PROVISIONAL PROPSALS FOR REFORM

1. The assessment of applicants should be based on the suitability (as defined) of the applicant in relation to the particular child.

2. The assessment of applicants should be conducted in a way that is consistent with the Anti-Discrimination Act 1977 (NSW) and with similar Commonwealth laws and international agreements to which Australia is a party.

3. Where the child is capable of expressing wishes that are relevant to the selection of adoptive parents, those wishes should be given such weight as is appropriate in the light of the child’s maturity, understanding, and other relevant considerations.

4. The assessment should take into account the wishes of the birth parents, and where appropriate other members of the birth family, having regard to the long-term interests of the child and the possibility of the child having contact with members of the birth family, or obtaining information about them, at any time in the child’s life.

5. The assessment should take into account the applicant’s attitudes to possible contact between the child and members of the birth family at any time in the child’s life, and to the obtaining of information as provided in Part XYZ of the Act . (This will refer to that part of the Act which incorporates the provisions now contained in the Adoption Information Act 1990) .

6. The assessment should take into account the general desirability of placing children with adoptive parents who are of an age at which it is common for people in the community to become parents.

7. The assessment should take into account the extent to which by reason of age, ill-health or other factors the applicant might find it difficult to satisfy the needs of the adopted child in the way parents are expected to do, both before and after the adopted child reaches adulthood.

8. Children should not be placed for adoption with applicants who are more than 55 years of age, or more than 41 years older than the child, unless there are circumstances indicating that notwithstanding this the applicant is suitable to adopt the child.

9. Consideration of an applicant’s suitability to adopt a particular child will involve an examination of his/her family and other relationships.

10. The assessment should ensure that unfair or unjustified assumptions are not made about relevance of applicants’ sexual orientation and their suitability as adoptive parents. The assessment should focus on the ability of the applicant(s) to meet the parenting needs of the particular child.

11. The religious beliefs or practices of applicants should not be taken into account except where they can reasonably be regarded as useful in determining the applicant’s suitability. They might be relevant, for example, where the child has religious beliefs, or where there is likely to be future contact between the child and members of the birth family, and the birth parents have expressed wishes in relation to the religious upbringing of the child.

12. The assessment should take account of the willingness and ability of the applicants to provide personally for the needs of the child. There should not however be a standard requirement, for example, that one of the adoptive parents should give full-time care to the child for the first year. This matter should be assessed in relation to each child. Some disturbed or handicapped children may indeed require such full-time care from a parent. In other cases, for example teenage children adopted by foster parents, such a requirement would be quite inappropriate.

13. The applicant’s health should be taken into account in assessing their suitability to adopt the child.

14. The assessment should give consideration to the effect on the child of any other children of the applicants. Children should not be placed with applicants who have a child under two years of age, unless there are circumstances indicating that notwithstanding this the applicant is suitable to adopt the child.

15. There should be no requirement that applicants must be infertile. No preference should be given on the basis of applicants’ ability or inability to have their own biological children. However the assessment should include a consideration of the applicants’ attitudes to their own fertility or infertility, and the likely impact of such attitudes on their suitability as adoptive parents. This applies equally to local and inter-country adoptions.

16. Continuity: Assessment should take into account the desirability of maintaining continuity in children’s lives. Especially where children are beyond infancy, consideration should be given to any advantages that might derive from placement with adopters who will raise the child in familiar circumstances. More specifically, there will usually be advantages to children in placements which enable the children to maintain aspects of their lifestyle, language, and culture. Normally, it will be appropriate to place children with adopters of similar racial or ethnic background.

17. Normality: Adoption placements should not express a preference for a particular sector or class of the community. It should take into account the existence of many family forms in the community, and the diversity of views about child rearing, lifestyle, and other values. They should however recognise that adopted children might be harmed or distressed if, in addition to dealing with their adoptive status, they have to deal with other important and visible differences between their family and the families of their peers. It is proper in making adoption placements to seek to reduce such additional reasons why adopted children might feel disadvantaged by being seen as different from their peers.

18. The formal eligibility criteria should be flexible. However, guidelines should identify the factors that may be taken into account in assessing suitability, and these should include marital status and family structures. Guidelines relating to the “pool” of approved applicants might include such provisions as the following:-

The selection of applicants for the pool shall be based on the following principles:

1. In these provisions:

(a) “Applicant” includes individual applicants and joint applicants.

(b) “The pool” means those applicants who at the relevant time have been approved as eligible to adopt children and whose applications remain current.

(c) An applicant is “suitable”, in relation to a particular child, if and only if:


(i) the applicant has been assessed as being able to meet the needs of that child;

(ii) no other applicants known to the Department appear better able to meet the needs of that child; and

(iii) it appears unlikely that another applicant might be found within a reasonable time and using reasonable efforts, who would be better able to meet the needs of that child.

2. At any given time, the membership of the pool should be determined having regard to the following considerations:

(a) the need to maximise the likelihood of placing children who become available for adoption with adopters who will meet their needs to the maximum possible extent.

(b) The desirability of avoiding undue delay between entry to the pool and placement of a child, and

(c) The need to give appropriate consideration to all persons currently in the pool in relation to each child becoming available for adoption.




3. Membership of the pool does not create any right to have a child placed with the applicant for the purpose of adoption.

4. In relation to each child becoming available for adoption, the Department shall consider in the first place whether any applicants are suitable to adopt that child. Birth parents should be given reasonable opportunity to be involved in the process of selecting applicants from the pool.

5. If an applicant in the pool is suitable to adopt the child, the child may be placed with that applicant for the purpose of adoption.

6. If no applicant in the pool is suitable to adopt the child, the Department may take such steps as it sees fit to arrange placement of the child with suitable adopters. Such steps may include making inquiries from other adoption agencies, and other individuals or organisations, and may include the use of advertising or other reasonable measures in order to seek suitable adoptive parents for the child.

The Commission has not yet reached a conclusion on whether infertility should be taken into account in a limited way as a method of choosing between applicants who are otherwise indistinguishable in terms of suitability to adopt children. If it were to be, the law would base selection in the first instance on criteria that relate to the child’s welfare, but would also state that, provided that there is no disadvantage to the child, preference should be given to infertile applicants. The Commission would welcome submissions on this general topic, and in particular on this issue.

While there may be cogent arguments in favour of requiring one adoptive parent to stay at home for the first six months after the child is placed, there are also arguments against this. The requirement would appear to restrict adoption to those who can afford to live on one income alone (unless the couple have jobs which entitle them to parental leave). The requirement appears to be based on assumptions that would be questioned by many parents in the community today, namely that good parenting requires one full-time carer for the child or, perhaps, that young children need to be in the care of their mothers. These assumptions appear to reject the contrary view that parents who have flexible jobs or part-time jobs are capable of bonding with their child in the hours before and after work and on weekends. The Commission would be glad to hear comment on the desirability of such a requirement.

INTRODUCTION

6.1 This Chapter deals with one of the more difficult and controversial aspects of adoption law, namely the selection of adopters. The Chapter first examines existing law and practice, then considers a number of particular issues such as adoption by single people and homosexual couples. The final section of the chapter deals with more general and procedural issues.

6.2 Submissions indicated that there was overwhelming support for the basic propositions that the process of adoption should be regulated by law, and that the child’s welfare should remain the paramount consideration in adoption. There is widespread sympathy for infertile adults who wish to have children, and the stress and inconvenience of being assessed for the purpose of adoption is also well recognised. However, it has frequently been pointed out that the principle that the child’s welfare is paramount means that it is not the purpose of adoption to provide children to fulfil the needs of adults who wish to create or complete their families. The purpose is to provide the most suitable families for children who require permanent parental care. It follows that the law should provide a framework for determining which of the available intending adopters are best able to promote the particular child’s welfare. As is frequently stressed in the adoption literature, and in many submissions to the Commission, no individual or couple have the right to adopt a child.¹ This applies equally to local and to inter-country adoption.

6.3 The specific tasks of the selection process varies from one category of adoption to another. In some cases, such as step-parent adoption, there is no question of selection at all, the issue normally being whether the child’s welfare will be served by changing the child’s legal relationship to those who will continue to have custody of the child. In other cases, such as children with special needs, the main task may be to find people willing and able to care for a child with particular needs. In the case of healthy infants, the task may be to choose from a potentially very large number of applicants, many of whom would be well able to provide satisfactory families for the child.

6.4 It does not follow from the concept of the child’s welfare as paramount that the law should be unfair or discriminatory in the selection of adoptive parents. Indeed, unfairness or discriminatory approaches to this difficult task, as well as being objectionable in themselves, would be inconsistent with treating the child’s welfare as paramount. This issue will be considered in more detail after examining the present law.

THE PRESENT LAW AND PRACTICE

6.5 The present system gives the Department of Community Services and authorised adoption agencies the power to select parents using selection criteria that are specified by law. The selection process involves a number of different stages. To obtain an order for adoption, the applicants need to be approved by the Department of Community Services or an authorised adoption agency who present the application to the Court. The order for adoption can then be made only if the Court is satisfied about various matters.

Requirements for eligibility in the Act

6.6 The applicants must meet a number of requirements set out in the Act. For most of the legislative requirements, there is a degree of flexibility, and the Court is likely to relax them if this will promote a particular child’s welfare. In practice, they are likely to be relaxed when it is difficult to find a suitable placement for a child, and the prospective adopters, notwithstanding their failure to meet the particular requirement, appear well qualified to serve the needs of the child. This is most often the case where the child has a special need such as a physical disability.

Age

6.7 The applicants must normally be 21 years or older and must be either 18 years older (male applicants) or 16 years older (female applicants) than the child.² In addition, the Court is required to have regard to their age, and that of the child, in considering their suitability to adopt the particular child.³

Marital status

6.8 Subject to various qualifications, the Court may only make adoption orders in favour of married couples. In particular circumstances, the Court can make an order in favour of one person.⁴ In very restricted circumstances the Court can make an order in favour of a couple living in a de facto relationship.⁵ This kind of order can normally be made only in relation to a child who has been brought up by the applicants for at least two years and the applicants’ relationship must have lasted for at least three years. Such an order can also be made in relation to children with special needs and, where the child is Aboriginal, in favour of applicants who are Aboriginal.

Character

6.9 Each applicant must be “of good repute” and “a fit and proper person to fulfil the responsibilities of a parent”.⁶

Religion and education

6.10 The religious convictions of the applicants and their intentions regarding the religious education of the child are not relevant to their general suitability to adopt.⁷ However, the Court is required, when considering the applicants’ suitability to adopt a particular child, to have regard to the “religious upbringing or convictions (if any) of the child and of the applicant or applicants”.⁸ Under this provision the Court would consider, for example, whether it would be wise for applicants of one religion to adopt a child who had embraced the beliefs and practices of a different religion. There is a similar provision about education. The Court must have regard to the “education (if any)” of the child and the applicants.⁹ This appears to refer to the educational similarities between the child and the applicants and does not mean, for example, that the Court should prefer well-educated applicants.

6.11 Religion is also relevant in another way. The Act requires the Court to consider whether the applicants are suitable to adopt the particular child having regard to, amongst other things, “any wishes that have been expressed by a parent or guardian of the child in the instrument of consent...with respect to the religious upbringing of the child”.¹⁰ It seems clear that, although the contrary has been suggested,¹¹ this does not prevent an order being made contrary to such wishes, since the wishes are only one of a number of relevant matters which have to be taken into account. The provision is controversial because it assumes that the wishes of the relinquishing parents are a relevant consideration when assessing the suitability of the adoptive parents.¹²

Health

6.12 The state of health of the child and the applicants is also relevant.¹³ In practice, this has been interpreted as requiring that the state of health of the applicants should not interfere with their ability to look after the child.

Other prescribed eligibility requirements

6.13 Under the powers contained in the regulations made under the Act, the Director-General of the Department of Community Services has published more specific criteria for the assessment of adoption applicants.¹⁴ The assessment of a couple is based on a mixture of specific requirements, such as having Australian citizenship, and more general requirements, such as being “of good character and repute” and “mature and well-adjusted”.¹⁵

6.14 Each applicant must have “the capacity to be a loving parent to an adopted child and to meet the social, cultural and special needs” of the child.¹⁶ The criteria also require applicants to “have the capacity and willingness to... ensure the child is fully aware of his or her...culture and origin from the time of placement”.¹⁷ Applicants are to be between 21 and 55 and must not be more than 41 years older than the child proposed to be adopted.¹⁸ If they have a child, the child must be at least two years older than the child to be adopted.¹⁹

6.15 There is also a requirement that the couple be infertile.²⁰ Unlike all the other criteria, which apply to all categories of adoption, this requirement does not apply to applicants for inter-country adoption.

Non-prescribed eligibility requirements

6.16 It appears that in addition to the prescribed matters, both the Department and the agencies require applicants to conform to other requirements. Some of these are described in this section. Since these are matters of practice it may well be that the Commission’s present understanding is incomplete. The Commission would be glad to receive comments on the accuracy and comprehensiveness of what follows.

Undertakings for one parent to be a full-time carer

6.17 A recently approved Department policy requires both local and inter-country adoptive parents to give an undertaking that one of the parents will be a full-time carer for the child for six months after placement. The undertaking will be included in the general “agreement and undertaking” the adoptive parents have to sign when they take the child into their care. The Department’s rationale is that adoptive parents have not had the nine month bonding process with their child that biological parents have had and they consequently need that time to bond with their child. The Department argues that adoptive parenting is different to biological parenting and that in accordance with the gazetted criteria, the parents need to be able to meet the “special needs” of an adopted child.²¹ Those “special needs” include a full-time parental carer for six months. The policy only applies to adoptive parents of pre-school age children.

6.18 The Department is particularly concerned about inter-country adoptees needing this full-time carer. Department officers feel that children who have been institutionalised and then moved to another country need time to settle in and “attach” to their new parents. If they are not given this opportunity, they may never attach.

6.19 Problems have apparently arisen in this area. On occasion, parents have signed an undertaking to stay at home for six months but have immediately returned to work once they have picked up their child. Undertakings are not binding so the Department cannot force people to comply with them.

6.20 While there may be cogent arguments in favour of requiring one adoptive parent to stay at home for six months, there are also arguments against this. The requirement would appear to restrict adoption to those who can afford to live on one income alone (unless the couple have jobs which entitle them to parental leave). The requirement appears to be based on assumptions that would be questioned by many parents in the community today, namely that good parenting requires one full-time carer for the child or, perhaps, that young children need to be in the care of their mothers. These assumptions appear to reject the contrary view that parents who have flexible jobs or part-time jobs are capable of bonding with their child in the hours before and after work and on weekends. The Commission would be glad to hear comment on the desirability of such a requirement.

Other requirements imposed by agencies

6.21 The Commission understands that the private agencies have developed additional criteria which applicants must meet to be accepted by those agencies. Examples are lower age criteria, religious affiliations²² and acceptance of open adoption. An example is that Careforce apparently insist that applicants accept news and information exchange. In general, there appears to be a perception that private agencies have greater autonomy and flexibility than the Department to determine selection criteria. The Commission would be glad of comments in this area.

Assessment of applicants and allocation of children to approved applicants

6.22 All applicants normally go through an initial process of registering their interest in adoption and providing certain information, and also attending information sessions. This initial process is intended to serve an educational purpose, and a significant number of applicants, on learning what adoption involves, decide not to pursue their application. The Department attaches considerable importance to this initial procedure.

6.23 Those who remain applicants are then assessed for their suitability. The assessment of applicants and the allocation of children to approved applicants varies from one category of adoption to another. In the case of local adoption of healthy infants, there are, as already noted, far more people wishing to adopt than there are Australian children available for adoption. It seems that many of these people would fulfil the legislative requirements set out above. In practice, as the Commission understands it, the agencies periodically approve a limited number of applications so that at any given time there is a pool of potential adopters with whom available children may be placed. This pool may consist of as many as seventy couples, the general intention being that it should be large enough to include a range of adopters who will be suitable for the diverse needs of the children, but small enough that persons in the pool will have a realistic chance of having a child allocated to them within a reasonable time. The selection of people for particular children is not governed by any particular rules (for example, there is no “first come, first served” principle), but is essentially a professional decision made by the agency staff, based on their views about which of the available adopters will best meet the immediate and long-term needs of the particular child.

6.24 The practice relating to the pool has been described as follows:

Management of the “Pool”

All agencies involved in the adoption placement of locally born infants place approved applicant adoptive parents in a “pool” from which they can be selected as the most suitable adoptive parents for a child.

In the Department applicants are accepted for inclusion in adoption training and assessment programs on the basis of minimal information provided in expressions of interest. If they then meet gazetted criteria placement in the pool is guaranteed. If more extensive information was known about some applicants at the time they were selected for training and assessment then it is possible they would not have been included. The use of minimal information to select applicants for assessment may equally keep out very suitable applicants from the “pool”.

Although applicants are selected to be assessed for approval on the basis of their having qualities which make it likely that they will be placed with a child within 2 years of approval some remain in the pool for a greater length of time. The main difficulty with the “pool” system is addressing the issue of applicants who remain unselected in the pool for greater than 3 years. This is an issue for all agencies who may need to address the methods of selection for including applicants in training.

The pool system has been operating since 1987. In the first few years having applicants in the pool who were approved for adoption but unlikely to be placed with a child did not pose a problem but as the number of these applicants accumulates the issue of their continued pool membership needs to be addressed.

Perhaps in response to frustration and a desire to be able to select adoptive parents suitable to the needs of a child some agency workers would like a maximum time of “pool life” to be considered eg 4 years. Under this suggestion any applicants who had not had a child placed with them within 4 years would be removed from the approved applicant pool. Applicants who currently continue to meet minimal gazetted criteria cannot be removed from the “pool”.²³

6.25 In “special needs” adoptions, the Department maintains a list of potential adopters, and from time to time advises them, by circular letter, of particular children who become available for adoption. Expressions of interest are invited. If more than one potential adopter comes forward, the Department selects the adopter, or adopters, considered to be the most suitable for that particular child.

6.26 In “special case” adoptions, and step-parent and relative adoptions, as previously explained there is normally no selection process required, as the question is whether the children’s legal relationship with the person having their care should be changed by adoption.

6.27 In adoptions of wards, there may be a selection process using the pool, or, where the child is in foster care, it may be that the only question is whether the foster parents should adopt or should remain as foster parents.

6.28 The above paragraphs are also generally applicable to the selection processes used by private agencies, although the private agencies are not involved in all the categories of adoption. Generally, each agency selects from among the intending adopters who have applied to and been approved by that agency. The Commission understands, however, that in some cases, especially involving “difficult to place” children, there can be co-operation among agencies, and the Department, so that if the agency concerned has no suitable adopters, approved applicants from another agency might be considered.

The Court’s discretion

6.29 If the applicants satisfy all the requirements and receive a child, the Court may, on hearing the application, make an order for the adoption of that child. In making its decision the Court must regard the child’s welfare as the paramount consideration and must be satisfied that the child’s welfare and interests will be promoted by the adoption.²⁴ It is thus possible that the Court will refuse to make an order in favour of applicants who have been approved to adopt the particular child. In practice, however, this is extremely unlikely, as, in the present system, the child has usually been with the intending adopters for a considerable time before the matter comes before the court.

PARTICULAR ISSUES RELATING TO SELECTION OF ADOPTIVE PARENTS

6.30 Present practice of adoption in New South Wales places a great deal of emphasis on the process of selecting adoptive parents. In the case of local infants and inter-country adoptions, the process has led to a number of complaints. To some extent, these complaints appear to resent or misunderstand the need for assessment or appear to assume that infertile couples have a right to a child, and to that extent have been dealt with in the introduction to this Chapter.

6.31 Some comments, however, raise more serious issues. A recurrent theme is that the process is “discriminatory”, and this issue requires separate consideration.

Discrimination

6.32 The question arises whether some decisions that might be made in adoption, for example the selection of married couples in preference to unmarried couples, might violate the Anti-Discrimination Act 1977 (NSW) (ADA), and, more generally, what should be the relationship between the adoption laws and the ADA. A detailed consideration of this issue is more a matter for review of the ADA than the adoption legislation, but at least a brief consideration is necessary here.

6.33 It is important to realise that the ADA is restricted in two main ways. It applies only to discrimination on particular grounds, namely race, sex, marital status, physical impairment or homosexuality. Second, it applies only in particular areas, such as employment, and education. The main question then is how adoption relates to “the provision of services” as defined in the anti-discrimination legislation. The Anti-Discrimination Board (ADB) has submitted that adoption involves the provision of services (both to the relinquishing and adoptive/fostering parents) and as such, should not discriminate on any of the grounds listed above.²⁵ There may be room for argument about whether adoption falls within this phrase. It is now well established that in adoption the child’s welfare is the paramount consideration, and that the main concern is to find homes in order to benefit children, not to supply children for the benefit of intending parents. It could therefore be argued that adoption should not be seen as an area in which there is “provision of services”, and that the ADA does not apply. On the other hand, as the ADB has submitted, it might be that the selection of adoptive parents could be considered the provision of a service for the purpose of the Act. Similarly, if it were to be argued that some aspect of adoption practice discriminated among children on such grounds as race, it might be said that the adoption practice involved the provision of a service for children.

6.34 For the purpose of this discussion, it will be assumed that at least in some areas adoption involves the “provision of a service” within the meaning of the ADA.

What is the “discrimination” that the Act forbids?

6.35 While discrimination on each ground (race etc) is separately defined, the following definition, relating to marital status, is typical:-

39(1) A person discriminates against another person on the ground of his marital status if, on the ground of -

(a) his marital status;

(b) a characteristic that appertains generally to persons of his marital status;

(c) a characteristic that is generally imputed to persons of his marital status,

he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different marital status.

39(2) ...

39(3) A person discriminates against another person on the ground of his marital status if he requires the person discriminated against to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons not of the same marital status as the person discriminated against comply or are able to comply;

(b) ...

(c) with which the person discriminated against does not or is not able to comply.

6.36 The application of the ADA is however limited by the following provision:-

54(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for him to do it in order to comply with a requirement of -

(a) any other Act...

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act;

(c) an order of the Tribunal;

(d) an order of any court...

6.37 Under the present law, acts which are “necessary” as a result of the adoption legislation are not forbidden by the ADA. Where the adoption legislation requires that preference should be given to married couples who wish to adopt, doing so would not be prohibited. Similarly, if the legislation provides that those responsible for assessing applicants should assess which applicants will best promote the welfare of the child, and in doing so should take into account various matters, it seems clear that assessments made in good faith and on a professional basis, taking those matters into account, would not constitute unlawful discrimination under the ADA. This would be so even if they led, for example, to a higher rate of approval of married couples than of individuals or people in de facto relationships or other family structures. Age provides another example; an arbitrary preference for adoptive parents of a particular age might be vulnerable to attack as discrimination, whereas a policy of preferring applicants whose age in relation to the child would be normal for the community might well be defended as an appropriate selection criterion, based on the child’s welfare.

6.38 The Anti-Discrimination Board, noting the exception under s 54, has submitted that the Department of Community Services, like other agencies which administer legislation containing discriminatory provisions:

...should be given 3 years to either amend the legislation or convince a parliamentary committee that it should remain despite the fact that it is discriminatory.

Adoption laws and policies should:

1. not discriminate either directly or indirectly and should conform with international human rights standards

2. redress the consequences of past discriminatory law and policy

3. observe the standard of the child’s interests being paramount by selecting adoptive parents on the basis of ability to meet the child’s interests, not on the basis of stereotypes about marital status, sexual preference, age, etc

4. addressing (sic) the resolution of potential conflicts of rights by using the principles of proportionality (for example in the case of conflicts concerning religion, whether the harm the law or policy seeks to prevent is proportionate to the threat to the belief or practice at stake) and least intrusive means.

6.40 Discrimination of the kind envisaged by the legislation, for example preference for or against members of particular racial or religious groups, would clearly be objectionable. However in the context of adoption they would be objectionable both in themselves and because they would be unrelated to the fundamental objective of adoption, to promote the welfare of children.

6.41 On the four principles asserted by the ADB, the Commission’s preliminary view is that the first is acceptable so long as it is applied consistently with the paramountcy of the child’s welfare. It is appropriate for the law of adoption to select adoptive parents on the basis of their capacity to promote the welfare of the children concerned. Clearly it is wrong to discriminate in the sense of giving preference to intending adopters on grounds that are unrelated to the welfare of the children. An important example, discussed below, is a preference for infertile couples. On the other hand it is appropriate to prefer adopters who have characteristics that indicate they would be better able to promote the children’s welfare than adopters who lacked those characteristics. 6.42 This view appears to conform with the fourth principle suggested by the ADB. Indeed quite a number of submissions linked non-discrimination with the child’s welfare, urging that a focus on the welfare of children, combined with an unbiased consideration of the evidence on parenting capacity, would tend to eliminate discriminatory practices.²⁷

6.43 It is important, as the ADB submits, that adoption does not rely on stereotypes. There should be a focus on the needs of each child who becomes available for adoption; such a focus should avoid stereotyping, both of the child (whose individual needs must be considered) and of the applicants (whose individual capacities need to be considered). Consistent with this, however, it is appropriate to take into account those characteristics of applicants that are reasonably thought to be helpful in predicting their suitability as adoptive parents.

6.44 The Commission takes the suggested second principle to mean that adoption laws and policies which have been discriminatory should be removed, and that if necessary measures should be put in place which would prevent such discrimination in the future. As indicated below, the abuse of adoption and child welfare laws in the past in order to assimilate Aboriginal children requires careful consideration in this regard. Understood in this way, the principle is valuable, and indeed it underlies some of the proposals outlined in this Chapter.

6.45 The second principle is not appropriate, however, if understood in a way that would compromise the welfare of children. Thus if it were considered that Parents A would promote the welfare of a particular child better than Parents B, it would be wrong to place the child with Parents B, even if it could be shown that people in the category of Parents B had been unfairly discriminated against in the past. The interests of children today should not be sacrificed in an effort to redress past injustices.

6.46 The fourth principle raises difficult issues. In brief, it appears appropriate if it suggests that the law’s means should not be excessive or unduly intrusive, but not appropriate if it means that other interests can be allowed to prevail against the welfare of children. For example, it is reasonable to say that the process of assessment of intending adopters invades their rights to privacy. It is permissible, however, if the measures taken are really necessary in order that the selection process can maximise the chance of finding the most appropriate adopters for each child. It is not a matter of balancing the degree of intrusion into the applicants’ privacy with the degree of benefit to the child. The principle also suggests, however, that it is important that persons seeking to adopt should be given full information about the nature of the assessment process, so that they can make an informed consent. As we shall see, this may have particular application in relation to inter-country adoption.

6.47 In summary, the Commission’s provisional view is that the principle that the child’s welfare is paramount and the need to avoid unlawful discrimination are fundamentally in harmony. Both require that the law should be based on grounds that relate to the welfare of the children, rather than on grounds which are based on stereotypes or are otherwise unrelated to children’s welfare, or which seek to use adoption to achieve some other social ends. The application of this approach will require some further consideration in relation to particular aspects of adoption law, especially in relation to the selection of adopters.

Infertility

6.48 The present law treats infertility as an eligibility criterion in the case of local adoption but not in the case of inter-country adoptions. This apparent inconsistency may reflect the difficulty of the present topic, namely whether infertility should be among the matters taken into account in assessing applicants for adoption. Although much discussion of adoption proceeds on the assumption that the child’s welfare is effectively the only principle, in at least one respect existing law and practice cannot be seen in this light. The law’s preference for the adoption of children by infertile people cannot easily be related to the child’s welfare. There seems no evidence, and it would seem not even any argument, for the proposition that infertile people make better adoptive parents than people who have children of their own, or who are capable of having their own children. The Commission has received diametrically opposed submissions on this subject.

6.49 Both Centacare (Newcastle) and the NSW Committee on Adoption submitted that infertility should not be a criterion in the selection process. Centacare (Newcastle) stated:

Currently infertility is an eligibility criteria which has resulted in some belief that adoption is a service for infertile couples to have children, whereas the purpose of adoption is to find a suitable, permanent family for a child unable to be cared for by its birth parents. Exclusion of infertility as an eligibility requirement could reduce this perception and ensure the potential pool of adoptive parents includes couples who have been assessed as being suitable adoptive parents.²⁸

6.50 The Anglican Adoption Agency also supported removing infertility as a criterion.²⁹

6.51 By contrast, the Women’s Action Alliance [WAA] suggested that an adoption application should only be granted to infertile married couples, on the grounds that it is “only just” that the relatively few available children should be made available to people who cannot have biological children of their own.³⁰ Infertile couples have told the Commission that they think it would be unfair to allow fertile couples to apply to adopt as this would discriminate against the infertile and increase their difficulty in creating their family.

6.52 The “needs” of infertile people to have children of their own are closely linked with assumptions and aspirations in the community. If there are strong community expectations that most adults should have children of their own, couples will be inclined to see infertility as a problem. If such community expectations were weak, and if many fertile couples chose not to have children, infertile couples would presumably be less likely to see themselves as having a problem or need.

6.53 In these matters personal needs and aspirations are combined in a complex way with perceived altruism on the part of adoptive parents. There would be few adoptive parents who would claim that their own needs played absolutely no part in their decision to adopt children. Some infertile couples experience great disappointment on discovering their infertility, and then may undergo long, costly and stressful attempts to have children by assisted conception methods such as artificial insemination. They might turn to adoption as the last available option, and in some cases will do so only when they are towards the end of the normal child rearing ages. The literature, as well as the Commission’s own inquiries, indicates that for some people the desire to adopt is very strong and urgent. The urgency may be accentuated when the applicants learn of the deprivation suffered by some children in Australia and overseas, and the potential of adoption to serve both their own needs and those of the children. The task of disentangling self-interest and altruism in these cases would be daunting indeed, and many accounts by people who have been through the experience indicate that intense self-questioning and re-evaluation is often involved.

6.54 In this context, adherence to the principle that the child’s welfare is the paramount consideration has important ramifications. It means that adoption should not be seen as a relief or remedy for infertile couples, but as a service for children. In a number of areas, it stands between intending adopters and what they might see as a reasonable response to their own needs. One of these areas is the relevance of infertility in the selection of adopting parents. To put it briefly, from the point of view of the needs of infertile couples it might seem that justice requires that available children be placed with them; but it could also be argued that from the point of view of the welfare of the children, there is no satisfactory reason to give preference to infertile couples. The needs of children and the needs of intending adopters may conflict. For example, some older children, who have suffered various types of abuse, may be unable to bond completely with an adoptive family. Barnardo’s Australia have found that in some cases it is preferable for the child and adoptive parent(s) to sign a contract with each other, clearly stating their roles and responsibilities to each other so that neither party can entertain false expectations of the others. Such arrangements may fall short of the aspirations of infertile couples to have a family of their own, but may be desirable for the children.

6.55 Historically, there has often been a close connection between adoption and infertility. Infertile couples have often been advised to consider adoption as a “solution” to the “problem” of not being able to “have a family”. In other societies, and at other times, children have often been placed with childless couples or individuals, often within the extended family, with the aim of spreading the workload of child-rearing, although in such cases it is no doubt generally assumed that the children would be satisfactorily raised. However it appears to be widely accepted that adoption law should be based on the principle that the child’s welfare is paramount, and indeed this is required by the Convention on the Rights of the Child.³¹

6.56 It can be argued that it is contrary to the child’s interests to give preference to infertile couples, because to do so narrows the range of potential adopters and thus limits the field of choice. In theory, any narrowing of the pool of possible adopters might eliminate some people who would have been the best for the child. In practice, however, there are limits to our capacity to rank suitable adopters in order of merit. It is a difficult enough task to distinguish between suitable and unsuitable adopters. At least in the case of healthy local infants available for adoption, the number of suitable infertile couples, it could be argued, is so large that adding fertile adopters to it would not in reality improve the quality of adoptive placements.

6.57 This argument is more difficult to maintain in categories of adoption where the number of potential adopters is small, as with “special needs” children. If we assume that only a few people would be willing to adopt a “special needs” child, it may indeed prejudice the child if a preference for infertile adopters led to the exclusion of fertile adopters who might be demonstrably better for that child than any of the available infertile adopters. It is not surprising, therefore, that in practice infertility is not insisted upon in this category of adoptions; many of those who take “special needs” children are older parents, with families of their own. Their experiences within their own families, for example in caring for a child with a particular handicap, may be directly relevant to their suitability for the child in question.

6.58 The argument also assumes that infertile couples are at least as likely to be suitable as fertile couples to adopt children. If fertile adopters were significantly better adoption prospects than infertile couples, giving preference to the infertile could be seen as compromising the welfare of the child.

6.59 It is very difficult to estimate the respective merits of fertile and infertile couples as adopters. One difficulty is that, since we have had a preference for infertile couple, relatively few couples with children of their own have actually adopted. Another difficulty is that any research on past adoptions will largely be a study of people who have adopted in the climate of “closed” adoptions. If we assume that the policy of openness is here to stay, the welfare of children now being placed for adoption will be influenced by the capacity of their adoptive parents to be “open adoptive” parents. It is possible that this will be more difficult for infertile couples than for fertile couples. Perhaps fertile adopters, having their own children or the potential of their own children, will find it easier than infertile adopters to acknowledge the importance of the child’s biological links, and to have a relationship with the birth parents. While their strong desire for children might well suggest that infertile couples would be very committed to the welfare of their adopted children, it is possible that the intensity of their feelings may lead to difficulties, especially in the context of open adoption. On the other hand, although their experience with other children, and the presence of other children in the family, might be advantageous, it is not clear to what extent there is a demand for adoption among fertile couples. It is possible that they may be less committed to the adopted child than infertile couples.

6.60 We cannot confidently state whether infertility is an advantage or disadvantage to intending adopters. Therefore, a strict approach to the principle that the child’s welfare is paramount would suggest that infertility, being at best irrelevant to the child’s welfare, should not be considered at all. Retaining a preference for infertile couples seems a clear violation of the principle that the child’s welfare is to be the paramount consideration, a principle which is affirmed in the Convention on the Rights of the Child, and in the existing Adoption of Children Act 1965 (NSW).³²

6.61 Other compromise approaches could be taken. The law could proceed on the basis that it is proper for the law to seek to accommodate the needs of infertile people provided that there is no disadvantage to the child.

6.62 The Commission has knowledge of one agency which has removed infertility as a criterion for adoption of infants.³³ Although this criterion was removed three years ago, the majority of applicants have continued to be those with a declared infertility. The agency has not been overwhelmed with applications from fertile couples wishing to extend their families through adoption. By removing infertility as a criteria the agencies believe they have widened the range of suitable families for the children relinquished through that agency. They believe that in some instances persons with previous parenting experience have qualities which are required for specific children.

6.63 The Commission’s provisional view is that in relation to infertility the rules should be the same for local and inter-country adoptions. There should be no requirement that applicants should be infertile. The Commission has not yet reached a conclusion on whether infertility should be taken into account in a limited way as a method of choosing between applicants who are otherwise indistinguishable in terms of suitability to adopt children. If it were to be so taken into account, the law would base selection in the first instance on criteria that relate to the child’s welfare, but would also state that, provided that there is no disadvantage to the child, preference should be given to infertile applicants. The Commission would welcome submissions on this general topic, and in particular on this issue.

Marital status and family structure

6.64 Discussion about marital status as a selection criterion often reflects differences about personal and social morality. The question appears to be to what extent, if at all, marital status is a useful indicator of an individual’s or a couple’s suitability to adopt. If marital status were to be considered as an advantage, a number of possible legal consequences might follow. At the most extreme, the law could simply forbid adoption except by married couples. Another option would be a rule that people other than married couples could adopt only in particular cases, for example, particular categories of children, or cases where no married couple was available to adopt a child. An alternate version would be that the law could state that in assessing the suitability of adopters, a married couple should be assumed, other things being equal, to be better able to promote the welfare of children than other applicants.

6.65 A closely related criterion is family structure. Some submissions suggested, for example, that a stable heterosexual couple, whether married or not, should be preferred to others types of applicants, such as single applicants or homosexual partners. No doubt some of those who preferred adopters to be married treated marriage as an indication that the family would have certain characteristics, such as a commitment to a long-term relationship and to providing a warm, secure and stimulating environment for children. Some, though not all, would accept that the significant number of other family structures in the community, and the high rates of marriage breakdown, make marital status only an approximate guide to the strengths of the applicants.

6.66 The United Nations has declared 1994 to be the International Year of the Family. The Social Policy Directorate³⁴ has recommended that consideration should be given to promoting a concept of the family that recognises diversity both of individuals and of society itself.³⁵ The Australian Institute of Family Studies has produced the following definition of families:

‘Family’ means to each of us different things, so to try to generalise and say what is ‘normal’, ‘typical’, ‘traditional’ can mislead our thinking and ignore the diversity of realities facing families in the 1990s.

‘Family’ is not so much a matter of form, or type, or who is in it, as it is a matter of sharing, emotional closeness, mutual support, caring and creating and passing on values and traditions to the next generations

‘Family’ involves individuals who share common resources but who also have individual needs and rights.

‘Family means both cooperation and conflict, both rights and responsibilities, both privacy and public obligations.³⁶

6.67 As in the case of marital status, views about the respective merits of different family structures could be translated into a variety of legal proposals, from proposals forbidding adoption by the less favoured groups, to proposals that the law should assume, other things being equal, that certain family structures are more likely than others to promote children’s welfare.

6.68 Perhaps predictably, submissions in this area indicated a wide variety of views. The ADB submitted that the Act should be amended so that de facto couples and single persons would not be eliminated on the basis of their marital status, pointing out that a variety of families exist in “real life”, and that the policy of the Act and of the Board which implements it should not be based upon prescriptive “ideal concepts” of the family.³⁷ The Women’s Electoral Lobby has also indicated that the current law and practice discriminates against de facto couples.³⁸ The Gay and Lesbian Rights Lobby argued:

The emphasis on marital status should be removed from the legislation. It assumes that people who have made a public commitment by way of marriage and who have legal responsibility to each other are more likely to provide a child with stability and security. This assumption is problematic for a number of reasons:
• A single person is equally capable of providing responsible and effective parenting to a child. Indeed it may even by argued that the threat of the adopters relationship breaking down is removed when it is a single person who adopts the child.
• Married couples may end their relationship. When the relationship breaks down the arrangements for the child depend largely on the individual circumstances of each parent which may not be in the best interests of the child.
• Lesbians and gay men cannot make formal public commitments to their relationship. There is no justification for regarding a factor, such as public commitment as a determinant of suitability for adoptive parents.

6.69 By contrast, the Women’s Action Alliance (WAA) has submitted that adoptions should be restricted to being in favour of married (infertile) couples, arguing that such relationships provide the most secure and stable environment for the child to grow up in.³⁹ The Country Women’s Association (CWA) presented a similar view, submitting that adoptions should be made to couples who were not married only in exceptional circumstances.⁴⁰ The WAA has drawn upon the recent report of the United States’ National Commission on America’s Urban Families in support of its views. The WAA believes that approval to single person adoptions ratifies a point of view which says that the one person (usually the father) is not important in the upbringing of the child, while de facto relationships lack the requisite commitment and stability for the adoption of a child to be workable.

6.70 Submissions from organisations working in the adoption area tended to argue that placements should generally reflect community norms, but should be sufficiently flexible to allow for children to be placed with single people, or non-traditional families, when this was appropriate for a particular child. A sample of submissions follow:-

Burnside:

Marital status should be revised so that single people are eligible to adopt. There is no guarantee that marriage results in the stability of a relationship. Thus, de facto relationships are then considered one of the range of relationships able to adopt. As indicated this is especially appropriate for Aboriginal children and children with special needs.⁴¹

The raison d’etre for the Anglican Church auspicing an adoption agency is to provide Christian families for children. As such intending adoptive applicants are in a married rather than de-facto relationship. However, should the needs of a child be better met by a single parent, such an applicant may be considered.⁴²

The New South Wales Committee on Adoption:

Based on practice wisdom and research it is known that children feel most secure and accepted when they are placed with families whose characteristics are within the norms of their community. A child, by virtue of his/her adoptive status is already different from his/her peers and unless he/she has identified needs which necessitate placement outside community norms that child should not be further marginalised.

The issue becomes contentious when selection criteria is (sic) applied to applicants at the time of their application to be adoptive parents and not at the time of the placement decision when the needs of a specific child would be known.

Currently all adoption agencies accept applications for the healthy infant and overseas adoption programs from those applicants who are within community norms. Such norms are usually reflected in criteria relating to age, length of relationship etc. In these programs the child is either too young to have identified specific needs, apart from those required by all children, or for whom no background information is available which would indicate the desirability of a placement outside community norms.⁴³

Centacare (Adoption Services):

Adopted children should not be marginalised. They should have the right to be placed with a family falling within society norms and therefore eligibility criteria need to reflect prevailing community norms. Legislation must make provision for relaxing the criteria in certain circumstances if the attributes of a particular family are considered to put them in the position of best meeting a particular child’s needs, eg where there is a need for racial cultural continuity, medical/health needs of the child...

This agency recommends that provision for flexibility in the criteria needs to exist for situations where it is necessary to recruit families who may be better suited to meeting the specific needs of a particular child.⁴⁴

Centacare Newcastle:

The assessment criteria should be able to address relevant issues such as own childhood/family of origin experiences; strength of marital relationship; parenting experience; attitude toward and expectations of parenting an adopted child; intention to inform child of adoptive status and method to achieve this; attitude toward ongoing exchange of information with birth parents. These are no “subjective” matters, but issues which can be professionally assessed to gain an understanding of the applicants suitability to be adoptive parents and meet the needs of an adopted child.⁴⁵

6.71 In the Commission’s provisional view, the law should be flexible, so as to maximise the range of choice for children who become available for adoption. In relation to de facto couples, for example, there are many reasons why a couple may choose not to enter into a marriage but decide to cohabit. Some couples may wish to avoid a painful repetition of a past failed marriage or may only want a more fleeting and insubstantial sort of relationship. Other couples may decide not to marry for reasons that have nothing to do with the strength of their relationship, or their ability to commit to each other or a child. Marriage is neither a necessary nor a sufficient indicator that a couple have a stable relationship or that they have good parenting skills. The same applies to the traditional male-female family structure; this should not be assumed to be the only family capable of serving the needs of adoptive children. It seems to the Commission, that in terms of meeting the needs of the child, it is important to look at the strength of the applicants’ relationships with the important people in their lives, including their extended family, in order to predict their relationship with a particular child. The Commission is accordingly not inclined to favour restricting adoption to people who are married or who are members of particular types of families. It seems clearly wrong to say that homosexual couples, or single people, or de facto couples, can never be the right choice for any child.

6.72 On the other hand, there is some force in the argument that the experience of adopted children should not be rendered additionally different by being placed randomly or capriciously in atypical families. As indicated previously, the Commission is not presently attracted to the view that adoption placements should be used to redress past injustices or discrimination against particular groups in the community. The importance for children of placement in conventional family structures, however, should not be overstated. As is often pointed out, the Australian community today has many different family forms, and it would be wrong for adoption law and practice to be based on an assumption that only the traditional nuclear family is capable of serving the needs of children.

6.73 The Commission’s provisional view is that the formal eligibility criteria should be flexible. However guidelines should identify the sort of factors that may be taken into account in assessing suitability, and these should include marital status and family structures.

Sexual orientation: gay and lesbian applicants

6.74 The Act and the regulations are silent on the sexual orientation of adopting parents. Indeed, as pointed out in the Women’s Electoral Lobby (WEL) submission, there is at least one example in which the both the Court and the Department of Community Services consented to an adoption order in favour of a woman who was known by both to be involved in a lesbian relationship. The Department, according to the WEL, made it clear that the adoption was made as a single parent adoption, and not in favour of a “same-sex” couple.

6.75 Nevertheless, as submissions pointed out, a number of existing rules and policies make it very difficult for gay and lesbian parents to adopt. First, the legislation itself contemplates adoption only by a married couple, or (in limited circumstances) by a de facto heterosexual couple, or by a single person (as in the example mentioned above). It is legally impossible to make an adoption order in favour of other combinations of persons, including same-sex relationships. Second, the requirement that one partner be either infertile or under medical advice not to fall pregnant discriminates against gay and lesbian people who are not medically infertile.⁴⁶

6.76 A number of submissions, including the Gay and Lesbian Rights Lobby, the ADB and WEL have accordingly recommended that the Act should be amended so as to positively authorise the adoption of children by gay and lesbian couples.⁴⁷ The ACT Labor Party has approved a change of policy to ensure access to adoption for homosexual couples. A number of other submissions, individual and from organisations such as the Presbyterian Women’s Association, were strongly opposed to the prospect of homosexual people becoming adoptive parents, arguing that their lifestyle choices make them unacceptable as parents.

6.77 The question of homosexual parenting has frequently been dealt with by the Family Court of Australia in the context of disputes relating to custody and guardianship of children. In summary, the Court has taken the view that a parent’s homosexuality is simply one factor to be taken into account. In a much quoted passage, the first Chief Justice of the Family Court said:

the homosexuality of the mother, or lesbianism, is not of itself a disqualifying factor...It is necessary for the Court to consider the extent to which a homosexual or lesbian relationship affects the parenting abilities of the mother... The ordinary observations of life would lead me to the view that one lesbian relationship should not necessarily be judged by another. There may be many variations in the personalities involved, in the intensity of feeling, in the social relationship with other persons, male and female, heterosexual or homosexual. It could be a mistake to regard a person’s sexual proclivities as the dominating trait of their personality as if it were something that occupied their sole attention and thoughts...⁴⁸

6.78 There is a considerable body of literature on the issues relating to homosexual parents. It is not necessary to engage in an extended discussion here. The research evidence appears to indicate that children brought up in homosexual households are not disadvantaged by the experience. The question is whether the law should exclude homosexual individuals or partners from adoption, or should allow them to apply and be assessed for their suitability.

6.79 The Commission’s provisional view is that there is no established connection, positive or negative, between people’s sexual orientation and their suitability as adoptive parents. It follows that there is no good reason for the law to exclude people from seeking to adopt, on the ground of their homosexual orientation or family arrangements. These matters, like other aspects of their lives, should be taken into account in assessing their suitability as adoptive parents, whether in the context of placing them in the “pool” or in the context of considering them in connection with the placement of a particular child.

The wishes of birth parents

Religion

6.80 Jehovah’s witnesses. The Watchtower Bible & Tract Society, the organisation representing Jehovah’s Witnesses, has submitted that adoption practice has discriminated against Witnesses, at least in part because of their refusal to agree to accept blood transfusions for their children. The suggestion is that adoption policy has been based on the fear that a child adopted by Jehovah’s Witnesses could be placed in a dangerous or life threatening situation because of the refusal of the parents to consent to a transfusion, and that the child is at an increased risk of losing one or both parents by their refusal to submit to such treatment themselves.

6.81 The Society has submitted that such discrimination is unjustified because blood transfusion therapy is merely one of many available forms of medical treatment, and that doctors possess statutory authority to administer a transfusion in an emergency, which includes the power to override the possible objections of the parents concerned.⁴⁹ In regard to the risk posed by one or both of the parents dying through the refusal of a transfusion, the submission argued that there are other behaviours, such as smoking and driving a motor car, which are far more likely to cause death, and which are not subject to adverse assessments where adoption selection is concerned. The submission also referred to the ADB’s 1984 publication, Discrimination and Religious Conviction, which criticised the double standard by which some religious groups were forced to meet more exacting standards by requiring them to account for “remote hypothetical possibilities.”⁵⁰

6.82 Adoption law and practice should proceed on the basis that children are entitled to proper medical advice and treatment, and the merits of blood transfusions should be considered medically in each case. The Society’s point is well taken that the law provides for blood transfusions without parental consent in life-and-death emergencies,⁵¹ and in other cases it is possible to seek a court order allowing the transfusion. The Commission’s provisional view is that the law and practice should not distinguish between Witnesses and other people, although it is entirely reasonable that the assessment of all applicants should take into account, among other things, their willingness to provide appropriate medical care to children they might adopt. The Commission is inclined to agree with the ADB that Jehovah’s Witnesses should not be required to sign a form stating their agreement to blood transfusions.

The religious wish of birth parents

6.83 The existing provision that account may be taken of the wishes of relinquishing parents in relation to religion (but no other factor) no doubt derives from the history of adoption, in which adoption agencies under religious auspices played a prominent part. It might once have been argued with some plausibility that many mothers would not have been willing to relinquish their children for adoption unless they were confident that the baby would be placed with couples who would bring the child up in the religion of their choice. On the other hand, the rule appeared anomalous; why should the law respect the relinquishing parent’s wishes about religion but not about other matters?

Other wishes of birth parents

6.84 All agencies use profiles by which birth parents are able to select adoptive parents for their children. These profiles are non-identifying and have been prepared by the applicant adoptive parents. Nearly all birth parents at Careforce are involved in the selection of adoptive parents from profiles; 85% at Centacare and 60% at the Department.

6.85 All agencies believe that the birth parents should not have to shoulder the full responsibility about the placement decision for his/her child. Birth parents are not privy to all of the information which the agency holds on adoptive parents. The profiles, having been prepared by the applicant adoptive parents, do not contain any other agency-held information. All agencies are therefore in favour of birth parents only being provided with a selection of the most appropriate adoptive parents for a child.

6.86 There may well be a difference in how birth parents are approached to participate in the selection of permanent alternate parents for their children. If birth parents are told “it is agency policy that all birth parents are involved in choosing adoptive parents” they may respond in a different way than if they were casually asked “do you want to be involved in choosing adoptive parents?”.

The involvement of birth parents in the selection of adoptive parents may assist agencies to avoid difficult policy considerations as shown in the following scenario.

Scenario 3.

A birth parent had relinquished two children. The first child was placed by the Department with an adoptive family with whom she is very happy. When pregnant with the second child she approached a private agency as she did not wish to return to the Department and have the second child placed with the same adoptive parents as the first child. She saw this as her right to choose.

The private agency established that the two children had different birth fathers and that the father of the second child was part aboriginal. The agency then informed the birth mother that the child would have to either go to an aboriginal family or be placed with the first child. The birth mother wanted neither of these options for her child.

She did not want the first child to question why the two children had different skin colours and therefore possibly make assumptions about her and her way of life; nor, did she want the second child to be placed with an aboriginal family “because the child is more white blood than aboriginal blood, and because I am the mother and want to choose”.

The birth mother then went to the Department who explained that there were advantages placing the two part siblings together and that it was policy to place aboriginal children with aboriginal families. However they further gave her the option of being involved in the selection of adoptive parents and they undertook to place the child with the family she chose. Profiles of aboriginal and non aboriginal adoptive parents were to be included in the selection.

The situation did not eventuate as the birth mother revoked her consent. ⁵²

6.87 This issue has been rather overtaken by events because, as noted above, current practice is to involve relinquishing parents generally in the process of selecting adoptive parents.

6.88 The Commission’s provisional view is that the law should reflect modern practice and provide a framework in which the relinquishing parent’s concerns and wishes, whether about religion or about other matters relating to the child, can be heard and taken into account. Although this may appear, at first glance, to be contrary to placing the best interests of the child paramount, it will actually be in the child’s best interests for birth parents to be involved with the development of a plan for the care of the child that they feel happy with. This will enable birth parents to deal with the decision they have had to make and may facilitate a better open adoption arrangement.

Age

6.89 Opinions expressed in submissions to the Commission were divided on the issue of suitable age of the adoptive parents. Centacare (Newcastle) agreed with the existing policy of imposing an upper age limit for adoptive parents (currently 55 years), and has submitted that the law should ensure that there is not an age difference between the child and the adoptive parents of more than 40 years.⁵³

6.90 It has been argued that the law and practice should reflect the increasing age at which women give birth to children. Factors such as technological and knowledge advances in the field of obstetrics, the increased rate of participation in the workforce, and the changing roles of women generally, have been responsible for this increase, and were not foreseen at the time the original legislation was enacted. Accordingly, it has been suggested that there ought to be greater flexibility in the selection process with regards to the age limits of adopting parents.⁵⁴

6.91 Social workers within the adoption field have spoken to the Commission at length about the relevance of the age of the adoptive parents. On one hand it is pointed out that some people at 50 are as vivacious and lively as others are at 25. On the other hand, parenting can be regarded as a lengthy process, and social workers have worried about the adequacy of parents to perform their changing roles when, for example, they may be in their 60s when their adopted child begins the sometimes difficult teenage years. The ages at which women in Australia give birth are indicated in the figures produced by the Australian Bureau of Statistics. It is of interest that 99.97% of children born in Australia in 1992 were born to mothers less than 46 years of age, and 99.55% of children born in Australia had fathers of less than 46 years of age.⁵⁵ Social workers have informed the Commission of adoptees who have questioned why they were placed with older parents, who felt that the difference in age between their parents and those of the other children at school made them feel even more different.

6.92 Another concern expressed by social workers is that older adoptive parents may have lived for a significant amount of time without children in their lives and may find it much more difficult to adjust to the demands of modern parenting.

6.93 The Commission’s provisional view is that in general the regulation of adoption should attempt to ensure that the ages of the adopters in relation to the children are within the normal pattern in society, but that the system should be flexible enough to allow placements where this is shown to be appropriate for particular children. This principle should apply equally to local and inter-country adoptions.

Racial issues

6.94 Issues relating to race and ethnicity are discussed in some detail in Chapter 9.

GENERAL APPROACH TO SELECTION OF APPLICANTS

6.95 In this section we move from specific issues to more general questions relating to the way applicants are to be assessed and selected. This section draws on the previous discussion and sets out the Commission’s provisional approach to this difficult area.

6.96 The evidence available suggests that at present the legislation plays a small part in the actual practice relating to the selection of applicants, which has tended to develop independently from the legislation. A striking example is the practice of involving the birth parents in the selection of adoptive parents. There is nothing in the legislation to indicate that this should or should not happen. Such developments indicate that the law should be sufficiently flexible to accommodate change. On the other hand, it is desirable that the legislation provide a framework that is consistent with current approaches and provides both legal protection to people whose rights are affected by adoption and guidance to those who administer the law.

6.97 There appear to be several main areas to be considered:

• whether there should be universal legal requirements relating to eligibility to adopt children, or particular categories of children;
• the types of processes to be used in the selection of adoptive parents; and
• the criteria to be applied in the approval of applicants as eligible to be considered and in the actual allocation of particular children to approved applicants.

Legislative requirements

6.98 As already indicated, the Commission’s present view is that there should be very few specific legislative requirements relating to eligibility. Broadly speaking, children’s welfare is unlikely to be promoted if the law excludes from consideration individuals or families that might prove suitable adopters for some child or children. It follows that the legislation should not exclude people from applying to adopt on such grounds as their marital status or sexual orientation. These are matters that may well be relevant at a later stage of the selection process.

6.99 A separate question is whether the Act, while not absolutely excluding categories of applicants, should provide that certain categories of applicants should be considered only in special circumstances, or in relation to particular categories of children. The existing Act, as noted earlier, has such provisions. The Commission’s present view is that this type of regulation would be unduly rigid, and that such considerations can be more appropriately dealt with in guidelines.

6.100 For these reasons, the Act should exclude from consideration only those people who should not be allowed to adopt under any circumstances. The Commission is inclined to the view that the Act should merely provide that applicants should be over 21 years of age and must be at least 16 years older than the child. The law should also retain the requirement that they be fit and proper to fulfil the responsibilities of a parent. There seems no advantage in retaining as a separate requirement that they be “of good repute”. If there were a rare case where applicants were in fact ideal persons to adopt a child but for some reason, perhaps quite unjustified, had a poor reputation, the law should not prevent their application being examined on its merits.

The assessment process

6.101 The present reference does not require a review of the details of the present processes of assessment. This is a matter of administration and professional practice rather than legislative policy. However the Commission is generally impressed with the current approach. Initial information sessions appear to be effective in helping interested people make a realistic assessment of what is involved in adoption and of their own suitability. The method of maintaining a “pool” of approved applicants seems an appropriate way of dealing with the great imbalance between the large numbers of people who wish to adopt and the small numbers of Australian born healthy infants available for adoption.⁵⁶ The practice of involving birth parents in the selection of adoptive parents has been welcomed.⁵⁷ The existing practices of circulating information about “special needs” children seem generally appropriate for the important task of recruiting families for these children, since there may be very few potential adopters with the willingness and the ability to be able to cope with their needs.

6.102 The Commission is aware that because of the way the Department of Community Services is presently structured many of the important decisions are made by general field staff rather than specialist adoption staff. While it is obviously desirable that the most highly qualified staff possible should carry out the tasks relating to adoption, this too falls outside the present reference, being more appropriate to a review of the Department than a review of the legislation. Questions of staff deployment and departmental structure are not part of the present legislation and the Commission has received no submissions suggesting that they should be.

6.103 The following discussion, therefore, will proceed on the assumption that existing practices are appropriate, but that they will be subjected to continual revision and adaptation in the light of new knowledge and developments in the field.

Eligibility and “the pool”

6.104 This section considers the criteria for determining whether a person or couple are eligible to be considered for placement of a child. As explained above, in the case of local healthy infants the present practice is to maintain a “pool” of eligible applicants, numbering about seventy couples. When a child becomes available for adoption, consideration is given to which individual or couple currently within the pool is most suitable to meet the needs of that child. The number of people in the pool is considered to be large enough to provide adopters who will meet the needs of children, but small enough to make the allocation process manageable in each case. From time to time the Department adds to the pool as numbers become depleted as a result of adoption placements, or, in some cases, withdrawals from the pool. In selecting people for the pool, the Department has regard to the anticipated needs of children likely to become available for adoption over the next year or so. Thus, for example, if a significant number of children of a particular ethnic group were becoming available for adoption, the Department would normally seek to ensure that there would be some applicants of that ethnic group in the pool. However, they are often behind the trend because they must rely on the characteristics of the last group of children placed in order to construct the pool.

6.105 Guidelines relating to the pool might include such provisions as the following:

The selection of applicants for the pool shall be based on the following principles:

1. In these provisions:

(a) “Applicant” includes individual applicants and joint applicants.

(b) “The pool” means those applicants who at the relevant time have been approved as eligible to adopt children and whose applications remain current.

(c) An applicant is “suitable”, in relation to a particular child, if and only if:


(i) the applicant has been assessed as being able to meet the needs of that child;

(ii) no other applicants known to the Department appear better able to meet the needs of that child; and

(iii) it appears unlikely that another applicant might be found within a reasonable time and using reasonable efforts, who would be better able to meet the needs of that child.


2. At any given time, the membership of the pool should be determined having regard to the following considerations:

(a) the need to maximise the likelihood of placing children who become available for adoption with adopters who will meet their needs to the maximum possible extent.

(b) the desirability of avoiding undue delay between entry to the pool and placement of a child, and

(c) the need to give appropriate consideration to all persons currently in the pool in relation to each child becoming available for adoption.


3. Membership of the pool does not create any right to have a child placed with the applicant for the purpose of adoption.

4. In relation to each child becoming available for adoption, the Department shall consider in the first place whether any applicants are suitable to adopt that child. Birth parents should be given reasonable opportunity to be involved in the process of selecting applicants from the pool.

5. If an applicant in the pool is suitable to adopt the child, the child may be placed with that applicant for the purpose of adoption.

6. If no applicant in the pool is suitable to adopt the child, the Department may take such steps as it sees fit to arrange placement of the child with suitable adopters. Such steps may include making inquiries from other adoption agencies, and other individuals or organisations, and may include the use of advertising or other reasonable measures in order to seek suitable adoptive parents for the child.

Criteria for placement of children for adoption

6.106 The Commission’s approach means that the major decision is focused on the needs of particular children, rather than the general eligibility of applicants as adoptive parents. Membership of the pool will essentially be based on the selection of applicants who are judged most likely to meet the needs of the children who are expected to become available for adoption over the following period of, say, one to two years. The difficult questions relating to such matters as age, marital status and the like need to be resolved in relation to particular children. The task of the law is to provide guidelines for what is essentially a professional judgment based on each individual case. Because the guidelines may need revision from time to time, it seems appropriate that they be contained in regulations rather than the Act. The present draft, appearing at the beginning of this chapter, does not purport to be comprehensive, and will no doubt need considerable revision, but deals with some of the main issues canvassed in submissions. It is offered as an indication of the sort of guidelines the Commission considers appropriate.

1. For example, Centacare Newcastle Submission (1 September, 1993) at 3.

2. Adoption of Children Act 1965 (NSW), s 20. The requirement does not apply where one of the applicants is a parent of the child or where the Court considers that, in the particular circumstances, it is desirable to make the adoption order.

3. Section 21(1)(c)(i)(b).

4. Section 19(2). If the applicant is married, the spouse’s consent is normally required: s 19(3).

5. Section 19(1A), (1B).

6. Section 21(1)(c)(i)(a).

7. Section 21A, overruling the reasoning of Larkins J in Re an Infant E and the Adoption of Children Act [1974] 1 NSWLR 739.

8. Section 21(1)(c)(i)(b).

9. Section 21(1)(c)(i)(b).

10. Section 21(1)(c)(i)(b).

11. Re an Infant M and the Adoption of Children Act (1967) 87 WN(Pt 1)(NSW) 48.

12. In the context of “open adoption” the religious wishes of the birth parents may become more relevant, since if the birth parents had contact with the child or the adoptive parents during the child’s minority, this might affect the child.

13. Adoption of Children Act 1965 (NSW), Section 21(1)(c)(i)(b).

14. Adoption of Children Regulations 1966 (NSW).

15. New South Wales Government Gazette No 58 (8 May, 1992) at 3264, clauses 3 and 4.

16. Clause 2.

17. Clause 5.

18. Clause 6.

19. Clause 7.

20. Clause 9.

21. Clause 2.

22. It is understood, for example, that the Anglican Adoption Agency requires applicants to be practising Christians.

23. A Roughley, materials prepared for the Commission.

24. Adoption of Children Act 1965 (NSW), s 21(1) and s 17.

25. The Anti-Discrimination Board of NSW Submission (14 August 1993) at 1.

26. The Anti-Discrimination Board of NSW Submission (14 August 1993) at 1-2.

27. Gay and Lesbian Rights Lobby and the Lesbian and Gay Legal Rights Service Submission (September 1993) at 5; Burnside Submission (31 August, 1993) at 6 (“We agree that there should be non-discrimination on the basis of age, legal status, racial or other characteristics. That the best interests of the child should be the prime consideration”).

28. Centacare (Newcastle), Submission (1 September, 1993) at 4.

29. Anglican Adoption Agency, Submission (2 September, 1993) para 5.17.

30. Women’s Action Alliance (NSW) Submission (1 September 1993) at 2 and 3.

31. See further Chapter 12 below.

32. Section 17.

33. Information provided by A. Roughley, a private social worker, employed by the New South Wales Department of Community Services. She is an honorary consultant to Law Reform Commission’s Review of the Adoption of Children Act 1965.

34. The Social Policy Directorate addresses social policy issues across the whole of Government.

35. New South Wales. Office on Social Policy, Social Policy Directorate Background Paper for International Year of the Family (1994) in New South Wales (March 1993) at 2.

36. Office on Social Policy, Social Policy Directorate Background Paper for International Year of the Family (1994) in New South Wales (March 1993) at 2. This quote is from Families in the 1990s - a challenge for future policy approaches Background Paper prepared by Dr Don Edgar (Director) and the staff of the Australian Institute of Family Studies, for the NSW Social Policy Directorate.

37. The Anti-Discrimination Board of NSW Submission (14 August 1993), at 3. Similarly, the NSW Committee on Adoption did not regard the distinction between married and de facto status as being relevant to the adoption process: Submission, (9 September 1993), at 41.

38. Women’s Electoral Lobby Submission (24 August 1993).

39. Women’s Action Alliance (NSW) Submission (1 September 1993) at 2.

40. Country Women’s Association Submission (23 June 1993) at 2.

41. Burnside Submission (31 August, 1993) at 9.

42. Anglican Adoption Agency Submission (2 September, 1993), at para 5.9.

43. New South Wales Committee on Adoption Submission (9 September, 1993) at 40.

44. Centacare Catholic Community Services (Adoption Services) Submission (31 August, 1993) at 14 (original emphasis).

45. Centacare Newcastle Submission (1 September, 1993) at 4.

46. The Anti-Discrimination Board of NSW Submission (14 August 1993) at 9.

47. The Anti-Discrimination Board of NSW Submission (14 August 1993) at 9.

48. In the Marriage of Schmidt (1979) 5 Fam LR 421, Evatt CJ.

49. Watchtower Society Submission (23 July 1993) at 6.

50. Anti-Discrimination Board, quoted in Watchtower Submission (23 July, 1993), at 7-8.

51. Anti-Discrimination Board Submission at 5, quoting Children (Care and Protection) Act s 20A.

52. A. Roughley. This material was prepared by her for the Commission.

53. Centacare (Newcastle) Submission at 3.

54. Obstetric Social Workers Group Submission (7 September 1993) at 3.

55. 1992 Births Australia (Australian Bureau of Statistics, Canberra, Cat Np 3301.0), at 9-10.

56. For example the CWA has submitted that this system of assessing prospective adoptive parents should be retained, so that a suitable match of children and adoptive parents can be arranged: CWA Submission (23 June 1993) at 3.

57. Women’s Action Alliance (NSW) Submission (1 September 1993) at 4; Sharon Collins Submission (22 July, 1993) at 3.