2.1 This chapter establishes a policy framework for the more detailed recommendations in this Report. It considers whether adoption should continue to exist at all and, concluding that it should, re-evaluates three key features of current adoption law and practice. The effect of international treaties on adoption law and the legal effect of adoption orders are also examined. Finally, this chapter recommends principles which should now guide adoption law and practice.

SHOULD ADOPTION CONTINUE TO EXIST?

2.2 DP 34 outlined the views of both supporters and critics of the continued existence of adoption.¹ The Commission proposed that the concept of adoption be maintained but its regulation and practice be amended to accommodate relevant criticisms.²

2.3 The approach of the Commission was overwhelmingly supported in submissions. The submissions showed there is widespread community support for the continuation of adoption. Adoption is a well understood and familiar legal concept in Australia and in many other countries. It is recognised in international forums. Most submissions indicated there is a relevant and valued place for adoption today as one in a range of alternative care options for children unable to be cared for by their birth parents. It is the most long-term and permanent substitute care option since it severs a child’s legal ties with his or her birth parents and creates new and permanent legal ties with his or her adoptive parents.

2.4 The legal permanency which adoption provides can offer a child stability, security, continuity of relationships, a sense of belonging and identity, and a defined legal status.³ However, submissions also cautioned that adoption was not always a suitable long-term alternative care plan for a child.⁴ In each case, the system should ensure, as far as possible, that thoughtful and informed decisions are made in relation to the needs of each child. This refers not only to the needs in existence at the time the adoption order is made but also to those that may arise later in the child’s life. Adoption should only be considered where the circumstances of the particular child dictate that it is the alternative care order that best meets his or her needs.

RECOMMENDATION 1

Adoption should be maintained as one in a range of care alternatives for children.

2.5 The Adoption Act was the first comprehensive treatment of adoption law in New South Wales. Many of its features remain today. It introduced three major changes to the law. The first was a provision that, in making orders relating to the child, the Court should regard the child’s welfare and interests as “the paramount consideration.”⁵ The second was to introduce a more comprehensive legal regulation which included the banning of privately-arranged adoptions, except within the extended family.⁶ The third feature was the introduction of provisions intended to shroud adoption in secrecy.⁷

CHILD’S WELFARE AND INTERESTS ARE THE PARAMOUNT CONSIDERATION

2.6 The first feature of the Adoption Act, the paramountcy of the child’s welfare and interests as the principal determinant of adoption law and practice,⁸ is now uncontroversial. It was overwhelmingly supported in submissions, and is expressly provided for in the United Nations Convention on the Rights of the Child (“UNCROC”).⁹ This means that the child’s best interests must prevail over the interests of other parties in the adoption process. This applies to all aspects of the adoption process and extends beyond childhood interests into adult life.

2.7 An issue now arises as to whether the language in s 17 of the Adoption Act should be amended to reflect the widespread use of the phrase “best interests of the child”. At present, the language refers to “welfare and interests of the child”.

2.8 UNCROC uses the language “best interests of the child shall be the paramount consideration” in adoption.¹⁰ The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Hague Convention”) refers to the “best interests of the child”.¹¹ This language is reflected in the Family Law Act, which has been amended to replace “welfare” with “best interests of the child”.¹² The Explanatory Memorandum to the Act notes that this change is intended to be consistent with the language of UNCROC and is not intended to change the concept in the Family Law Act that the welfare of the child is the paramount consideration.¹³ For example, “interests” in relation to a child under the Family Law Act are defined as including “matters related to the care, welfare or development of the child”.¹⁴

2.9 The Adoption Act should refer to “best interests of the child” for consistency with the International Conventions and the Family Law Act.¹⁵ However, it should be recognised that this would not change the meaning of the present provisions in the Adoption Act which refer to “welfare and interests of the child.”

RECOMMENDATION 2

The principle that the best interests of the child is the paramount consideration in adoption law and practice should be maintained in the legislation, expressed in the phrase “best interests” rather than “welfare and interests”.

2.10 The final consideration is whether legislative guidance should be provided to the Court and administrative decision-makers as to the meaning of the phrase “best interests of the child” in the context of adoption.

2.11 “Best interests of the child”, like “welfare”, is an imprecise term.¹⁶ However, it is used as a standard with respect to children in many areas of law, both international¹⁷ and domestic.¹⁸ With statutory guidance as to its meaning it can be effective.¹⁹

2.12 A list of matters which should be taken into account by the Court when considering the “best interests of the child” would assist the Court in applying the principle. It would provide the Court with a checklist of issues to be considered before making the adoption order. Similar legislative considerations now apply in the Family Law Act.²⁰ Considerations as to the “best interests of the child” contained in the Family Law Act can form the basis for considerations appropriate to adoption.

RECOMMENDATION 3

The Court should not make an adoption order unless it considers that the making of the order would make better provision for the best interests of the child than parenting orders under the Family Law Act 1975 (Cth) or any other order for the care of the child.

RECOMMENDATION 4

In determining what is in the child’s best interests in adoption, the Court should have regard to:

• any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to these wishes;
• the child’s age, maturity, sex, background and family relationships, and any other characteristics of the child that the Court thinks are relevant;
• the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity;
• the nature of the relationship which the child has with the applicant or each of the applicants, with relatives and with any other person in relation to whom the Court or agency considers the question to be relevant;
• the attitude to the child and to the responsibilities of parenthood of each applicant;
• the capacity of each applicant, or other relevant person, to provide for the needs of the child, including emotional and intellectual needs;
• the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour;
• the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to meet best the needs of the child; and
• any other fact or circumstance that the Court thinks is relevant.²¹

2.13 The Court should also be required under the Adoption Act to consider other central principles in the current approach to adoption. These principles are discussed in later chapters.²²

RECOMMENDATION 5

Before making an order for adoption, the Court must find the applicant, or each of the applicants, suitable to adopt the particular child, having regard to all relevant matters and in particular:

• the best interests of the child;
• where an adoption plan has been negotiated, that it is a proper one in the circumstances;
• the Cultural Heritage Placement Principle;²³
• the Aboriginal Child Placement Principle;²⁴ and
• the Torres Strait Islander Child Placement Principle.²⁵

Public regulation of adoption

2.14 The second feature of the Adoption Act, the comprehensive legal regulation of adoption, is also uncontroversial today.²⁶ Submissions overwhelmingly supported public regulation of adoption services and the judicial sanctioning of adoption. Such control is considered better than private placements in ensuring the child’s interests come first in any contemplated adoption and that the best alternative family is sought for a child in need of permanent placement.²⁷ One submission observed that

the impetus [for] and focus of private arrangements are usually the needs of the adults: the rights and needs of the child may not be recognised or protected, birth parent’s rights may be infringed.²⁸

2.15 Public regulation provides better safeguards for the protection of the rights of all parties involved in an adoption. This is highlighted in intercountry adoption where such regulation assists in preventing corrupt adoption practices and trafficking in children. The main features of the present legal regulation of adoption should therefore remain.

RECOMMENDATION 6

The effect of s 51 of the Adoption Act should be retained. This section prohibits persons acting without the authority of an agency

• to conduct negotiations or make arrangements with another person, or
• to transfer possession or control of a child to another person
• with a view to the adoption of the child by that person.



RECOMMENDATION 7

The Court should retain responsibility for making adoption orders, subject to automatic recognition of overseas orders in certain circumstances.²⁹

Secrecy

2.16 This last feature of the Adoption Act, namely provisions for secrecy, has been greatly modified by recent developments, particularly by the Adoption Information Act 1990 (NSW). It is now widely accepted that adoption practice should recognise the continuing importance of the birth link, with respect to both family and cultural ties. Children should be treated as individuals who have ties with people, by virtue of their birth, that cannot be eradicated. Adoption law should ensure that genealogical distortions, legal fictions, secrecy and non-legal severance of birth family ties should not occur.

2.17 One submission observed that many of the criticisms of past adoption practice, in particular its secrecy, severance of birth links, and disregard for cultural heritage, have been largely addressed by present adoption practice.³⁰

2.18 The Adoption Act does not reflect the policy of open adoption presently encouraged in practice by the agencies, a failing which should be remedied.³¹ Open adoption recognises the reality of two sets of parents and families in the child’s life - birth and adopted. Although most submissions strongly supported legislating for open adoption, it should not become a rigid formula.³²

Children should have the right to information about their biological parents from the earliest age and they should have the ability to initiate or sustain contact with their birth parents or members of their family of origin. But contact should not be forced on a child who is unwilling.³³

2.20 Current views indicate that the law faces the difficult task of acknowledging the importance of birth relationships, while continuing to provide security for the adoptive parents in their care of adopted children, and providing appropriate protection for the privacy interests of the people involved in adoption. Open adoption is discussed in detail in Chapter 7 where specific recommendations are made.

SIGNIFICANCE OF INTERNATIONAL TREATIES

2.21 Australia has ratified UNCROC³⁵ and is likely to ratify the Hague Convention in the near future. These international treaties recognise the continued existence of adoption as a form of alternative care for children whose parents cannot care for them and provide safeguards against the abuse of adoption.³⁶ Although such treaties do not restrict the power of the New South Wales Parliament,³⁷ adoption law, policy and practice in this State should conform to international treaties to which Australia is a party, unless there is a compelling reason to depart from them in some respects.³⁸

2.22 Australia’s international treaty obligations with respect to children include:

• the right of a child to express his or her views freely on all aspects of the adoption and for these views to be given due weight;
• the opportunity for the child to be heard in any judicial or administrative proceedings relating to the adoption, either directly or through a representative;
• the right of the child to contact with his or her birth parents; and
• the same safeguards and standards being applied to a child adopted from another country as those applied to a child adopted in New South Wales. ³⁹

LEGAL EFFECT OF ADOPTION ORDERS

2.23 The Adoption Act presently states that one of the consequences of adoption is that

the adopted child becomes the child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock.⁴⁰

2.24 Submissions agreed that the wording of s 35 of the Adoption Act should be amended to reflect the continuing relevance of the child’s birth family, and generally agreed with the language proposed in DP 34.⁴¹ Several believed the legislation should also refer to the child’s full and equal membership of the adoptive family.⁴² The National Children’s and Youth Law Centre submitted that the language should reflect the wider development in family law to move away from concepts of children as property with “transfer[s] of ownership, naming rights and indefeasibility of title” and emphasise instead “parental responsibilities.”⁴³ Such language would also be consistent with amendments to the Family Law Act.⁴⁴

RECOMMENDATION 8


The language of the legislation should reflect the contemporary approach to adoption. In particular, it should reflect the moderation of secrecy in adoption and avoid language which fosters notions of “ownership” of children, while recognising the profound and permanent changes in legal status which occur.

2.25 A general definition of the consequences of adoption should retain the important principle that adoption involves a transfer of the child from one family to another without going so far as to suggest that the birth family is to be disregarded completely.

RECOMMENDATION 9

Section 35 of the Adoption Act (which sets out the general effect of adoption orders) should be amended to provide in substance:

• that the adopted child shall be regarded in law as the child of the adopter or adopters and the adopter or adopters shall be regarded in law as the parent or parents of the adopted child;
• that the adopted child shall cease to be regarded in law as the child of the birth parents and the birth parents shall cease to be regarded in law as the parents of the adopted child;
• that the adopted child shall have the same rights in relation to the adopter and adopters as a child born to the adopter or adopters; and
• that the adopter or adopters shall have the same rights and obligations in relation to the adopted child as the parent or parents of a child born to such adopter or adopters.

2.26 The proposed revision to s 35 properly describes the changes in relationship between the birth parents, adoptive parents and child which occur upon an adoption order.⁴⁵ Other features of an adoption order are dealt with elsewhere in the Act, for example: the need for adequate and informed parental consent prior to an adoption order; and, once consent is given, the largely irreversible nature of an adoption order.

GUIDING PRINCIPLES FOR THE PRACTICE OF ADOPTION

2.27 From the above overview emerge general principles which should guide adoption policy and practice. These principles underpin the other chapters in this Report and are as follows:

• The best interests of the child must be the paramount consideration. This principle is discussed in paragraphs 2.6 to 2.12.
• Adoption is a service to children and not a service to adults. Where adoption and its practice falls for consideration as a service, it must be viewed as a service provided to the child. It should not, for example, be seen as a service to the adult or adults wishing to create, complete or extend their families. The fact that it is not a service to adults should be made explicit in the legislation.⁴⁶

RECOMMENDATION 10

The legislation should expressly state that adoption is a service for children, not a service for adults wishing to acquire the care of a child.

• No right to adopt a child exists. Adoption is a process to find parents to benefit children in need of permanent care, not to supply children for the benefit of adults wishing to create or extend their families. This is presently alluded to in clause 35 of the Adoption of Children Regulation.⁴⁷
• The child’s viewpoint should be respected.
• A child should be able to preserve his or her own identity.
• Respect for the child’s viewpoint

2.28 Children should be consulted and able to participate as far as possible in their adoption. Their views, feelings and opinions should be encouraged and ascertained, and effectively conveyed and considered throughout the adoption process by the agencies and the Court.⁴⁸ In practice, if there is to be real and effective participation

• children must be given the opportunity to discuss the adoption freely and openly;⁴⁹
• they should not be misled on crucial background information;⁵⁰
• they should be provided with clear and useful information, in a form they can understand; and
• they should have the nature and effect of any decision which is likely to affect them fully explained.⁵¹

2.29 Children’s views should not be undervalued. The age or maturity of a child should not determine whether or not these views are considered, but rather go to the weight reasonably given to these views.⁵² This includes, as far as possible, considering their wishes as to placement⁵³ and their consent to an adoption.⁵⁴ Where children find it difficult to explain or express their views, they should have access to independent assistance.⁵⁵

2.30 However, the right to participate does not mean a child has to take responsibility for choices with consequences he or she cannot understand or cope with,⁵⁶ nor should a child be required to express his or her wishes.⁵⁷

2.31 Where a child has the capacity to make balanced and informed decisions in relation to issues surrounding his or her adoption, the child’s wishes should be accorded serious consideration in the adoption process.⁵⁸ In particular, legislation should provide defined age limits at which a child must give his or her consent to the adoption.⁵⁹

2.32 How the agencies and the Court can inform themselves of the wishes and feelings of children, including legal representation, is dealt with in Chapter 3. The child’s views and the child’s consent to an adoption are examined in Chapters 3 and 5 respectively. Recommendations in relation to these issues are made in those chapters.

Preserving the child’s identity

2.33 A child should be able to retain, wherever possible, his or her own name. At present in New South Wales, upon adoption the child automatically takes the surname of his or her adoptive parents and takes such first names as the Court approves on the adoptive parents’ application.⁶⁰ However, the Court can decide whether or not to change the surname of a child, if the child has been generally known by that surname prior to the adoption.⁶¹ A child of 12 years or older must consent to a change of his or her first name, unless the Court is satisfied that special reasons, relating to the child’s best interests, justify a change of first name.⁶²

2.34 Since to be known by a name is an integral part of identity, all children of sufficient understanding and maturity should be independently consulted about any proposed changes to their first name and surname. The Court should give careful consideration to the child’s wishes and feelings on this point.⁶³ This issue is considered in detail in Chapters 5 and 10.

2.35 Adoption law and practice should also assist a child in knowing his or her birth family and cultural background, in providing continuing contact with those who are important to his or her well-being, and in accessing and enjoying his or her cultural heritage.⁶⁴ In so doing, due regard should be paid by the Court and other decision-makers in the adoption process to the desirability of cultural continuity for the child. This is examined in Chapter 8. Cultural issues relating specifically to Aboriginal and Torres Strait Islander children are examined in Chapter 9.

FOOTNOTES

1. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, April 1994) Chapter 3.

2. NSWLRC DP 34 at para 3.19.

3. NSW Department of Community Services Submission (5 September 1994) at 2, 3 and 12.

4. NSW Department of Community Services Submission (5 September 1994) at 2-3; Barnardos Australia Submission (26 July 1994).

5. Adoption of Children Act 1965 (NSW) s 17.

6. s 27(1), 51 and 52.

7. See on this aspect of the legislation, New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) Chapter 2.

8. Adoption of Children Act 1965 (NSW) s 17 states: “the welfare and interests of the child concerned shall be regarded as the paramount consideration”.

9. United Nations Convention on the Rights of the Child Article 21.

10. Article 21.

11. Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Preamble.

12. Family Law Act 1975 (Cth) s 67ZC(2) (as amended by the Family Law Reform Act 1995 (Cth)) replacing the earlier language in s 64(1)(a). See the Parliament of the Commonwealth of Australia, House of Representatives, Family Law Reform Bill 1994, Explanatory Memorandum, at paras 329 -330.

13. Parliament of the Commonwealth of Australia, House of Representatives, Family Law Reform Bill 1994, Explanatory Memorandum, at para 330.

14. Family Law Act 1975 (Cth) s 60D(1) definitions.

15. Other provisions in the Adoption of Children Act 1965 (NSW) which refer to the “welfare and interests of the child” include s 19(1A)(a)(iii) and (1B), 21(1)(c)(ii), 25(2) and (4), 33(1), 38(2A), 68A.

16. Secretary, Department of Health and Community Services v J W B (Marion’s Case) (1992) 175 CLR 218 at 270-271 per Brennan J. However, the National Children’s and Youth Law Centre Submission (29 July 1994) at 5-6 believes the term should be retained in legislation, with statutory guidance as to its meaning.

A fresh way of thinking of “best interests of the child” is proposed in a paper by J Eekelaar, “The Importance of Thinking that Children Have Rights” in P Alston, S Parker and J Seymour (eds) Children, Rights and the Law (Clarendon Press, Oxford, 1992) 221 at 228-230. Eekelaar postulates that policies towards children, including the “best interests of the child,” should be framed in terms of children’s rights (“rights-based approach”) rather than in terms of promoting their welfare (“welfarism approach”). The welfarism approach requires adults to act towards children solely in accordance with the adult’s perception of the child’s welfare. The rights-based approach relies instead on children’s claims. It requires a hypothetical judgment by the adult decision-maker of what duties children would want to be exercised towards them if they are fully informed of the relevant factors and of mature judgement. One benefit of the rights-based approach is that it does not abstract the child from his or her context.

18. See, for example, Family Law Act 1975 (Cth) s 67ZC(2).

19. Secretary, Department of Health and Community Services v J W B (Marion’s Case) at 271-272 per Brennan J.

20. Family Law Act 1975 (Cth) s 68F(1), (2).

21. This list is drawn from the Children Act 1989 (UK) s 1(3); Adoption Bill 1996 (UK); and Family Law Act 1975 (Cth) s 68F(2). See also the National Children’s and Youth Law Centre Submission (29 July 1994) at 6.

22. See Chapters 7, 8, 9.

23. See Chapter 8.

24. See Chapter 9.

25. See Chapter 9.

26. NSWLRC DP 34 at paras 4.6-4.10. United Nations Convention on the Rights of the Child Article 21(a) upholds the legal regulation of adoption by competent authorities.

27. Anglican Adoption Agency Submission (26 August 1994).

28. NSW Department of Community Services Submission (5 September 1994) para 1.1 at 6.

29. See Chapter 10.

30. Anglican Adoption Agency Submission (26 August 1994).

31. Although the Adoption of Children Regulation 1995 (NSW) Schedule 1 Form 6 provides for birth parent requests as to future information about the child. Note: For the purposes of this Chapter, “agencies” refers to both the Department of Community Services and the private adoption agencies unless the context otherwise requires.

32. National Children’s and Youth Law Centre Submission (29 July 1994) at 6; Anglican Adoption Agency Submission (26 August 1994) at 4.1.

33. National Children’s and Youth Law Centre Submission (29 July 1994) at 6-7.

34. Barnardos Australia Submission (26 July 1994).

35. United Nations Convention on the Rights of the Child, adopted by the General Assembly in November 1989 and ratified by Australia in December 1990.

36. For example, United Nations Convention on the Rights of the Child Articles 20 and 21.

37. Although binding in international law, ratification does not mean the Convention provisions form part of Australian domestic law. In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 423, the High Court held that Australia’s ratification of the United Nations Convention on the Rights of the Child gives rise to a “legitimate expectation” that the decision-maker will exercise a statutory discretion in accordance with the terms of that Convention when considering the deportation of a convicted drug dealer who had Australian-born children. The Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) was introduced as an attempt to minimise the impact of Teoh’s case by narrowing the effect of such Conventions on administrative decisions under Australian domestic law. However the Bill was not passed and has since lapsed.

38. To achieve compliance with the provisions of the international Conventions to which Australia is a party, the National Children’s and Youth Law Centre Submission (29 July 1994) at 2-3 suggests that at present the following points need to be incorporated in adoption law:

• Free and independent counselling for birth parents - Prior to consent, birth parents should be offered free counselling by an independent trained counsellor who can explain the forms of support and assistance available to the parent or members of their extended family if the child is cared for within the family groups.
• Independent representative for child - Prior to any adoption decision, the child should be entitled to representation before the court or tribunal. This applies to applications to dispense with consent and applications for an adoption order.
• Maintenance of birth links - Adoption should preserve to the greatest extent possible (unless contrary to the child’s best interests) the child’s personal and family identity and should not deny or impede access of the child to information and, if the child wishes, contact with the birth parents or other members of the birth family.
• Naming and personal identity - The adoptive parent(s) should not have the power to change a child’s names when the child has reached an age when he or she is aware of his or her names, unless the child has expressed a wish to change his or her names.

40. Adoption of Children Act 1965 (NSW) s 35(1)(a).

41. Anglican Adoption Agency Submission (26 August 1994) at 4.2 commented on the present language of section 35: “ ... the adoptive parents are never the ‘parents of the child as if the child had been born to them in lawful wedlock.’ The birth parents are the biological genetic and genealogical parents, which implies a bond which cannot be broken.”

42. National Children’s and Youth Law Centre Submission (29 July 1994) at 5; Barnardos Australia Submission (26 July 1994); NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 13; NSW Department of Community Services Submission (5 September 1994) at 10; and Post Adoption Resource Centre (a service of the Benevolent Society of NSW) Submission (5 August 1994) at 4.

43. National Children’s and Youth Law Centre Submission (29 July 1994) at 3.

44. See the Family Law Reform Act 1995 (Cth) which amends the Family Law Act 1975 (Cth). Parliament of the Commonwealth of Australia, House of Representatives, Family Law Reform Bill 1994, Explanatory Memorandum, at para 1 states this is a new approach to dealing with children which “emphasises the concept of parental responsibility for the care, welfare and development of children rather than giving parents any rights to custody and access, which tends to foster notions of ownership in children.” This approach is based on the Children Act 1989 (UK).

45. However, the proposed revision to the language of the Adoption of Children Act 1965 (NSW) s 35 does not change the intention of the current provisions regarding succession and other dispositions of property upon an adoption order under s 35(2), 35(3), 36 and 37. Provisions such as Children (Equality of Status) Act 1976 (NSW) s 5(2), and 9(3) (which relates to the status of children and dispositions of property), and the Family Provision Act 1982 (NSW) s 7 would continue to have effect. Note that the Children (Equality of Status) Act 1976 (NSW) is intended to be repealed shortly by the Status of Children Bill 1996 (NSW) (which was assented to on 29 October 1996 but has not yet been proclaimed). However, cl 4(2) and 8(4) of the Bill re-enact in substance the provisions of the Act cited above.

46. See the Adoption Act 1984 (Vic) s 32 which states: “In all matters relating to the exercise of powers and the performance of duties under this Act, the Director-General and the principal officer of an approved agency shall have regard to adoption as a service for the child.” The Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 para 1.2 and National Minimum Principles in Adoption, June 1993 para 1.2 state: “Adoption is a service for children, not for adults wishing to acquire the care of a child.”

47. Adoption of Children Regulation 1995 (NSW) cl 35 states: “Nothing in this Regulation: (a) requires the Director-General or the principal officer of a private adoption agency to place a child for the purposes of adoption with an applicant whose name is on the adoption register; or (b) gives an applicant whose name is on the adoption register any right or entitlement to the placement of a child for the purposes of adoption.”

48. For example, Adoption Act 1984 (Vic) s 14 requires the Court, prior to making an adoption order, to ascertain and consider the wishes and feelings of the child, having regard to the child’s age and understanding. Also see Adoption Act 1993 (ACT) s 19(2)(a). The Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 para 8.2 and National Minimum Principles in Adoption, June 1993 para 8.2 endorse this.

49. United Nations Convention on the Rights of the Child Article 12. See also E E Sutherland “Adoption: The Child’s View” [1994] Scots Law Times 37.

50. Sutherland “Adoption: The Child’s View”. See also Australian Youth Foundation Inc and National Children’s and Youth Law Centre Australian Children’s Charter: Draft for Consultation (The National Children’s and Youth Law Centre, Sydney, June 1995) at 12.

51. Australian Youth Foundation Inc and National Children’s and Youth Law Centre Australian Children’s Charter: Draft for Consultation at 29.

52. United Nations Convention on the Rights of the Child Article 12.1. In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788. The Australian Youth Foundation Inc and National Children’s and Youth Law Centre state that where a child lacks capacity, he or she should be free to express his or her views and have these taken into account: Australian Children’s Charter: Draft for Consultation at 29.

53. For example, Adoption Act 1994 (WA) s 52(1)(a)(v) provides qualified support for this.

54. As with many States and Territories in Australia, the Adoption Act 1988 (SA) s 16 requires the consent of a child over the age of 12 years. However, the Act also provides a period for the revocation of this consent and requires certain formalities to be adhered to in taking the child’s consent.

55. United Nations Convention on the Rights of the Child Article 12.2. For example, Adoption Act 1984 (Vic) s 106 allows for separate legal representation for the child in certain circumstances. Also see Adoption Act 1993 (ACT) s 107 and Adoption of Children Act 1994 (NT) s 80 which allow for representation of the child.

56. M G Flekkoy “The Future of Child Advocacy on the National and International Level” in J Harvey, U Dolgopol and S Castell-McGregor (eds) Implementing the UN Convention on the Rights of the Child in Australia (South Australian Children’s Interests Bureau, Adelaide, 1993) at 36.

57. See Family Law Act 1975 (Cth) s 68H. See also the Australian Youth Foundation Inc and National Children’s and Youth Law Centre Australian Children’s Charter: Draft for Consultation which outlines the fundamental rights of children, one of which is that “[c]hildren have the right not to express any views or opinions if they make an informed choice not to do so”: at 12. The Anglican Adoption Agency also observed that in expressing his or her wishes, a child should not be asked to chose an alternative family to his or her birth family, since loyalty to the birth parents remains high: Submission (26 August 1994) at para 6.4.

58. Australian Youth Foundation Inc and National Children’s and Youth Law Centre Australian Children’s Charter: Draft for Consultation at 11 and 29.

In the House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112 at 184-189, Scarman LJ, in a majority judgment, commented: “rather than by reference to a fixed age of the child, parental right to care, custody and control of a child yields to the child’s right to make his own decisions when the child reaches a sufficient understanding and intelligence to be capable of making up his or her own mind on the matter requiring decision”. In the High Court case of Secretary, Department of Health and Community Services v J W B (Marion’s Case) (1992) 175 CLR 218 at 237-238, the majority judgment of Mason CJ, Dawson J, Toohey J and Gaudron J approved the principle in Gillick: “A minor is ... capable of giving informed consent when he or she ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.”

60. Adoption of Children Act 1965 (NSW) s 38(1).

61. s 38(2).

62. s 38(2A).

63. For example, Adoption Act 1988 (SA) s 23 states that before a Court orders a change in the name of a child, any wishes of the child should be taken into account. However, the Court cannot change the name of a child who is over 12 years unless the child consents or is intellectually incapable of consenting.

64. This is supported by the United Nations Convention on the Rights of the Child Articles 7, 8, 9 and 30.