INTRODUCTION
4.1 In relation to certain adoptees, there may be particular concerns or considerations which need to be addressed, in addition to taking into account issues relevant to all adoptions. For this reason, it is justified to give separate deliberation to particular categories of adoption. This chapter looks at the adoption of:
- adults;
- step-children and other related children;
- children in care;
- children in private placements; and
- children with special needs.
4.2 Approximately one third of all local adoptions are adoptions of relatives, wards, foster children and children with “special needs”. Furthermore, there are now almost as many intercountry adoptions as there are local adoptions. Within the category of “intercountry adoptions” there may be many children who have special needs. Table 1 gives a comparison of the numbers of adoptees in different categories.
Table 1: Adoption placements in New South Wales
| Category | 1992/19931 | 1993/19942 | 1994/19953 |
| Infants (under 2 years) | 72 | 60 | 45 |
| Infant Wards | 6 | 8 | 6 |
| Special needs and older age | 6 | 18 | 10 |
| Special needs and older age wards | 15 | 11 | 11 |
| Relatives (a) | - | - | 48 |
| Intercountry adoptees | 95 | 89 | 85 |
[Link to text only version of table 1]
ADOPTION OF ADULTS
Current law and practice
4.3 Section 18 (1)(b) of the Adoption Act allows the Court to make an order for the adoption of a person who has attained the age of 18 years provided he or she has been brought up, maintained and educated by the applicant(s) as their child or has been a ward in the care or custody of the applicant(s). The application must be made with the consent of the Director-General or on behalf of the applicants by the Director-General or by the principal officer of a private adoption agency.4
4.4 However, pursuant to s 18(4), the Court cannot make an order for the adoption of a person who is or has been married.
4.5 Section 21(1)(c)(ii) of the Adoption Act requires the Court to consider a report from the Director-General concerning the proposed adoption and satisfy itself that:
- the applicant or each of the applicants is of good repute; and
- in the particular circumstances of the case it is desirable that the “child”5 should be adopted by the applicant(s); and
- in either case, the welfare and interests of the child will be promoted by the adoption.
4.6 Pursuant to s 26(6) of the Adoption Act, the consents of certain persons required to all other adoptions are not required to the adoption of an adult.
4.7 In practice, adult adoptions are rare and mostly not considered appropriate by either the Supreme Court of New South Wales or DOCS:
The Court is always very careful to see that adoption is used for the purposes contemplated by the Act and not for any collateral purposes. As Selby J said in Re Lee Yen Chum (1963) 4 FLR 296 at 299: “The Court looks with disfavour upon what are sometimes called ‘accommodation’ adoptions, that is to say, adoptions which are sought for a motive other than an intention to establish a parental relationship between the applicants and the person sought to be adopted. In such cases, the Court, in the exercise of its discretion, has refused to make the order asked.”6
4.8 Adults wishing to be adopted are usually motivated by emotional or sentimental reasons, or to cement their sense of identity. Where they have been brought up through all or most of their childhood by a particular adult or adults, when they themselves reach adulthood it may become emotionally important to recognise legally and formally the parent/child relationship. This has occasionally been precipitated by the imminent death of the parent or child. There have also been instances where the parties involved have wanted to bring the adoptee within the terms of a family trust,7 have wanted to enable the adoptee to qualify for a superannuation scheme8 or to prevent embarrassment.9
Discussion Paper 34
4.9 In DP 34, the Commission recommended that the current law be retained for use in exceptional circumstances.
Submissions and response
4.10 Two submissions were received in response to the Commission’s recommendation.10 The first submission detailed a case where a person of 36 years of age had had what was described in the submission as an 18 year “parent/child” relationship with the applicants commencing shortly after she had turned 18. All parties were eager for an adoption order to be made “to complete” the parent/daughter relationship.
4.11 Much to the parties’ disappointment, the application did not proceed because it failed to fall within the requirement of s 18 of the Adoption Act that the parent/child relationship take place before the child turns 18. The submission argued that:
having regard to the interests of the parties ... there is no justification for limiting an adult adoption to circumstances where a pre-age 18 relationship exists. Provided that the parties are consenting adults and that there is no intention of abuse it is submitted that the Adoption of Children Act should allow such adoptions to occur.11
4.12 The second submission related to an application to adopt two adults, aged 21 and 20 years, who had been in the foster care of the applicants from babyhood. This submission raised the anomaly that two consenting adults “who have known each other for a few weeks or even a few days can undergo a simple and non-obtrusive procedure to marry” yet “consenting adults” who wish to adopt and be adopted must have their application processed by an agency, involving them in lengthy and extensive interviews and approval procedures.
Legislation in other States
4.13 The Australian Capital Territory has dealt with adult adoptions in s 10 of its Adoption Act 1993 (ACT) very simply as follows:
4.14 Section 66(2) of the Adoption Act 1994 (WA) provides:
A person who is 18 or more years of age may be adopted by a person who was a carer or step-parent of the first-mentioned person immediately before the first-mentioned person attained 18 years of age.
4.15 Section 13 of the Adoption Act 1988 (SA) permits adoption of persons between the ages of 18 and 20 years of age if the person has been brought up, maintained and educated by the applicant(s) and there are special reasons for making such an order. In such a case the person’s birth parents are not required to give their consent to the adoption.
4.16 Adoption legislation in the Northern Territory, Queensland, Tasmania and Victoria does not permit adoption of people over 18 years of age.
Conclusion
4.17 The Adoption Act is primarily and fundamentally concerned with the permanent placement of children in a family so that they can be brought up, maintained and educated within a secure and loving family environment. It is therefore anomalous to allow the adoption of adults; the purpose of making such an order will always diverge from the provision of a home in which to be raised and protected.
4.18 Having said that, there is no real reason why legislation should so fetter the Court that it can never make an order for adoption of an adult. Provided the making of such order is seen as exceptional, the Commission recommends that the power to do so remain in the legislation.
4.19 It is necessary to consider the two limitations on the adoption of adults, namely, the restriction that an adult must have been brought up, maintained and educated by the applicant(s) before turning 18 and that the Court shall not make an order for the adoption of a person who is, or has been, married.12
4.20 Adult adoption lies at the outer margin of adoption. To allow the adoption of an adult who has never been parented by the applicant(s) as a child is too far removed from the fundamental purpose of the Act. On balance, the Commission does not recommend that adoptions of adults be allowed unless there has been a parenting relationship before the adult turned 18.
4.21 It is difficult to see why marriage should be a barrier to obtaining an adult adoption order. The exception is discriminatory. The fact that the adoptee has already made a home elsewhere and is not in need of rearing, maintenance, and education is not relevant in this context.
4.22 Requiring applications for adoption to be with the consent of the Director-General or with the support of an agency is to ensure that the applicants are proper persons to rear, maintain and educate a child and that the most suitable applicants to parent a particular child are found. In the case of adult adoption, where the reasons for seeking an adoption order fall outside providing a child with permanent care, there is no justification for subjecting the application to an agency approval process. It is a matter for the Court to find that the making of an adoption order is appropriate in the circumstances of the case.
RECOMMENDATION 25
Section 18 of the Adoption Act should be amended as follows:
Subject to this Act, the Court may, on application, make an order for the adoption of a person who:
(a) had not attained the age of eighteen years on the date on which the application was filed in the Court; or
(b) had attained that age before that date and, prior to attaining that age and for at least five years:
(i) had been brought up, maintained and educated by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her, or their child; or
(ii) had, as a ward within the meaning of the Children (Care and Protection) Act 1987 (NSW),13 been in the care or custody of the applicant or applicants or of the applicant and a deceased spouse of the applicant.
RECOMMENDATION 26
The marital status of the person to be adopted should be irrelevant to the making of an adoption order.
RECOMMENDATION 27
Section 26(6) of the Adoption Act (which provides that consents of certain persons, such as the parents or guardians of a child, are not required in the case of a child who has attained the age of 18 years before the making of the adoption order) should be retained.
RECOMMENDATION 28
Adult applicants for adoption should be able to apply directly to the Court for an adoption order, without the need to obtain the consent or support of the Director-General or an agency.
RECOMMENDATION 29
A report to the Court by the Director-General, pursuant to s 21 of the Adoption Act, should not be required in the case of adult adoptions.
ADOPTION BY STEP-PARENTS AND OTHER RELATIVES
4.23 A parent’s14 partner, in either a marriage or a de facto relationship, may wish to adopt his or her step-child. This type of adoption is referred to as a “step-parent adoption”.
4.24 Adoptions of relatives other than step-children are referred to simply as “relative adoptions”. “Relative” is defined in the Adoption Act as meaning:
in relation to a child ... a grandparent, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of any person.15
4.25 Much of the literature on adoption combines the treatment of step-parent adoptions and relative adoptions in one category, termed intrafamily adoptions. There is a significant amount of overlap between the two categories: issues arise common to both types of adoption and many provisions in the Adoption Act apply to both equally. However, there are also distinct considerations attaching to each which require separate treatment.
4.26 Step-parent and relative adoptions differ from other types of adoptions in that agencies do not select the adoptive parents. Instead, the issue is whether the existing care arrangement should be transformed into an adoption.
Current law and practice
4.27 Pursuant to s 18(2) of the Adoption Act, the applicants in either a step-parent adoption or a relative adoption may apply directly to the Court for an adoption order without the need to obtain first the consent of the Director-General or without the application needing to proceed through an agency.16
4.28 Section 51(2) of the Adoption Act excludes step-parent and relative adoptions from the operation of s 51(1), which makes it an offence for a person other than the Director-General or the principal officer of a private adoption agency, or someone authorised to act on their behalf, to arrange an adoption.
4.29 The role of DOCS in step-parent and relative adoptions is limited to providing the applicants with the name of an accredited social worker who can prepare a report for the Court17 or, where DOCS considers it appropriate, appearing in the adoption proceedings to oppose the application. It is still possible for the Court to require the Director-General to make a report in a step-parent or relative adoption,18 although in practice there are very few instances of the Court exercising this discretion.
Step-parent adoptions
4.30 In step-parent adoptions, though not in relative adoptions, it is also necessary to apply to the Family Court for leave to commence the adoption proceedings.19 If leave is not obtained from the Family Court, the parental responsibilities of the non-custodial parent are not brought to an end by the making of the adoption order and the child continues to be a child of the former marriage for the purposes of the Family Law Act 1975 (Cth) (“the Family Law Act”).20
4.31 Under s 60G of the Family Law Act, the Court has a discretion as to whether or not to grant leave. In exercising its discretion, the Court must consider whether granting leave would be in the child’s best interests. The Family Court has held in Fogwell v Ashton21 that leave should be granted if the Court is satisfied that there is a real possibility that an adoption order would be made if the parties were to apply for such an order and that there are no circumstances which would lead the Court to doubt that allowing the adoption application to be made would be likely to promote the child’s welfare. A later judgment of the Family Court, In the Adoption of X,22 which did not consider Fogwell v Ashton, held that the granting of leave is not to be seen as an equal alternative to the granting of a guardianship/custody order; there must be some additional significant reason, consistent with the child’s welfare being paramount, which persuades the Court to encourage the path towards adoption.
4.32 The decision of In the Adoption of X furnishes an example of when the Family Court considered it appropriate to grant leave for a step-parent to adopt. In that case the step-father was a citizen of Ireland and, under Irish law, the step-child would suffer an inferior legal status in comparison with the step-father’s birth child. In particular, the child would be disadvantaged in relation to succession rights on the death of the step-father and inheritance tax. The Court was also influenced in that case by the fact that the whereabouts of the birth father were unknown and had not been able to be ascertained for the past six years.
4.33 The effectiveness of s 60G, 60F(4), 61E and 65J of the Family Law Act and issues relating to Federal-State cross-vesting legislation are discussed in Chapter 3.
4.34 Subject to certain exceptions, pursuant to s 19(1) of the Adoption Act an adoption order can be made only in favour of a husband and wife jointly.23 This restriction, and the exceptions to it, are applicable to all adoptions, including step-parent and relative adoptions. Pursuant to s 35 of the Adoption Act, upon the making of an adoption order, the adopted child ceases to be a child of any previous parent. The curious effect of s 19 and 35 of the Adoption Act in step-parent adoptions is that the parent must adopt his or her own child in a joint application with the step-parent. This is discussed further below.
4.35 Also under s 35, where a step-parent adopts a child and the child’s prior parent has died, any property of any collateral or lineal next-of-kin of the deceased parent who dies intestate devolves in all respects as if the child had not been adopted.24
Discussion Paper 34
4.36 DP 34 raised for consideration the appropriateness of an adoption order for step-children and relatives. It was suggested that an adoption order may be too strong a measure where the only purpose is to change a child’s name or secure guardianship. The National Minimum Principles in Adoption, drafted by the Council of Social Welfare Ministers, reflect the argument that the law should ensure that adoption is only used in step-parent and relative cases where it is clear that other measures are insufficient to ensure the proper care of the child:
Adoption should not be considered for children in step-families or living with relatives, unless it can be demonstrated that a guardianship order would not serve their needs.25
4.37 The Commission’s proposal in DP 34 was that the law should ensure that the decision to allow adoption reflects an informed and careful assessment of whether the child’s interests will be promoted by the various legal consequences of adoption, and in particular, whether the desired objectives might be equally achieved without court orders, or by other court orders such as orders for custody, or change of name.
4.38 In relation to the present need for a joint application in step-parent adoptions, the Commission’s provisional view was that it should be possible for the Court to make an adoption order in favour of the step-parent singly without any change in the parental status of his or her spouse, being the child’s birth or adoptive parent.
Submissions and response
4.39 In its submission to the Commission, DOCS drew attention to some particular issues posed by step-parent adoptions. DOCS pointed out that:
[w]hile some applications for adoption are brought with the intention of excluding the non-custodial birth parent from the child’s life, others wish only to secure the child’s relationship with the new spouse and express dismay that as a consequence of the adoption the child loses his/her legal membership of the relinquishing parent’s family and the birth parent is removed from the amended “birth” certificate. The Department does not support a different form of adoption to resolve this dilemma, rather the use of guardianship orders.26
4.40 In relation to relative adoptions, DOCS stated that:
[t]he distortion of family relationships in grandparent adoptions, in effect removing a generation from a family’s history, is not generally supported by the Department.27
4.41 Whilst DOCS acknowledged that adoption by a step-parent or relative may be appropriate for some children, it feels that adoption should only be considered where it can be demonstrated that an alternative care order would not meet the child’s needs. In this, DOCS supported the Commission’s proposal.
4.42 DOCS also agreed with the Commission’s provisional view that step-parents should be able to make a single application for adoption, without the custodial parent losing parental status. DOCS argued that no application should be made until the step-child has been in a parent/child relationship with the applicant for at least five years, thereby demonstrating the stability of the relationship and enabling participation of the child in the decision.
4.43 The NSW Committee on Adoption and Permanent Family Care “strongly supports” the Commission’s proposal, with the addition that the law should ensure that “the child acquires full membership of the adoptive family”.28 Presumably, this addition is intended to refer to situations where orders alternative to adoption are considered appropriate. Both the Anglican Adoption Agency and Barnardos Australia also supported the Commission’s proposal.29 The Anglican Adoption Agency added that counselling for both relinquishing and adoptive parents should be made available.30
4.44 The National Children’s and Youth Law Centre submitted that step-parent and relative adoptions should not be encouraged and that each case should be considered “separately, from the viewpoint of the child”. It submitted that in most cases step-parents should secure a status in relation to the child through guardianship or a parenting order or parenting agreement.31 In relation to other relative adoptions it submitted:
Grandparent and sibling adoptions can result in family secrets, deception and genealogical distortions and should not be granted other than in exceptional circumstances.32
4.45 A number of submissions addressed the issue of the custodial parent in a step-parent adoption having first to relinquish and then adopt his or her child. All the submissions objected to this, with some finding it anachronistic, inappropriate and even insulting.
Legislation in other States
Step-parent adoptions
4.46 Adoption legislation in all other States and territories of Australia permit an adoption order to be made in favour of a step-parent solely.33 The Australian Capital Territory legislation adds the proviso that the step-parent and the custodial parent must have lived together, whether married or not, in a heterosexual relationship for at least three years. Whilst the formulations differ from Act to Act, each one achieves the result that the relationship between the child and the parent with whom the adopting step-parent is cohabiting is not affected by the adoption order.34 This overcomes the problem of the custodial parent having to relinquish his or her own child and then adopt jointly with the step-parent.
4.47 Pursuant to the legislation in the Australian Capital Territory, South Australia and Queensland, an adoption order will only be made in favour of a step-parent if, in effect, this is preferable or more appropriate than orders for custody or guardianship of the child.35
4.48 The legislation in Victoria, the Northern Territory and Tasmania takes this requirement further by providing that the Court must not grant an adoption order unless it is satisfied that:
- an order for guardianship or custody would not make adequate provision for the welfare and interests of the child;
- exceptional circumstances exist which warrant the making of an adoption order; and
- an order for adoption would make better provision for the welfare and interests of the child than an order for guardianship or custody.36
4.49 The Commission is not convinced of the necessity for all three conditions to be satisfied before an order can be granted. If the Court is satisfied that an adoption order would better serve the welfare and interests of the child than orders for guardianship or custody, then it is proper that an adoption order should be made. If, for example, the Court is satisfied as to the first and third requirements but not satisfied that there are exceptional circumstances, the Court would surely be doing the child an injustice not to grant the adoption. In fact, it is difficult to envisage a case where only one or two of the conditions are present.
4.50 The Western Australian legislation does not require the Court to be satisfied that a step-parent adoption order would better serve the child’s interests than alternative orders or no order.
4.51 The South Australian legislation also deals with step-parent adoption and inheritance rights by providing that if the non-custodial parent dies, an order in favour of a step-parent cohabiting with the surviving parent does not affect the child’s rights of inheritance from or through the deceased parent.37
Relative adoption
4.52 Pursuant to the South Australian and Queensland legislation an adoption order will only be made in favour of a relative if, in the former Act, the Court is satisfied that adoption is clearly preferable to guardianship in the interests of the child38, or, in the latter Act, if a guardianship or custody order is not more appropriate.39
4.53 Pursuant to the legislation in Victoria, the Northern Territory and Tasmania the Court must not grant an adoption order in favour of a relative of a child unless it is satisfied of the same three provisos as it must be satisfied of in relation to step-parent adoptions.40
4.54 The Western Australian legislation makes no specific reference to “relative” but gives the Court the power to make an order for adoption in favour of a “carer” of a child.41 There is no requirement that the Court has to be satisfied that an adoption order in favour of a “carer” would better serve the child’s interests than alternative orders or no order.
4.55 Under the Australian Capital Territory legislation, the requirements which have to be satisfied before an adoption order can be made in favour of a relative include the same requirements as those for step-parent adoptions. However there is a further requirement to be met in relative adoptions. There must be circumstances why the relationships within the family of the child should be redefined as such an order would do.42
Adoption or other orders?
4.56 In considering step-parent and relative adoption it is important to bear in mind that the child is already, and will remain, in the care of the applicants. The purpose of seeking an adoption order, therefore, is not to place the child in the permanent care of a family. Seen in this light, the crucial question is whether there are any circumstances in which an adoption order in favour of a step-parent or relative will serve the child’s interests better than any alternative order or better than maintaining the status quo, so as to justify retaining legislative provision for these adoptions.
Step-parent adoption
4.57 Step-parent adoption applications are usually for the following reasons:
- to give permanency to the new parenting relationship;
- to confer full parental rights and obligations on the step-parent, of particular relevance if the custodial parent dies;
- to give the same status to all children within the new family;
- to strengthen relationships within the new family;
- to enhance normality and stability within the new family;
- to express the step-parent’s commitment to the child;
- to change the child’s surname to that of the step-parent;
- to ensure maintenance rights for the child;
- to give the child automatic inheritance rights from the step-parent;
- to exclude the non-custodial parent and his or her extended family;
- to break links with the past; or
- to give an ex-nuptial child legitimacy.43
4.58 Some of these purposes will be satisfied by orders for guardianship, custody or change of name. Other purposes may in fact not be in the child’s best interests, particularly exclusion of the non-custodial parent and his or her family. Yet other reasons are more complex and may affect the child’s sense of security or identity. Whether or not an adoption order is the preferred path needs to be examined in the context of all the consequences of such order and bearing in mind that it is the best interests of the child that is the paramount consideration.
4.59 Roughley, previously a consultant social worker specialising in adoption, now employed by DOCS, was initially convinced by her experiences with intrafamily adoptions that
the reasons for most adoption applications could be easily satisfied by a combination of guardianship, custody, legal change of name and inclusion of the child in wills. I am now not so dogmatic in my approach and can accept that in some circumstances no other form of arrangement would completely satisfy the reason for the adoption application, or be in the best interests of some children.44
4.60 Roughley sees the main reasons for preferring an adoption order to guardianship orders as relating to:
- permanence;
- changing the birth certificate; and
- inheritance rights.45
4.61 As to the first reason, guardianship orders come to an end when the child turns 18 years of age. The desire to secure a legally permanent parent/child relationship which will last beyond the child turning 18 is the prime reason applicants seek adoption orders. Some custodial parents also want to assure themselves that, in the event of their death, the child retains a secure and permanent place in the step-family. Roughley argues:
Adoption provides the only mechanism for a child to permanently and publicly claim and be claimed by a family. This undeniable and everlasting symbol of belonging can enable some adolescents to claim an identity with which they are secure before moving on to adult identity tasks.46
4.62 In relation to birth certificates, the changing of the original birth certificate on the making of the adoption order to reflect the name of the step-parent as the “father” or “mother” is a public recognition of the parental role of that step-parent. It may even complete a blank on the certificate where previously the birth father was unknown or unnamed for some other reason.
4.63 On the other hand, the exclusion of the non-custodial, or deceased, parent from the child’s birth certificate and the distortion of the child’s birth history is a factor to be given serious consideration.
4.64 In relation to inheritance rights, the child, although not adopted by his or her step-parent, can benefit from the estate of his or her step-parent or a member of the extended step-family by being named specifically as a beneficiary in the will. Roughley argues that this may not always be satisfactory for a child if he or she feels that specific inclusion as opposed to being included generally as a child or other relative of the deceased highlights his or her “difference”. Roughley also reports that
many non-adopted adolescents wonder if their custodial parents have thought to include them in their wills - to ask would be impudent.
4.65 Under the Family Provision Act 1982 (NSW) a person who has been, at any particular time, wholly or partly dependant upon the deceased and who was a member of the deceased’s household may be entitled to provision out of the deceased’s estate.47 A step-child, even though he or she has not become a child of the deceased under an adoption order, could make an application under the Act. However, this would obviously entail costs, time delays and stress and may even provoke ill feeling in the family.
4.66 In considering securing the right to benefit automatically from the step-parent’s estate, the loss of rights to benefit from the relinquishing parent’s estate, and possibly the estates of other members of the relinquishing parent’s family, has to be taken into account. The adults involved should attend carefully to the consequences of this for the child and, where appropriate, the child should be counselled on these consequences.
4.67 The Commission sees the potential exclusion of the non-custodial parent and extended family from the child’s life as one of the most serious consequences of a step-adoption. As discussed above, pursuant to s 61E of the Family Law Act the relinquishing parent’s parental responsibilities come to an end on the making of an adoption order. Parenting orders made under the Family Law Act also come to an end on the making of an adoption order.48 Such parenting orders can include contact between the child and the non-custodial parent.
4.68 It is true that any person concerned with the care, welfare or development of the child may apply for a parenting order, such as an order for contact with the child.49 It is possible, then, that a non-custodial parent who has relinquished his or her child could obtain an order for contact with the child. However, the outcome of such application under the Family Law Act is not certain, nor is continuing contact with other members of the relinquishing parent’s family. The child may have developed significant relationships with grandparents, aunts and uncles but the continuance of these relationships may depend upon a successful application to the Family Court or the goodwill of the custodial parent and the step-parent.
4.69 Pursuant to the Adoption Regulation the relinquishing parent can request, at the time of giving consent to the adoption or prior to the expiry of the revocation period, the continuation of an order for access to the child.50 However, this does not create a right in the relinquishing parent for access. It is a request which the Court takes into consideration when hearing the application for an adoption order.
4.70 Research has found that children’s self-esteem and their ability to cope with the divorce of their parents is promoted by having continuing positive contact with both parents.51
4.71 A report of the Step-Families Sub-Committee of the Family Law Council recommended that:
the “absent” natural parent should still retain rights in relation to the child with respect to those matters in which a non-custodial parent has rights where the other parent has sole custody, eg consent for passport applications; a change of name; etc.52
4.72 This Report commented that:
increasing attention has been focused ... on the inappropriateness of using adoption to clarify or establish the legal status and relationships of the step-child in the new step-family.53
4.73 The Report also noted a comment on this issue by the Magistrates’ Family Law Committee, Victoria that:
adoption as a solution seems to militate against flexible and responsive relationships between parents, step-parents and children.
4.74 Many of the recommendations of the Family Law Council Report were taken up in the Family Law Amendment Bill 1990 (Cth). In the second reading speech in relation to this Bill then Attorney-General, the Hon Michael Duffy, stated:
[i]t has long been an accepted principle in family law that continuing contact with both natural parents is usually desirable in the interests of the long-term development of a child.54
4.75 A United Kingdom report of the Departmental Committee on the Adoption of Children in considering step-parent adoption concluded that:
the legal extinguishment by adoption of a legitimate child’s links with one half of his own family was inappropriate and could be damaging.55
4.76 Harper argues that step-parent adoption is inappropriate in almost any circumstances:
It is not in the child’s best interests that his new relationship with a step-parent should be established at the expense of severing his existing ties with his natural family.56
4.77 Where siblings have been separated and the step-parent is not adopting all siblings, the severing of legal ties and the potential severing of contact between the siblings is of serious concern. Sibling bonds are valuable and important to children.57
4.78 Whether or not the relinquishing parent is actually excluded from participating in the child’s life by a step-parent adoption, the fact of a step-parent adoption may be perceived by a child in a way that may be disturbing to the child. DOCS have observed some undesirable emotional effects on a child of a step-adoption including:
- a feeling of being rejected by the relinquishing parent;
- a fear of losing the relinquishing parent;
- divided loyalties between the relinquishing parent and the step-parent;
- confusion about relationships as a result of the amended birth certificate; and
- anxiety to please the custodial parents and difficulty expressing their true feelings.58
Relative adoption
4.79 Granting adoption to relatives creates legal relationships which differ from, and distort, the natural relationships not only of the adoptive parents to the child but also of the child to his or her own parents.59 For example, when maternal grandparents adopt their grandchild, the child’s mother becomes his or her sister. When a maternal aunt and uncle adopt their niece or nephew the child’s mother becomes his or her aunt.
4.80 The Commission agrees with the opinion of the Adoption Legislative Review Committee of Western Australia that such distortion of relationships through adoption is confusing and very often damaging to the child.60 Where the real circumstances are hidden from the child, his or her own discovery of them later may be particularly disturbing.
4.81 The main reason why relative adoptions are sought is to give permanency to an existing care arrangement. As was discussed above, guardianship orders come to an end when the child turns 18. Roughley’s arguments in relation to the benefit of permanence, set out above, are equally applicable here. However, simply to confer permanence on the care arrangements, without some further special circumstance, seems an insufficient reason to effect a legal change in birth relationships.
4.82 The arguments set out above in relation to inheritance rights, and the alternative solutions available, are also applicable to relative adoptions.
4.83 As with step-parent adoption, the Commission sees the greatest disadvantage of relative adoption as its potential to militate against flexible and regular access between the child and his or her birth parents. Particularly where relative adoption is sought in order to conceal true familial relationships, such as concealing a child’s illegitimacy, the ability for natural birth parent/child relationships to develop and flourish is stifled. Similarly, the child’s relationships with other members of the extended family may be distorted.
4.84 Relative adoption often involves separating siblings which, as argued above, is unlikely to be in the child’s best interests.
4.85 The emotional effects on a child of a step-parent adoption noted by DOCS and set out above are likely to arise in relative adoptions as well.
Conclusion
4.86 The Commission agrees with the thinking in other States and overseas that an order for adoption in favour of a step-parent or a relative is often an inappropriate way to promote a child’s best interests and generally should not be encouraged.
4.87 In most step-family and relative situations, appropriate parenting orders obtained under the Family Law Act in favour of the step-parent or relative can confer on the step-parent or relative whatever rights and responsibilities will promote the best interests of the child. Alternatively, or in addition to parenting orders, legally changing the child’s surname to that of the step-parent or relative, and making specific provision in a step-parent’s or relative’s will, may be all that is necessary. Nevertheless, there can be circumstances in which a step-parent or relative adoption is in the child’s best interests.
4.88 Adoption by a step-parent or other relative will normally be appropriate only if:
- other care orders would not make adequate provision for the child and an order for adoption would be in the particular child’s best interests;
- the child has an established relationship of at least five years duration with the step-parent or other relative;
- the child has knowledge of and contact with his or her non-custodial birth parent and family;
- the child has an understanding, commensurate with his or her age, of the reasons why the adoption might take place;
- requirements as to the birth parents’ and child’s views, wishes and consent as recommended in this Report have been complied with; and
- other requirements recommended in this Report have been complied with.
Joint applications in step-parent adoptions
4.89 There is no apparent justification for requiring the parent, as distinct from the step-parent, to adopt his or her own child.
4.90 The requirement for a parent to relinquish his or her child may be offensive and, for some, may even be deeply disturbing. All other States of Australia have removed this requirement from their adoption legislation and the Commission agrees with this approach.
The process of applying for a step-parent or relative adoption order
4.91 As referred to above under the heading “Current law and practice”, applications for a step-parent or relative to adopt can be made by the applicant directly to the Court. This is an exception to the general rule that adoption applications should be made by an agency.61 The question which arises in relation to this practice is whether the interests of the child and other parties to the adoption are safeguarded to the same degree as adoptions proceeding through an agency.
4.92 Under the present system, there are safeguards intended to ensure that applications are made thoughtfully and that the best interests of the child are protected. An accredited social worker interviews the applicants and the child and prepares a report for the Court. Presumably, also, the solicitor preparing the application and supporting affidavits gives the applicants some advice in relation to the merits of the application and the chances of it being successful. Through both the social worker and the solicitor, the applicants are likely to have their attention focused on the consequences of the adoption, their motives and the benefits for the child.
4.93 Although the issue was posed in DP 34, the Commission received very little comment on this topic. However, Roughley has expressed concern about whether the present system sufficiently protects the interests of those involved, especially the child. She has prepared a useful chart comparing adoption practice in relation to step-children and other relative children with adoption practice in relation to non-relative children, already in the care of the applicants.62 The latter applications must proceed through an agency. Roughley’s assessment is that, in applications proceeding through an agency there is:
- dispassionate evaluation of the child’s needs prior to commencement of the adoption;
- informed exploration of options to meet the identified needs;
- preparation of applicants in regard to the consequences of adoption;
- full exploration with the child of the consequences of adoption;
- establishment of the views of the child independently of the applicants;
- independent establishment of the views of the relinquishing parent;
- independent informed advice given to the relinquishing parent in regard to the consequences of adoption and the alternatives;
- if the child is over 12 years of age, service on the relinquishing parent of the child’s intention to consent to his or her adoption;
- notification to the relinquishing parent of an adoption order being made;
- application of criteria, in addition to eligibility criteria contained in the Adoption Act, to assess the suitability of the applicants to adopt; and
- where the Director-General has become the guardian of the child upon the taking of a consent to adoption, reporting to the Court if the child has not been adopted within one year of the date of the consent.63
4.94 Roughley asserts that in step-parent and relative adoption applications the views of the child are established to a limited extent, but otherwise there are none of the safeguards listed above.
4.95 As pointed out above, adoption applications by step-parents and relatives can be made in inappropriate cases. Further, the procedures need to be based on the principle that the best interests of the child are paramount. The Commission is concerned that, having regard to the matters raised by Roughley, the existing requirement of a social worker’s report may not afford sufficient protection. For these reasons, the exemption of step-parent and relative adoptions from the normal requirements relating to the bringing of applications cannot be justified.
4.96 Requiring relative adoptions to be supported by an agency would also remove an anomaly which currently exists. Where the applicants are relatives of the child, other than grandparents, uncle or aunt of the child, and not therefore “relatives” within the definition of s 6 of the Adoption Act, the application must proceed as a “non-relative” adoption. In that case, the Director-General must consent to the adoption.
RECOMMENDATION 32
Applications for adoption by step-parents or relatives should, like other adoptions, be made with the consent of the Director-General or on behalf of the applicants by the Director-General or by the Principal Officer of an authorised adoption agency.
ADOPTION OF CHILDREN IN CARE
4.97 In this category, the Commission refers principally to children who are wards of State,64 or otherwise under the guardianship of the welfare authorities, and who are in foster65 or institutional care either arranged through DOCS or through a private agency such as Barnardos.66 These placements occur within the regulatory scheme applying to the adoption of non-related persons. They are described generally here as authorised care.
4.98 The legal guardianship of children in care may have been placed with DOCS,67 with a private agency, or with foster carers. In some cases guardianship may remain with the parents. Children whose parents place them in the care of relatives are discussed above.
4.99 It should be noted, however, that the Children (Care and Protection) Act 1987 (NSW) (“the Children (Care and Protection) Act”) defines a relative of a child as being parent, step-parent, grandparent, sibling, step-sibling, aunt, uncle, nephew or niece. Foster care of a relative is deemed not to be unauthorised fostering.68 In contrast, the Adoption Act defines a relative much more narrowly as being a grandparent, uncle or aunt only. The effect of this is that where a child is in the care of a relative other than grandparent, uncle or aunt, even though the placement is authorised under the Children (Care and Protection) Act, under the Adoption Act the application is treated as if the child were in a private placement.
4.100 Generally, children come into care because their parents are unable or unwilling to look after them. Some have been abandoned by their parents, some voluntarily given to the welfare agencies, and some have come into care as a result of court proceedings. Most have had some contact with their parents or other members of their birth families, and many remain in communication with them. It is not uncommon for children to be returned to their parent’s care, perhaps for a trial period, if this is considered feasible.
4.101 With children in care, the desire to keep open the possibility of a return to the birth parents is one of the factors which tends to lead agencies to defer an irrevocable alternative care decision such as adoption.69 Alternatively, adoption may sometimes be seen as the best outcome for those children in care who cannot return to their birth family as it effects the most complete and permanent transfer of responsibility for the care of a child. It may provide such a child with the opportunity for long-term security and stability within another family and prevents the possibility of a child “drifting” from one placement to another.
Current law and practice
4.102 Children in care can be adopted by their foster carers. The adoption is usually arranged through the agency which provided the foster care. Private arrangements to adopt are not allowed.70 DOCS must consent to, or an agency must make, a court application71 on behalf of the applicants for the adoption of a non-related child in foster care. The relevant agency must also provide a report to the Court.72
4.103 Legal requirements discussed elsewhere in this report also apply, such as consent of the birth parents or guardian (or its dispensation) and those requirements relating to persons who may adopt.
4.104 Children of 12 years and older must consent to their own adoption.73 The guardian of a child in care must also consent to the adoption as well as the parents.74
4.105 Consent to the adoption of a child in care by parents and guardian is a general consent to the adoption of the child by any persons; that is, not nominating identified adoptive parents.75 By contrast, a child of 12 years or older, in consenting to his or her adoption, nominates who are to be his or her adoptive parents.76
Discussion Paper 34
4.106 DP 34 proposed the active participation of children in care and their birth families in the planning process for the child’s alternative care. The Commission’s view was that foster parents should be allowed to adopt where such an adoption would be in the best interests of the child. Adoption should be considered only after careful examination of all possible placements. This entails an assessment of children and their existing relationships and an assessment of the alternative placements available, immediately and in the future. Contact with the birth family should be encouraged and maintained throughout the child’s life. When older children are to be adopted the situation should be explained to them and perhaps a period should be arranged during which they get to know the proposed adoptive family before moving in to live with them.
4.107 The Commission also considered that if allowed to make adoption applications directly, foster parents might use foster care as a “back door” to adoption. However, this was less likely in an era of open adoption, where older children have an opportunity to express their views on the proposed adoption. Consequently, it may be desirable to relax the existing rules relating to adoption applications. For example, in the case of a child who has been in foster care and it is proposed that the child be adopted by the foster parents, there would be no question of selecting adoptive parents. Instead the question would be whether the child’s existing placement should be made permanent by adoption. In this respect the situation is similar to one where a step-parent or relative seeks to adopt.
4.108 In considering these matters, the Commission took the provisional view that foster carers should be able to initiate an application for adoption themselves77 as long as the Court receives a report on the proposed adoption or a preliminary hearing is held. The birth parents should be able to consent either to the adoption by the foster parents (specific consent) or the adoption of the child by any persons (general consent).
Submissions and response
4.109 Although submissions supported the Commission’s proposals, some had reservations in allowing foster carers to make an independent application to Court without the approval of an agency. Such private applications could unfairly place the child in a difficult position of having to choose between the birth family and the foster family.78 A child in care often defers to his or her foster parents’ authority.79
4.110 Another submission argued that agencies should continue to be involved in proposed adoptions by foster carers because the two roles, foster parent and adoptive parent, are very different:
4.111 Centacare recommended that adoption should be seen as only one option for children in long-term foster care where permanent placement with the foster parents is part of the case plan. It should not be seen as a matter of course in long-term foster placements. Any application should be based on an agency’s assessment that the adoption would serve the best interests of the particular child.81
Conclusion
4.112 Foster care should not be used as a means of gaining “back door” access to adoption. However, in some cases of long-term foster care, with the passing of time and with changes in circumstances, foster carers might see themselves fulfilling the role of parents, while the child comes to consider the carers as parents and identifies as belonging to the foster family.82 If the birth parents and child are willing for the adoption by the foster carers to proceed, then the agency should not prevent this outcome without reasonable grounds for doing so.
4.113 However, the agencies have an important role in screening proposed adoptions by foster carers for several reasons. Firstly, for example, DOCS may have been delegated guardianship functions over a ward.83 In its delegated capacity DOCS would have to provide the Minister’s consent to the ward’s adoption. Secondly, the irrevocable legal changes in the parent/child relationship which occur when moving from fostering to adoption requires the social work skills and expertise of the agencies who, in most cases, arranged the foster care placement and have been monitoring it since. This expertise can assist the Court in assessing whether a change of legal status between all three parties is in the best interests of the child, including whether all other options have been carefully considered. Also, the agency officer can best convey the views of the child with whom he or she has been in contact.84
4.114 Adoption of foster children will normally be appropriate only if the same conditions as those set out in para 4.88 in relation to the adoption of step-children and relatives are satisfied.
4.115 On balance, the Commission has concluded that an agency should continue to approve any application by foster carers to adopt a child who has been placed with it. Notwithstanding this conclusion, it should be possible for the Court, at a preliminary hearing, to permit an adoption application to proceed without the agency’s support. However, before the preliminary hearing could be requested, the consent of all relevant persons would have to be given85 or dispensed with by the Court.86 In any case, the relevant agency would still be required to make a report to the Court concerning the proposed adoption.87
RECOMMENDATION 34
In relation to applications to adopt children in care:
(a) Section 18(2) of the Adoption Act (which requires applicants to obtain agency support for the making of an adoption application) should be retained.
(b) The Court should not make an order for adoption in favour of the child’s foster parents unless:
- the Director-General and/or the agency have made a report to the Court; and
- the order makes better provision for the best interests of the child than parenting orders under the Family Law Act or any other order for the care of the child.
4.116 The issue of an agency selecting adoptive parents does not arise in foster care because the child is to be adopted by carers with whom he or she has been satisfactorily placed for, in most cases, a long time. Consequently, in most cases it would be appropriate for the birth parents’ or guardian’s consent to the adoption not to be a general one, but rather a consent to specific applicants. The exception to this is where the child has been with the foster carers for only a short time.
4.117 DOCS has expressed a concern arising out of its experience with temporary foster care. Both the birth and foster parents may be happy with the placement and one or both parties may be pressing for an adoption to go ahead. In that scenario, the birth parents may want to give specific consent to those carers adopting. DOCS’s concern is that the parties may not be seeing the long-term issues clearly. It may even be possible that the carers are exerting pressure, however well-meaning, on the birth parents. If the placement has only been for a short time, any likely areas of difficulty may not have arisen and been resolved.
4.118 The Commission agrees with DOCS’s concern. The solution to this is to ensure that there is an established relationship between the child and the foster carers before specific consent to those carers adopting can be given. Recommendations as to consent are made in Chapter 5.
ADOPTION OF CHILDREN IN PRIVATE PLACEMENTS
4.119 A private placement is referred to here as a long-term care placement of a child with non-related carers made outside the regulatory scheme applying to non-related persons. As such, it could be described as an unauthorised placement. The private placement may have been arranged with the child’s parents or through a third party. It breaches child welfare legislation88 and normal placement procedures. However, sometimes a private placement may be approved retrospectively by DOCS89 or by a court order approving the carers’ custody of the child.
4.120 Surrogacy of a non-related child is one type of private placement. Surrogacy, or a surrogate motherhood arrangement, is one in which a woman agrees to bear a child for a couple, conceives and carries the child through the pregnancy, and agrees to transfer all her parental rights and responsibilities to the couple on the birth of the child.90 This transfer may involve adoption if the commissioning couple want to utilise the adoption legislation to formalise the relationship. The child may or may not be related to one of the commissioning partners. Adoption law issues in relation to surrogacy cover both intrafamily and private placements. Chapter 11 examines adoption and surrogacy in detail.
4.121 Adoption law becomes relevant to a private placement when, after an interval of time, the carers decide to adopt the child. The child is often well-established in the carers’ household and may be unaware that the carers are not his or her birth parents. Many reasons might prompt the carers to seek an adoption order; in particular, to resolve the uncertain legal status of the child within their household.91
Current law and practice
4.122 Where the child has been previously privately placed with his or her non-related carers, the law on adoption is similar to that for children in care in terms of the approvals required and reports to be obtained in order to adopt. However, due to the unauthorised nature of the private arrangement, it is more likely than in other types of adoption that offences might have been committed.92 For example, a private placement leading to adoption would breach the Adoption Act if the arrangement involves payments,93 advertising,94 adoption negotiations or the transfer of a child with a view to adoption without the permission of the Director-General of DOCS or the principal officer of a private adoption agency.95 These offences apply to birth parents, prospective adoptive parents, and intermediaries who breach them.
4.123 An application by private carers to adopt a non-related child must be with the consent of the Director-General or on behalf of the applicants by an agency.96 Birth parents, any other guardian, and an older child must also consent to the adoption.97 Provisions in the Adoption Act as to persons in whose favour adoption orders can be made also apply.98 Before making an adoption order, the Court also requires a report from the relevant agency on the proposed adoption.99
4.124 In practice, DOCS would not usually support applications for adoption by unauthorised carers. However, it may decide to do so because of the length of time the child has lived with the carers and the perceived benefits to the child of being adopted when compared with other formal care arrangements or merely remaining with an uncertain status within the household.100 The views of the child and birth parents, the motivation of the applicants for the adoption, and any breaches of law would also be considered. In assessing the application, adoption must be seen to be in the child’s best interests.
Discussion Paper 34
4.125 DP 34 proposed generally that the law should not permit individuals to make their own adoption arrangements, either personally or through intermediaries.101 This is a focal characteristic of adoption law throughout Australia.102
Submissions and response
4.126 Submissions were overwhelmingly in favour of the continued government regulation of adoption placements.103
Conclusion
4.127 Private placements leading to adoption should continue to be regulated under adoption legislation. To do otherwise may compromise the child’s best interests. Agency supervision of adoption selection and placement procedures is particularly important in adoption, providing a safeguard against possibly ill-considered or even exploitative practices.
4.128 Agency selection and placement procedures are circumvented in private placements leading to adoption. These procedures allow the vetting and matching of adults and child by appropriately qualified professionals, promoting practices to ensure the child is placed with the most suitable adoptive parents. A regulated system of selection and placement assists in preventing undue pressure being placed on the birth parents or child to proceed with an adoption. It assists in ensuring that the wishes of the birth parents and child are respected with regard to future contact between them.
4.129 Consequently, if a child has been privately placed for a period of time with non-related carers before the carers apply for adoption, adoption should not automatically follow because the social parent-child relationship already exists. Nor should the presence of a private placement be an automatic bar to an application to adopt such a child. An agency should always assess the appropriateness of any adoption order to the child’s needs. It should ensure that all legislative requirements as to the consent and wishes of the birth parents and child, and the suitability of the adoptive parents, have been complied with. In so doing, the agency should investigate whether any offences have been committed in the private arrangement.
4.130 As well, the agency would first have to approve any application to the Court by non-related carers seeking to adopt a child.104 However, a preliminary hearing into the agency’s refusal to support an application could be held at the Court’s discretion.105 The Court would then make appropriate orders.
4.131 If adoption is considered the most appropriate long-term alternative care order for the child, the agency should provide the prospective adoptive parents with suitable education and training.
4.132 Adoption of children by private carers will normally be appropriate only if the same conditions as those set out in paragraph 4.88 in relation to the adoption of step-children and relatives are satisfied.
4.133 Where the Director-General, after assessing the individual circumstances of a private placement, consents to the child being adopted by carers with whom he or she has been satisfactorily living for a period of time, the birth parents’ or guardian’s consent to the adoption should not be a general one, but rather a consent to specific applicants. Recommendations as to consent are made in Chapter 5.
ADOPTION OF CHILDREN WITH SPECIAL NEEDS
4.134 “Special needs” adoptions refer to the adoption of children whose needs require special qualities in the adopting parents. These needs arise from the fact the child is intellectually disabled or has a substantial physical, emotional or sensory disability.106 Barnardos includes older-aged adoptees in the category of “special needs”. DOCS is also tending to treat the adoption of older-aged (over two years) children and children from overseas as special needs adoptions.
Current law and practice
4.135 Legal requirements discussed elsewhere in this Report apply, such as consent to adoption by the birth parents and guardian (or its dispensation).107 However, special needs children are treated differently under the law in two main respects. First, to promote the interests of a special needs child, an agreement providing for financial or other assistance may be entered into between the Director-General of DOCS and the prospective adoptive parents effectively subsidising the adoption.108 Secondly, the gazetted criteria for selecting prospective adoptive parents is more flexible with regard to age,109 spacing of children in the family,110 and fertility.111
4.136 In practice, agencies have separate placement programs to recruit, prepare and assess prospective adoptive parents for special needs children. The primary requirement agencies look for in selecting applicants in a special needs adoption is the applicants’ ability to meet the specific needs of the child. An obvious feature of these adoptions is that it is often difficult to find suitable and willing adoptive parents. As such, these programs may involve actively recruiting applicants by way of advertising112 for suitable applicants for the particular children an agency has or is likely to have available for adoption, such as in newsletters to interested persons on agency mailing lists. The selection of the adoptive parents for a special needs child reflects the specialised parenting skills required and does not tend to follow local adoption processes.113
Discussion Paper 34
4.137 In special needs adoptions, the Commission considered that the child’s unique needs may not relate so much to the general requirements of adoptive parents,114 but rather require special parenting skills. Consequently, with special needs adoptions, the law should ensure that every reasonable effort is made to find, assess and support suitable adoptive parents rather than rigidly applying general selection guidelines and practices. The needs of the particular child might justify measures which would be unacceptable in other forms of adoption, such as circulating advertisements seeking to recruit adoptive parents, and dispensing with some selection criteria.
Submissions and response
4.138 Submissions supported the Commission’s approach in DP 34.115 Several submissions by agencies emphasised that being able to advertise for suitable families is essential in special needs adoptions. Agencies only use this public method of recruitment, that is, using identifying information such as a photograph and the child’s first name, after all other efforts to find a family have failed.116 However, one agency submission indicated opposition exists to advertising.117 It was argued in these submissions that legislation should include a provision allowing recruitment of adoptive parents for special needs children through advertising.118
Conclusion
4.139 The legislation should continue to give the Director-General a discretion to enter into agreements providing financial or other assistance to applicants for certain categories of children, where such extra assistance is considered necessary to promote the child’s best interests.119 These categories of children should be determined from time to time by the legislation. This allows for possible changes to the types of children requiring additional assistance in the future. At present, the prescribed categories relate to special needs children.
4.140 Selection procedures should ensure that the best possible parents are recruited for each special needs child. This may involve advertising where the agency determines it necessary to find applicants with the capacity to provide the standard of care required to fulfil the particular needs of the child. However, the discretionary use of advertising in appropriate cases, although supported as a recruitment procedure, should not be set out in legislation. It should be determined by the agencies based on their experience.
FOOTNOTES
1. Australian Institute of Health & Welfare Child Welfare Series: Adoptions Australia 1992-93 No. 7 (AGPS Canberra).
2. Australian Institute of Health & Welfare Child Welfare Series: Adoptions Australia 1993-94 No. 11 (AGPS Canberra).
3. Australian Institute of Health & Welfare Child Welfare Series: Adoptions Australia 1994-95 No. 14 (AGPS Canberra).
4. Adoption of Children Act 1965 (NSW) s 18(2).
5. Awkwardly, the legislation uses this word for adult adoptees.
6. Re K and the Adoption of Children Act 1965 (1988) 12 FLR 263 at 264.
7. Re K and the Adoption of Children Act 1965.
8. Re K [1949] SC (Scot) 140.
9. Re L [1951] SC (Scot) 605.
10. P G Bobbin Submission (27 May 1994); J McInerney Submission (5 August 1996).
11. P G Bobbin Submission (27 May 1994).
12. Adoption of Children Act 1965 (NSW) s 18(4).
13. Note that the Child Welfare Act 1939 (NSW), referred to in s 18(1)(b)(ii) of the Adoption of Children Act 1965 (NSW), was repealed by the Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1987 (NSW).
14. “Parent” is used to refer to either birth or adoptive parent.
15. Adoption of Children Act 1965 (NSW) s 6.
16. For the purposes of this discussion, “agency” will refer to both DOCS and the private adoption agencies unless the context otherwise requires. It is possible for the application to be made by the Director-General pursuant to s 18(3).
17. Required by Pt 73 r 7A of of the Supreme Court Rules (NSW). The Court has dispensed with the requirement for the Director-General to make a report in step-parent and relative adoptions pursuant to s 21(1A)(c) of the Adoption of Children Act 1965 (NSW). Where an accredited social worker is not available in the applicants’ geographical area, DOCS provides the report.
18. Adoption of Children Act 1965 (NSW) s 21(1C).
19. Family Law Act 1975 (Cth) s 60G.
20. Family Law Act 1975 (Cth) s 61E(2) and s 60F(4). R Chisholm and O Jessep argue that these provisions, as they relate to adoption, could be challenged as constitutionally invalid. At the very least, “their application is rather unpredictable, but all the possibilities seem unsatisfactory. Unapproved adoptions will produce obscure and awkward results that could lead to difficulties for the child as well as the adults”: “Step-parent Adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 186.
21. [1993] FLC 92-429.
22. 17 FamLR 594.
23. For example, one of the exceptions is that an order may be made in favour of a de facto couple whose relationship is of not less than three years standing and who have had the joint care of the child for not less than two years: Adoption of Children Act 1965 (NSW) s 19(1A).
24. Adoption of Children Act 1965 (NSW) s 35(3): that is, where the adoption order is made after the death of the prior parent but before distribution of the deceased’s estate.
25. Council of Social Welfare Ministers National Minimum Principles in Adoption, June 1993 para 2(2); Draft National Minimum Principles in Adoption, July 1995 Para 2(2) at 6.
26. New South Wales Department of Community Services Submission (5 September 1994) at 11.
27. New South Wales Department of Community Services Submission (5 September 1994) at 11.
28. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 11.
29. Barnardos Australia Submission (26 July 1994); Anglican Adoption Agency Submission (26 August 1994).
30. Anglican Adoption Agency Submission (26 August 1994) at para 4.3.
31. The National Children’s and Youth Law Centre Submission (28 July 1994) at 7.
32. The National Children’s and Youth Law Centre Submission (28 July 1994) at 7.
33. Adoption Act 1984 (Vic) s 11(5); Adoption of Children Act 1994 (NT) s 15(3); Adoption Act 1988 (Tas) s 20(7); Adoption Act 1994 (WA) s 67; Adoption Act 1993 (ACT) s 18(2); Adoption Act 1988 (SA) s 9; Adoption of Children Act 1964 (Qld) s 12(3).
34. Adoption Act 1984 (Vic) s 11(7); Adoption of Children Act 1994 (NT) s 15(4); Adoption Act 1988 (Tas) s 20(8); Adoption Act 1994 (WA) s 75(2); Adoption Act 1993 (ACT) s 43(1)(c); Adoption Act 1988 (SA) s 9(2); Adoption of Children Act 1964 (Qld) s 28(1A).
35. Adoption Act 1993 (ACT) s 18(2); Adoption Act 1988 (SA) s 10; Adoption of Children Act 1964 (Qld) s 12(5).
36. Adoption Act 1984 (Vic) s 11(6); Adoption of Children Act 1994 (NT) s 15(3); Adoption Act 1988 (Tas) s 20(7).
37. Adoption Act 1988 (SA) s 9(3).
38. Adoption Act 1988 (SA) s 10.
39. Adoption of Children Act 1964 (Qld) s 12(5).
40. Adoption Act 1984 (Vic) s 12; Adoption of Children Act 1994 (NT) s 15(3); Adoption Act 1988 (Tas) s 21.
41. Adoption Act 1994 (WA) s 67.
42. Adoption Act 1993 (ACT) s 18(5).
43. P Harper “Children in Stepfamilies: Their Legal and Family Status” (1984) Institute of Family Studies Policy Background Paper No 4 Institute of Family Studies, Melbourne.
44. A Roughley “Intra Family Adoption in NSW” in Proceedings of the Fifth Australian Adoption Conference Has Adoption a Future? (Sydney, 29-31 August 1994) at 527.
45. A Roughley “Intra Family Adoption in NSW” at 529; A Roughley “Intra Family Adoption in NSW - Issues and Realities” in CLE Seminar Papers Developments in the Law of Adoptions (Sydney 1994) at 56-57.
46. Roughley “Intra Family Adoption in NSW - Issues and Realities” at 57; Roughley “Intra Family Adoption in NSW” at 529.
47. Family Provision Act 1982 (NSW) s 7.
48. Family Law Act 1975 (Cth) s 65J.
49. s 65C.
50. Adoption of Children Regulation 1995 (NSW) Schedule 1, Form 9.
51. J S Wallerstein and J B Kelly Surviving the Break-up: How Children and Parents Cope with Divorce (Grant McIntyre, London, 1980); E M Hetherington “Divorce: A Child’s Perspective” 34 American Psychologist 851.
52. “Cinderella Revisited” Report of the Step-Families Sub Committee of the Family Law Council, (Victoria, June 1986), para 4.2 quoted in In the Adoption of X (1994) 17 FLR 594 at 597.
53. “Cinderella Revisited” para 3.3 quoted in In the Adoption of X at 597.
54. Australia - Parliamentary Debates (Hansard) House of Representatives, 16 May 1990 at 665.
55. United Kingdom - HMSO “Adoption of Children” Working Paper of the Departmental Committee on the Adoption of Children (1970) at para 105.
56. P Harper “Children in Stepfamilies: Their Legal and Family Status”.
57. P Amato Children in Australian Families: The Growth of Competence (Prentice Hall, Sydney, 1987).
58. New South Wales Department of Community Services (Adoption Branch) “Information About Adoption” (pamphlet) at 6.
59. United Kingdom - HMSO “Adoption of Children” Working Paper of the Departmental Committee on the Adoption of Children at para 111.
60. Western Australia - Adoption Legislative Review Committee Final Report: A New Approach to Adoption at 121, para 7.21.
61. “Agency” is used in this discussion to refer to both DOCS and a private adoption agency, unless the context requires otherwise.
62. A Roughley “Intra Family Adoption in NSW - Issues and Realities”at 63.
63. Adoption of Children Act 1965 (NSW) s 34(3).
64. And therefore under the guardianship of the Minister for Community Services: Children (Care and Protection) Act 1987 (NSW) s 90. Children can be declared wards by court orders pursuant to the Children (Care and Protection) Act 1987 (NSW) and the Adoption of Children Act 1965 (NSW).
65. “Foster parent” is defined in s 6 of the Adoption of Children Act 1965 (NSW) as a person who has care of a child in accordance with the Children (Care and Protection) Act 1987 (NSW).
66. Long-term foster care of a non-related child cannot be privately arranged. It must be arranged by DOCS or an authorised private fostering agency: Children (Care and Protection) Act 1987 (NSW) s 42 and 44. However, there may be some cases where the long-term care arrangement is exempted (s 42(4)) or allowed by an order of a court, such as the Family Court. It should be noted, though, that with respect to care of a related child, the definition of “related persons” under the Children (Care and Protection) Act 1987 (NSW) is wider than that of “relative” under the Adoption of Children Act 1965 (NSW). Consequently, there is a residual number of private long-term foster care arrangements by relatives under the Children (Care and Protection) Act 1987 (NSW) provisions falling outside the Adoption of Children Act 1965 (NSW) definition of relative. This section of the chapter on “adoption of children in care” applies to those arrangements. Foster care by relatives who also fit within this description is discussed under “relative adoption” above.
67. The Minister for Community Services can delegate functions pertaining to his or her guardianship of a ward to the Director-General: Children (Care and Protection) Act 1987 (NSW) s 11.
68. Children (Care and Protection) Act 1987 (NSW) s 42(2)(c).
69. For example, a court order giving guardianship or custody to the person having care of the child could be revoked as appropriate at a later stage.
70. Adoption of Children Act 1965 (NSW) s 51 sets out the offence. It might lead to the prosecution of all those assisting the unauthorised arrangement: s 50, 51 and 52.
71. s 18(2).
72. s 21(1). In respect of private agency applications, the Court may dispense with the additional DOCS report: s 21(1A).
73. s 33. However, the Court may disregard this if the child has not turned 18 years of age: s 33(1). In the case of a child who has attained the age of 12 years, but not the age of 18 years, and who has been brought up, maintained and educated as the child of the applicants for the period of five years before the making of the application, only the consent of that child is required to the adoption: s 26(4A). However, the Court may dispense with the child’s consent: s 33.
74. Adoption of Children Act 1965 (NSW) s 26. For the adoption of a ward, the Minister for Community Services, being the legal guardian of the child under the Children (Care and Protection) Act 1987 (NSW), must consent to the adoption as well as the parents of the child. The exception to this is in the case of a ward of 12 years or over who has been in the applicants’ care for the five years prior to the application: s 26(4A). See Adoption of Children Regulation 1995 (NSW) cl 21(b) and Schedule 1, Form 2.
75. Adoption of Children Act 1965 (NSW) s 27(1). Specific consent can only be given to an adoption of a child by a relative of the child or by a step-parent: s 27(2).
76. Specific consent of the child is required: Adoption of Children Act 1965 (NSW) s 33 and Adoption of Children Regulation 1995 (NSW) Schedule 1, Form 5.
77. Similar to step-parent or relative adoption: New South Wales Law Reform Commission. Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994) at para 4.83.
78. DOCS was not convinced that the role of “open adoption” as a safeguard against “back door” adoptions balanced the concerns raised by extending the right to bring an adoption application to non-relative foster parents. For example, the child may defer to the authority of his or her foster parents and reflect their views; or, the foster parents may wish to exclude the birth parent from contact: New South Wales Department of Community Services Submission (5 September 1994) at 12. The Anglican Adoption Agency considered that while the child should be actively involved in the adoption plan, it is important that the child not be responsible for the decision for adoption or be put in a position of deciding against his or her birth family: Submission (26 August 1994) at para 4.3.
79. The National Children’s and Youth Law Centre was cautious about allowing carers to adopt at all arguing that “the possibility of adoption sometimes creates pressure on the child and competition between the birth family and the child’s current carers”: Submission (28 July 1994) at 7.
80. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 14.
81. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 14.
82. For example, A Marshall Submission 207 (1 August 1994) at 3.
83. Delegated by the Minister for Community Services under the Children (Care and Protection) Act 1987 (NSW) s 11.
84. However, A Davey questioned “[h]ow could a child possibl[y] express his or her feelings about adoption unless they have complete confidence and trust in their [DOCS] district officer?” This requires continuity in contact between ward and officer over a period of time. Regular changes to such officers are detrimental to the development of this confidence and trust: Submission (13 June 1994) at 5.
85. Including, for wards, the consent of the Minister for Community Services as guardian: Children (Care and Protection) Act 1965 (NSW) s 90.
86. This is in accordance with the recommendation in Chapter 3. The Court’s power to dispense with consents is pursuant to the .Adoption of Children Act 1965 (NSW) s 32(1A). The dispensation of the Minister’s consent as guardian of a ward would be unlikely.
87. Adoption of Children Act 1965 (NSW) s 21(1)(a) and (b).
88. Unless the long-term carer is related to the child or has been given permission to care for the child by an authorised agency, such as DOCS, or is exempted, such an arrangement is prohibited: Children (Care and Protection) Act 1987 (NSW) s 42 and 44.
89. Children (Care and Protection) Act 1987 (NSW) s 42.
90. See New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, 1993) at para at 8.2.
91. For example, inheritance rights. See further discussion on inheritance and adoption in para 4.64-4.66 of this chapter.
92. These could include: Adoption of Children Act 1965 (NSW) s 50, 51, 52, 54, 55, 56, 57 and 58.
93. Adoption of Children Act 1965 (NSW) s 50(1) (unless authorised under s 50 (2)).
94. s 52.
95. s 51.
96. s 18(2).
97. s 26 and 33. See Chapter 5.
98. Adoption of Children Act 1965 (NSW) s 19, 20 and 21. See Chapter 6.
99. Adoption of Children Act 1965 (NSW) s 21(1). In respect of private agency applications, the Court may dispense with the additional DOCS report (s 21(1A)).
100. D Smith “Special Case Adoptions” CLE Seminar Papers The Law of Adoptions (Newcastle, NSW, May 1995) 99 at 100.
101. NSWLRC DP 34 at 42 and at para 4.5.
102. NSWLRC DP 34 at para 4.4.
103. See paras 2.14-2.15.
104. As presently required under the Adoption of Children Act 1965 (NSW) s 18(2).
105. This could be held after the consents of all relevant persons were given (or dispensed with by the Court).
106. See Adoption of Children Regulation 1995 (NSW) cl 42, and criterion 1 pursuant to the Adoption of Children Regulation 1995 (NSW). The New South Wales Department of Community Services’ “Criteria for Assessment of Adoption Applicants” is published in the New South Wales Government Gazette No 58 (8 May 1992) at 3264.
107. Although, to give an example of a divergence from this, DOCS’s practice is not to take the consent of birth parents of a child born with a disability for two to three months after the birth to allow the birth parents time to come to terms with the situation.
108. Adoption of Children Act 1965 (NSW) s 68A; Adoption of Children Regulation 1995 (NSW) cl 42. The Director-General may also determine that other children with special circumstances fit into this category.
109. “Criteria for Assessment of Adoption Applicants” criterion 6.
110. “Criteria for Assessment of Adoption Applicants” criterion 7.
111. “Criteria for Assessment of Adoption Applicants” criterion 9. Other agencies also relax similar selection requirements for special needs children.
112. The birth parents’ permission is usually sought for any publicity.
113. For example, in special needs adoptions DOCS circulates information on small groups of children available for adoption to a list of interested persons who are invited to attend education and training seminars. Contrast this with the usual practice whereby there are “pools” of approved applicants awaiting the placement of a child.
114. See Chapter 6.
115. Barnardos Australia Submission (26 July 1994); Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 13; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 12; New South Wales Department of Community Services Submission (5 September 1994) at 15.
116. Anglican Adoption Agency Submission (26 August 1994) at para 4.4.
117. Anglican Adoption Agency Submission (26 August 1994) at para 4.4. However, the Commission did not receive submissions criticising recruitment by advertising for special needs children.
118. Anglican Adoption Agency Submission (26 August, 1994) at para 4.4; New South Wales Department of Community Services Submission (5 September 1994) at 12.
119. Other states have similar legislation, such as the Adoption Act 1994 (WA) s 140(2); the Adoption Act 1984 (Vic) s 105; the Adoption of Children Act 1994 (NT) s 85; and the Adoption Act 1988 (SA) s 26.
