The Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009
| Jurisdiction | Scotland |
| Citation | SSI 2009/267 |
| Year | 2009 |
2009 No. 267 (C. 22)
Children And Young Persons
Made 25th June 2009
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 117(2) and (3) and 121(2) and (3) of the Adoption and Children (Scotland) Act 20071.
PART I
GENERAL
Citation and interpretation
1.—(1) This Order may be cited as the Adoption and Children (Scotland) Act 2007 (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 19782;
“the 1995 Act” means the Children (Scotland) Act 19953;
“the Agencies Regulations 1996” means the Adoption Agencies (Scotland) Regulations 19964;
“the Agencies Regulations 2009” means the Adoption Agencies (Scotland) Regulations 20095;
“the appointed day” means 28th September 2009;
“the Foreign Element Regulations” means the Adoptions with a Foreign Element (Scotland) Regulations 20096;
“freeing order” means an order granted under section 187of the 1978 Act or varied under section 218of that Act;
“the Hague Convention Regulations” means the Intercountry Adoption (Hague Convention) (Scotland) Regulations 20039;
“the Overseas Adoption Regulations” means the Adoption of Children from Overseas (Scotland) Regulations 200110;
“parental responsibilities order” has the meaning given by section 86 of the 1995 Act11;
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 1978 Act
3.—(1) Where, before the appointed day, an application for an adoption order has been made under section 14 (adoption by married couple) or 15 (adoption by one person)12of the 1978 Act 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)13of that Act, that order will continue to have effect.
Restrictions on removal of children: pending applications for adoption
4. Sections 28 (restrictions on removal where applicant has provided home for 5 years)14and 29 (return of child taken away in breach of s.27 or 28)15of the 1978 Act continue to have effect where an application for an adoption order has been made under section 14 or 15 of the 1978 Act and not yet determined on the appointed day.
Cases in progress under the Agencies Regulations 1996
5.—(1) This article applies where a case is still in progress on the appointed day under a provision of the Agencies Regulations 1996.
(2) Any action or decision under a provision of the Agencies Regulations 1996 will, on or after the appointed day, be treated as if it were an action or decision under the corresponding provision of the Agencies Regulations 2009.
(3) Where, before the appointed day, an adoption panel has considered—
(a)
(a) whether adoption is in the best interests of the child;
(b)
(b) whether a prospective adopter is suitable to adopt a child; or
(c)
(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)
(a) the Agencies Regulations 1996 continue to apply for the purposes of placing the child with the prospective adopter; and
(b)
(b) any such placement will be treated as if it were made under the Agencies Regulations 2009.
(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)
(a) the Agencies Regulations 1996 continue to apply for the purposes of providing notification of its decision; and
(b)
(b) regulations 8 (approval of prospective adopters) and 9 (review of adoption agency decisions) of the Agencies Regulations 2009 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 section 1716(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)
(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)
(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, regulation 8(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 Secretary of State that the Secretary of State is prepared to issue the certificate referred to in regulation 3(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 regulation 4(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 regulation 3(3) of the Overseas Adoption Regulations, regulation 4(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 regulation 3(3) of the Overseas Adoption Regulations.
(2) For the purposes of regulation 5(1)(b) of the Foreign Element Regulations notice is deemed to have been given in accordance with section 18(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 regulation 5(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)
(a) the authority must, if it has not already done so, carry out the functions imposed by regulation 5(2)(f) to (i) of the Foreign Elements Regulations; and
(b)
(b) where the review considering the matters referred to in regulation 5(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 28th September 2009 for the purposes of regulation 5(2)(g) of those Regulations.
Applications under section 47 of the 1978 Act
10. Where, before the appointed day, an application under section 4717(annulment etc. of overseas adoptions) of the 1978 Act has been made to the Court of Session and not yet determined the provisions of the 1978 Act have effect in respect of that application.
Applications under section 49 of the 1978 Act
11. Where, before the appointed day, an application for an order under...
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