WHO CAN BE ADOPTED?
Who should be eligible to be adopted? Should there be an age limit?
To what extent, and in what ways, should the law require children to consent to, or otherwise participate in, the adoption process?
Eligibility for adoption
5.1 Children under 18 years old are eligible to be adopted, but persons over 18 years old may only be adopted if (to summarise) they have been brought up by the applicants.1 It is legally possible for children who have been adopted to be subsequently adopted by different adoptive parents.2 Married persons, of any age, cannot be adopted.3 What are the reasons behind these restrictions? Should they be retained?
The child’s consent and participation
5.2 Under the present law, the child’s consent must normally be obtained for adoption if the child is over 12 years of age. It can be dispensed with by the Court if there are “special reasons, related to the welfare and interests of the child”.4 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. In the mid-1960s when the “uniform” legislation was being formulated, the reality and the dominant image was of the adoption of newborn babies who could not participate actively in the proceedings. Today, a greater proportion of children are older and have been in foster care, and they may have the capacity and desire to express opinions about their proposed adoption. In addition, there were few precedents for children actively participating in court proceedings and former notions of children’s rights emphasised children’s rights to protection rather than their rights to have a say in decisions that affected them.5
5.3 More recently, there has been growing recognition of children’s rights of participation. This is reflected in case law6 and in recent legislation, which includes provisions for children to be legally represented and to participate actively in court proceedings in other ways.7 It is also reflected in the Convention on the Rights of the Child 1990, which provides:
Article 12
- 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.
- 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.
5.4 The Commission would welcome comments on the implications of these principles for adoption law. Are the present provisions relating to children’s consent appropriate? Should the law give children greater participation rights, for example, in relation to the selection of adoptive parents? Should the law, at least in the case of older children, require that the Court satisfy itself that the children have been fully informed about the proposed adoption before it makes the order? Should it also require that they are informed of any undertakings given by the adoptive parents that they will provide the adopted children with information about their origins? What provision, if any, should be made for children’s participation in the proceedings? Should they be entitled to independent representation in some or all adoption proceedings?
SELECTION OF ADOPTIVE PARENTS: THE PRESENT LAW AND PRACTICE
5.5 How should adoptive parents be chosen? What characteristics should they have? What procedures should be used in their selection? Should there be an appeal procedure available for people who are not approved as adoptive parents? Should there be different procedures, or criteria, for different types of adoption?
Present law
5.6 Where an adoption involves a child being placed into new surroundings, the selection of adoptive parents is a most important task. As we have seen, the present system gives the Department of Community Services and authorised adoption agencies the power to select, although criteria are specified by law. The selection of adoptive parents involves a number of separate selection processes. To obtain an order for adoption, the applicants need to be selected 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
5.7 The applicants must meet a number of requirements set out in the Act. Some of the requirements are less rigid when the prospective adopters wish to adopt a child with special needs, for example, a child who is older, has a physical or intellectual disability or comes from a particular racial background.
Age
5.8 The applicants must normally be 21 or older and must be either 18 years older (male applicants) or 16 years older (female applicants) than the child.8 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.9
Marital status
5.9 Subject to various qualifications, the Court may not make an adoption order otherwise than in favour of a married couple. In particular circumstances the Court can make an order in favour of one person.10 In very restricted circumstances the Court can make an order in favour of a couple living in a de facto relationship.11 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
5.10 Each applicant must be “of good repute” and “a fit and proper person to fulfil the responsibilities of a parent”.12
Religion and education
5.11 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.13 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”.14 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.15 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.
5.12 Religion is also relevant in a 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”.16 It seems clear that, although the contrary has been suggested,17 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.18
Health
5.13 The state of health of the child and the applicants is also relevant.19 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 eligibility requirements
5.14 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.20 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”.21 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.22 They 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”.23 The regulations re-state the minimum age of applicants from the Act and go further to specify the maximum age for applicants. Applicants are to be between 21 and 55 and must not be more than 41 years older than the child proposed to be adopted.24 If they have a child, the child must be at least two years older than the child to be adopted.25 There is also a requirement that the couple be infertile.26 This requirement does not apply to applicants for inter-country adoption. Are these criteria appropriate?
Allocation of children to approved applicants
5.15 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 70 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.
The Court’s discretion
5.16 If the applicants satisfy all the requirements and receive a child, the Court may, on 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.27
ISSUES RELATING TO SELECTION OF ADOPTIVE PARENTS
5.17 It is generally accepted that the process of selection of adoptive parents should be designed to find the best possible adoptive parents for the child, whose welfare is stated in the Act to be “the paramount consideration”.28 However, some of the existing criteria, notably the preference for infertile couples, appear to be based on the idea that one function of adoption is to serve the needs of those who want to adopt children.29 If the child’s welfare is to be the only purpose in selecting adoptive parents, it is difficult to see why infertility should be a requirement. Should the criteria be revised? Or should we accept that adoption may be used to serve interests of other people, provided that doing so does not work against the best interests of the child? It might also be that certain needs of the adoptive parents must be met in order for the placement of the child to operate effectively.
5.18 What sort of criteria are necessary when attempting to select the most appropriate adoptive parents for a child? To what extent should the system take into account age, marital status, health and other matters? To what extent should these matters be seen as desirable or undesirable in their own right and to what extent are they relevant to the question of whether particular applicants are suitable to adopt a particular child? To what extent should the criteria be “objective”, as in chronological age, as distinct from more “subjective” matters, such as the assessment by a social worker of the applicants’ attitudes towards their infertility, adoption generally or the state of their own relationship with each other? In the light of the Adoption Information Act 1990 (NSW) and the tendency towards openness in adoption, should we seek adoptive parents who are comfortable with such openness?
5.19 Another issue is whether there should be different criteria for different categories of adoptions. Broadly speaking, the criteria have been developed in relation to “traditional” adoptions but many adoptions today are not of this kind. Should we apply the same tests and criteria to adoptions of older children, adoptions by step-parents, mixed-race adoptions, adoptions by foster parents and adoptions of children with disabilities?
FOOTNOTES
1. Adoption of Children Act 1965 (NSW), s 18(1).
2. Section 18(5).
3. Section 18(4).
4. Section 33(1).
5. Compare, for example the United Nations Declaration on the Rights of the Child (1959) with the Convention on the Rights of the Child (1990). On children’s rights theory generally, see P Alston et al (eds) Children, Rights and the Law (OUP, Oxford, 1992).
6. See, for example, Secretary, Department of Health and Community Services v JWB and SMB (“Re Marion”) (1992) 15 Fam LR 392.
7. See for example, Family Law Act 1975 (Cth), s 63C(1)(b), 64(1)(b), 65; Children (Care and Protection) Act 1987 (NSW), ss 61A, 58(1)(a), 62B, 65(1)(a), 66, 69; see also Adoption Act 1984 (Vic), s 14 (child’s wishes to be considered).
8. 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.
9. Section 21(1)(c)(i)(b).
10. Section 19(2). If the applicant is married, the spouse’s consent is normally required: s 19(3).
11. Section 19(1A), (1B).
12. Section 21(1)(c)(i)(a).
13. Section 21A, overruling the reasoning of Larkins J in Re an Infant E and the Adoption of Children Act [1974] 1 NSWLR 739.
14. Section 21(1)(c)(i)(b).
15. Section 21(1)(c)(i)(b).
16. Section 21(1)(c)(i)(b).
17. Re an Infant M and the Adoption of Children Act (1967) 87 WN(Pt 1)(NSW) 48.
18. 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.
19. Adoption of Children Act 1965 (NSW), Section 21(1)(c)(i)(b).
20. Adoption of Children Regulations 1966 (NSW), .
21. New South Wales Government Gazette No 58 (8 May, 1992) at 3264, clauses 3 and 4.
22. Clause 2.
23. Clause 5.
24. Clause 6.
25. Clause 7.
26. Clause 9.
27. Adoption of Children Act 1965 (NSW), s 21(1) and s 17.
28. There may be room for argument about whether this provision, in s 17, applies to all stages of the selection of intending adopters.
29. A similar comment could perhaps be made about the provision for the birth parents to express a wish relating to religious upbringing: s 21(1)(c)(i)(b).
