Adoption (Scotland) Act 1978

28 Restrictions on removal where applicant has provided home for 5 years

(1) While an application for an adoption order in respect of a child made by the person with whom the child has had his home for the 5 years preceding the application is pending, no person is entitled, against the will of the applicant, to remove the child from the applicant's custody except with the leave of the court or under authority conferred by any enactment or on the arrest of the child.

(2) Where a person (" the prospective adopter ") gives notice to the local authority within whose area he has his home that he intends to apply for an adoption order in respect of a child who for the preceding 5 years has had his home with the prospective adopter, no person is entitled, against the will of the prospective adopter, to remove the child from the prospective adopter's custody, except with the leave of a court or under authority conferred by any enactment or on the arrest of the child, before—

(a) the prospective adopter applies for the adoption order, or

(b) the period of 3 months from the receipt of the notice by the local authority expires,

whichever occurs first.

(3) In any case where subsection (1) or (2) applies and—

(a) the child was in the care of a local authority before he began to have his home With the applicant or, as the case may be, the prospective adopter, and

(b) the child remains in the care of a local authority,

the authority in whose care the child is shall not remove the child from the care and possession of the applicant or of the prospective adopter except in accordance with section 30 or 31 or with leave of a court.

(4) Subsection (3) does not apply where the removal of the child is authorised, in terms of Part III of the [1968 c. 49.] Social Work (Scotland) Act 1968, by a justice of the peace or a children's hearing.

(5) A local authority which receives such notice as is mentioned in subsection (2) in respect of a child whom the authority know to be in the care of another local authority or of a voluntary organisation shall, not more than 7 days after the receipt of the notice, inform that other authority or the organisation in writing that they have received the notice.

(6) Subsection (2) does not apply to any further notice served by the prospective adopter on any local authority in respect of the same child during the period referred to in paragraph (b) of that subsection or within 28 days after its expiry.

(7) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding £400 or both.

(8) This section, except subsection (7), applies notwithstanding that the child is in England or Wales at the time he is removed.

(9) Any person who removes a child from the custody of any other person while the child is in Scotland, contrary to section 28 of the [1976 c. 36.] Adoption Act 1976 (which makes for England and Wales provision similar to this section), shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding £400 or both.

(10) The Secretary of State may by order amend subsection (1) or (2) to substitute a different period for the period of 5 years mentioned in that subsection (or the period which, by a previous order under this subsection, was substituted for that period).

(11) In subsections (2) and (3) " a court" means a court having jurisdiction to make adoption orders.