THE IMPLICATIONS OF “OPEN ADOPTION”
Should the law regulate, encourage or discourage recent developments towards “open adoption”? What additional provisions, if any, should be made relating to the rights and responsibilities of birth parents?
6.1 Until very recently, the only important rights of birth parents were their rights to consent to the adoption of their child. 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 voluntariness of the consent. In some circumstances 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 that are considered in this chapter.
6.2 In recent times, practices associated with “open adoption” have raised questions regarding the rights of birth parents. They now have a legal right to identifying information about the adopted child when the child turns eighteen.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. Arrangements for this kind of contact can exist under present adoption law.
6.3 The Commission is particularly anxious to learn about the implications of these developments and the extent to which they should be regulated, encouraged or discouraged by the law. Does the development of openness in adoption create a need for additional or different resources and qualifications among adoption workers? Who would benefit or be disadvantaged by such developments?
6.4 The Commission welcomes comments on the role the law should take in this area. Should it effectively leave such matters to the adoption professionals or deal with these issues in a more direct fashion? Should it specify the rights of birth parents and others to information and services? If the law is to give greater rights to birth parents, is it appropriate to consider also what responsibilities they might have?
WHOSE CONSENT?
Whose consent should be required to adoption? Should consent be required from unmarried fathers?
6.5 Consent is 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. Whether consent is required from the father of an ex-nuptial child (we will for convenience refer to them as “unmarried fathers”) is a difficult question. There is room for argument that the unmarried father is a “guardian” as a result of the Family Law Act 1975 (Cth) and his consent is therefore required. This was almost certainly not intended because the provisions of the Act indicate that the father of ex-nuptial child is required to consent only in limited circumstances, namely where he lived with the mother and the child after the child was born.3 This provision 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.
6.6 What is the position of the unmarried father who wishes to prevent the adoption and, perhaps, to bring up the child himself? The Act contains provisions relating to men who are registered as fathers or are legally presumed to be fathers.4 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.5 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.6
6.7 Do these provisions operate satisfactorily? Are they appropriate for fathers who are ill, unfamiliar with English, who do not realise the importance of the time requirement or who for other understandable reasons fail to file the notice within the two weeks.7 On one interpretation, these provisions would prevent such fathers from putting their opposition to the adoption to the Court. They could also be interpreted as preventing fathers from applying for access, even if they responded with the two week period; they must either accept the adoption or claim the care, custody and guardianship of the child.
6.8 The position of unmarried fathers in adoption is a much debated issue. It appears that the law should be clarified but what should the law be? It can be argued that many unmarried fathers are, or would like to become, involved parents and it is in the interests of the children not to cut off this relationship. On the other hand, it can be argued that to give rights to all unmarried fathers would allow men who have no interest or involvement in their children to impede the adoption process, at the expense of an early and secure placement for the child, and impose pressure on the birth mothers. One approach is for the law to attempt to identify those fathers whose consent should be required, such as those who have established a relationship with the child or those who had a close relationship with the mother and were prevented from establishing a relationship with the child. Another would be to require the consent of all fathers, married and unmarried, and rely on the procedure of dispensing with consent to deal with “unmeritorious” fathers. Comments are welcome on this controversial issue.
WHAT KIND OF CONSENT?
Should it be possible for birth parents to limit their consent or make it conditional? Should the birth parents help select or nominate the adoptive parents?
6.9 Under the present law consent must be general, that is, a consent to the child being adopted by any eligible person or couple selected by the agency.8 It cannot be conditional. With one exception, the relinquishing parents have no right to control or influence the selection of the adoptive parents or the way in which they bring up the child. The exception is that the relinquishing parents can, in the consent form, 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, although normally it is respected and the agency tries to place the child with people of the appropriate religion. The Commission understands that, in practice, the Department of Community Services and the authorised adoption agencies often give birth parents the opportunity to select adoptive parents from two or three couples from the “pool” of approved adoptive parents.
6.10 There are many alternatives to the present system for consenting. The consent could be to the adoption by particular people, such as a couple selected by the birth parents, or to members of a class of persons. It could be conditional by requiring, for example, 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.
PROTECTION AGAINST DURESS
How can the law ensure that consents are truly voluntary?
6.11 There are several ways in which the Act attempts to protect parents against giving a form of consent that is not truly voluntary. The consent must be in writing and there is a requirement that the consequences of giving such a consent have been explained to the person.9 Consent cannot be taken 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.10 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.11 The consent can be revoked within a period of 30 days, after which it becomes final.12
6.12 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 30 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. Are these the relevant considerations in approaching this topic? How satisfactory are the present provisions?
DISPENSING WITH CONSENT
Should it be possible for the Court to make an adoption order without the consent of the birth parents? If so, what reasons would justify such an order? What procedures are appropriate for dealing with these matters?
Grounds
6.13 In certain circumstances, the Court has power to dispense with the consent of a birth parent or guardian. Applications to dispense with consent involve “contested” adoption hearings, in which one or both birth parents are seeking to prevent the loss of their parental rights and the Department of Community Services or authorised agency is seeking to persuade the Court that the circumstances warrant making the adoption order against the wishes of the birth parent(s).
6.14 There are a number of grounds on which consent might be dispensed with so that the adoption order can be made without consent.13 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. 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. [...]14
(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. 15
6.15 Paragraph (g) 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.16
6.16 This conclusion seems to involve a curious ambivalence towards the rights of the birth parents. Their consent is ordinarily required and the Court can do without it only in limited circumstances. However, 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 for the adoption of newborn children of poor or disadvantaged parents and that 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.17 The problem has not arisen on a widespread scale because the agencies have not pursued such an aggressive approach.
6.17 The issue involves questions about the rights of parents and children and the role of adoption. 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.18 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.19 Therefore, New South Wales law on this point appears to favour adoption to a greater extent than other jurisdictions and to a greater extent than even the most pro-adoption social work literature.20 The Commission invites comments on whether it is desirable that the adoption legislation should contain more specific guidelines about this issue and, if so, what those guidelines might be.
Procedures
6.18 An application to dispense with parental consent can be made quite separately from an application for the adoption of a particular child.21 Where this happens the effect of the order is to free the child to be adopted by any applicants. In such cases the Court is not able to consider whether the child’s welfare will be promoted by the proposed adoption, but must consider whether the child’s welfare would be promoted by being freed for adoption by any adopters who are subsequently chosen. Is this desirable? Would it be better for the law to provide for dispensing with consent only to make a particular order for adoption, so that the Court can compare the proposed adoption with other options available for the child?22
FOOTNOTES
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.
3. Section 26(3)(b).
4. This is a considerably simplified summary of s 31A. See also s 31E.
5. Section 31A; s 31B (notice may be dispensed with in certain situations).
6. Section 31D.
7. Compare the provision for dispensing with a parent’s consent on the ground of failure by the parent to respond promptly to such a notice: s 32(h).
8. This paragraph does not refer to adoptions within families.
9. Adoption of Children Act 1965 (NSW), s 29; Adoption of Children Regulations 1966 (NSW), regulation 23.
10. Adoption of Children Act 1965 (NSW), s 31(2)-(4).
11. Section 31.
12. Section 28.
13. Section 32.
14. Para (f1), dealing with inter-country adoption, has been omitted.
15. 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 (Amendment) Act 1980” 1980 Aust Current Law Digest 41.
16. Re an Infant K and the Adoption of Children Act [1973] 1 NSWLR 311.
17. See for example papers by Hambly, and Chisholm, in C Picton (ed) Proceedings of the First Australian Conference on Adoption 1976 (Committee of the First Australian Conference on Adoption, Melbourne, 1976) .
18. Most jurisdictions have provisions which refer to the child’s welfare, but also require the existence of “special circumstances” or the like.
19. United Kingdom. Review of Adoption Law (Report to Ministers of an Interdepartmental Working Group, Department of Health and Welsh Office, 1992) at 25-7.
20. See for example J Goldstein, A Freud and A Solnit Before the Best Interests of the Child (Free Press, New York, 1979).
21. Adoption of Children Act 1965 (NSW), s 32 (2) and (3). In intra-family adoptions, the applicants for adoption cannot apply to dispense with consent unless the Director-General consents to their doing so: see s 32(2).
22. This is recommended by the United Kingdom Review of Adoption Law (Report to Ministers of an Interdepartmental Working Group, Department of Health and Welsh Office, 1992) at 29-31.
