To mark Domestic Abuse Awareness month, Associate Emma Letham has written a short article on Non-Harassment Orders.

What is Harassment?
If someone is behaving in a way which causes you “distress and alarm”, then this can be harassment if (i) they intend to harass you or (ii) what they are doing “occurs in circumstances where it would appear to a reasonable person to be harassment”.

Behaviour which amounts to harassment can include speech and includes sending messages, emails, facebook messages etc.

What is a Non-Harassment Order?
A non-harassment order is an order that the court can make to help protect you from someone who is harassing you.

How do I get a Non-Harassment Order?
You apply to the Court for a non-harassment order. One of our Family Law solicitors can assist you with applying for a non-harassment order and would prepare a document called the “Initial Writ”.

How long does it take to get a Non-Harassment Order?
The court process can take some time to get a non-harassment order – often from 6 months to 1 year or possibly longer.

What about immediate protection?
As part of the court process, we can ask the court for an “interim interdict”. This is a temporary emergency order the court can put in place while the court process for the non-harassment order is ongoing.

Your solicitor would ask for a “pre-service” hearing and this is a Court hearing where the Sheriff will decide whether to put the interim interdict in place or not. This hearing should take place as soon as possible after the court documents are sent to the court. Usually the person harassing you will not be notified of this hearing.

In making a decision on the request for an interim interdict, the Sheriff needs to agree that:-
(i) There is, at least, a reasonable argument that you have been harassed
(ii) The consequences of an order not being in place would be worse for you than the consequences for the person harassing you if an order is put in place (sometimes referred to as the “balance of convenience”).

What happens if the person ignores the interim interdict?
Your solicitor can ask the Sheriff to attach a “Power of Arrest” to the interim interdict. Your solicitor would need to explain to the Sheriff why a Power of Arrest is needed to protect you.

If a Power of Arrest is granted, it means that if the person ignores the interim interdict, you can contact the police and the police have the power to arrest the person harassing you.

If a Power of Arrest if not granted, if the person ignores the interim interdict, they will still be considered in “contempt of court”. You would tell your solicitors about this and they could be charged with contempt of court. It is likely the Sheriff would then attach a Power of Arrest to the interim interdict.

What happens next?
There will be a second Court Hearing, usually 1-2 weeks after the first hearing and at that hearing, the person who has been harassing you can provide their position on the interim interdict.

The Sheriff will then make a decision on whether the interim interdict should remain in place or not.

There will then be further court procedure in respect of the non-harassment order. It is likely you will require to come to court and given evidence about the harassment you have suffered. Your solicitor can ask the court for you to be treated as a vulnerable witness and if the Sheriff agrees, special measures can be put in place for you, for example, the court may let you give your evidence by video-link or from behind a screen.

At the end of the court process, the Sheriff will make a decision on whether a non-harassment order should be granted or not.

What happens if the person ignores the non-harassment order?
If the person breaches a non-harassment order, they are guilty of a criminal offence. They can be arrested and if convicted, they can be fined or sent to prison (or both).

Associate, Emma Letham, and Senior Solicitor, Iona Whyte, have both undertaken the Scottish Women’s Rights Centre Approved Domestic Abuse Training for solicitors and are happy to talk you through the legal process for applying for a Non-Harassment Order and answer any questions you may have.

If you ever fear for your safety, please contact the police in the first instance.

Kinship Care Orders – FAQs

Kinship Care Week in Scotland runs from 14-20^th March 2022 and the Kinship Care Advice Service for Scotland is running events all week. You can find out what is on using this link – https://kinship.scot/kinship-care-week-2022/

To mark Kinship Care Week, our Emma Letham has answered some of the Frequently Asked Questions about Kinship Care Orders.

The general principle is that children should be brought up by their parents without intervention from their local authority. However, if this cannot happen, a child should be placed with kinship carers where appropriate and possible.

What is a Kinship Care Order?

A Kinship Care Order is applied for under Section 11 of The Children (Scotland) Act 1995. Under a Kinship Care Order, the Court can grant some or all Parental Rights and Responsibilities to Kinship Carers.

Parental Rights and Responsibilities are held by the child’s birth mother and sometimes the birth father. The important point to note is that under a Kinship Care Order, the Parental Rights and Responsibilities are not completely removed from the parents; they are shared with the Kinship Carers.

Who can apply for a Kinship Care Order?

A Kinship Carer is someone who is related to the child or has known the child and with whom the child has a pre-existing relationship.

Under the Looked After Children (Scotland) Regulations 2009, a Kinship Carer is defined as a “person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship”.

How much does a Kinship Care Order cost?

The cost of a Kinship Care Order can depend on a number of matters, including whether the application is likely to be contested by the child’s birth parent(s).

If the child’s birth parent(s) are in agreement with the Kinship Care Order, this means the Court process will likely be straightforward and a solicitor who specialises in these matters can offer a fixed cost for the legal work to be undertaken.

If the child’s birth parent(s) are going to contest the application, then the Court process will take longer and there will be an increase in costs.

We would recommend checking if you are eligible for Legal Aid to assist with the cost of obtaining a Kinship Care Order. Most local authorities would require you to check your position in relation to Legal Aid in the first instance.

If you are not eligible for Legal Aid, then the local authority may contribute to the legal costs involved in applying for a Kinship Care Order; they may meet some or all of the costs.

It may be beneficial for you to obtain information from the local authority in relation to their contribution towards legal costs in writing.

It is important to remember that the Court will not automatically grant a Kinship Care Order – the Order will only be granted where it is in the best interests of the child. In reaching a decision, the Court’s paramount consideration will be the welfare of the child.

If you have any questions about Kinship Care or applying for a Kinship Care Order, please do not hesitate to contact our Emma Letham at ell@wjm.co.uk for a free, confidential chat.

Adoption FAQs – The Children’s Hearing process

To mark Adoption Week Scotland, our Adoption specialist, Emma Letham, has put together a series of blogs, answering commonly asked questions from Prospective Adopters.

Do Prospective Adopters need to take part in the Children’s Hearing process?

The short answer is no. Prospective Adopters do not need to take part in the Children’s Hearing process.

However, it is something to which you might want to give some consideration, particularly if the child’s birth parent(s) are likely to oppose the Adoption Order at Court.

When a child is living with their Prospective Adopters, the child will often be the subject of a Compulsory Supervision Order (“CSO”) through the Children’s Hearing System.

The CSO is required to be reviewed every 12 months from the date it was issued. The CSO is reviewed at a Children’s Hearing and the Panel Members are able to make substantive changes to the CSO. These changes can include the contact which a child has with their birth parent(s).

As a Prospective Adopter, you have no automatic right to attend or contribute to the Children’s Hearing. In addition, unless you are deemed a “Relevant Person” by the Children’s’ Hearing, you are unable to Appeal decisions of the Panel Members. The child’s Social Worker cannot Appeal a decision.

Therefore, some Prospective Adopters wish to be deemed “Relevant Persons” to allow them to attend and contribute to the Children’s Hearings for the child. This also provides them with the right to Appeal a decision if the Panel Members make a decision which the Prospective Adopters do not believe is in the child’s best interests.

The test for being deemed a “Relevant Person” is as follows; –

“The individual has (or has recently had) a significant involvement in the upbringing of the child”.

A Prospective Adopter should therefore easily meet this test (if the child is currently living with the Prospective Adopter).

A child’s birth parents automatically have “Relevant Person” status.

In some Adoption Cases, where the birth parent(s) are opposing the Adoption Petition, the birth parent(s) may request an early Review Hearing to ask the Panel if contact can be re-instated between them and the child.

If the Prospective Adopters are deemed Relevant Persons, then they have a right and duty to attend Children’s Hearings for the child and have their views heard by the Panel Members.

For more information about the Children’s Hearing process or the Adoption legal process, please contact our Adoption specialists – Emma Letham at ell@wjm.co.uk and Roger Mackenzie at rlm@wjm.co.uk

Q&A with an Adopter

To mark Adoption Week Scotland, our Adoption specialist, Emma Letham, spoke with a recent adopter about his experience of the Adoption Process:-

EL – What has been the best thing about adopting?

Achieving something that I never dreamed was possible. Adoption for same sex couples didn’t become legal until 2009, so becoming a parent wasn’t something that I believed would be possible and at times I still can’t believe I’ve achieved it. I love being a parent and being able to pour all the love that I have in to my son to ensure that he has love, stability and security is my key priority, he is everything to me. Watching him grow and develop in to a confident, funny loving little boy is the best part of it.

EL – Have you felt supported along your adoption journey?

Absolutely! Whilst the adoption process can be complex, and at times tricky, I’ve always felt supported throughout. Everyone (friends, family and colleagues) are there to offer and provide support all the time and everyone continues to ask questions in order for them to understand. You also have the opportunity to build strong relationships with other adopters and those relationships are extremely important. I’ve always felt supported by my social worker and solicitor too. Choosing a solicitor who specialises in adoption is vital as they can help you navigate the legal aspects of the process.

EL – What kind of support is there for adopters?

There is so much support available throughout the entire process, so there is no shortage of support. Your adoption agency provides excellent up-skilling during your preparation groups to ensure you understand the process and understand the background that your child is likely to have experienced. The relationships you form in these groups are important as we have become lifelong friends with the other adopters that we attended these groups with. You then have an allocated social worker who meets with you regularly and prepares you for the adoption panel. They then support you through the family finding stage and ensure that you are fully supported when your child or children move in. Your child or children will also have their own social worker, so they are always available for help and support. Then you have your solicitor and when your child or children have moved in and you are entering the legal aspects of the process, your solicitor is essential in providing that guidance throughout. In additional to the formal roles available, there’s also facebook groups and other online platforms that help you connect with other adopters.

EL – What advice would you give to someone who is considering adoption?

Keep your eyes on the prize. If your motivation is about being a parent, then adoption could be the route for you. It’s not straightforward for some people, but there’s plenty support available to ensure you are guided through each step. Unfortunately some children are out there and they are looking for their forever families. They could be looking for you ….

For any questions about the legal process for Adoption, please contact one of our solicitors who have expertise in dealing with adoption matters – Roger Mackenzie at rlm@wjm.co.uk or Emma Letham at ell@wjm.co.uk

Q&A the adoption process

Scottish Adoption was the first Adoption Agency in Scotland to host information events specifically for the LGBT+ community. Since Scottish Adoption’s first LGBT+ event, they have gone on to support all of their LGBT+ families throughout their adoption journey and that support is life-long, thanks to their After Adoption Team.

WJM Associate Emma Letham spoke with Karen Watt, a Senior Practitioner at Scottish Adoption, about the process for anyone thinking about adopting.

Emma Letham (EL): If someone from the LGBT+ community is thinking of adopting, what should they do first?

Karen Watt (KW): I would recommend that they look at the Scottish Adoption website first of all. Over half of our adopters are from the LGBT+ community and therefore we have a lot of experience in supporting people from the LGBT+ community to adopt.

After looking at our website, if they were interested in taking things further, there is an online initial enquiry form to complete. This form is then passed to a duty practitioner who will be in touch with the prospective adopter(s) within two working days and will arrange an initial interview with them. Everything is online at the moment due to COVID-19, so that meeting would be via Zoom.

”Over half of our adopters are from the LGBT+ community…”
Karen Watt, Scottish Adoption

The initial meeting would be with a senior practitioner at the agency – we are all senior practitioners; we are all social work-trained with many years of experience.

During the initial meeting, we will ask why you are interested in adoption at this time. We will ask about your personal circumstances, your family background, and about your personal relationship (if it’s a couple looking to adopt). We do have a requirement that if it’s a couple looking to adopt, they have been in a relationship for 3 years or more.

This initial meeting is also an opportunity for the prospective adopter(s) to ask us any questions which they may have about the adoption process. We ask people to be as open as possible with us at this meeting.

EL: Then what happens after that? do they have to attend any further meetings?

KW: At the end of the initial meeting, the social worker who has spoken to the prospective adopter(s) will make a recommendation to their manager about whether they think the prospective adopter(s) have enough strengths to be invited to the next stage of the adoption process. If the manager agrees for the prospective adopter(s) to progress to the next stage, then they will be invited to the next available place on the Preparation Groups.

EL: What happens at the Preparation Groups?

KW: The Preparation Groups consist of four separate full-day sessions with pieces of work to complete in between the sessions. These groups are led by two senior practitioners and will be attended by other prospective adopters also. These groups have input from people who have already adopted and teenagers who have been adopted themselves. These groups involve drilling down deeper into prospective adopter(s) motivation to adopt, thinking about the children who are waiting to be adopted, looking at attachment issues, adverse childhood experiences, how to parent an adopted child effectively, looking at specific issues such as Foetal Alcohol Syndrome, Neonatal Abstinence Syndrome, etc. We also look at post-adoption contact between children and their birth families.

EL: What happens after the Preparation Groups?

KW: After the Preparation Groups, prospective adopters are encouraged to reflect on the groups and think about whether they wish to move on to the next step of the process, the Home Study process. A lot of information is provided during the Preparation Groups and it is therefore important that time is taken to reflect and consider this information.

Illustration of two women with their children

If the prospective adopter(s) wish to continue with the process, they would complete a form and would then be allocated a Senior practitioner from the Family Placement Team. The Home Study assessment would then begin. This assessment usually takes around six months from start to finish. The Home Study is essentially a story of the prospective adopter(s) life. All the information is pulled together into a PARS (Prospective Adoptive Report Scotland).

This is a collaborative process with the prospective adopter(s) writing lots of the report themselves, looking at their family background, the supports they have around them, their education, health, work, leisure interests, relationship with significant other (if adopting as a couple). This assessment will also involve a discussion of their motivation to adopt. There will be local authority checks completed, PVG checks, a medical assessment with their GP and six references will be requested from their family, friends and employer. It’s important to highlight that this process is all about safeguarding children. We always act in what we think is in a child’s best interests.

The second half of the Home Study involves a discussion about the children who are placed for adoption. We talk about the kind of child who the prospective adopter(s) think they may be best matched with and we also talk more about post-adoption contact between a child and their birth family at this point in time.

At the end of the Home Study, we normally have a long list of strengths of the prospective adopter(s) which evidence why we think they will make good adopter(s). We usually have a few vulnerabilities too – that is normal.

Our manager will then read the report and carry out a second opinion visit with the prospective adopter(s).

If we are all in agreement to proceed, the prospective adopter(s) are invited to the Agency’s Adoption Panel.

EL: What happens at the Adoption Panel and who sits on the panel?

KW: The panel members are independent and are from a wide variety of backgrounds. They all have some experience of adoption, some have adopted, some have been adopted, some are social workers etc.

The panel will start off by asking the allocated senior practitioner about the Home Study and might ask the senior practitioner to expand on some information from within the report. The prospective adopters will then be invited in and asked a few questions.

The prospective adopters will be asked to leave and then a discussion will take place with the panel advising whether they agree with our recommendation that the prospective adopters should be approved as adopters or not.

If they are approved, the information is sent to the Agency Decision Maker who must review matters and confirm the Panel’s decision.

At this point, the prospective adopters become fully approved adopters and can start family finding!

EL: Amazing! How do the prospective adopters start family finding?

KW: We suggest that they have a look on Link Maker which is an online nationwide platform with details of children placed for adoption. Prospective adopters can set up their own profile which allows them to look at profiles of children who have been placed for adoption.

Once prospective adopters are interested in learning more about a child, they can request further information about the child from the child’s social worker. The child’s social worker will ask for the prospective adopter’s PARS also.

If both parties wish to move forwards with the potential link, the prospective adopters will meet the child’s social worker. This gives both parties a chance to ask any questions which they may have. The prospective adopters will be supported by their allocated practitioner during this meeting.

There is then the opportunity for the prospective adopters to speak to the child’s foster carers, school/nursery and medical adviser.

EL: What happens next?

KW: There will be a Linking Meeting arranged. This meeting is for the professionals involved to attend and explore the potential match between the prospective adopters and the child. If everyone is in agreement that this is a strong link, a Matching Panel will be arranged.

EL: What happens at the Matching Panel?

KW: This is similar to the Adoption Panel which the prospective adopters attend but it is arranged by the local authority where the child is based. There would be a discussion between everyone about why the match between the child and the prospective adopters is strong and we would hope the Matching Panel agrees.

If the match is agreed and the Agency Decision Marker confirms matters, the introductions between the child and the prospective adopters would be arranged and commenced.

Once the child is living with the prospective adopters, an adoption petition can be lodged by the prospective adopters via their solicitor with their local sheriff court. An Adoption Order cannot be granted until the child has been living with the prospective adopters for 13 weeks.

That is where Roger Mackenzie and Emma Letham can assist, with their expertise in adoption matters. They have dealt with many adoption petitions in Courts throughout Scotland, from very straightforward cases to those which are more complex and take slightly longer until the Adoption Order is granted.

For more information

If you have any questions about the legal process for adoption, please do not hesitate to contact them for a free, confidential chat, on 0141 248 3434 or at ell@wjm.co.uk and rlm@wjm.co.uk

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Emma Letham

Non-Harassment Orders