WHAT IS ADOPTION?
2.1 Adoption is a legal process by which a person becomes, in law, a child of the adopting parents and ceases to be a child of the birth parents. All the legal consequences of parenthood are transferred from the birth parents to the adoptive parents. The adopted child obtains a new birth certificate showing the adopters as the parents, and acquires rights of support and rights of inheritance from the adopting parents. The adopting parents acquire rights to guardianship and custody of the child. Normally the child takes the adopters’ surname. The birth parents cease to have any legal obligations towards the child and lose their rights to custody and guardianship. Inheritance rights between the child and the birth parents also disappear. Adoption is governed by New South Wales law, specifically the Adoption of Children Act 1965 (as amended). Adoption applications are determined by the Supreme Court of New South Wales.
2.2 The statements in the above paragraph are intended to summarise the main characteristics of adoption. It is not necessary here to spell out the full details.1 Some aspects of adoption law will be explained more fully in connection with particular issues.
BACKGROUND
2.3 The Adoption of Children Act 1965 (NSW), which came into force in 1967, is based on a model adoption act which was followed by all Australian jurisdictions and led to relatively uniform adoption laws in Australia. Since the 1960s, the differences between the Australian jurisdictions have become much greater as there have been numerous amendments, and in some cases completely new Acts. It is necessary to say something about the earlier developments of adoption law in New South Wales before considering the 1965 Act.
Early developments
2.4 The period up to 1967 saw the gradual development of adoption law. Initially, adoption was regulated by provisions in child welfare legislation.2 Early legislation provided that adoption orders could be made by the Supreme Court, and dealt with the consequences of adoption. Adoptions could be arranged by the parties themselves, with the assistance of intermediaries such as medical practitioners or clerics, or by adoption agencies. The adoption of a child normally required the consent of both birth parents (only the mother where the child was ex-nuptial). The Court could make orders without the consent of the birth parents in certain circumstances such as where they could not be found or had abandoned the child. However, the Court was concerned to protect the rights of the birth parents, and so was generally reluctant to make orders against their wishes.3
The Adoption of Children Act 1965
2.5 The 1965 Act was the first comprehensive treatment of adoption law in New South Wales, and many of its features remain in the law today. It introduced three major changes in the law.
2.6 First, the Act included a provision that, in making orders relating to the child, the Court should regard the child’s welfare as “the paramount consideration”.4 This principle had previously been developed by the courts, and then expressed in the legislation, in the context of custody and guardianship matters. Its inclusion in the adoption legislation is a matter of considerable importance.
2.7 A second characteristic of the 1965 Act was that it banned privately-arranged adoptions, except within the extended family. In giving consent to adoption, the birth parents could not consent to the adoption of the child by a particular person or class of persons; they could only give consent to the child’s adoption by any person.5 In practice this meant any couple selected by an adoption agency and approved by the Court. Other rules reinforced the monopoly given to adoption agencies. For example, it was an offence to place children privately for the purpose of adoption,6 or advertise for adoptive parents7, and applications to the Court had to be made by the agency, not by the intending adopters.8 This regulatory framework was relaxed in the case of adoptions by relatives and step-parents. In these cases, the parents of the child and the step-parent or relative could arrange the placement. The parents could consent to the child being adopted by the selected step-parent or relative and the intending adoptive parents could themselves apply to the Court for an adoption order. However, there was still a degree of regulation. A report from the New South Wales Department of Community Services or an authorised agency on the merits of the proposed adoption was normally required,9 and the order will only be made if the Court finds that the requirements of the Act are satisfied and the adoption will promote the child’s welfare.10
2.8 A third characteristic of the 1965 Act was a tightening of provisions relating to secrecy in adoption. New provisions attempted to ensure that members of the birth family and the adoptive family would not discover each other’s identity, and that the records of the adoption would be kept confidential. Indeed, the new birth certificate issued for the adopted child was intended to disguise the fact that the child had been adopted. This aspect of the legislation has been considered in detail in the Commission’s Report on the Adoption Information Act 1990.11
Social changes since 1967
2.9 There have been many changes, both in society and in the law of adoption, since the Act commenced operation in 1967. First, the 1970s saw the beginning of a dramatic decline in the numbers of babies relinquished for adoption, and this had important implications for adoption law and practice. While at the commencement of the 1970s adoption agencies were concerned to find enough couples willing to adopt the available children, by the late 1970s the situation had reversed; there were many couples anxious to adopt, and a much smaller number of Australian babies available for adoption. In 1971-72, the then Department of Child Welfare and Social Welfare arranged 3,882 adoptions.12 This can be contrasted with 154 placements by the Department of Community Services in 1991.13
2.10 It is generally thought that the reasons for the sharp reduction in available children included increased financial support for single mothers (the Supporting Mother’s Benefit was introduced in 1973), increased availability of contraception and abortion, and a changing social climate which reduced the stigma and difficulty associated with single parenting.
2.11 There was no corresponding decline in the demand to adopt children. On the contrary, it appears to have increased. The previous availability of adoptable babies, the successful efforts to persuade people to adopt, the relative wealth and stability of Australia, the social emphasis on nuclear families as the accepted norm and the limitations of effective services for infertile couples may all have contributed to the continuing demand for adoptive children. The increased desire of many infertile couples to adopt children led to a new interest in the adoption of children other than newborn healthy “white” Australians, and there was a rise in the numbers of other sorts of adoptions, such as adoptions of foster children, older children, children with disadvantages and, especially, children from other countries. The former practice of allocating babies among approved adopters largely on a “first come, first served” basis became unworkable because it came to involve applicants being on waiting lists for unreasonably lengthy periods.
2.12 Other changes in social patterns and values had an impact on adoption law and practice. A growing appreciation of the multicultural nature of Australian society led to a questioning of the merits of the “clean break” that was traditionally associated with adoption, in cases where the adopters were of a different race or cultural group from the birth family. Emerging respect for diversity and the importance of cultural inheritance suggested that the task of adoption law was somehow to give these children the benefits of a secure family life while preserving their links with the culture or race of their parents. More specifically, publications and films led to a new awareness of the tragic story of the removal of many Aboriginal children from their families and communities through the operation of child welfare and adoption laws, and by the end of the 1980s there was a widespread consensus that adoption should not be used in a way that separated Aboriginal children from their Aboriginal culture and heritage.14 A growing concern with the rights of individuals to have access to personal information held by governments, and with rights to privacy, also led to a questioning of the secrecy associated with adoption.15 The publication of the personal experiences of adopted people, and of criticisms of some of the practices and assumptions underlying adoption, also exposed adoption to re-evaluation.
2.13 The stigma associated with birth outside marriage also appeared to be lessening. In the mid-1970s most states and territories introduced legislation intended to remove the legal disabilities of illegitimacy.16 Such laws and policies raised questions about aspects of adoption law, such as the position of fathers of ex-nuptial children, whose rights had found little recognition. Finally, rising divorce rates and the consequent increase of “blended families” meant that the model of the separate nuclear family which appeared to underlie adoption was ceasing to be regarded as essential to the upbringing of children. Despite such changes, adoption remained for many people a symbol of total commitment to a child, and was still valued as providing a unique degree of security for children who, for whatever reason, could not be brought up by their birth families.
Amendments to the 1965 Act
2.14 It will be convenient here to summarise the main features of the amendments made to the 1965 Act. The Act has been amended on seven occasions.17 The more significant amendments may be summarised as follows. In 1966, the grounds on which the Court could dispense with the consent of the birth parents to the adoption of the child were expanded to include the ground that, by dispensing with consent, the child’s welfare would be promoted.18 The 1971 Act eased the restrictions on adoptions by single parents, and adoptions of persons over twenty-one years of age.19 It also provided that in the case of step-parent adoptions, the applicants, as well as the Director-General of the Department of Community Services or an authorised agency, could apply for dispensation from the requirement for parental consent.20
2.15 The 1980 Act provided for an Adoption Tribunal to exercise jurisdiction under the Act, but these provisions have never been brought into force.21 The Act also dealt with a number of other issues. The adopting parents’ lack of religious conviction was not to be taken into account as a separate matter relevant to their suitability.22 There were new provisions relating to fathers of ex-nuptial children.23 These provisions, in brief, stated that the consent of such fathers was not required but, where their paternity was established, they were entitled to notice of the proceedings, so that they could, if they wished, oppose them. Failure to respond to such notice, however, precluded them from further involvement with the proceedings or with the child,24 and the Court could dispense with notice in limited circumstances. The 1980 Act also added new grounds on which the Court could dispense with parental consent.25 Two of these grounds were intended to facilitate the adoption of children who had been placed in foster homes or residential care, and the third enabled consent to be dispensed with where the person whose consent was required failed to respond to a notice within fourteen days. The 1980 Acts also provided for subsidised adoptions.26
2.16 The 1984 Act incorporated limited changes associated with legislation granting increased recognition to de facto relationships.27 In certain circumstances it allowed de facto partners to adopt their own children, or children of one of the partners.28 The 1987 Act expanded the capacity of de facto partners to adopt children; they could now adopt children who had been in their care for at least two years,29 and children with special needs.30 It also included a provision for the adoption of Aboriginal children by Aboriginal people who were married according to the traditions of an Aboriginal community. It provided that in the case of children between 15 and 18 years who had been brought up by the applicants for adoption, the child’s consent alone is required.31 It also provided that overseas adoptions would not be recognised unless the adopters had been resident in the overseas country for at least 12 months.32
PURPOSES OF ADOPTION
2.17 In Australia today adoption is often associated with the objective of providing a new family to take care of a baby or young child. However many adoptions are not of this kind. Adoptions by former foster parents and adoptions by step-parents, for example, do not usually involve reconsideration of the children’s placement, but alter the children’s legal relationship with those caring for them. Occasionally, adoption may be used for a specific and limited purpose, for example to bring a person within the terms of a family trust.33 It is well known that in different societies, and at different times in history, adoption has served a variety of purposes. For example, adopted person may become legitimate, may become entitled to inherit property or titles, may be treated differently for taxation purposes or may acquire or lose citizenship rights. Adoption has often been chosen for such reasons and in these cases it may have nothing to do with caring for young children. The specific purposes of adoption may vary from case to case and from time to time. Until quite recently, for example, one of the main functions of adoption in Australia was to remove “the stigma of illegitimacy”, but this factor probably plays a very small part in adoptions today.34 What does seem universal, however, is that adoption involves the adopted person’s transfer from membership of one family to membership of another. It is also widely accepted, as we shall see in Chapter 3, that whatever its specific purpose may be, modern adoption should be intended essentially to benefit the adopted child. This is reflected in the provision of the Act that the child’s welfare is to be regarded as “the paramount consideration”.35
FORMS OF ADOPTION
2.18 There are different ways of describing the various forms of adoption. The descriptions used below are the ones most commonly used and will be convenient for discussion of the issues.
“Traditional” adoptions
2.19 In the 1960s the most important form of adoption, which we will call “traditional adoption”, involved the adoption of children by unrelated adopters who had been selected by the Department of Community Services or by an authorised adoption agency. The structure of the existing Act still reflects the dominance of this form of adoption which, in the 1960s, usually involved healthy new-born Australian infants. Today, it is commonly used for the adoption of older children and children with special needs.
Intra-family adoptions
2.20 Some adoptions involve only members of a family. The most common examples are adoptions by grandparents and by step-parents. The issues surrounding this type of adoption are dealt with in Chapter 7.
“Special needs” adoptions
2.21 “Special needs” adoptions refer to the adoption of children whose needs require special qualities in the adopting parents. Such needs may arise from the fact that a child is older or disadvantaged by some physical or intellectual disability. In the past many of these children would have been regarded as “unadoptable”, but in recent times adoption agencies have been keen to use adoption to provide homes for these children, some of whom might otherwise have lived indefinitely in institutions. In practice, these adoptions are sometimes subsidised and the selection of adoptive parents reflects the special needs of the child.
2.22 “Special needs” adoptions also include children from particular racial backgrounds. Current policy requires that, as far as possible, the adopters should share the children’s racial background or at least be able and willing to help the children maintain links with their racial heritage. To some extent, similar approaches are taken in relation to religious and cultural beliefs and practices.
“Special case” adoptions
2.23 Adoptions are referred to as “special case adoptions” when the Department of Community Services or an authorised adoption agency supports an adoption application by adoptive parents who have not been assessed in the usual way. In these cases there has been a prior placement of a child which was made outside the regulatory scheme that applies to non-family adoptions. For example, the child may have previously been placed with the adoptive parents as a foster child while the child was a state ward. Alternatively, the child may have been previously placed with them informally, as can occur in surrogate parent arrangements. Usually, the adoption application is made because the child is well settled in the care of the proposed adopters, and it is thought that adoption is in the child’s interests. These applications raise difficult policy issues because they involve by-passing the normal procedures which are designed to protect children, birth parents and intending adopters against ill-considered or even exploitative arrangements.
Inter-country adoptions
2.24 Inter-country adoptions usually involve an Australian couple making arrangements to adopt a child from an overseas country. Normally, the adoptive parents are approved as suitable in Australia, then visit the overseas country and obtain a child by arrangement with the overseas adoption authorities. They adopt the child under New South Wales law after their return. It is also possible, though uncommon, for an Australian child to be adopted in another country. Inter-country adoptions involve questions of immigration law and practice, and questions about the circumstances in the overseas country which led to the child becoming available for adoption. They also involve issues of identity, and cultural continuity, and all the issues that arise when a person moves to a new country and to a different culture and lifestyle.
DEVELOPMENTS IN OTHER AUSTRALIAN JURISDICTIONS
2.25 Since the “uniform” legislation of the mid-1960s, and especially in recent years, there has been considerable modification of the adoption legislation in various Australian jurisdictions. In Victoria, a major and influential review published in 198336 led to the Adoption Act 1984 (Vic). This Act made many changes, including creating rights to information for adult adoptees, discouraging step-parent adoption, requiring the wishes and feelings of children to be taken into account, requiring consent from fathers of ex-nuptial children in certain circumstances, and making special provision for Aboriginal adoptions. Many of these topics have been the subject of recent proposals or amendments in other jurisdictions, although they have been treated in different ways. Queensland’s Adoption of Children Act 1964 (Qld) has been substantially amended, and now includes provisions for information rights (subject to veto) for adult adoptees and birth parents. South Australia replaced its former legislation with a shorter Act, the Adoption of Children Act 1988 (SA). Western Australia has just completed a major review of its legislation, the Adoption of Children Act 1896 (WA). Following the review, the Adoption Bill 1992 (WA) was produced and proceeded to the committee stage in the Legislative Assembly before the end of the Parliamentary session in 1992. Tasmania has recently passed new legislation, the Adoption Act 1988 (Tas). The Australian Capital Territory has recently reviewed its legislation and, on 2 April 1993, enacted the Adoption Act 1993 (ACT). The Northern Territory undertook a review of its adoption legislation in 1987.37
FOOTNOTES
1. For detailed treatments, see A Dickey Family Law (2nd ed, Law Book Company, Sydney, 1990) and H Finlay and R Bailey-Harris Family Law in Australia (4th ed, Butterworths, Sydney, 1989).
2. Child Welfare Act 1923 (NSW), s 123-129; Child Welfare Act 1939 (NSW), s162-173.
3. Mace v Murray (1955) 92 CLR 370.
4. Adoption of Children Act 1965 (NSW) s 17.
5. Section 27(1).
6. Section 51.
7. Section 52.
8. Section 18(2).
9. The Court can dispense with the report: s 21 (1A)(a) and (c).
10. Section 21.
11. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992), Chapter 2.
12. New South Wales, Department of Child Welfare and Social Welfare Annual Report 1972.
13. New South Wales, Department of Family and Community Services Adoption Newsletter: October 1992 at 1.
14. See, for example, P Read, The Stolen Generations: The Removal of Aboriginal Children in New South Wales, 1883-1969, (New South Wales Ministry of Aboriginal Affairs, Sydney, c.1983), C Edwards and P Read, The Lost Children, (Doubleday, Moorebank NSW, 1989), Lousy Little Sixpence (Ronin Films, Campbell ACT, 1983).
15. See generally New South Wales Law Reform Commission, Review of the Adoption Information Act 1990 (Report 69, July 1992).
16. See, for example, Children (Equality of Status) Act 1977 (NSW).
17. Adoption of Children (Amendment) Act 1966 (NSW); Adoption of Children (Amendment) Act 1971 (NSW); Adoption of Children (Domicile) Amendment Act 1979 (NSW); Adoption of Children (Amendment) Act 1980 (NSW); Adoption of Children (Community Welfare) Amendment Act 1982 (NSW); Adoption of Children (De Facto Relationships) Amendment Act 1984 (NSW); Adoption of Children (Amendment) Act 1987 (NSW).
18. Adoption of Children (Amendment) Act 1966 (NSW), s 2, adding para (e) to s 32.
19. Adoption of Children (Amendment) Act 1971 (NSW), s 2, amending s 19(2) and 21(1)(c)(ii)(b), in each case changing the requirement of “exceptional circumstances” to “particular circumstances”.
20. Adoption of Children (Amendment) Act 1971 (NSW), s 2(h), inserting sub-s (1A) into s 32. It also enabled the Court, in certain circumstances, to dispense with giving notice to the persons whose consent was required: s 2(h)(iv).
21. Adoption of Children (Amendment) Act 1980 (NSW), Schedule 1. Most of the other amendments were not brought into force until 1984 and later.
22. This amendment effectively overruled statements made in Re an Infant E and the Adoption of Children Act [1974] 1 NSWLR 739.
23. See Schedule 3, amending s 21, 22, 23, 26 and inserting s 31A-31E.
24. See Schedule 3, inserting s 49A.
25. See Schedule 3, amending s 32.
26. See Schedule 3, inserting s 68A and 68B.
27. See especially De Facto Relationships Act 1984 (NSW), based on New South Wales Law Reform Commission, De Facto Relationships (Report 36, June 1983).
28. Adoption of Children (De Facto Relationships) Amendment Act 1984 (NSW), Schedule 1, amending s 19 and 26.
29. This requirement could be dispensed with by the Court: see s 19(1B), amended by the 1987 Act.
30. Adoption of Children (Amendment) Act 1987 (NSW), Schedule 1, amending ss 19, 21.
31. Schedule 1, inserting s 26(4A) and s 33(2).
32. Schedule 1, inserting s 46(2)(b) and (7).
33. Re K and the Adoption of Children Act 1965 (1988) 12 Fam LR 263.
34. See, for example, Re CM and MG (1976) 9 ALR 666.
35. Adoption of Children Act 1965 (NSW), s 17.
36. Victoria. Report of the Adoption Legislation Review Committee (The Adoption Legislation Review Committee, Melbourne, 1983).
37. Northern Territory. Department of Health and Community Services Northern Territory Adoption of Children Act Review (Discussion Paper, 1987).
