PROVISIONAL PROPOSALS FOR REFORM

1. Consent should be obtained from those who already have parental rights and responsibilities in relation to the child, since those rights and responsibilities will be removed by adoption.

2. It would be sufficient for the legislation to provide that notice should normally be served on such persons so that they could, if they chose, apply for custody, guardianship or access, or appear or make representations relating to the proposed adoption orders. The existing provisions relating to fathers whose consent is not required, which are rather complex and unsatisfactory, should not be retained.

3. There is no need for the adoption legislation to contain complex provisions about presumptions of paternity, or to refer to the “putative” father. These matters are covered in other legislation. It is sufficient for the adoption legislation to refer simply to fathers.

4. The Commission proposes that parental consent should be required from both parents regardless of their marital status, and that applications to dispense with consent may be made either at the preliminary hearing or at the application for adoption.

5. The birth mother should not be allowed to consent to adoption until 30 days after the birth. The consent would become irrevocable after a further 30 days. It should be made clear that the mother could revoke the consent within the 30 days and begin the consent process again at any time. Counselling should be provided shortly before the expiration of the 30 day period, to ensure that the birth mother understands the position.

6. The form of consent should contain provision for the birth parents to express any views relating to the selection of the adoptive parents or the child’s upbringing. Such views will also be taken into account in the early planning of the adoption, and will be reviewed at the preliminary hearing. The birth parents’ interests will be protected by the hearing, and by the Commission’s proposal that the giving of consent does not have the effect of transferring guardianship to the Director-General.

7. The grounds for dispensing with consent should include the existing grounds under paragraphs (a)-(d) of s32. The grounds under paragraphs (e)-(h) should be abolished. They should be replaced with the ground that:

the court is satisfied that the welfare of the child will be so significantly advanced as to justify overriding the wishes of the parent or guardian.

POINTS FOR FURTHER DISCUSSION

The Commission would welcome comments on whether or not it is desirable to make provision for conditional consents.

The Commission welcomes comments on the different views surrounding the issue of the Court’s power to dispense with the parents’ consents in certain circumstances.

PARENTAL CONSENT REQUIREMENTS

7.1 Until very recently the only important rights of birth parents related to consent. Adoption law normally requires one or both birth parents to consent to the adoption, and there are special provisions designed to protect parents, especially mothers, from undue pressure, mistake, and other factors that might undermine the voluntary nature of the consent. In some circumstances, however, the court has power to make adoption orders even though one or both parents refuse to give consent. These rules about parental consent form a very important part of adoption law and give rise to important issues, considered in this chapter.

7.2 In recent times, however, practices associated with “open adoption” have introduced new questions relating to the situation of birth parents. They now have a legal right to identifying information about the adopted child when the child turns 18.¹ Under current adoption practice, they may play a part in the selection of adopting couples, and they may be provided with information about their child’s progress, although not normally information that would enable them to identify the child. The literature on adoption practice now frequently discusses even greater involvement of birth parents, including situations where the birth parents will be in contact with the adoptive family as the child grows up, a situation which can exist under present adoption law.

7.3 Under the present law, the rights of the birth parents depend to a considerable extent on the law relating to consent. Consent is generally required from the mother and father in the case of children of a marriage, and from the mother when the child is ex-nuptial.² It is also required from any person who is a guardian of the child. As we discuss below, the law is unclear about whether fathers of ex-nuptial children fall within this term.

7.4 A number of important issues are involved in the question of consent:

• Whose consent is required?
• How does the law seek to ensure that consent is given freely?
• Can the consent take different forms, such as being limited to the adoption of the child by particular people, or particular categories of people?

Current practice in relation to consent

Receiving consents

7.5 The use of temporary care orders prior to signing of consent. Some of the private agencies utilise temporary care orders for children prior to birth parents consenting to adoption. Temporary care orders allow the child to be placed in a foster home while the birth parent considers the option of relinquishment. During this time, the birth parent may be able to visit the foster home regularly. In some instances temporary care orders provide for a supported trial of parenting by the birth parents. Birth parents may stay at the home of the foster parent and care for the child with the support of the experienced foster parent.

7.6 Most children eventually relinquished through Careforce have had a period of temporary care prior to the birth parent signing the consent, as have 20% of the children relinquished through Centacare. The frequent use of temporary care orders is perhaps the reason why the revocation rates at Careforce is lower than the rates for the other agencies.

7.7 The advantages of temporary care orders are that they:

• allow the birth parent a trial separation from the child;
• enable the birth parent to attend to other areas of his or her life, without the presence of the child;
• enable a birth mother to recover from the birth of the child and to stabilise emotionally before the signing of the consent; and
• enable the birth mother to get to know their child with the support of a caring foster parent.

7.8 Departmental officers use temporary care orders as one of a range of options available to them in assisting families.

Whose consent is required?

7.9 Whatever the true legal position, it appears that in practice the consent of a father has usually not been required if the child is born outside marriage. This does not mean that agencies and the Department disregard the wishes of the birth father completely. Although policies vary, all agencies and the Department will make some effort to involve the birth father if it is appropriate or possible.

7.10 Involvement of the birth father may be problematic where the relationship between the birth parents has broken down or never really existed, or where the birth father is known to be violent or abusive. In these circumstances the birth mother may wish the birth father to have no involvement, but this desire must be balanced with the child’s right to know, or at least have information about, both of his or her biological parents.

7.11 Centacare have a policy of involving the birth father whenever possible giving priority to the need of the child to know about his or her biological origins. Consulting the birth father may also make the adoption order more legally secure. In the application of this policy, Centacare encourage birth mothers to identify the birth fathers. If birth mothers do not identify the birth father they are asked to sign an affidavit, which forms part of the adoption application documentation, declaring their decision not to inform the birth father.

7.12 Agencies are sometimes confronted by the situation of a birth father who denies paternity of a child, even though a woman claims not to have had a sexual relationship with any other person. The agencies cannot compel a person to undergo DNA testing to establish paternity. Agencies are not necessarily advocating such a step but are concerned that the child may be left without knowledge of his or her birth father.

7.13 A consequence of the varying policies regarding the involvement of birth fathers is that birth mothers may select an agency on the basis of whether or not the birth father will be involved. Birth mothers may elect to relinquish their child through the Department, rather than Centacare, for example, because they believe that there will not be as much pressure put on them to identify the father of the child.

7.14 It may be preferable to have more uniformity in the agency and Department policy in this area. A workable compromise may be to explain to birth mothers the importance of information about both birth parents to children and then, if the birth mother still does not want to identify the birth father, require her to sign an affidavit stating her reasons for not doing so. This affidavit should then be available to the child as part of the information available under the Adoption Information Act. This would avoid the possibility of the child believing in the future that his or her birth father did not care about him or her enough to place his name on the birth certificate.

The impact of privacy legislation

7.15 As a result of the relatively recent recognition of privacy principles in legislation, agencies are now limited in the ways in which they can locate birth parents whose name is known but whose contact address is not. Previously agencies were able to utilise the services of the Roads and Traffic Authorities, Electoral Rolls and the Department of Social Security (DSS) in their efforts to locate birth fathers to request their participation in the adoption process. Agencies are now limited to advertising in newspapers, an expensive and often ineffective exercise, or forwarding a letter through the DSS. The DSS will only forward these letters on the proviso that they do not contain the word “adoption” as the DSS considers this may be distressing to recipients of letters. Some adoption workers consider that this situation indicates that the right to privacy is being placed above the right to participate in the decision to place one’s child for adoption. This issue does not only apply to the adoption of locally born infant children but also to the adoption of children who have been in care for long periods of time and whose birth parents have ceased contacting the Department of Community Services.

Management of the revocation period

7.16 The private adoption agencies and the Department vary in their attitudes to the revocation period in which a consent to adoption can be withdrawn. All children for whom consents have been signed are placed in pre-adoption care with foster carers, but the agencies differ on how the revocation period is to be used and how frequently they will allow birth parents to visit the child.

7.17 Careforce do not place any restrictions on the visits which may be made by a birth parent to the child during the revocation period. In contrast, Centacare regard the revocation period as an experience of separation for the birth parent and consequently allow the birth parent to visit only once a week. Centacare workers explain to the birth parent that separation from their child “is for a lifetime” and that the revocation period is an opportunity to experience that separation. It is not just a “cooling off period”.

7.18 The Department have a similar attitude to that of Centacare. The birth parent must ring the District Officer to arrange for a visit to his or her child during the revocation period. The Department emphasises to the birth parent that he or she is no longer the guardian of the child.

7.19 For birth parents who want a chance to think about adoption, temporary care orders can be made, before the signing of consent. Temporary care orders, discussed above, allow the birth parent a trial separation and an opportunity to visit the child with the support of foster parents. This can all occur prior to consent being given so that the revocation period is not the only opportunity the birth parent has to explore his or her feelings about adoption.

Post-adoption services for birth parents

7.20 All agencies provide post-adoption counselling and support for birth parents irrespective of whether the child is placed with adoptive parents or whether the birth parent revokes consent and resumes care of his or her child.

7.21 Post-adoption services might include maintaining contact with a relinquishing birth parent and sending him or her information about the child at an appropriate time. For birth parents who revoke consent, post-adoption services might be the offer of housing assistance and the provision of respite care if the birth parent ever needs “a break”.

7.22 Although such post-adoption services are not specified by legislation, all agencies seem to believe they are an essential part of “good adoption practice” and incorporate them in their services.

Consent and the unmarried father

7.23 One of the most controversial issues in adoption law is the role of the unmarried father, and in particular whether his consent should be required. The term “unmarried father” is convenient but not entirely accurate, since we are speaking of the father of an ex-nuptial child: he may, of course, be married to somebody other than the mother of the child.

7.24 In the 1965 Act, the position was simple: consent was required from both parents in relation to nuptial children. In the case of ex-nuptial children, only the mother’s consent was required.⁴ The position of unmarried fathers was, in substance, that if they found out about the adoption proceedings they could seek leave to intervene and, if they wished, oppose the making of the adoption order.

7.25 Later amendments have changed this situation in two ways. First, in certain limited circumstances the unmarried father’s consent is required. Second, there are new provisions dealing with the situation of unmarried fathers whose consent is not required.

Consent required from certain unmarried fathers

7.26 In the case of ex-nuptial children, consent is required from the father as well as the mother only “where the parents lived together after the child’s birth as husband and wife on a bona fide domestic basis in a household of which the child formed part”.⁵ For convenience, we shall refer to this as the “common household” test. This test excludes fathers in the ordinary case where the mother gives consent shortly after the birth and the baby is immediately taken for placement elsewhere. The policy of the Act appears to be that the father’s consent is required only if he has an established relationship with the ex-nuptial child and the child’s mother. This provision was added in 1985 as part of a package of legislation increasing the legal recognition given to de facto relationships.⁶

7.27 It might be assumed that consent is not required from fathers falling outside the specific terms of the “common household” test quoted above.⁷ However, consent is also required from any person who is a guardian.⁸ The Family Law Act provides that the father of a child (whether or not ex-nuptial) is a guardian of the child.⁹ The Family Court has held that he is therefore a “guardian” whose consent is required under the Adoption of Children Act 1965.¹⁰ If this decision is correct,¹¹ the present position is that the unmarried father’s consent is required unless the father has not been granted custody and guardianship by court order, and he has not lived with the mother and the child in a household. Remarkably, the Commission has been informed that present departmental practice is to treat the consent of unmarried fathers who do not fall within the “common household” test as not required.¹² It is not necessary here to explore the merits of the competing legal arguments about the interpretation of the relevant state and federal statutory provisions. It is obvious that the Commission’s task is to identify what the law should be, and amend the New South Wales adoption legislation so it unambiguously embodies that view.

Notice to fathers whose consent is not required

7.28 The Act makes detailed provision for the situation of unmarried fathers whose consent is not required. The relevant provisions are limited to men who are registered as fathers or are legally presumed to be fathers.¹³ The agency is required to make inquiries to discover if any man fits this category. If there is such a man, a notice is to be served on him, telling him that the mother has consented to the adoption of the child.¹⁴ He may then, within two weeks, file an application “relating to the care custody and (sic) guardianship” of the child and the Court may determine such an application. If he fails to do so within the specified two weeks, the Act provides that he “may not...do any thing that is inconsistent with the making of” the adoption order.¹⁵ The policies of the various agencies in relation to assertaining the identity, and subsequently finding an unmarried father, have been discussed above, as have the difficulties agencies may have locating men as a result of privacy legislation.

Fathers’ consent - a suggested principle

7.29 As already indicated, it is clear that the Act should be amended to resolve the existing uncertainty about whether consent is required from unmarried fathers. Whether consent should be required from all, or certain categories of unmarried fathers, is a difficult issue. One difficulty is that it is often difficult to establish paternity. Paternity can now be proved by the new processes of DNA testing, which enable fathers to be identified with almost 100% certainty if blood or other tissue samples can be obtained from the mother, the child, and the man whose paternity is in question.

7.30 Another difficulty is that in a significant number of cases, the unmarried father may have had no involvement with the child, and his involvement with the mother may have been brief. Indeed, in some cases the pregnancy may have resulted from a rape, or incest. It seems wrong to require consent from men in such circumstances. The traditional distinction between the law relating to nuptial children and ex-nuptial children could once have been defended, perhaps, on the ground that at least in general the marital status of the father was a reliable indicator of whether the father’s involvement might benefit the child.¹⁶ Whatever force this might have had in the past, the high proportion of children born outside marriage in Australia, and the extensive legal recognition of de facto relationships, makes this approach difficult to sustain today.

7.31 It has been strongly argued that adoption legislation and practice should not involve discrimination of the kinds which would violate the spirit of the Anti-Discrimination Act.¹⁷ It would seem that such a violation has been caused by provisions which require consent from married fathers, but not from unmarried fathers, in similar situations.¹⁸

7.32 What is the appropriate criterion for determining which fathers’ consent should be required? The Commission is inclined to adopt the principle that consent should be obtained from those who already have parental rights and responsibilities in relation to the child, since those rights and responsibilities will be removed by adoption. Since the reference of power in 1987, this question is primarily governed by Commonwealth legislation, namely the Family Law Act and the child support legislation. Under these laws, the biological fathers of children acquire rights of custody and guardianship, and the obligation to provide financial support, regardless of their relationship with the mother or the child. Their rights to custody and guardianship can, of course, be displaced by court orders. If the Commonwealth law had allocated parental responsibilities to some fathers but not others, it might well have been appropriate for the New South Wales adoption legislation to build on such provisions, and require consent only from those fathers who had parental responsibilities. Given the existing Commonwealth law in this area, however, it seems appropriate for the law to require, in the case of all birth fathers except those who have lost their custody and guardianship rights by court orders, that their consent either be given or formally dispensed with.

The English example

7.33 In England, consent is required from any parent who has parental responsibility for the child under the Children Act 1989, and from any “guardian”, defined as a person appointed by a parent to be the child’s guardian in the event of the parent’s death, or a person appointed by a court to have parental responsibilities if the child has no parent with parental responsibilities.¹⁹ An unmarried father may acquire parental responsibilities either as a result of a court order²⁰ or as the result of an agreement with the mother.

7.34 Where a father has parental responsibilities, they are not lost by the making of a “residence” order (roughly corresponding to an Australian custody order) in favour of the mother. The English Review²¹ considered that this was satisfactory, and that where an unmarried father does not have parental responsibilities his consent to an adoption should not be required. On the other hand, it recommended that every effort be made to make contact with the unmarried father and enable him to express his wishes. A cautionary note is added, however:

We recognise, however, that there may be some circumstances where an adoption which is in the best interests of the child may be put at risk if an approach is made to an unmarried father who is thereby made aware of the child’s existence, especially where this is also against the wishes of the mother. ²²

7.35 The Review is not explicit about dealing with this problem, however, merely stating that the duty to consult the father should “allow for some exceptions”, which should be set out in the Regulations.

Discovering the father’s identity

7.36 The existing Act requires the Director-General or the Principal Officer of an adoption agency to make “such inquiries as are reasonably necessary” to ascertain who is the father.²³ Current practices in relation to ascertaining the identity of the father have been detailed above. For a variety of reasons, the birth mother might be reluctant to disclose the identity of the father, or the suspected father. Such reasons might include fear of violence against the mother or the child, or a desire to have nothing further to do with the father, or a wish to prevent the father from establishing contact with the child. The validity of such reasons will vary from one situation to another, and they may on occasion be seen as outweighing the child’s long-term interest in knowing his or her paternity. The Commission has considered whether the law should attempt to require the mother to disclose information relating to the child’s paternity. On the whole, it is inclined to think that no such provision is desirable, and that it is better for the matter to be dealt with through advice and counselling. An important part of the Commission’s reasoning is that as a practical matter it would be extremely difficult to enforce any such requirement, and attempting to do so may cause considerable distress. Sensitive counselling seems likely to have a better impact on the long term and short term welfare of all concerned than attempts to impose legal coercion.

Conclusions

7.37 If the Commission’s proposed approach is adopted, there will be very few fathers whose consent is not required - only those who have lost custody and guardianship by court order. In the Commission’s provisional view, it would be sufficient for the legislation to provide that notice should normally be served on such persons so that they could, if they chose, apply for custody, guardianship or access, or appear or make representations relating to the proposed adoption orders. The existing provisions relating to fathers whose consent is not required, which are rather complex and unsatisfactory,²⁴ should not be retained.

7.38 In the Commission’s provisional view, there is no need for the adoption legislation to contain complex provisions about presumptions of paternity, or to refer to the “putative” father. These matters are covered in other legislation.²⁵ It is sufficient for the adoption legislation to refer simply to fathers. The particular problem of children created through artificial conception procedures is considered below, in Chapter 10.

7.39 One result of the Commission’s provisional proposal is that careful attention will have to be paid to the process of dispensing with consent. This is discussed in some detail below. It should be added here, however, that this problem will be considerably eased by the proposal to have preliminary hearings. These hearings will provide an early and appropriate opportunity for the court to dispense with consent where appropriate. It would be possible to provide that consent should normally or even automatically be dispensed with in specified circumstances thought to identify “unmeritorious” fathers. However, there may be little benefit in such a provision, since the court would no doubt readily dispense with their consent even in the absence of such provisions. There might be cases in which the identity of the father becomes known only after the placement hearing, or relevant circumstances arise between the placement hearing and the adoption hearing, and it would be appropriate, therefore, to provide that in such cases the matter can be reconsidered at the adoption hearing. For these reasons, the Commission recommends that parental consent should be required from both parents regardless of their marital status, and that applications to dispense with consent may be made either at the preliminary hearing or at the application for adoption.

Ensuring informed and voluntary consent

7.40 The Act contains provisions designed to ensure that parental consent is given freely and is not vitiated by such factors as fraud or duress. Some of these provisions apply to parental consent generally, while others apply to the particular situation of birth mothers in relation to newborn babies, and are intended to protect them from giving consent that is affected by the physical and emotional consequences of childbirth.

7.41 There are several ways in which the Act attempts to protect parents against giving a form of consent that is not truly voluntary.

Formal and counselling requirements

7.42 The consent must be general and in writing.²⁶ Only consents to adoption where the child is to be adopted by a relative, as defined by the legislation, are specific in that they state that the child is being relinquished in favour of a particular person.²⁷ There is a requirement that the consequences of giving such a consent must have been explained to the consenting person by the witness to the consent.²⁸ Only certain people can witness a consent, for example, a qualified social worker, a solicitor or barrister, a minister or doctor.²⁹ Consents to their own adoption, signed by children of 12 years or over, must be similarly witnessed.³⁰

Consent and the birth mother

7.43 Consent cannot be given prior to the birth or until the completion of three clear days after the birth. This calculation does not count the day of the birth and therefore consent is not taken until the fifth day after the birth at the earliest.³¹ There are also provisions by which the Court may set aside consents which were not given in accordance with the Act or were obtained by fraud, duress or other improper means. Consents can also be set aside where the instrument of consent was later altered, or where the person was not in a fit condition to give consent or did not understand the nature of the consent.³² The consent can be revoked within a period of 30 days, after which it becomes final.³³

7.44 These provisions attempt to balance a number of competing considerations. On one hand the consent must be truly voluntary. On the other hand, the child’s welfare is seen as requiring a reasonably speedy placement with the proposed adopters (or with temporary foster parents). The period of thirty days for revocation is seen as a compromise; to make it shorter would lessen the chances that the consent was truly voluntary and to make it longer would increase the risk that the child, after a substantial time with the proposed adopters, would be returned to the mother or both birth parents. It is sometimes suggested that it is also in the interests of the birth mother that the decision should become irrevocable within a reasonably short time, since if it remained revocable it would be more difficult for her to come to terms with her decision and the continuing possibility of having the child restored to her would place her under stress.

The effect upon the child of delaying consent

7.45 One argument against extending the time for the giving of consent and of the revocation period is that such an extension will mean that the child will spend a longer time in temporary care and that this will have a detrimental effect on the psychological well-being of the child. The argument concludes that the child should be removed from the birth mother and placed with the adoptive parents as quickly as possible.

7.46 In order to substantiate such an opinion, many people have relied upon theories of bonding and attachment such as those propounded by John Bowlby. Bowlby has studied at length the anxiety and anger expressed by children upon separation from what Bowlby describes as their “mother figure” . Bowlby himself clearly states the limitations of his work when he writes:

How the responses of infants under seven months are best understood, and what their significance for an infant’s future development may be, is difficult to know. It is plain, however, that the responses of these younger infants to separation are different at every phase from those of older ones, and that it is only after about seven months of age that the patterns that are the subject of this work are to be seen.³⁴

7.47 If we look at the adoption process, there must inevitably be a split in parenting for the adopted child. In order to give the birth mother adequate time in which to make such a monumental decision and in order to not abuse her rights by allowing time for such a decision to be revoked, it is necessary to place the child into temporary care prior to final placement. No one can successfully argue that the newborn child should be removed from the birth mother at birth and immediately placed into the arms of the adoptive parents. If we acknowledge this, and the inevitability of the change in parenting, we are simply left with the question of how much time in temporary care is acceptable.

7.48 The essence of research on attachment is that children may suffer anxiety and anger during periods of separation from the “mother figure” that prevent them from emotionally reattaching to the “mother figure” on reunion.³⁵ This inability to reattach may be fleeting or more long term depending on the length of separation and the level of comfort and support given by other carers during the period of separation. It seems to the Commission that the process of the child developing attachments with the adoptive parents and the adoptive parents having their parenting desires fulfilled by parenting a child with whom they can bond closely, is no more important than providing a birth mother with an environment in which she can calmly make the decision to detach herself from her child and comes to terms with her decision in a manner that will allow her to continue to play a part in that child’s life via open adoption.

7.49 Some people have criticised the idea of lengthening the period of consent and revocation on the grounds that there will be fewer adoptions because more birth mothers will decide to keep their children. However, if a birth mother decides that she will not place her child for adoption because she has actually had a chance to take the child home to find out that she can mother the child or she has had time to find that family or friends can and will support her raising her child, that is not to the detriment of that particular child.

7.50 Other submissions have suggested that lengthening the period of consent and revocation will apply more pressure on single women to raise their children when these children would be better off in stable two-parent adoptive families. Adoption legislation is a means for providing parenting for children who cannot be raised by their own parents. It is not a means of relative assessment of birth parents. Adoptive parents must be assessed because they have offered to undertake the very special task of parenting another couple’s child and must have the requisite skill and understanding.

7.51 Theories about attachment and bonding are just some of many factors to be considered. If we place a child into the adoption arena, any child who is placed with another parent will suffer anxiety and stress. This is why adoptive parents need to be a certain type of person. In the case of adoption, we are not only concerned with the psychological well-being of the child but also of the adoptive parents and the birth parents. Adoptive parents will feel the strain if a child is placed with them and they are trying to conduct an open adoption arrangement with birth parents who have not come to terms with their decision to relinquish. The child should not be placed with the adoptive parents until the revocation period has ended as they should not be expected to care for and bond with a child whose birth mother still has the opportunity to take the child back into her care. Birth parents need to test out their decision when there is a real live baby in the equation.

Provisional proposals

7.52 The Commission proposes that the birth mother should not be allowed to consent to adoption until 30 days after the birth. The consent would become irrevocable after a further 30 days. It should be made clear that the mother could revoke the consent within the 30 says and begin the consent process again at any time. Counselling should be provided shortly before the expiration of the 30 day period, to ensure that the birth mother understands the position.

7.53 The Commission gave consideration to another possible approach, in which the mother could choose between two forms of consent. One form would become irrevocable after 30 days. The other would remain revocable until the court makes the adoption order. The intention was to adjust the system to the varying needs of mothers, some of whom might wish that their decisions should become final within a reasonably short time, and others who might want to refrain from a final commitment until the court hearing. The disadvantage of the proposal however is that it confronts the birth mother with a further complexity in what is already a very difficult situation. On the whole, the Commission is inclined to think that this proposal is unduly complex, and that the birth mother would be sufficiently protected by the recommendation that she be reminded, near the end of the 30 day period, that she may revoke the consent and sign a new one, giving her one further period of 30 days (or indeed several successive periods) to come to a final decision. Comment will be welcomed on this matter.

7.54 This proposed rule, then, is designed to avoid consent being given at a time when the mother might be affected by the physical and emotional effects of childbirth. It represents a reconsideration of the appropriate adjustment of the various interests and policies involved. In particular, it recognises that in many cases the birth mother’s experience will not be the sudden and complete separation envisaged in earlier times, but rather a gradual (and sometimes only partial) withdrawing from the child’s life, with some continuing participation in the selection and preparation of the child’s adoptive placement. This means that the former arguments that it is in the mother’s interests for the decision to be reasonably swift and complete are less persuasive than they might have seemed previously. It is recognised that some birth mothers, however, will not wish to continue being involved in the child’s life, and will indeed want a more or less “clean break”.

WHAT SORT OF CONSENT?

7.55 Under the present law consent must be general, that is, it must be a consent to the child being adopted by any eligible person or couple selected by the agency.³⁶ It cannot be conditional. With one exception, the relinquishing parents thus have no right to control or influence the selection of the adoptive parents, or the way they bring up the child. The exception is that the relinquishing parents can, in the form of consent, express a wish as to the religious upbringing of the child. This wish does not strictly guarantee that the child will be adopted by parents of that religion, or brought up in that religion,³⁷ although normally it would be respected, and the agency would seek to place the child with people of the appropriate religion.

7.56 In practice, relinquishing parents now play a much larger part in the process than the legislation indicates. It is common that they are invited to discuss with the agency the sort of people they would like to adopt their child, and the agency may invite them to make a selection from among a small number of applicants that are thought to be suitable for the child.

7.57 Such practices may once have been seen as inappropriate but, in the Commission’s provisional view, there is much to commend them. Where the birth parents wish to participate, the process can give them considerable reassurance about what will happen to their child, and will enable them to feel, realistically, that they have played a significant and responsible part in making arrangements for the welfare of their child. The adoptive parents, too, might well benefit from knowing that they have been chosen by the birth parents. These consequences are especially likely to occur when, as is not uncommon, the parties have a meeting prior to the adoption order. It seems likely that such arrangements will make it more likely that any future reunions between the adoptee and the birth family will be successful for members of both families. No doubt these “open adoption” methods have their dangers, and in some cases will be unsuccessful. However in the Commission’s view they have potential value and are to be encouraged.

7.58 Although as a general principle the Commission is inclined to agree that the law should facilitate and encourage such practices, detailed legal provision seems unnecessary and could be constricting. The most obvious legal issue that arises from them is whether the law should allow the birth parents to make their consent conditional in various ways, for example by limiting it to the adoption of their child by particular applicants, or particular categories of applicants.

7.59 Many alternatives are possible. The consent could be to have the child adopted by particular people, such as a couple selected by the birth parents, or to a class of persons. It could be conditional, for example by requiring that the child be told of his or her adoption, or by requiring that the adopters allow contact between the birth parents and the child. Conditional consent could be associated with a system in which the birth parents played an active part in the planning of the adoption, including the selection of the adoptive parents.

7.60 In a number of Australian jurisdictions there are provisions for conditional consent, though the scope for conditions is limited. In Victoria it is limited to a right to make conditions relating to adoption of the child within the Aboriginal community;³⁸ otherwise the consent must be general.³⁹ In South Australia the consent may be either general or limited to adoption by a relative, or by a person who has been appointed a guardian by a court, or is cohabiting with one of the child’s parents in a marital or de facto relationship, or a person in whose care the child has been placed by the Director-General.⁴⁰ In New South Wales, s 27(2) of the Adoption of Children Act 1965(NSW) states that consents may be conditional where the child is to be adopted by a relative or by two persons, one of whom is a parent or relative of the child.

7.61 Should there be any limitations on the conditions that may be attached to a consent? It may be that the limited scope for conditional consent reflects the view that a wider scope could lead to evasion of the regulation of adoption placements. It might be felt that if birth parents were able to limit their consent to particular individuals, they would be able in effect to by-pass the process by which agencies prepare and select suitable adopters. It might also be argued, perhaps, that the existing practice represents the most satisfactory arrangement. The child has the advantage of agency-arranged placements, and where the birth parents wish to be involved they can, in practice, play a considerable and valuable part in the selection of the most appropriate adoptive parents for their child. If the Commission’s proposals for a preliminary hearing are accepted, it may also be argued that the process of agreement (or adjudication) involved in that process will be sufficient to ensure that the birth parent’s wishes are appropriately taken into account. This approach might be seen as more flexible than the technique of making consent subject to conditions.

7.62 The Commission’s tentative view is that the form of consent should contain provision for the birth parents to express any views relating to the selection of the adoptive parents or the child’s upbringing. Such views will also be taken into account in the early planning of the adoption, and will be reviewed at the preliminary hearing. The birth parents’ interests will be protected by the hearing, and by the Commission’s proposal that the giving of consent does not have the effect of transferring guardianship to the Director-General. However, the Commission would welcome comments on whether or not it is desirable to make provision for conditional consent.

DISPENSING WITH CONSENT

Existing law

7.63 In certain circumstances, the court has power to dispense with the consent of a birth parent or guardian. Applications to dispense with consent may involve “contested” adoption hearings, in which one or both birth parents are seeking to prevent the loss of their parental rights and the department or agency is seeking to persuade the court that the circumstances warrant making the adoption order against the wishes of the birth parent(s). However, in practice it appears that fully contested matters are very rare, and that while a significant number of parents are not willing to give consent, they do not appear in court to contest the application to dispense with their consent. In these circumstances the application to dispense with their consent is unopposed.

7.64 There are a number of grounds on which consent might be dispensed with, so that the adoption order can be made without consent.⁴¹ The most obvious, and least controversial, are where the person whose consent is required cannot be found, or is incapable of giving consent. The next two grounds are, in substance, that the parent is unfit to be a parent, by reason of having abandoned, deserted, neglected or ill-treated the child; and that the parent has for at least a year failed without reasonable excuse to discharge the obligations of a parent, or to make suitable alternative arrangements for the child. These grounds were part of the original 1965 Act.

7.65 The following additional grounds were added by later amendments:

(e) the child is in the care of a foster parent or foster parents, the child has established a stable relationship with that person or those persons, and the interests and welfare of the child will be promoted by the child’s remaining in the care of that person or those persons;

(f) the child is in the care of a person or persons other than a parent, relative or foster parent and the interests and welfare of the child will be promoted if negotiations can be conducted and arrangements made with a view to the adoption of the child;⁴²

(g) there are circumstances, other than those referred to in paragraphs (a)-(f1), in which, by dispensing with the consent, the interests and welfare of the child will be promoted; or

(h) a notice of intention to seek an order dispensing with the consent has been served personally on [the person whose consent is required] and the person has not, within 14 days...filed...a notice of intention to oppose the making of the order.⁴³

Principles

7.66 Paragraph (g), above, is of particular importance. The Court of Appeal has pointed out that combined with the principle that the child’s welfare is paramount (s 17), it means that if the court considers that the adoption will promote the child’s welfare, it must make the orders for dispensing with consent and for the child’s adoption.⁴⁴

7.67 This conclusion gives the legislation as a whole a curious ambivalence towards the rights of the birth parents. On one hand their consent is ordinarily required, and the court can do without it only in limited circumstances. On the other hand a close examination of the definition of those circumstances indicates that everything turns on whether the court thinks the adoption will benefit the child: if it does, the child will be adopted without regard to any question of parental rights. A finding that adoption would benefit the child, therefore, is a necessary and sufficient condition for the making of the adoption order. This conclusion would appear to make the other grounds for dispensing with consent unnecessary. It has also been suggested that it could enable adoption agencies to make applications, say, for the adoption of newborn children of poor or disadvantaged parents, and the applications might well be granted, without any question of parental fault or neglect arising, if the agency could persuade the court that the children would be better off if they were adopted.⁴⁵ In contrast with the Adoption of Children Act 1965 (NSW), the New South Wales legislation on child welfare restricts the State’s intervention to situations in which the parents are at fault or the child’s needs are not being met.⁴⁶ The problem has not arisen on a widespread scale, it seems, because the agencies have not pursued such an aggressive approach.

7.68 Different jurisdictions have different provisions on this matter, but no other Australian jurisdiction goes as far as the New South Wales provision (as distinct from the practice of the agencies) in giving no weight to parental rights in this matter.⁴⁷ In England the rule has long been that consent can be dispensed with only if it is unreasonably withheld. The recent review of English adoption law has suggested a new test: the court may dispense with consent only where it is satisfied that the advantages to the child of becoming part of a new family and having a new legal status are so significantly greater than the advantages to the child of any alternative option as to justify overriding the wishes of the parent or guardian.⁴⁸ New South Wales law on this point, therefore, appears to favour adoption to a greater extent than other jurisdictions, and indeed to a greater extent than even the most pro-adoption social work literature.⁴⁹

7.69 The issue involves basic questions about the rights of parents and children and the role of adoption. The existing grounds of consent may be seen as reflecting a number of separate bases on which it has been thought that an adoption might proceed without the parents’ consent:

• the parents’ consent cannot be obtained, because they are dead, or absent, or incapable;
• the parents have by misconduct forfeited their parental rights; or
• in the court’s view the child’s welfare requires dispensing with their consent.

7.70 Of these, the first appears uncontroversial. The second reflects the view that the law should be based on pre-existing rights, and it may be that this is a somewhat outdated view, modern family law tending to focus more on an assessment of the costs and benefits of the various options available. Nevertheless the second ground may well correspond with some people’s sense of justice, and operate as an appropriate limitation on state power: if the order to dispense with consent is seen as one that removes the parents’ rights, it can be seen as fair that those rights should be removed only when the parent has behaved in a way that merits such a consequence.

7.71 This second ground, however, would not necessarily enable consent to be dispensed with where a parent was unable to care for the child, or arrange for others to do so, because of some incapacity or accident for which the parent could not be blamed. In such a situation, it seems necessary to say that the child’s welfare requires that the court should dispense with consent. For this reason, it seems appropriate that the law should be able to dispense with consent on the basis of the child’s welfare. It does not follow, however, that the rule should be that the court should dispense with consent whenever it thinks that to do so would promote the child’s welfare. The law might say that consent could be dispensed with only when the existing situation fell short of some standard relating to the child’s welfare, such as, for example, the definition of a child “in need of care” under the New South Wales child welfare legislation.⁵⁰ Most adoption legislation, other than that of New South Wales, uses this sort of approach. Thus in Victoria the grounds for dispensing with consent include:

(g) that for any reason the child is unlikely to be accepted into, or to accept, a family relationship with the person; or

(h) that there are any other special circumstances by reason of which, in the interests of the welfare of (sic) the child, the consent may properly be dispensed with.⁵¹

7.72 Such phrases, like the provisions of child welfare legislation, seek to ensure that the coercive intervention entailed in dispensing with consent should happen only when there is good reason to be concerned about the child’s welfare, not merely where a court thinks that adoption would, on balance, be advantageous for the child. They do not involve a compromise of the principle that the child’s welfare is paramount, but reflect a view that courts and welfare authorities are not necessarily able to make better judgments about children’s welfare than the parents, who are initially entrusted by the law with responsibility for their children.

7.73 There is no similar requirement in custody and guardianship proceedings under the Family Law Act 1975 (Cth). However the court’s powers in this area, at least in proceedings between the parents, could be rationalised on the basis of the parents’ failure to agree on the exercise of their powers. Thus the law in this area is generally consistent with adoption law in that the court’s intervention can be justified by a party showing that the child is in need of care, or that the parents, to whom the law has entrusted custody and guardianship, are unable to agree on how their own powers should be exercised.⁵² On this view, it is in the interests of children that external intervention should be possible only where there is good cause for thinking that it is necessary.

7.74 The Commission welcomes comments on these views. If they are accepted, it appears that the present Act goes too far in allowing the court to dispense with parents’ consent by simply substituting its own view on the child’s welfare for those of the parents. Something more is required. There are many ways of formulating the “something more”. The Commission is attracted to the formulation of the United Kingdom review, but considers that it could usefully be supplemented by guidelines relating to the child’s welfare. Some of the existing provisions in s 32, and s 6(4A) of the present Act, could be incorporated in such guidelines.

Conclusions

7.75 The Commission’s tentative conclusion, therefore, is that the grounds for dispensing with consent should include the existing grounds under paragraphs (a)-(d) of s 32. The grounds under paragraphs (e)-(h) should be abolished. They should be replaced with the ground that:

the court is satisfied that the advantages to the child of becoming part of a new family and having a new legal status are so significantly greater than the advantages to the child of any alternative option as to justify overriding the wishes of the parent or guardian.

7.76 A decision to dispense with consent requires the court, first, to be satisfied that one of the grounds is established, and second, to consider whether to exercise its discretion to dispense with consent. The second aspect should be governed by the principle that the child’s welfare is to be regarded as the paramount consideration and, in determining this question, the court should be assisted by legislative guidelines.

THE CHILD'S PARTICIPATION

7.77 Under the present law, the child’s consent must normally be obtained for adoption if the child is over 12 years of age, but it can be dispensed with by the court if there are “special reasons, related to the welfare and interests of the child”.⁵³ In other respects, although the child’s welfare is required to be treated as “the paramount consideration”, the Act makes no provision for active participation by the child in the adoption process.

7.78 This is perhaps not surprising. In the mid-1960s when the “uniform” legislation was being formulated, adoption usually involved newborn babies, who could hardly participate actively in the proceedings. Today, a greater proportion of children are older, and thus may have the capacity and desire to express opinions about the proposed adoption. In addition, there were few precedents for children actively participating in court proceedings, and the then current notions of children’s rights emphasised children’s rights to protection rather than their rights to have a say in decisions that affected them.⁵⁴

7.79 More recently, there has been growing recognition of children’s rights of participation, and this is reflected in case law⁵⁵ and in much recent legislation, which includes provisions for children to be legally represented, and to participate actively in court proceedings in other ways.⁵⁶ It is also reflected in the United Nations Convention on the Rights of the Child, which provides:

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

7.80 Providing for the consent of children over the age of 12 presents the child with a difficult choice. It may well be a choice that the child feels unable to make, or does not wish to make. It does not necessarily allow the child the opportunity to “express...views”. A child who, for example, wished to retain a particular name, or remain in contact with a birth parent, should be allowed to express those views, and this is not achieved by merely providing for the child to consent.

7.81 The Commission’s provisional view is that the law should require that the child’s views, perceptions and feelings be ascertained and taken into account, provided that the child should not be required to express views if he or she does not wish to do so. The guidelines for the making of adoption orders should include a provision to the effect that the court should not make an order without the agreement of a child of 12 years and over except where it is satisfied that the order will nevertheless promote the child’s welfare.

7.82 There should also be appropriate facilities for counselling children and allowing them to be represented in the preliminary hearing and the adoption hearing. It is important that in all cases some person should have the task of talking with them, and reporting to the court on their perceptions, feelings, and wishes.⁵⁷

1. Adoption Information Act 1990 (NSW), s 8. Exercise of the right is subject to the “contact veto” system: see generally, New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992).

2. Adoption of Children Act 1965 (NSW), s 26. Section 26(3)(b) of this Act states that where a child has not been previously adopted and whose parents were not married but lived together after the child’s birth as husband and wife, the persons required to consent to the adoption of that child are “every person who is a parent or guardian of the child”.

3. Adoption of Children Act 1965 (NSW), s 26(4A).

4. In addition, consent was required from any person who was a guardian of the child.

5. Adoption of Children Act 1965 (NSW), s 26(3)(b). In the text, “ex-nuptial child” is shorthand for “a child ... whose parents were not married to each other at the time of the child’s conception and have no subsequently married each other”.

6. See New South Wales. Law Reform Commission Report on De Facto Relationships (Report 36, 1983) at paras 15.62-15.64.

7. Earlier decisions, based on differently worded provisions of the Family Law Act, had held that the father was not a guardian for the purpose of the Adoption of Children Act 1965. See C v Director-General of Youth and Community Services (1982) 7 Fam LR 816, and to the same effect W v H [1978] VR 1; Re H (an Infant) [1982] Qd R 364. These decisions were distinguished in Hoye, at 584, on the ground that the argument now rested on the express statutory provision for guardianship in Family Law Act s 63F.

8. Section 26(3A) provides that the father of an ex-nuptial child is not a guardian for the purpose of the section unless he has custody of the child under a court order, or is or is deemed to be “the guardian of the child, to the exclusion of, or in addition to, the mother or other guardian, under a law of the Commonwealth...”

9. Section 63F(1).

10. Section 6 of the Adoption of Children Act 1965 (NSW) contains a definition of “guardian” which includes somebody who is a guardian under a law of the Commonwealth. Hoye and Neely (1992) 15 Fam LR 578. Section 26(3A) was held not to apply because the father was therefore a guardian under a law of the Commonwealth, and fell within para (b).

11. See the decisions cited above, footnote 7. In the first of these decisions, Waddell J suggested, at 821, that the insertion of s 26(3A) might have been intended to adopt the decision in W v H. The suggestion is that if the New South Wales Parliament had wanted to require consent from unmarried fathers falling outside the “common household” test, it would have amended the Act accordingly.

12. This apparent disregard of the law may be based on an opinion that the Supreme Court would not follow the Family Court’s decision.

13. This is a considerably simplified summary of s 31A. See also s 31E.

14. Section 31A; s 31B (notice may be dispensed with in certain situations).

15. Section 31D.

16. Historically, of course, it may be that the consent requirement reflected the father’s extraordinarily powerful position in relation to his legitimate children.

17. New South Wales Anti-Discrimination Board Submission (14 August, 1993).

18. See, for example, Nova Scotia. Law Reform Commission The Legal Status of the Child Born Outisde of Marriage in Nova Scotia (Discussion Paper, 1993) at 14-17.

19. Children Act 1989 (UK), s 5.

20. Section 4.

21. United Kingdom. Review of Adoption Law (Report to Ministers of an Interdepartmental Working Group, Department of Health and Welsh Office, 1992).

22. United Kingdom. Review of Adoption Law at 19-20.

23. More precisely, the Act requires in s 31A(1) that the inquiries to be directed at whether any man is presumed to be the father under particular legal presumptions, or is registered as the father. The Commission’s view, indicated above, is that there is no need for such complex provisions: the legal presumptions relating to paternity operate independently of the adoption legislation and to repeat them is unnecessarily complex. Further, there is no reason to restrict the inquiries to men who fall within a presumption of paternity.

24. See D Hambly and J Chart “The Adoption of Children (Amendment) Act 1980” (1980) Aust Current Law at 39-42; R Chisholm, “End of uniformity: new adoption laws for New South Wales” (1980) 5 (2) Legal Services Bull at 49-51.

25. Family Law Act 1975, Part VII (Cth); Children (Equality of Status) Act 1976 (NSW); Artificial Conception Act 1984 (NSW).

26. Adoption of Children Act 1965 (NSW), s 27, 29.

27. Adoption of Children Regulations 1966 (NSW), reg 21(d).

28. Adoption of Children Act 1965 (NSW), s 29; Adoption of Children Regulations 1966 (NSW), reg 23.

29. Regulation 22.

30. Regulation 27.

31. Adoption of Children Act1965 (NSW), s 31(2)-(4).

32. Section 31.

33. Section 28.

34. J Bowlby Separation: Anxiety and Anger Attachment and Loss Vol II (Hogarth Press and Institute of Psycho-Analysis, 1985) at 55.

35. Theories regarding attachment should not be confused with those regarding bonding. The word “bonding” is often used to refer to the feelings that the mother develops towards the child and was initially believed to occur when there was close skin to skin contact between mother and child immediately after birth. Attachment, on the other hand, commonly refers to the process of two-way attachment occurring between mother and child, generally becoming apparent in the child at the age of six months. See Dr D James Bonding: Mothering Magic or Pseudo Science (Selected Papers No 40, Foundation for Child and Youth Studies, Education and Research Unit, NSW, 1985) at 3.

36. This paragraph does not refer to adoptions within families.

37. In this respect, Myers J’s decision in Re an Infant M and the Adoption of Children Act (1967) 87 WN (Pt 1)(NSW) 48 appears to be mistaken.

38. Adoption Act1984 (Vic), s 37.

39. Adoption Act 1984 (Vic), s 39.

40. Adoption Act 1988 (SA), s 15(4).

41. Adoption Act 1988 (SA), s 32.

42. Para (f1), dealing with inter-country adoption, has been omitted. It is discussed below in Chapter 12.

43. This provision has been criticised (like the similar provision relating to unmarried fathers), on the grounds that it attaches disproportionately serious consequences to a failure to respond quickly and appropriately to a notice, and on the ground that unlike the other grounds, such failure seems to have little or no connection with the child’s welfare: D Hambly and J Chart “The Adoption of Children Act (Amendment) Act 1980” 1980 Aust Current Law Digest 41.

44. Re an Infant K and the Adoption of Children Act [1973] 1 NSWLR 311.

45. See, for example, papers by D Hambly, and R Chisholm, in C Picton (ed) Proceedings of the First Australian Conference on Adoption 1976 (Committee of the First Australian Conference on Adoption, Melbourne, 1976).

46. Children (Care and Protection) Act 1987 (NSW), s 10.

47. Most jurisdictions have provisions which refer to the child’s welfare, but also require the existence of “special circumstances” or the like.

48. United Kingdom. Review of Adoption Law (Report to Ministers of an Interdepartmental Working Group, Dept Health and Welsh Office, 1992), at 25-7.

49. See for example, J Goldstein, A Freud and A Solnit Before the Best Interests of the Child (New York, Free Press, 1979).

50. Children (Care and Protection) Act 1987 (NSW), s 10.

51. Adoption Act 1984 (Vic) s 43. Adoption Act 1988 (SA) s 18 (“other circumstances by reason of which the consent may properly be dispensed with”).

52. This analysis does not however account for the provisions of the Family Law Act 1975 (Cth), Part VII, insofar as they allow third parties to make applications for custody or guardianship without having to establish any threshhold requirement.

53. Section 33(1).

54. Compare, for example the United Nations Declaration on the Rights of the Child (1959) with the International Convention on the Rights of the Child (1990). On children’s rights theory generally, see P Alston, S Parker and J Seymour (eds) Children, Rights and the Law (Clarendon Press, Oxford, 1992).

55. Secretary, Dept of Health and Community Services v JWB and SMB (“Re Marion”) (1992) 15 Fam LR 392.

56. See, for example, Family Law Act 1975 (Cth), s 63C(1)(b), 64(1)(b), 65; Children (Care and Protection) Act 1987 (NSW), s 61A, 58(1)(a), 62B, 65(1)(a), 66, 69; see also Adoption Act 1984 (Vic), s 14. (child’s wishes to be considered).

57. Compare Family Law Act s 62A.