. A Reporting Officer and Curator ad litem will be appointed by the court to investigate and report to the court on various matters regarding the petition. The birth parents will be notified of the petition. They will need to either consent to the adoption or the court can decide that their consent is not needed. If the child is old enough to express a view, their views should be sought. If the birth parents consent is given and there is no opposition to the adoption, the Sheriff will grant the adoption order if he/she is satisfied doing so is in the child's best interests. If there is opposition, further court documents will require to be prepared and evidence led, through witnesses and productions, at a court hearing. Upon hearing all the evidence, the Sheriff will make a decision. The court will only grant an adoption order if it is better for the child that such an order is made rather than not made.

Fostering: To become a foster parent, an individual shall apply to their local social work department. There are no restrictions on who can apply to be a foster carer – this can be done individually or as a couple. An individual must also be over the age of 18. The primary factor in assessing whether an individual would be suitable for this role is suitability of care. Compared to adoption, each foster carer shall not have to apply to the court for approval. Instead, the carer shall apply to the local council for rigorous applications and testing.

Contact with birth parents

Adoption: When considering whether or not to grant an adoption, the court will also have to consider whether contact between the child and their birth family ought to continue, post adoption. Previously, 'letterbox' only contact would have been the norm but increasingly, in person post-adoption contact is being encouraged. Research suggests that such contact can help the child manage the loss/separation from their birth family, assist them in understanding why they are in care and allow the child to understand their past and their identity.

If, however, taking into account all circumstances of the case, the Sheriff takes the view that post-adoption contact will destabilise the child's placement with their new adoptive family or cause the child further stress or trauma, it should not be facilitated. The child's best interests always require to be the court's paramount consideration.

Fostering: When a child enters foster care, their connection to their birth family remains important. Often they will maintain contact with their birth parents and/or siblings and perhaps close friends, particularly if it is likely the child is going to return to their birth family after the foster placement. If, however, a child is vocal about not being in touch with their birth family, their views require to be taken into account and respected. How and when any contact takes place will usually be organised by the local authority, but foster parents will have a key role in facilitating that and supporting the child pre- and post- any contact.

Adoption and fostering have some things in common, but where there are differences, they are significant. If you are considering either option, it is worthwhile giving thought to the level of support you will receive from external agencies, the permanency of both, the legal responsibility which will befall you and your eligibility to become an adopter or foster parent.

Contributor

Kate Bradbury

Associate