PROVISIONAL PROPOSAL FOR REFORM

General principles for the practice of adoption

1. The principle that the child’s best interests should be treated as the paramount consideration should be retained and applied to all aspects of the adoption process.

2. The making of arrangements under which children are placed for adoption, except in the case of intra-family adoptions, should continue to be controlled by a government department or approved agencies. The law should not permit individuals to make their own adoption arrangements, either personally or though intermediaries.

3. The Court should retain responsibility for making adoption orders and other related orders.

4. The legislation should ensure, specifically:

• that the individuals closely involved in the child’s life have an adequate opportunity to express their views to the court;
• that the child’s own perceptions, feelings and wishes are discovered and taken into account; and
• that the available alternatives for the child are carefully considered.

5. The Adoption of Children Act 1965 should support the policy of open adoption.

6. The legislation should create a system of adoption in which a package of orders and arrangements can be tailored to meet the needs of each child.

7. The law and practice of adoption should ensure that adoption and its alternatives are carefully considered.

8. Infant adoptions

Adoption law in these cases should have the following objectives:

• to present birth mothers with adequate and correct information about alternatives to adoption and the consequences of open adoption;
• to ensure that the birth mother’s consent is fully informed and freely given and that she has a reasonable amount of time in which to make her decision and to revoke it if desired;
• to involve the birth parent(s) in the placement plan as far as possible in order to facilitate openness;
• to establish a situation where the child will have the benefits of a secure home with the adopters; and
• to ensure as far as possible that the adoption will promote the child’s life-long welfare.

9. Children in care

In relation to children in care, adoption law should, in particular, have the following characteristics:

• it should provide for the child to be consulted and actively involved in the planning process as far as the child’s understanding and maturity allows;
• it should ensure as far as possible that members of the child’s birth family are involved in the planning process and encouraged to maintain an involvement in the child’s life;
• it should ensure that before an adoption order is made a careful and thorough assessment is made of the range of possible placements;
• where it is decided that the child should be adopted, careful consideration should be given to the choices available within adoption, for example, whether the child should continue to have the same first name, and even surname; and
• where it is proposed that the child be adopted by foster parents, that the application may be brought either by the foster parents themselves or by an adoption agency, and that the birth parents may give consent either to the adoption of the child by the foster parents, or to the adoption of the child by any persons.

10. Intra-family adoptions

The law should ensure that the decision whether to adopt reflects an informed and careful assessment of whether the child’s interests will be promoted by the various legal consequences of adoption and, in particular, whether the desired objectives might be equally achieved without court orders, or by orders for custody or guardianship.

11. Special needs adoptions

In the case of these adoptions, adoption law should ensure that every reasonable effort is made to find, assess and support suitable adoptive parents. The needs of the particular child may well justify measures which would be unacceptable in other forms of adoption, such as circulating advertisements seeking to recruit adoptive parents, and dispensing with normal criteria relating to such matters as age or domestic circumstances.

POINTS FOR FURTHER DISCUSSION

To what extent should the adoption legislation actively implement or encourage openness, as distinct from creating a framework which relies heavily on the professional judgment of adoption workers and the other adults involved?

The Commission invites comments on whether s 35 of the Adoption of Children Act 1965 should be amended to read as follows:

(1) For the purposes of the laws of New South Wales, but subject to this Act and to the provisions of any law of New South Wales that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an order-

(i) the adopter or adopters shall become the legal parent(s) of the child;

(ii) the birth parent or birth parents of the child shall no longer be the legal parent(s) of the child;

(iii) the legal relationships between the child and all other persons shall be determined on the basis of the foregoing provisions so far as they are relevant;

(iv) any existing guardianship of the adopted child (including the Minister’s guardianship under the Children (Care and Protection) Act 1987 ceases to have effect; and

(v) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.

4.1 In this section we discuss some general policies, or principles which are relevant to adoption law. In the Issues Paper, the Commission raised the issue of whether there were general principles that should guide the development of adoption law. Chapter 3 of this Paper concluded with five general principles for the reform of adoption that are intended to apply to all forms of adoption and to bring adoption into line with other areas of legal thought and development. This chapter examines some of these general principles and highlights some of the aims and objectives of the different forms of adoption.

THE BEST INTERESTS OF THE CHILD

4.2 Article 21 of the Convention on the Rights of the Child requires ratifying countries to permit their systems of adoption to ensure that “the best interests of the child shall be paramount”. A similar statement can be found in the Adoption of Children Act 1965 (NSW) in s 17. This principle is well established and applies in many areas of children’s law, including guardianship and custody under the Family Law Act 1975 (Cth).1 This principle should be retained and applied to all aspects of the adoption process. Adoption has life-long consequences for the children involved and it is necessary to consider what is best for a particular child in the long-term as well as the short-term. Although the principle should apply to each stage of the adoption process, it may be of limited application at some points. For example, where the Court must decide whether or not parental consent should be dispensed with, the guiding principle should be that adoption requires parental consent.

4.3 Many of the submissions considered this principle, that the interests of the child are paramount, to be fundamental to any changes made to the legislation. The principle has become closely linked to the concept of children’s rights, such as the right of the adopted child to know about his or her birth origins and to participate in the adoption process to the extent that his or her maturity will allow. Many of the Commission’s tentative proposals acknowledge this new way of perceiving children and their rights and try to ensure that an assessment of the ‘best interests of the child’ is made from the point of view of the particular child rather than children in general.

LEGAL REGULATION

4.4 There are a number of characteristics common to adoption legislation throughout Australia since the introduction of the uniform legislation of the 1960s. Some of these may be seen as constituting the essential features of the existing legal regulation of adoption. In the Commission’s provisional view, these essential features, namely the way in which adoption arrangements are controlled and the role of the Court, should remain the features of New South Wales law. In the following paragraphs they are identified and briefly discussed.

Control of adoption arrangements

4.5 The making of arrangements under which children are placed for adoption, except in the case of intra-family adoptions, should continue to be controlled by a government department or approved agencies. The law should not permit individuals to make their own adoption arrangements, either personally or though intermediaries.

4.6 This level of control over adoption arrangements is similar to that of the United Kingdom and several other countries, though it is different from others, such as the United States, where in general there is limited legal regulation of adoption practice. None of the subsequent reviews of adoption have involved any significant modification of this basic approach. The approach is also endorsed by the National Minimum Principles in Adoption.² Submissions to the Commission were overwhelmingly in favour of this approach.

4.7 There are good reasons for retaining such control. There appears to be a real danger that uncontrolled adoption arrangements would endanger the welfare of children in many cases. At the present time, there is an increasing demand for adoption and a decreasing supply of local newborn children. This creates a situation in which there is a significant risk that the needs of intending adopters would, in an unregulated system, prevail over the interests and rights of the children and the birth parents. Evidence to the Commission makes it very clear, for example, that many mothers are extremely vulnerable around the time of childbirth, and it is important to protect them from undue pressure or misinformation. It is now known that the interests of adopted children require that they know of their adoptive status, and have certain rights to information about their birth families. If adoptive parents are not carefully selected and prepared, they may not appreciate the importance of this, and their own needs and assumptions about children may lead them to deny the child the opportunity to have knowledge of his or her birth family. In an unregulated system the birth parents may be subjected to undue pressure and deprived of the opportunity to participate in the arrangements leading to adoption.³ Children, too, may not have an opportunity to be heard.⁴ For these and similar reasons, the Commission takes the view that continued legal regulation of adoption placements is appropriate.

4.8 It must be acknowledged that legal regulation is neither a necessary nor a sufficient condition for good adoption placements. It is quite possible for unsatisfactory arrangements to be made within a regulatory system, and it is clear from evidence to the Commission that this has occurred at times. Conversely, private arrangements can be entirely satisfactory for some children. The Commission’s view, however, is that legal regulation of placements is capable of promoting children’s welfare better than an unregulated system. Much of this Review is devoted to the task of designing a system that will be effective and appropriate to present-day views on adoption, and will avoid both the dangers associated with lack of regulation and the mistakes that have been shown to occur even in a regulated system.

4.9 The above paragraphs speak of the regulation of adoption “placements” and “arrangements”. The law may differ in its regulation of the different forms of adoption. Broadly speaking, regulation seems most important where adoption involves the selection of suitable adopters, and the placement of children with them for adoption. A more limited form of legal regulation may be appropriate in other cases, for example adoptions by step-parents, where the child is already established in a home and the main question is the legal relationship between the child and the persons who will be raising the child. Such issues are discussed in appropriate parts of this Discussion Paper.

4.10 The legal regulation of adoption has another aspect. The law could “regulate” adoption by providing that adoption arrangement may be made only by authorised agencies, but it could also leave those agencies virtually unrestricted in the way they carry out their work. At the other extreme, the law could attempt a high level of control over the work of the agencies. The original regulations under the Adoption of Children Act 1965 might be regarded as seeking to impose a high level of control in relation to some aspects of adoption. They came close to providing that the Department had to allocate babies to approved adopters on a strict principle of priority in time: “first come, first served”.⁵ By contrast, under the present legislation the agencies appear to have a great deal of freedom. It is clear that very important changes in adoption practice have occurred in recent years with little or no change in the legislation. Adoption agencies and their professional staff would no doubt see much merit in flexibility of this kind, and argue that the law should encourage the development of professional practice. On the other hand, the very notion of legal regulation of adoption means that the law provides some checks on the exercise of professional discretion of adoption staff. The extent of authority that should be given to agencies and their staff is a basic issue in adoption law. The Commission’s general view is that the law should be sufficiently flexible to allow professional judgment to be exercised, and for standards to develop, while also providing a measure of protection against errors of judgment or professional practices that violate the rights of people involved in adoption. Achieving a sound balance between these two objectives is one of the challenges of the present review.

The role of the Court

4.11 A second basic feature that should be retained is the role of the Court,⁶ which has the responsibility for making adoption orders and related orders, such as an order to dispense with obtaining the consent of a birth parent who cannot be located. This is a characteristic of all Australian jurisdictions except Queensland, and even there the legislation makes provision for contested issues to be dealt with by a court. This characteristic would appear to be based on the view that such important changes in a person’s legal status should only occur as a result of a court order. The advantage of a court process is, no doubt, that the court is independent in that it has no interest in the outcome of the proceedings. Not only is it independent of the parties, but it is also independent of the government department and adoption agencies. Further, the processes of the court should be such that all those concerned will have, and be seen to have, a fair hearing before the order is made. In order for full advantage to be taken of its potential, it is important that the system should give the court a real rather than a token role.⁷

4.12 The court process is primarily designed for the resolution of contested matters, in which the parties involved present their evidence and argument to the court, and the court makes a judgment resolving the issues between them. In most types of jurisdiction, as is well known, the majority of cases are in fact resolved between the parties, and the court will often be asked to make a consent order. In commercial matters and many other matters, this presents few difficulties as both parties are adult, reasonably presumed to be able to judge their own interests, and are often legally represented. Accordingly, in the vast majority of settled cases, the court makes orders in the terms requested by the parties, and is not concerned with the question whether the agreed result corresponds with what the court might have ordered had the matter gone to trial. The court would hesitate to make the consent orders sought by the parties only where it had some special reason to question the apparent agreed resolution, for example where it had reason to believe that a party was labouring under some misapprehension or duress.

4.13 Should this model be followed in adoption? This is an important question, since in practice there are very few fully contested adoption matters; perhaps one or two a year. In principle, it is clear that the court should not make an order simply on the basis that there is no opposition to a proposed adoption. It has the task of satisfying itself that the proposed adoption will promote the child’s welfare.⁸ The Commission’s provisional view is that the practice and procedure of adoption should ensure that it is in a position to do so. It should ensure, specifically:

• that the individuals closely involved in the child’s life have an adequate opportunity to express their views to the court;
• that the child’s own perceptions, feelings and wishes are discovered and taken into account; and
• that the available alternatives for the child are carefully considered.

4.14 It is appropriate, therefore, that the adequacy of the existing law be tested according to whether it meets these criteria. This question is considered below, in Chapter 5.

Openness and honesty

4.15 There are also aspects of recent thinking about children and their needs and developments in adoption practice that have never been a feature of the adoption legislation, but are now recognised as crucial parts of good adoption practice. Perhaps the most distinctive feature of recent thinking and practice in adoption is the view that the law should not facilitate deception or secrecy but should promote openness and honesty. Thus the National Minimum Principles in Adoption state:

Openness and honesty in family relationships should be encouraged in all adoptions.⁹

4.16 Unfortunately, as numerous submissions pointed out, echoing much of the public comment on the Adoption Information Act 1990 (NSW), adoption law and practice has been frequently associated both with deceptive practices and the selective withholding of the truth. This occurred when adopted children were misled about their adoptive status, or when they were told, falsely, that their birth parents were dead. It also occurred when relinquishing mothers were not told of their rights, for example, the right to revoke a consent, or were given misleading information about the child. Of course these practices were not universal but they occurred with worrying frequency.

4.17 Although there may be room for argument about the extent to which adoption involved deception, it unquestionably involved the deliberate concealment of the truth. The birth parents were to have no knowledge of the identity of the adopters, nor the adopters of the birth parents, although the latter proposition appears to have been taken less seriously than the former.¹⁰ The adoptees in some cases were not told that they had been adopted, and were generally not told, and often unable to learn, the identity of their birth family. Those who discovered the information did so in spite of the legislation, not because of it: the Adoption of Children Act 1965 sought to ensure secrecy. However, one aspect which is now widely seen as deceptive is still universally practised, namely the issuing of birth certificates which misleadingly indicate, except to those with special knowledge, that the adoptive parents had given birth to the adoptee.

4.18 The strong community reaction against the secrecy that had surrounded adoption was manifested in the Adoption Information Act 1990, which removed a great deal of it. Following the implementation of this Act, the debate turned to a large extent on the difficulties the 1990 Act caused for people who had conducted themselves in accordance with the climate of secrecy. A common theme of those who opposed the Act was that they would have no objection to the Act’s information rights being available to people who were involved in future adoptions. For the future, people relinquishing children for adoption, and people intending to adopt, would know in advance that access to information would be possible when the child turned 18. However, the vast majority of adopted persons and birth parents welcome the rights to information and exercise them responsibly.¹¹

4.19 In the Issues Paper the Commission asked whether legislation should reinforce, extend or ignore the increasing openness in adoption. This section will examine what is meant by open adoption, how it is currently practised and the arguments for and against its establishment as normal adoption practice. The Adoption Information Act 1990 will also be considered as it has obvious implications for increasing openness in adoption.

What is open adoption?

4.20 There is no universally accepted definition of open adoption. Definitions range from “an adoption in which the birth parent meets the adoptive parents; relinquishes all legal, moral, and nurturing rights to the child; but retains the right to continuing contact and knowledge of the child’s whereabouts and welfare”¹² to “shar[ing] with the child why a mother would place the child for adoption”.¹³ In the Issues Paper the Commission suggested that open adoption may include the provision of non-identifying information to adoptive and birth families, the making of access or other orders after the adoption order in favour of the birth family, or the provision of identifying information to adult adoptees and their birth parents.¹⁴

4.21 Despite the diversity of definitions, it seems clear that open adoption indicates a move away from the traditional practice of secrecy in adoption where children were not told of their adoptive status or, if they were told, were not provided with any information about their birth family. Open adoption is also a move away from the “clean break” theory which promoted the belief that women who relinquished children would simply forget and get on with their lives without ever needing information about or contact with their relinquished children.

4.22 Current practice of open adoption. The Department of Community Services and the private adoption agencies currently practise a form of open adoption. Birth parents and adoptive parents are provided with non-identifying information about each other. Children are given a booklet called “My Story” which provides non-identifying information about their birth family. Birth parents are often given the opportunity to choose adoptive parents for their child from a number of ‘profiles’ selected and then shown to them by adoption workers. In special needs and ward adoption, birth families and adoptive families may meet, and if they wish, provide each other with identifying information and remain in contact with one another. Some adoptive families and birth parents provide the Department or agencies with on-going information about the child or themselves which will be passed on to the other party to the adoption when that party makes contact with the Department or agency.¹⁵

4.23 In the period up to the granting of an adoption order (the “post placement period”), agencies contact birth parents and adoptive parents and implement exchange of information and organise meetings between the parties. During this period adoptive parents are generally anxious to please the adoption agency so that the agency will support the making of an adoption order.

4.24 Careforce has both applicant adoptive parents and birth parents sign affidavits acknowledging the agreement for exchange of news and information and lodges these with the Supreme Court with the application for an adoption order. On the basis of these affidavits some judges have been making orders for the continuance of news and photograph exchange at the frequency specified in the affidavit. In seeking an affidavit from the birth parents Centacare reinforces the importance of information exchange between all parties. They believe it is important for the adoptee and adoptive parents to see and recognise the way in which birth parents also change over time. They believe this process will facilitate greater openness.

4.25 Barnardos have both adoptive parents and relinquishing parents sign agreements for the ongoing contact and information exchange between adoptive parents and relinquishing parents.

4.26 Current practice of open adoption is based on the parties’ own wishes. The provision of information or the arrangement of a meeting between the parties is voluntary, so that no one is pressured to act against his or her own convictions. Adoptive parents and birth parents can provide as little or as much information as they feel comfortable providing.

4.27 This means that, in practice, the degree of “openness” varies from case to case. Adoptive parents may want more information for their child than a birth parent is willing to give. For example, this may be because the parents have two adopted children and one is receiving on-going information and photos from his or her birth parents while the other is not. Understandably, adoptive parents may be concerned that the child whose birth parents are not providing information is feeling left out. Alternatively, adoptive parents may provide an early photo of the child to a birth parent but refuse to provide any more information once the child reaches the age of two. The birth mother may have specifically selected the adoptive parents because they indicated that they were prepared to provide on-going information and she may become angry and upset that they are not keeping to their informal undertaking.

4.28 If the adoptive parents will not co-operate, the agencies are not able to provide news and information about relinquished children to the birth parents during the post adoption period after an Adoption Order has been granted. Exchange of news and information in the post adoption period up until the child is 18 years of age depends upon the goodwill of adoptive parents, irrespective of what was agreed at the time of placement. Most adoptive parents honour the unenforceable agreements given at the time of placement but a significant number do not, and it is these situations which are of considerable concern to all adoption agencies. In these cases, the agencies are unable to force adoptive parents to allow communication with the birth parent(s) and respond by keeping letters and presents from the birth parent(s) until the child turns 18 years of age when they will be made available to him or her. In this way the child will hopefully understand that his or her birth mother did in fact do all she was able to do to demonstrate a caring interest in the life of the child.

4.29 As increasing numbers of birth parents and adoptive parents agree to information exchange, via the adoption agency which placed the child, the cost to agencies for the provision of services associated with openness in adoption is increasing exponentially. Until recently once an order of adoption was granted the involvement of the adoption agency ceased. Awareness of the needs of birth parents, adoptees and adoptive parents has resulted in post adoption services being implemented to facilitate openness in adoption. At present the considerable cost for these services is being borne by the agencies but it is doubtful if they can continue to do this without funding increases.

Adoption Information Act 1990

4.30 The Adoption Information Act 1990 has implications for open adoption, allowing parties access to information that previously has been withheld. The Act, however, is limited in its significance to children because, as a general rule, it permits access to identifying information only after an adoptee has reached 18. It allows adoptees and birth parents access to original or amended birth certificates in order to ascertain the identity of a person separated from them by adoption. Although, in general, the present Review does not reconsider the 1990 Act, the connection with the Adoption of Children Act 1965 is so close in relation to this issue that it is necessary to give it some consideration at this point.

4.31 There are two exceptions to the general rule that information will only be granted if the adoptee is 18 or over. Adoptees under 18 can receive their original birth certificate with their adoptive parents’ and birth parents’ consent.¹⁶ Also, adoptees can receive their original birth certificate with the consent of the Director-General if the adoptive and birth parents are dead, cannot be found or there is sufficient reason to dispense with their consent.¹⁷ Birth parents are not entitled to any information about adoptees who are under 18.

4.32 Adoptees under the age of 18 are not entitled to be registered on the Reunion Information Register unless they are over 12 and have their adoptive parents’ consent, over 16 and living separately from their adoptive parents or over 12 and the Director-General believes that there are special circumstances making it desirable that their names be entered on the register.¹⁸

4.33 Adoptive parents are entitled to receive extensive non-identifying information about their adopted child under the Act.¹⁹ They can only receive identifying information, that is the original birth certificate, once their child is 18 and only with his or her consent.²⁰ Access to non-identifying information during the adoptee’s childhood constitutes a significant move towards open adoption. It acknowledges that adoptive parents should have this information as of right, not simply when a Department or agency social worker deems it appropriate.

Adoptees under 18

4.34 The Adoption Information Act 1990 (NSW) provides little assistance to adoptees under the age of 18 who are seeking information about their birth families. As has been shown above, information rights for adoptees under 18 are very limited. The denial of rights to those under 18 raises some serious questions about children’s rights.

4.35 The Convention on the Rights of the Child states that children have the right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print...”.²¹ This right can only be restricted by laws that are necessary

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order or of the public health or morals.²²

4.36 It is difficult to see how the Adoption Information Act 1990 complies with this article. Restriction of adoption information for those under 18 cannot be for the protection of national security, public order, public health or morals. Can it then be necessary for respect of rights or reputation of others, in particular birth and adoptive parents? This seems difficult to justify in light of the rights given to adult adoptees. If adoptees under 18 were given information rights birth parents could place contact vetoes, should they so wish, protecting their rights, just as they can to prevent contact by adult adoptees. Birth parents’ rights would be no more interfered with by adoptees under 18 than they are by adult adoptees. Further, it cannot be successfully argued that giving adoptees information rights fails to respect the rights of adoptive parents. While parents have certain rights in relation to their children they do not have the right to control all information their children seek and receive. Children are people with rights of their own; their parents are entitled to guide them but they do not have absolute power over their lives. The Convention on the Rights of the Child makes this clear. Children’s rights to seek and receive information are to be restricted by law alone, not by their parents’ wishes.

4.37 The restriction on children’s access to adoption information is further undermined by articles 7 and 8 of the Convention on the Rights of the Child which state that children have the right “as far as possible...to know and be cared for by [their] parents” and the right to “preserve [their] identit[ies]...name[s] and family relations”. All adopted children have two sets of parents, one by virtue of birth and one by virtue of adoption. If children ask to know who their birth parents are, they have a right to be told. The only qualification on this right is the phrase “as far as possible”. If it is possible to give adult adoptees identifying information it should be equally possible to give adoptees under the age of 18 information.

4.38 The question of access to information for adoptees under 18 is important for open adoption. Discussions of open adoption most frequently focus on the concerns of adoptive and birth parents, not adoptees. This may be inevitable when adoptees are babies or young children, but it is not necessarily appropriate when children are old enough to express their own views. Children at this age should have the right to have a persuasive voice in relation to their own adoption. If they express the desire to have a more open adoption, with contact with birth parents, then this wish should be respected. Adoptive parents and social workers should not have the absolute right to veto another person’s wishes simply because they are under 18. Such a system is fundamentally at odds with the Convention on the Rights of the Child and the underlying principle of adoption legislation which stipulates that the interests of the child must be paramount.

Open adoption in other jurisdictions

4.39 The evidence reviewed by the Commission indicates that open adoption is a positive and progressive concept that has been developed in various forms throughout Australia.

4.40 Northern Territory. The Northern Territory has drafted a new Adoption of Children Bill 1993 which essentially only provides for open adoption. The Bill gives birth parents, adoptive parents and adoptees over 16 the right to identifying information about another party to the adoption at any time after the adoptee is placed.²³ Information cannot be released before the applicant has received counselling from a person approved under the Act.²⁴ The Bill works on the assumption that people who are not prepared to accept contact will choose not to participate in the adoption process.

4.41 Western Australia. The Western Australian Adoption Legislative Review Committee recommended that “Negotiated Adoption Agreements” be entered into between the adoptive parents, birth parents and where possible the child, prior to placement. These agreements would make provision for the exchange of information and/or contact for the adoptive and birth families. The Committee emphasised that it was “not recommending compulsory open adoption but rather a mechanism to allow parties in an adoption to select from a wide range of options, and negotiate an arrangement which best suits all concerned”²⁵. In all agreements the interests of the child would be paramount.

4.42 Agreements would be registered with the Family Court of Western Australia but not form part of the Order of Adoption.²⁶ In the event of a disagreement over the conditions or interpretation of the Agreement, the proposed Adoption Information Exchange could provide mediation or the Court could make a determination. In situations where an Agreement is not possible, a judge would have the power to waive the requirement of an Agreement under prescribed circumstances.

4.43 Victoria. In Victoria adoption orders can be made subject to certain conditions agreed upon by the adoptive and birth parents. These conditions include access rights to the child for the birth parents and/or relatives under circumstances specified in the order²⁷ and the provision of regular information for the birth parents by the adoptive parents via the adoption agency.²⁸ Conditions attached to an adoption order can be varied or revoked on the application of adoptive parents, birth parents or on behalf of the child.²⁹ Greater access to the child by the birth parent cannot be granted by the court without the agreement of the adoptive parents and the wishes of the child being considered.³⁰ All variations or revocations of conditions must be made in the best interests of the child.

4.44 England and Wales. The Interdepartmental Working Group reviewing adoption legislation noted that the court already had the power to grant a contact order in conjunction with an adoption order under the Children Act 1989. The Working Group recommended that this power be re-affirmed but that legislation should not prescribe the circumstances under which contact should or should not take place.³¹ The Working Group decided that the form of contact should be determined by the adoptive parents, birth parents, relatives, children and agency and then confirmed by the court. Like the Western Australian model, the emphasis is on consensus between the parties, the assumption being that any arrangements imposed without consultation are unlikely to be successful or in the best interests of the child.

Arguments for reinforcing and increasing openness in adoption

4.45 Proponents of open adoption argue that the secrecy promoted in the past in adoption proved unnatural and damaging in adoptive relationships. They argue that it is fallacious to believe that a child placed with a biologically unrelated couple will never want to know about or meet his or her biological family. Further, denying the reality of adoption and the existence of two sets of parents, adoptive and biological, places unnecessary stress on an adoptive family; family members will always be working to minimise the factors that point to the existence of another family. For example, adoptive parents may play down their child’s differences from themselves, whether physical, emotional or intellectual, in an effort to deny the fact that these traits may be inherited from the biological family. As children are often immensely perceptive to unspoken messages, the child may collude with the parents in their efforts and also attempt to minimise his or her differences from them, thus creating a crisis in identity in teenage or adult years.

4.46 Open adoption, advocates argue, prevents the parties to an adoption ‘fantasising’ about each other and creating false images of each other’s personalities. For example, birth parents may create a whole picture of their child and his or her family in their minds which is in fact entirely false. Adoptive parents, particularly in the past but even sometimes today, may stereotype birth mothers as irresponsible and amoral young women from whom their child is lucky to have been separated. They may pass this perception on to their child which may have a negative effect on their child’s self-identity and jeopardise any future relationship with the birth parent when the adoptee is an adult. Adoptees often fantasise about their birth parents, wondering what they look like and why they placed them for adoption. Adoptees often experience feelings of rejection, believing that the reason they were relinquished was because they were ‘not wanted’ or loved.

4.47 Proponents argue that open adoption can provide the means to avoid all of these problems. Birth parents can explain why they placed the child thus minimising the adoptee’s feeling of rejection. Adoptive parents and birth parents can gain an accurate perception of each other instead of assuming that the other party fits a particular stereotype.

4.48 Open adoption, it is argued, allows adoptees to develop a proper sense of identity. The plethora of material written by and about adoptees in search of their birth parents documents the problems some adoptees encounter in developing a coherent sense of self.³² ‘Genealogical bewilderment’ is a noted phenomenon amongst adoptees, stemming from lack of knowledge of immediate biological family and family history. Proponents of open adoption argue that adoptees would not need to go through this painful experience if they had access to information and the opportunity to meet their birth family when they were growing up.³³

4.49 Another factor contributing to the development of “open adoption” is the growing realisation that the introduction of “closed” adoption may involve the imposition of an alien cultural standard on people whose child-rearing practices are based on extended family networks, in which placement with other relatives is quite consistent with knowledge of actual parentage and continued membership of the kin groups associated with the birth parents.³⁴ This problem has been discussed in connection with Maori people in New Zealand but has application to a number of groups in Australia, notably Aboriginal and Torres Strait Islander people.

4.50 Finally, open adoption can be supported by the argument that confidential adoption treats children like property, where the birth parents transfer all rights of enjoyment to the adoptive parents and the adoptive parents then have the exclusive power to determine who shall have access to their new possession. Open adoption, in contrast, recognises that children are people with their own relationships and ties that exists by virtue of who they are, not simply by virtue of what their parents determine. In other words, adopted children have a relationship with their biological parents because they were born to them - this is a relationship in fact, that neither the birth parents nor the adoptive parents can eradicate. Children come to adoptive parents with this relationship, in the same way that they come to their adoptive parents with brown eyes or a particular personality and it is not the adoptive parents’, birth parents’ or adoption agency’s right to deny or destroy this relationship.

Arguments against open adoption

4.51 There is considerable resistance to the practice of open adoption, often from adoptive parents. One submission to the Commission stated that:

[Open adoption] is experimental and may result in psychological damage being inflicted on the child - such practice that experiments with the lives of children should be banned!³⁵

4.52 Criticisms have been made of open adoption on the basis that there is no reliable research evidence to support it. Some commentators argue that there is no evidence that the practice is positive and that the number of healthy, well-adjusted adoptees in the world is testament to the fact that closed adoption is successful. One commentator claims that open adoption is “unsupported by anything other than the sparsest anecdotal data - data with virtually no sound theoretical rationale or scientific research to back it up”.³⁶

4.53 Opponents of open adoption also argue that contact with birth parents during childhood will jeopardise the adoptive parent-child relationship and prevent the child bonding or attaching to the adoptive parents.³⁷ They argue that the child will become confused about who his or her ‘real’ parents are and feel insecure about his or her position in the adoptive family. Studies have documented that some children worry that their biological parents will take them away.³⁸

4.54 Some people argue that adoptive parents will be inhibited by birth parents and not feel able to care for their children exactly as they wish. They may feel that they are not ‘entitled’ to the child and that they are continually being reminded that they are not the child’s biological parents. This may “not only re-emphasize biological infertility, but lead to feelings of psychological infertility as well. They are not allowed to really psychologically parent the child.”³⁹

4.55 Finally, opponents of open adoption argue that continued contact with or knowledge of a relinquished child will only prolong birth parents’ grief. By not making a complete break with the child, birth parents are continually reminded of their loss and prevented from mourning properly, healing and then getting on with their lives.

Conclusions

4.56 The Commission’s provisional view is that the case for openness in adoption is very strong, and that the arguments against it are not convincing. While it is true that there has been little lengthy and detailed research on open adoption, it does not necessarily follow that the practice should not be pursued. As one commentator has pointed out:

in the area of children’s services, it is not always possible to await the definitive statement before we proceed with a new initiative which we know has a more just and equitable value base and will better serve the needs of our clients. In the face of demand...it is appropriate to proceed, carefully and confidently.⁴⁰

4.57 Further, it seems to the Commission that while there has been little long-term research on open adoption, there has been research on closed adoption that has resoundingly stated that closed adoption is not in the best interests of adoptees and birth parents. In a number of studies, adult adoptees and birth parents have stated that they would have liked information about each other during the adoptee’s childhood and even the opportunity to meet. Further, the Commission found in its review of the Adoption Information Act 1990 that many adoptive parents regretted not having access to information about their children’s birth families when they were growing up.⁴¹ Many felt that it would have made their task of parenting easier if they had had access to medical information and information about the birth family so that they could answer their children’s questions more accurately and honestly.

4.58 It seems to the Commission that the trend in open adoption is the result of an accumulation of adoption knowledge from workers and members of the adoption community over the past thirty years or more. Adoption workers have applied certain theories to their practice and they have monitored the results. Adoptees, birth parents and adoptive parents have lived with the results of these theories and have spoken out about the positive and negative effects they have had on their relationships and their personal identities. The consensus of this experience seems to be that adoption needs to be more open and honest about the reality of adopted children’s dual parentage. It seems to the Commission that this consensus of experience constitutes a considerable body of reliable research on which to justify the trend in favour of openness.

4.59 From the point of view of adoptive parents, there is strong evidence to suggest that the more open an adoption, the less threatened adoptive parents and consequently children feel by birth parents. Studies have found that “the more frequent and direct the contact [with biological parents] the less the adoptive parents worried about being the child’s real parents or feeling entitled to the child. Parents who had letter-only contact were those who worried the most about biological parents wanting or taking the child back”.⁴² This illustrates the familiar pattern in adoption that parties are threatened by what they do not know. Limiting access to real knowledge can lead people to unnecessarily believe the worst of others.

4.60 The argument that birth parents are forced into a continual process of grieving by open adoption is easily dismissed on two grounds. First, it seems clear that it is in fact closed adoption that precipitates a continual grieving process. Birth parents claim that relinquishment without contact or information feels like the child has died, but without any of the finality of death. Birth parents have spent years worrying and wondering about their children, desperate to know if they are healthy and happy in their adoptive families. They say that if they had been allowed some information about their children their feelings of loss would have been easier to bear.⁴³ Second, birth parents should be able to make the decision about whether open adoption is damaging to them for themselves. For too long birth mothers have been treated as irresponsible and incapable women who need social workers and adoptive parents to order their lives for them. If a woman can make the monumental decision to relinquish a child for adoption then she is surely capable of deciding whether contact is beneficial to her well-being and that of her child.

4.61 The Commission is therefore strongly inclined to recommend that adoption legislation should support the policy of open adoption. The promotion of openness and honesty is relevant to numerous issues in all forms of local and inter-country adoptions. They include:

• access to information while the child is under 18;
• access to information when the child is over 18;
• contact with birth family during childhood;
• involvement of birth family in selection of adopters; and
• birth certificates.

4.62 In order to provide a focus for discussion about the reform of adoption legislation in New South Wales, the Commission has drafted a provisional set of general principles for the practice of adoption. These principles appear at the beginning of this chapter and they seek to incorporate the benefits of open adoption in a similar manner to that proposed by the Western Australian Adoption Legislative Review Committee (see above).

4.63 New South Wales could legislate for any of the forms of open adoption which exist or have been mooted in other jurisdictions. A model like that of the Northern Territory would mean that parties to all future adoptions would have complete access to information about one another and would be able to arrange contact without the involvement of a court or an adoption agency. In contrast, the Western Australian, Victorian and English models involve court approval to a greater or lesser degree. The Court’s sanction for open adoption arrangements may be desirable for all the reasons raised earlier in the discussion of legal regulation of adoption - legal regulation ensures that all parties’ interests, in particular the child’s, are protected. The Court could be given power to make a variety of orders relating to contact depending on the circumstances of each child. All parties would be given the opportunity to be heard and provision could be made for the variation of an original order should the child, birth parents or adoptive parents so wish.

4.64 It is correct to approach the Adoption of Children Act 1965 on the basis that as far as possible deception and secrecy should be avoided.⁴⁴ This is not to say that all information should be open to universal scrutiny. It means that the relevant provisions of the Act should be approached on the basis that unless there is some clear justification for them, any rules involving deception or the withholding of information should be removed. The Commission would be very interested to receive submissions on the issue of the extent to which the law should actively implement or encourage openness, as distinct from creating a framework which relies heavily on the professional judgment of adoption workers and the other adults involved.

CONSEQUENCES OF ADOPTION

4.65 It is appropriate to consider what consequences should flow from an adoption order, considering the profound changes that have already occurred in adoption law and practice, and those that are likely to be recommended in this review. Two major questions arise. The first is whether or not there should be more than one type of adoption? It is important not to confuse “types” of adoption with “forms” of adoption. “Forms” of adoption has been used in this Paper to describe the different reasons how and why people come to be adopted. Inter-country adoption and step-parent adoption are two forms of adoption. Some jurisdictions have different types of adoption in the sense that they have simple adoption orders based on openness and more complex adoption orders that seek to completely sever the child from his or her birth family. The general guidelines drafted by the Commission and presented in this Paper are designed to provide the basic requirements that must be fulfilled in relation to the adoption of any child. The Commission has also drafted specialised guidelines in relation to the particular forms of adoption, such as inter-country adoption. There is enough flexibility within the guidelines to deal with the unique needs of each child placed for adoption. The preliminary court hearing, detailed below in Chapter 5, requires all other alternatives to adoption to be considered in relation to the child who is the subject of the adoption application. For these reasons it is not relevant to consider different types of adoption, as a package of orders and arrangements will be tailored to meet the needs of each child.

4.66 The second question is whether the consequences of adoption should continue to be expressed in the terms of s 35, which reads as follows:-

(1) For the purposes of the laws of New South Wales, but subject to this Act and to the provisions of any law of New South Wales that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order -

(a) the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock;

(b) the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child;

(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this section so far as they are relevant;

(d) any existing guardianship of the adopted child (including the Minister’s guardianship of the child under section 90 of the Children (Care and Protection) Act 1987 ceases to have effect; and

(e) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.

4.67 In the Commission’s provisional view, this phrasing pays insufficient attention to the continuing relevance of the child’s birth family, especially, as a result of the Adoption Information Act 1990, once the child has reached 18. A general definition of the consequences of adoption should retain the important idea that adoption involves a transfer of the child from one family to another without going so far as to suggest that the birth family is to be disregarded completely. The Commission invites comment on the following formulation:

Subject to the provisions of this Act, etc


(i) the adopter or adopters shall become the legal parent(s) of the child;

(ii) the birth parent or birth parents of the child shall no longer be the legal parent(s) of the child;

(iii) the legal relationships between the child and all other persons shall be determined on the basis of the foregoing provisions so far as they are relevant;

(iv) any existing guardianship of the adopted child (including the Minister’s guardianship under the Children (Care and Protection) Act 1987 ceases to have effect; and

(v) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.

Assessing the alternatives to adoption

4.68 An important theme of much recent writing on adoption, and of many submissions to the Commission, is that the law and practice of adoption should ensure that adoption and its alternatives are carefully considered in relation to each child. This principle does not involve a denigration of adoption, or the view that adoption is necessarily the “second best”, or the “last resort”. It means only that in each case the system should ensure, as far as possible, that thoughtful and informed decisions are made relating to each child. It has been suggested, for example, that in the case of step-parent adoptions other alternatives are sometimes not fully explored; conversely, in the case of children in alternative care it is sometimes suggested that the possibility of adoption is not always given adequate consideration. The principle simply means that the law and practice should seek to avoid hasty or incomplete analysis of what is best for each child. The principle suggests that we should, for example, consider the adequacy of information and counselling available to the people involved in adoptions, and, whether the formal procedures are effective in ensuring that the court (or other decision-maker) hears all points of view and explores all possibilities before coming to a decision.

4.69 The principle obviously has application at the time the adoption is being arranged. But since adoption has lifelong consequences it extends further. It is arguable, for example, that in the event that the adoptive placement breaks down, the possibility of the birth parents helping should be explored. Anecdotal evidence to the Commission indicates that in the past, once a birth parent had relinquished a child for adoption, there was no further reference to the birth parent if the adoptive placement broke down. In such an event a new placement was sought. Yet it may be the case that, at the time of a breakdown in the adoptive placement the birth parent will have both the capacity and the willingness to take care of the child. Whether this is so will depend on the circumstances of each case. In the Commission’s view the law should not exclude the possibility that in such circumstances it will be in the child’s interest to return to the birth parent(s).

ACCOMMODATING DIFFERENT KINDS OF ADOPTEES

4.70 In the Commission’s view, a review of adoption legislation must take into account the very different forms of adoption that are in current use. It is necessary to consider the adequacy of the law in relation to each of these forms. Although all the principles discussed so far in this Chapter apply to adoption generally, each form of adoption raises an additional set of unique issues. For this reason, we proceed to consider each form of adoption in turn, seeking to identify its particular characteristics and determining its objectives.

Adoption of infants

4.71 In the 1960s the most important form of adoption involved the adoption of healthy new-born Australian infants by unrelated adopters in New South Wales, where the adopters had been selected by the Department of Community Services or by an authorised adoption agency. The structure of the existing Act still reflects the dominance of this form of adoption. As is well known, in recent times very few healthy newborn babies have been relinquished for adoption. Although the numbers are now small, this form of adoption still exists, and appears likely to continue.

4.72 This form of adoption has a number of distinguishing features:

• the newborn baby will have no capacity to participate in the decision-making and will have existing ties that are different from those that older children are likely to have;
• the mother is likely to be affected by the physical and emotional consequences of the birth, presenting a difficult problem in obtaining her free and informed consent; and
• there is no difficulty in finding applicants for adoptions of this kind.

4.73 As mentioned earlier, this form of adoption was the norm at the time the existing Act was drafted, and its provisions represent an attempt to deal with the features mentioned above. It is necessary to reconsider the existing rules in the context of the new openness in adoption practice, and also in the light of evidence about the experiences of birth mothers at the time of adoption and later.

4.74 Adoption law in these cases should have the following objectives:

• To present birth mothers with adequate and correct information about alternatives to adoption and the consequences of open adoption.
• To ensure that the mother’s consent is fully informed and freely given and that she has a reasonable45 amount of time in which to make her decision and is free to revoke it if desired.
• To involve the birth parent(s) in the placement plan as far as possible in order to facilitate openness.
• To establish a situation where the child will have the benefits of a secure home with the adopters.
• To ensure as far as possible that the adoption will promote the child’s life-long welfare.

Adoption of children in care

4.75 In this category we include not only children who are wards of state, or otherwise under the guardianship of the welfare authorities, but also children who are in foster care or institutional care, either arranged privately or through a non-government agency such as Barnardos Australia.

4.76 Adoption represents one of a number of options for children in alternative care. Generally speaking, these children have come into care as a result of the inability or unwillingness of their parents to look after them. Their case histories often involve neglect or abuse. Most have had some contact with their parents or other members of their birth families, and some remain in communication with them. Some have been abandoned by the parents, some voluntarily given to the welfare agencies, and some have come into care as a result of court proceedings.

4.77 The legal guardianship of these children may have been placed with the Department of Community Services, or with foster parents, or with a non-government agency. In some cases it may remain with the parents. In practice, decision-making will normally have been a complex and extended process, involving numerous meetings with those concerned, in order to achieve an agreed plan of action. The general policy of the agencies is to allow the children to remain in the care of their parents if possible. It is not uncommon for children to be returned to their parents’ care, perhaps for a trial period, if this seems feasible. The desire to keep open the possibility of a return to the birth parent(s) is one of the factors which tends to lead the agencies to defer any irrevocable decision.

4.78 On the other hand, there is a formidable body of professional social work opinion supporting a policy of “permanency planning”. This refers to policies which are designed to prevent the situation where a child “drifts” from one temporary placement to another. Permanency planning seeks to achieve a permanent placement, ideally in a family, within a reasonably short time. It is generally based on the view, frequently articulated by child development experts, that children need a secure and stable family life in order to develop well. Advocates of permanency planning tend to argue that agencies should be very slow to remove children from their homes; appropriate support should be given to allow the parents to retain the children if at all possible. However, if the child has to be removed, then permanency planning suggests that unless the child can be restored home in a relatively short time, another permanent placement should be sought, rather than the child being placed on a trial or indefinite basis with foster parents or in residential care. Permanency planning, while having many adherents, is open to different interpretations, and is in any case only one approach to the difficult and controversial topic of placement of children in care.

4.79 Adoption, then, represents one option for these children. From the point of view of permanency planning, it is often seen as the best outcome for those children who cannot return home as it represents the most complete and permanent transfer of a child known to the law.

4.80 The law should take account of the fact that these children are different in at least two important ways from new-born babies. First, these children will normally know their biological families, and may well have had contact with them; some may continue to do so. However inadequate their parenting may have been, they still have “history, memories and attachments which cannot be erased.”⁴⁶ For these children, there is no question of adoption concealing their birth circumstances or obliterating the memory of their birth family.

4.81 Second, the age of the child is relevant to the approach to placement. While attachment theories might suggest that it is highly desirable for newborn babies to be placed as soon as possible with the proposed adopters, there is not the same urgency with older children. Again, where older children are to be adopted it will normally be important to explain the situation to them, and perhaps have a period during which they get to know the adopters before moving in to live with them. These processes may not be appropriate with newborn babies.

4.82 Third, in these cases adoption represents one of a range of choices. The law should ensure so far as possible that those responsible have examined all options carefully. This task entails an assessment of the children and their existing relationships, and an assessment of the possible placements available for the children, immediately and in the future.

4.83 Fourth, it may be desirable to relax the existing rules relating to adoption applications in at least some of these cases. As we have seen, the model developed for the adoption of newborn babies involved an agency selecting adopters with whom the child was to be placed. In the case of a child who has been in foster care, and it is proposed that the child be adopted by the foster parents, there will be no question of selecting adoptive parents. Instead, the question will be whether the child’s existing placement should be confirmed by adoption. In this respect, the situation is somewhat similar to that of a step-parent or other relative who seeks to adopt. Yet, under the present law, step-parents and relatives may themselves apply to adopt, and the parent may consent to the child’s adoption by those individuals. It may well be that in some foster care cases, like step-parent cases, the birth parents will know the foster parents and be willing for the child to be adopted by them, though not for the child to be available for placement with other unknown people. In these cases there may be merit, therefore, in allowing the foster parents to make the adoption application. This reasoning is consistent with the United Kingdom Review, which recommends that it should be possible for persons with whom the child has been living to make applications for adoption.⁴⁷ In order to protect the child, it seems right to retain the rule that the Court should receive a report on the proposed adoption, or that there be some equivalent to a “placement hearing” prior to the placement being made. The concept of a pre-placement hearing is discussed below.

4.84 It may be argued that anything that would encourage foster parents to make adoption applications should be avoided. It is important that, at least in most cases, foster parents should work towards the restoration of the child with the birth family. The prospect of being able to apply for the adoption of the child may lead people to become foster parents as a “back door” to adoption. This issue is of less concern in an era of “open adoption”, since adoption is not likely to reduce any existing contact between the child and the birth family. Further, adoption will mean the end of the foster care allowance, which will be a significant disincentive for some foster parents. It should be remembered, too, that the children in this category are likely to be older, and to have serious difficulties arising from their pre-placement experience. The care of these children, whether or not they are adopted, presents many challenges as well as rewards, and the demand for them as adoptive children is much lower than the demand for healthy babies. Finally, because the children will often be at an age where their views will be highly relevant, there may be less danger that adoption will proceed in cases where it does not advance the child’s interests. For these reasons, it is the Commission’s provisional view that foster parents should be allowed to adopt where such an adoption will be in the best interests of the child.

4.85 In relation to children in care, adoption law should, in particular, have the following characteristics:

• it should provide for the child to be consulted and actively involved in the planning process as far as the child’s understanding and maturity allows;
• it should ensure as far as possible that members of the child’s birth family are involved in the planning process and encouraged as far as practicable to maintain an involvement in the child’s life;
• it should ensure that before an adoption order is made a careful and thorough assessment is made of the range of possible placements;
• where it is decided that the child should be adopted, careful consideration should be given to the choices available within adoption, for example, whether the child should continue to have the same first name, and even surname; and
• where it is proposed that the child be adopted by foster parents, the law should provide that the application may be brought either by the foster parents themselves or by an adoption agency, and that the birth parents may give consent either to the adoption of the child by the foster parents, or to the adoption of the child by any persons.

Intra-family adoptions

4.86 Some adoptions involve only members of a family (understood in a wide sense). The main example is adoption by a parent and step-parent, but occasionally intra-family adoptions are by other relatives, mainly grandparents. The existing law distinguishes between these adoptions and those involving non-relatives. In short, the parties themselves can arrange the adoption, and apply to the Court for the order, although a report is required from the Department of Community Services or an agency.

4.87 The use of adoption to change legal relationships within families takes a number of forms. It includes the following cases:

i after the death of her husband, the father of their child, a mother remarries and adopts the child with her new husband;

ii after separation from her husband, the mother remarries and, with her new husband, adopts the child;

iii after separation from the husband, with whom she lived in a de facto relationship, the mother marries and adopts the child with her new husband; and

iv the parents of a woman adopt her child; that is, adoption of the child by his or her grandparents.

4.88 Adoptions of this kind have some common characteristics. The placement of the child is not normally in doubt; the issue is the legal status of the relationship between the care givers and the child. There may be an assumption that there are fewer risks to the child where the adoption is within the extended family. However, some intra-family adoptions superimpose the new legal relationship onto an existing one, producing a sometimes bizarre mix of adoptive and birth relationships. Thus in example (iv), above, adoption means that the child becomes, in a legal sense, her own mother’s sister (since they are both now legally the children of the grandmother - the mother by birth and the child by adoption). In step-parent adoptions, this problem does not arise, since the mother’s new husband in examples (i) - (iii) did not previously have a legally recognised relationship with the children.⁴⁸

4.89 The literature indicates that in some cases intra-family adoptions are used inappropriately. Step-parent adoption, in particular, seems too strong a measure where the only purpose is to change a child’s name or secure guardianship. It is often argued that the law should ensure that adoption is only used in step-parent cases where it is clear that other measures, such as guardianship or other orders, are insufficient. Thus the National Minimum Principles in Adoption state that:

Adoption should not be considered for children in step-families or living with relatives, unless it can be demonstrated that a guardianship order would not serve their needs.⁴⁹

4.90 The literature suggests that step-parent adoption can be used inappropriately as a device for shutting a parent out of the child’s life. In fact, since the Family Court retains a power to make orders relating to custody, guardianship and access, adoption today does not necessarily have this effect.⁵⁰ The generally accepted view is that in the adjustments following family breakdown and reorganisation, it is normally in the child’s interests for questions of access and guardianship, as well as other questions such as name, to be handled by the Family Court according to the usual assumptions about what is best for children. With something like a third of marriages ending in divorce, it seems unnecessary and generally undesirable to resort to a legal mechanism that seeks to disguise the child’s actual history. On the other hand, few would argue that intra-family adoption can never be in the interests of children.

4.91 The most common response of commentators and legislators is that the power to make intra-family adoption orders should be retained, but that the legislation should include guidelines to reduce the likelihood that it will be used inappropriately. The most common formula is rather minimal, namely that the court should not make an order for adoption unless it is satisfied that doing so will promote the child’s welfare better than making no order, or making some other orders.

4.92 In the Commission’s provisional view, the law should ensure that the decision to allow adoption reflects an informed and careful assessment of whether the child’s interests will be promoted by the various legal consequences of adoption, and in particular, whether the desired objectives might be equally achieved without court orders, or by other court orders such as orders for custody, or change of name.

4.93 Submissions to the Commission have also drawn attention to a technical difficulty in step-parent adoptions. Due to the way the Act is currently drafted, if a woman remarries and wants her new husband to adopt the children from her first marriage, she herself must go through the process of adopting her own children as part of a couple with her new husband. The Commission received several calls from women who thought that this was anachronistic and inappropriate, the most poignant being from a woman who was told incorrectly by her solicitor that she would have to abandon her children for a period of time before she could apply to adopt them. It is difficult to see any merit in the existing requirement. The Commission can see no reason why a woman who is the child’s natural mother should be forced to relinquish and then adopt her child in these circumstances. If, in such cases, adoption is found to be the best possible alternative for a child in this situation, the child’s step-father should be able to adopt the child in his capacity as a single person without any change in the status of the birth mother.

“Special needs” adoptions

4.94 “Special needs” adoptions refer to the adoption of children whose needs require special qualities in the adopting parents. Such needs may arise from the fact that a child is older or disadvantaged by some physical or intellectual disability. In the past many of these children would have been regarded as “unadoptable”, but in recent times adoption agencies have been keen to use adoption to provide homes for these children, some of whom might otherwise have lived indefinitely in institutions. In practice, these adoptions are sometimes subsidised and the selection of adoptive parents reflects the special needs of the child. There is some overlap between this category and the adoption of children in care.

4.95 The most obvious feature of these adoptions is that it is often difficult to find suitable and willing adoptive parents. It may be that in some cases the benefits these children would obtain from being cared for in a secure family environment would outweigh factors that in other situations would be more important. For example, a physically and intellectually handicapped child may have a very urgent need for intensive caring, requiring special skills from the adoptive parents. It may be that a child’s unique needs do not relate so much to the general requirements of adoptive parents, as discussed in Chapter 6 of this Paper, as much as they require these very specialised parenting skills. In these circumstances, the law should facilitate a placement of a child with such parents, rather than rigidly apply the general guidelines for the selection of adoptive parents. The Department or the authorised adoption agency should seek to use the selection criteria that are relevant to the particular child, however, these needs may be so great as to take them outside the realm of the general guidelines.

4.96 In the case of these adoptions, adoption law should ensure that every reasonable effort is made to find, assess and support suitable adoptive parents. The needs of the particular child may well justify measures which would be unacceptable in other forms of adoption, such as circulating advertisements seeking to recruit adoptive parents, and dispensing with normal criteria relating to such matters as age or domestic circumstances.

“Special case” adoptions

4.97 Special case adoptions have been discussed at length in Chapter 10 of this Paper.

Inter-country adoptions

4.98 Inter-country adoptions are discussed at length in Chapters 11, 12 and 13 of this Paper.

Adoption of adults

4.99 Adoption of adults is very rare, and it has been suggested that it might be better abolished. It seems, however, that in some circumstances adoption of adults may be advantageous, and no case has yet been made for its abolition. This issue is discussed further in Chapter 14 of this Paper.

1. Family Law Act 1975 (Cth) s 64(1)(a).

2. The Council of Social Welfare Ministers National Minimum Principles in Adoption (June 1993). The National Minimum Principles were prepared by State and Territory representatives on the Inter-country Adoption Standing Sub-Committee. See paras 1(17) - (19) at 5 and para 8(1) at 8.

3. National Minimum Principles in Adoption, para 1 (21) and (22) at 5, para 5(6), (9) and (10) at 7.

4. See the National Minimum Principles in Adoption, para 8(2) at 9.

5. See, for example, the discussion in Re TLR and the Adoption of Children Act (1967) 87 WN (Pt 1) (NSW) 40 (Myers J).

6. We consider in Chapter 5 the question whether adoption jurisdiction should be exercised by a tribunal rather than a court; the present discussion assumes that it will be continue to be exercised by the Supreme Court.

7. Carolyn Bridge has argued that recent New Zealand developments involve a “retreat from formalism”, leaving excessive control to those who have power within the extended family: “Changing the Nature of Adoption: Law Reform in England and New Zealand” (1993) 13 (1) J Soc Public Teachers of Law at 81-102 and 93-4.

8. Adoption of Children Act 1965 (NSW) s 17, 21.

9. Paragraph 4(1) at 6.

10. There was a period when the adoption certificate received by the adopters contained the surname of the birth mother. See New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at para 2.6.

11. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at viii.

12. A Sorosky, A Baran and R Pannor The Adoption Triangle (Anchor Press, Doubleday, New York, 1978) at 207.

13. Ruby Lee Piester, Director of Development, Edna Gladney Maternity Home, Fort Worth, Texas cited in R McRoy, H Grotevant and K White Openness in Adoption (Praeger, New York, 1988) at 20.

14. New South Wales. Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, May 1993) at para 3.12.

15. In accordance with the Department’s ‘Agreement and Undertaking’ that adoptive parents are required to sign, adoptive parents agree to provide an early photograph and news of the child for the natural parents and further information as may be requested by the Department from time to time. This agreement is not legally enforceable.

16. Adoption Information Act 1990 (NSW), s 6(2)(a).

17. Section 6(2)(b).

18. Section 32(3). The adoptive parents’ consents are not needed if they are dead, cannot be found or are incapable of giving consent: s 32(5).

19. Section 7(1)(b).

20. Section 7(2).

21. The Convention on the Rights of the Child Article 13(1).

22. Article 13(2).

23. Adoption of Children Bill 1993 (NT), cl 61 and 64.

24. Clause 63.

25. Western Australia. Adoption Legislative Review Committee Final Report: A New Approach to Adoption (February 1991) at 81.

26. The Committee’s reason for not including Agreements in the Order of Adoption was that federal authorities would then require the adoptive parents to obtain the birth parents’ consent for the issue of a passport for the child. This would amount to an unacceptable infringement on the adoptive parents’ rights as parents.

27. Adoption Act 1984 (Vic), s 59a(c).

28. Section 59a(d).

29. Section 60(1).

30. Section 60(3).

31. England. Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group (Department of Health and Welsh Office, October 1992) at 13.

32. F Fisher The Search for Anna Fisher (A Fields Books, New York, 1973); J Triseliotis In Search of Origins (Routledge and Kegan Paul, London 1973); P Toynbee Lost Children: The Story of Adopted Children Searching for their Mothers (Hutchinson, London 1985); S Tabak Self Search: A Program for Adult Adopted Persons (Community Services, Victoria 1990).

33. R Pannor and A Baran “Open Adoption as Standard Practice” in Child Welfare (1984) 63(3) 245 at 247.

34. See, for example, C Bridge “Changing the Nature of Adoption: Law Reform in England and New Zealand” (1993) 13 (1) J Soc Public Teachers of Law 81-102, at 91 and “Changing the Nature and Effect of Adoption” (1991) 3 JCL at 37.

35. Australian Families for Children Submission (17 September 1993) at 2.

36. A Byrd “The Case for Confidential Adoption” (1988) 46 (Fall) Public Welfare at 20.

37. Some commentators argue that adopted children never bond with their adoptive parents because bonding is a result of the psychological and physiological closeness between mother and child during pregnancy and birth which can never be duplicated or broken. They argue that adoptees “attach” to their adoptive parents. Attachment is the psychological connection between people that permits them to have significance to each other. People learn how to make attachments from their primary caretakers in the first few years of their lives. See K Watson “The Case for Open Adoption” (1988) 46 (Fall) Public Welfare 24 at 26-7. Others argue that adoptees do bond with adoptive parents and that bonding is not restricted to biological relations. See A Byrd “The Case for Confidential Adoption” (1988) 46 (Fall) Public Welfare at 20.

38. D Brodzinsky, L Singer and A Braff “Children’s Understanding of Adoption” (1984) 55 Child Development at 869.

39. A Bryd, at 22.

40. M Van Keppel “Openness in adoption: birth parents and negotiated adoption agreements” Adoption and Fostering (1991) 15(4) 81 at 85.

41. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at para 5.123 - 5.126.

42. M Berry “The effects of open adoption on biological and adoptive parents and the children: the arguments and the evidence” Child Welfare (1991) LXX (6) 637 at 645 referring to N Belbas “Staying in touch: Empathy in Open Adoptions” (Smith College School for Social Work, 1986): R McRoy, H Grotevant and K White Openness in Adoption (Praeger, New York 1988). Also see C Dominick Early Contact in Adoption: Contact between Birth Mothers and Adoptive Parents at the time of and after the Adoption (Research section, Head office of the Department of Social Welfare, Wellington 1988) at 189-90.

43. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at para 5.38-5.51; L Gross “How Are You, Baby Green?” A Study of how receiving Information Helps Mothers who have Placed Their Children for Adoption (School of Social Studies, South Australian Institute of Technology, 1984).

43. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at para 5.38-5.51; L Gross “How Are You, Baby Green?” A Study of how receiving Information Helps Mothers who have Placed Their Children for Adoption (School of Social Studies, South Australian Institute of Technology, 1984).

44. Similarly, the Western Australian A New Approach to Adoption: Final Report (February 1991), prepared by the Adoption Legislative Review Committee, states: “... the reality that the adoptive child has two sets of parents must be recognised. It is the Committee’s view, based on research and anecdotal evidence, that any attempt to obscure this fact by a shroud of secrecy is dysfunctional for all concerned. This does not imply that both sets of parents would or should be actively involved in parenting the child. “The child should never be placed in the position of having to choose between stands taken by the two parties...”. See para 3.17.

45. See Chapter 7 of this Paper for a discussion about what constitutes a reasonable amount of time in the giving of consent by a birth mother.

46. C Bridge, “Changing the Nature of Adoption: Law Reform in England and New Zealand” (1993) 13 (1) J Soc Public Teachers of Law 81-102, at 87(quoting John Triseliotis).

47. United Kingdom. Department of Health and Welsh Office Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group recommends , at pages 42-3, that the care givers should be able to apply at any time in cases where there is agreement from those with parental responsibilities, and (where the child is in care) the local authority. Where there is no agreement, the persons should be able to apply where the child has lived with them for a total of three years within the last period of five years; or where the court gives leave. However, “a local authority foster parent needs the consent of the authority”.

48. Existing legislation requires the mother to adopt her own child; but this rule can easily be changed and does not require discussion here.

49. Paragraph 2(2) at 6.

50. See Chapter 14 for a discussion of issues in step-parent adoption arising out of amendments to the Family Law Act 1975 (Cth).