5.1 Many of the criticisms of adoption procedures relate to consent to an adoption. It is fundamental that consent to relinquish a child for adoption is voluntary, informed and given when the birth parent is in a fit mental and emotional state. In light of the recent developments in adoption practice, namely open adoption and the participation of birth parents in the selection of adoptive parents, it is increasingly necessary to ensure that birth parents who consent to relinquish a child for adoption fully understand the effects of the decision they are making.
ENSURING INFORMED AND VOLUNTARY CONSENT
5.2 The adoption legislation contains provisions designed to ensure that parental consent is given freely. This is examined under the following headings: timing of consent, form of consent, witnessing consent and revocation of consent.
5.3 For reasons explained in Chapter 9, the adoption of Aboriginal and Torres Strait Islander children should be treated separately in the legislation. Recommendations in relation to taking consent from birth parents or guardians for the adoption of Aboriginal and Torres Strait Islander children are made in that chapter. Chapter 10 discusses the need for fully informed and voluntary consent in intercountry adoption.
Timing of consent
Current law and practice
5.4 Under the current legislation, consent cannot be given before the birth1 or until the completion of three clear days after the birth.2 This calculation does not count the day of the birth and therefore consent cannot be taken until the fifth day after the birth, at the earliest.
Discussion Paper 34
5.5 The Commission proposed that the birth mother should not be allowed to consent to adoption until 30 days after the birth.
Submissions and response
5.6 Submissions generally supported the Commission’s proposal to extend the time before the taking of a consent to 30 days after the birth of the child.3 The Law Society believed the Commission’s proposal on the timing of consent to be an improvement on the current law.4
5.7 As paragraph 7.44 of DP 34 observed, time periods for taking consent and revocation of consent are an attempt to balance a number of competing considerations. One is to ensure that the birth parent’s consent is truly voluntary. The other is that the child’s best interests require a reasonably expeditious placement with the adoptive parents. Submissions acknowledged that any period of time chosen in these circumstances would be arbitrary. It was suggested, and the Commission agrees with this, that what is required is a set of procedures which can be clearly followed and which cannot be misconstrued, as well as the provision of counselling throughout the process.5
5.8 The Australian Association of Social Workers (“the AASW”) “fully endorse[d] the new proposed timeframe for consent to adoption” and went on to say:
In our original submission we stated that we believed birth mothers to be too vulnerable and too much in shock during the immediate post partum period. Lengthening this entire period, while it may be uncomfortable for some women who have envisaged a “clean break”, will mean that birth mothers are able to truly experience the impact of separation from their baby, and to make a more informed and reality-based decision in the end.6
5.9 However, Centacare believed that the Commission’s proposal to require birth parents to wait 30 days to sign a consent would destroy the flexibility and other advantages of the current system, which allows birth parents to choose when they are ready to sign a consent.7 Centacare viewed the signing of the consent as a strong test of the birth parent’s resolve regarding the decision, and did not see consent in the context of committing a birth parent to adoption, as it was in the past. While the Commission appreciates the value of this approach, the fact remains that on signing a consent a birth parent has entered into a legal arrangement to place the child in the permanent care of others, which becomes irrevocable within a relatively short period of time.
5.10 Centacare also observed that the signing of the consent is not only a legal process but also an important part of the emotional process for birth parents.8 It believed that delaying the taking of consent may leave many birth parents in a state of indecision for too long. The taking of consent brings into sharp focus the reality of the decision.9
Conclusion
5.11 The Commission has considered the arguments put by Centacare and weighed these against arguments put by birth parents requesting more time. The Commission is influenced by the fact that it may take a birth parent some time to evaluate his or her situation after the child is born. This is one of the main reasons why consents cannot be taken before the birth of the child. Birth parents need to test their decision in relation to an actual baby.
5.12 As was put by the AASW, providing for a 30 day hiatus after the birth of the child will mean that birth parents are truly able to experience the impact of separation from their babies, and ultimately to make a more informed and realistic decision. Accordingly, a birth parent or guardian should not be allowed to consent to an adoption until 30 days after the birth of the child.
Form of consent
Current law and practice
5.13 The current law provides that the form of consent must be general and in writing.10 Only consents to adoption where the child is to be adopted by a relative,11 or by two persons, one of whom is a parent or relative, are specific in that they state that the child is being relinquished in favour of a particular person.12
5.14 Schedule 1 of the Adoption Regulation contains several forms of consent, two of which are for parental consents.13 It also contains two Statement of Requests forms, one of which covers access in intra-family adoptions.14 The other Statement of Requests form is presently used in conjunction with the general consent form, and it allows birth parents, at any time before the end of the revocation period, to express their wishes for the placement of the child.15 Such wishes include the race or ethnic background of the adoptive parents, their marital or other status, and whether or not the birth parent wishes to receive future information about the child or meet with the adoptive parents. The birth parent can also make a choice as to whether he or she wishes to be involved in the selection of suitable adoptive parents and express any other additional requests. The form also contains a declaration that the birth parent understands his or her wishes are not binding on the agency but that they will be taken into account in the development of a placement plan, where practicable.
5.15 The Statement of Requests form also provides the birth parent with several choices as to receipt of information following relinquishment. The birth parent can choose to be informed of the placement of the child with the adoptive parents, the making of the adoption order, and whether the child is no longer in the care of the adoptive parents or has died.16
Discussion Paper 34
5.16 The Commission held the provisional view that the form of consent should permit the birth parents to express any views relating to the selection of the adoptive parents or the child’s upbringing. The Commission also welcomed comments on whether or not provision should be made for conditional consents.17
Submissions and response
5.17 Several submissions considered that consents to adoption (except for a relative or step-parent adoption) should continue to remain “general”, that is, not nominating identified adoptive parents.18 Many submissions took the view that the Director-General of DOCS should become the child’s guardian after the consent is signed as under the present law.19
Conclusion
5.18 In relation to the effect of the form of consent, consents to adoption should continue to remain “general”, that is, not nominating identified adoptive parents. The exceptions to this are where the child is to be adopted by a step-parent or relative, in which case the consent should be “specific”, that is, nominating the step-parent or relative.
5.19 In relation to adoptions by foster parents, Chapter 4 discusses under the heading “Adoption of Children in Care” whether specific or general consent is more appropriate. The discussion under that heading outlines a concern expressed by DOCS in relation to temporary foster care. The birth parents may be happy with the placement and the foster carers 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 been for a short time only, any areas of difficulty may not have arisen and been resolved.
5.20 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.
5.21 Chapter 4 also discusses the adoption of children in private placements and in what circumstances an order for adoption would be appropriate. 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.
5.22 As to the content of the consent form, it should convey information relevant to consent and ensure that such information has been understood. Specifically, it should
- be written in plain language;
- clearly state the legal effect of signing;
- include information as to who has guardianship of the child after the consent has been given, but prior to the adoption order;
- state the last date up until which the consent can be revoked;
- give clear instructions as to how to revoke consent and make clear that the process can be begun again at any time;
- include information on the ability of the birth parent or guardian to exercise access to the child in the period between giving consent and the time consent becomes irrevocable;
- provide for the consent to be witnessed; and
- state that the birth parent or guardian must be provided with a copy of all forms signed by him or her.
5.23 The recent consent forms go a considerable way to achieving these aims.20 The Statement of Requests form,21 presently used in conjunction with the general consent form, offers birth parents the opportunity to express their views relating to the selection of the adoptive parents or the child’s upbringing and have these wishes considered in the adoption placement plans. However, it is anachronistic that the only wish expressed on the consent form itself should be as to the child’s religious upbringing or the religion of the adoptive parents. All birth parent wishes should be contained on the one form, which should be the Statement of Requests form.
5.24 Further, the consent form for step-parent and relative adoptions should clarify who has guardianship after the consent has been given.22
5.25 A related issue is provision to the person giving consent of a copy of the consent form he or she has signed. A number of birth parents told the Commission they had never received a copy of the consent form they had signed. Persons giving consent should always receive copies of any forms they have signed.
Witnessing consent
Current law and practice
5.26 Only certain people can witness a consent.23 If the instrument of consent is signed in New South Wales, the witness to a consent can be drawn from a number of occupations. These are: clerk of a Local Court; commissioner for affidavits; Director-General of the Department of Community Services (“DOCS”); principal officer of a private adoption agency; member of the AASW; or lawyer.24 In order to protect birth parents from undue pressure at the time consent is taken, the consent must not be witnessed by an officer of DOCS or an employee of a private adoption or foster agency who is the case worker for the applicants to adopt.25 If a lawyer witnesses the consent, as is common in step-parent adoptions, that lawyer must not be the legal representative of the applicants or a partner or employee of that representative.26 The range of witnesses differs slightly for instruments of consent signed interstate or overseas.27
5.27 A witness to a birth parent consent28 must certify a number of matters on the instrument of consent. He or she has to be satisfied of the identity of the person giving the consent; that the consent giver received the form and certain written information not less than 72 hours prior to consent; and that the consent giver has had sufficient opportunity to read the consent form. In particular, the witness must be satisfied that the consent giver understands the effect of signing the consent form. This understanding covers the legal but not the emotional effects of consenting to an adoption. The witness must also attest that he or she has explained, and is satisfied that the consent giver understands, the procedures for revoking the consent.29
5.28 In the case of a general birth parent consent, the Adoption Regulation includes an additional requirement that the witness certify that:
in the case of a person giving consent who is under 16 years of age - [he or she] has obtained a report, prepared by a registered psychologist or other appropriate expert, stating that, in the opinion of the expert, the person is capable of understanding the effect of signing the instrument.30
5.29 This provision aims to protect a very young person from being coerced into consenting to an adoption by a well-meaning adult.
Discussion Paper 34
5.30 The Discussion Paper did not make specific provisional proposals for reform in relation to the witnessing of consents. However issues arose in the general discussion on consent which were taken up by submissions, as outlined below.
Submissions and response
5.31 Two interrelated issues arise in relation to the witnessing of consents:
- Beyond affirming the identity of the signatory and witnessing the signature, what other matters should the witness certify, if any?
- What is an appropriate class of person to witness a consent?
5.32 Informing and counselling birth parents. In relation to the first issue, two fundamental policy considerations underpin any requirement for the independent witnessing of consent. One is the need for appropriate counselling of the birth parent before he or she signs the consent form. The second is the need for the birth parent to understand exactly what he or she is doing when signing the consent form.
5.33 The Commission received a number of submissions from birth mothers claiming that consents had been taken in situations where they could not be considered voluntary, either because the birth parent was given inaccurate or inadequate information or because she was not in a state of mind to make the decision. Many signed the consent form without understanding its effect and often without information about the possibility or the method of revoking it at a later date.
5.34 Birth mothers identified the need for the following:31
- information to be provided in writing so that women have a chance to think about all the issues in their own time;
- regulation of the process of taking consent to prevent a consent being obtained where the birth mother is not in a fit state of mind to consider her options and make the decision to relinquish; research indicates that some birth mothers may not have an adequate state of mind to make the decision to relinquish their child for some time after the birth;32 the suggestion was made that it should be the obligation of the agency to ensure that a birth parent is in a fit state of mind before signing a consent to adoption; this would seem to be particularly relevant where a birth mother wishes to sign a consent as soon as possible after the birth of the child; and
- better information about the legal effects of signing a consent form and alternatives to adoption rather than pressure about the material advantages of adoption for the child;33 many birth mothers submitted that they felt pressure from social workers to relinquish their child and were made to feel that they were disentitled to parent their child.34
5.35 The Commission agrees that written information should be provided to birth parents. How this should be implemented and what areas should be covered are discussed in paragraphs 5.72 to 5.82 below. The Commission has also considered, at paragraphs 5.84 to 5.86, whether the taking of consents should be videotaped.
5.36 Who should be able to witness a consent? If the conclusion is reached that the consent form should certify that the signatory was fit to consent and that consent was voluntary and informed, the witness must be competent to attest to these matters. Submissions raised the following criticisms of the present categories of persons who qualify as witnesses:
- The signing of a consent can be witnessed by a person, such as a clerk of the Local Court, who does not necessarily know anything about the long term consequences of adoption and therefore it is questionable whether he or she has the skills to ensure that a birth parent fully understands the document he or she is signing.
- Even if the witness makes an attempt to clarify the understanding of the birth parent, there is no obligation on the witness to ensure that the birth parent has been offered adequate counselling or is medically fit to make such a decision.
5.37 Several alternatives to address these issues have been proposed. Some submissions suggested appointing a particular category of person to witness all consents to adoption:
An officer of the District Court could be available as an independent witness at the time of the consent taking at the District Court where the officer could also witness the mother’s written wishes regarding placement which were not flexible.35
5.38 An alternative to this approach is to allow one of a selected group of people to witness the consent, while placing the obligation to ensure that a birth parent is adequately prepared and able to sign a consent with the agency who undertakes to support the adoption application before the Court. The Adoption Legislative Review Committee in Western Australia took this approach.36 It recommended that an appropriate person witnessing the signing of the consent would also certify, among other things, that he or she has sighted an affidavit from the agency. The agency would provide an affidavit to the effect that the birth parents:
(a) have received written and verbal information;
(b) have fully understood the implications of adoption;
(c) have been offered counselling;
(d) are medically fit to make such a decision;
(e) understand the procedures for revocation.37
5.39 The strength of this approach is that the agencies possess the expertise and facilities to undertake the necessary preparation of birth parents. This kind of preparation often takes time and may require counselling regarding associated issues.
Conclusion
5.40 The Commission agrees, with two qualifications, with the range of matters to which the witness must presently certify under both the prescribed general consent form38 and under the prescribed step-parent or relative consent form.39 However, the requirements do not go far enough. The witness to the consent form only has to attest that he or she is satisfied that the birth parent understands the legal effects of the adoption and not, for example, the emotional effects.40 Furthermore, this limitation is not made clear in the witness’s statement.
5.41 Secondly, the range of matters which should be certified are better seen as independent requirements. The witnessing of a consent is a very simple matter which merely entails some person stating that they have seen the person whose consent is required signing the relevant document. It has nothing to do with the person’s understanding of what he or she is signing. For this reason, the Commission recommends that the witnessing of consent be dealt with in a simple way. The witness should state that he or she witnessed the consent-giver sign the instrument of consent and that he or she had sighted proof of identity of the consent-giver.
5.42 The certifying of matters relevant to giving an informed and voluntary consent should be the responsibility of an independent counsellor. This is discussed below.
5.43 Independent Counsellor. Although the witness only has to certify an understanding in the signatory of the legal effects, the agencies follow the practice of counselling the birth parents generally. This practice needs to be elevated to a legislative requirement.
5.44 The use of an independent counsellor prior to any consent taking was strongly endorsed by the National Children’s and Youth Law Centre:
5.45 Accordingly, the witness should certify on the consent form that he or she has attached a report prepared by an independent counsellor stating that the independent counsellor:
- has explained to the consent-giver the legal effects of an adoption and procedures including the procedure for revoking the consent to adoption, and is satisfied that the consent-giver understands these procedures and the effect of signing the consent;
- has counselled the consent-giver on the emotional effects of adoption and the alternatives to adoption, including the feasibility of keeping the child; and
- that the independent counsellor is not aware of any mental, emotional or physical unfitness of the consent giver to provide consent.
- A copy of this report should then be annexed to the consent form.
5.46 It would be preferable, for continuity in an adoption case, if the statement by the independent counsellor was contained on the consent form itself, rather than annexed, so that the independent counsellor could witness the signature and attest to the above matters. However, there may be practical difficulties, particularly in rural areas, for a consent-giver to receive counselling, go away and consider the advice, then return to the same person to sign the consent form in front of him or her. Annexing the counsellor’s report to the instrument of consent gives the consent-giver greater flexibility but does not compromise his or her interests in any way.
5.47 The independent counsellor should be neither the caseworker for the applicants nor for the birth parent.42 He or she should be a social worker or psychologist accredited by DOCS. To address practical problems with the availability of an accredited social worker or psychologist in rural areas, the Director-General of DOCS should have the power to make an ad hoc approval of a social worker or psychologist for the purposes of giving the independent counsellor’s report in a particular case.
5.48 Taking consent overseas for an adoption within Australia rarely occurs but, in that case, again, the Director-General should have the power to approve a social worker or psychologist for the purposes of the particular matter. It is likely that in such circumstances DOCS would liaise with a significant adoption body in the foreign country.
5.49 As the witness would no longer have the responsibility of explaining the effects of adoption, it is not necessary that he or she be a person belonging to one of the categories presently set out in clause 22 of the Adoption Regulation. The witness could be any one at all capable of witnessing a signature and being satisfied as to the identity of the signatory.
5.50 The consent forms for the guardian of a ward under the Children (Care and Protection) Act 1987 (NSW)43 and guardian of a non-citizen child awaiting adoption under the Immigration (Guardianship of Children) Act 1946 (Cth)44 should continue to be attested by a witness prescribed by clause 22 of the Adoption Regulation in the manner set out in the present Forms 2 and 3.
Revocation of consent
Current law and practice
5.51 Consent to the adoption of a child by a person other than the child can be revoked by delivering to the Court written notice of the revocation before the expiration of 30 days from the date on which the instrument of consent was signed or before an adoption order is made, whichever is earlier.45 Accordingly, at present it is possible for the Court to make an order for adoption before the expiration of 30 days from the date on which the instrument of consent was signed.
5.52 The Director-General of DOCS must give written notice of the birth parent’s right to withdraw the consent at least seven days before the day on which the revocation period expires.46 The general and step-parent or relative consent forms provide details on revocation including a form for the revocation of consent.47
5.53 Agency practice varies as to how much access a birth parent is allowed to his or her child during the revocation period. Some agencies do not place any restrictions on access, while others limit access to a weekly visit, believing that this provides the birth parent with an illustration of the experience of separation.48
Discussion Paper 34
5.54 The Commission proposed that consent should become irrevocable 30 days after consent was signed and that it should be made clear to birth parents that consent can be revoked within the 30 days and the consent process begun again at any time. It was proposed that counselling should be provided shortly before the expiration of the 30 day period, to ensure that the birth parent understands his or her position.49
5.55 The latter proposal was particularly directed at birth mothers and was designed to avoid consent being given at a time when the mother might be affected by the physical and emotional effects of childbirth. It represents a reconsideration of what is the appropriate adjustment of the various interests and policies involved. In particular, it recognises that in many cases the birth parent’s experience of adoption will not be the sudden and complete separation envisaged in earlier times, but rather a gradual (and sometimes only partial) withdrawal from the child’s life, with some continuing participation in the selection and preparation of the child’s adoptive placement.
Submissions and response
5.56 Several submissions suggested extending the time for revocation of consent either up until a date (before the making of the order for adoption) nominated by the birth parents or up until the making of the adoption order.
5.57 DOCS suggested allowing an extension of the revocation period upon application, rather than allowing the parent to revoke consent then consent again.50 The difficulty with this suggestion is that it increases the complexity of the consent procedure and removes the advantages of the set period of time for revocation. The power to control the decision-making process is taken away from the birth parent whose application for an extension of time is refused.
5.58 There was some concern in submissions that giving birth parents the opportunity to revoke a consent during the revocation period and then later sign another consent attracting a further revocation period could be open to misuse, with birth parents possibly consenting, revoking consent and signing again indefinitely. The Law Society suggested a limitation of one opportunity to revoke and consent again.51 It argued for a “60 day” limitation on the grounds that the limitation addresses the eventual need of the child to be with his or her adoptive parents and does not overlook the rights of the adoptive parents. As the Commission is not proposing that the child be placed with the adoptive parents until the revocation period is complete, the adoptive parents would actually have no rights in relation to any particular child during the period in question.
5.59 DOCS and the NSW Committee on Adoption and Permanent Family Care supported the proposal of providing counselling to the birth parents prior to the revocation period expiring.52
5.60 On the issue of access by the birth parent to the child prior to consent and revocation, one submission argued that since the mother is the legal guardian of the child up until the signing of the consent, she should have the same rights as any other mother to have access to her child and make any decisions concerning the child at this time:
Refusing the mother permission to see or handle her child prior to signing the consent, or putting obstacles in her way of asserting this right, may readily be interpreted as duress if the validity of the consent is being contested ... In the same context any comments or actions by staff members which the mother could see as pressure to persuade her to place her baby for adoption run the risk of later bearing the legal interpretation of duress.53
5.61 The Anglican Adoption Agency has also found that its provision of access to birth parents during the revocation period has two important purposes. If the parent revokes the consent and the child is restored to his or her care, access will facilitate the re-establishing of the bond between parent and child. If the adoption goes ahead, the birth parent will be able to grieve more readily, having a clear image of the child.54
Conclusion
5.62 The point at which the consent to adoption becomes irrevocable marks a complete change in the parental rights and responsibilities of birth parents and, therefore, requires careful regulation.
5.63 To extend the time for revocation to a date nominated by the birth parent or until the making of the adoption order, as suggested in submissions, has several problems. First, having consents with different revocation periods attached may well lead to confusion by all parties to the adoption process, including uncertainty by birth parents as to when their parental responsibilities towards the child might irrevocably change. Secondly, if the child is not to be placed with the prospective adoptive parents until the revocation period expires, the child could be with interim foster carers for up to 12 months. The child would be bonding with those short term carers and not with the adoptive parents selected for him or her as the best long term carers. If, on the other hand, the child is placed with the applicants to adopt, it would be difficult to expect those applicants to bond with a child who may be removed from their care at any time in the first 12 months. There may be some applicants who are prepared to enter into such an arrangement but most may find that this is too traumatic. Holding back from bonding with the child in the first 12 months does not meet the best interests of the child.
5.64 Possibly the strongest argument for not extending the time for revocation is that if a birth parent is not sure about the decision to relinquish, before signing a consent there is always the choice of temporary care while time is taken to explore all the options, develop mothercraft skills, test out a decision to continue to parent, or explore means of support within the extended family, especially in the case of a new-born baby. If adequate counselling is provided, there should be very few birth parents signing consents who need a further 12 months to reach a decision.
5.65 In relation to the suggested limiting of opportunities to revoke consent, a better solution to prevent a birth parent consenting and revoking frequently is to delay the taking of consent in the first place until the birth parent has made an informed decision. Birth parents should be provided with adequate and correct information and support during the decision-making process, both before the giving of consent and after it. Such information would include the alternatives to adoption and the consequences of open adoption, as discussed below. Support would include counselling, advice and assistance with housing, respite care and other temporary care arrangements, and generous access, if requested.
5.66 The Anglican Adoption Agency has found that the provision of temporary care by the agency has worked well in providing time and space after the birth for parents to consider their options.55 If proper counselling services are provided and birth parents have a full understanding of the decision they are making and given a reasonable amount of time in which to make it, there will be very few circumstances in which birth parents revoke a consent only to sign another one.
5.67 In the rare cases where birth parents have consented, revoked consent and consented again, agency social workers have suggested a pause in the consent and revocation process in order to explore the reasons for the birth parent’s indecision.
5.68 Accordingly, consent should become irrevocable 30 days after it is signed and an adoption order should not be made before the revocation period expires. This represents a departure from the current law which allows an adoption order to be made within 30 days after consent is given.
5.69 Independent and impartial counselling should be provided throughout the consent-taking process and shortly before the expiration of the 30 day revocation period to ensure that the birth parent understands his or her position.
5.70 In line with the present law,56 it is important that the birth parent or guardian is sent written notice at least seven days before the last day on which consent can be revoked reminding the birth parent that he or she has a right to withdraw consent by a day specified in the notice. The person giving consent should be able to revoke that consent as often as he or she requires. He or she should be made aware at the time of consent that revocation of consent is not a bar to consenting again at a future time.
5.71 The Commission supports the practice that birth parents be given, and be encouraged to utilise, access to the child if the child is placed in temporary care during the process of consent and revocation. Access during this period would need to be controlled only to the extent that it did not become an unmanageable burden on temporary or foster carers.
Further issues
Written information
5.72 Under the heading “Witnessing consent” attention is drawn to a need for the provision to birth parents of written information as a way of ensuring informed consent. Submissions proposed that an information kit should be supplied to birth parents at a set period before the signing of consent. It was thought to be beneficial for birth parents to be able to take this information home and consider it in their own time.57 It would also provide an opportunity to reiterate legal rights. As one submission commented:
In making their decision, all birth parents should have access to written information about their legal rights, the legal process of relinquishment, the long term implications of the decision both for themselves and the child, alternatives to adoption and family support services.58
5.73 Each of the agencies currently provides its own written information for birth parents at the initial enquiry stage. The content of the information varies between agencies. DOCS’s pamphlets are a good example of this type of information.
5.74 In late 1995, DOCS released a series of pamphlets entitled Information About Adoption to take into account the Adoption Regulation. Three of the pamphlets are addressed to birth parents and each covers different areas, namely: adoptions generally, intra-family adoption, and the adoption of wards. These pamphlets constitute the written information provided to birth parents by DOCS as required in the consent forms. While the discussion below focuses on these, the comments apply to the provision of all agencies’ written information.
5.75 These pamphlets answer some of the criticisms of the earlier written information provided to birth parents. However, focusing on the pamphlet provided to birth parents about adoptions generally, the information provided in it could be expanded in several areas.
5.76 The birth parents’ pamphlet should place more emphasis on the psychological effects the relinquishment can have on birth mothers both in the short term and, more particularly, the long term. Serious attention is now being given to the link between relinquishment and the development of post-traumatic stress disorder in birth mothers.59 The range of psychological effects of relinquishment could be detailed specifically. The written information should direct birth parents to contact numbers for counselling and birth parent support groups, members of which have experienced relinquishment.
5.77 The pamphlet contains information on the alternatives to adoption, but more detail should be provided on the main differences between them and how to obtain more information on each alternative. The information might include a summary of the assistance and support available to undertake the care of the child if the birth parent chooses to bring up the child, as well as contact details. This would cover the types of financial assistance obtainable, such as single mothers’ benefits and rental assistance, and how to apply for them, as well as a list of accommodation details. The information could be expanded to refer to practical information (including contact details) on the assistance offered by parenting support organisations, baby health clinics, child care and respite care, mothercraft classes, crisis care, local job programs and education opportunities for sole parents.
5.78 The information should include a summary of the legal consequences of the birth mother either disclosing or withholding information about the birth father.60 In particular, any information given should clearly distinguish between rights and obligations under adoption legislation.
5.79 In relation to self-help organisations, the pamphlet contains the contact details for several alternative counselling services. This information might be expanded to include, for example, sources of free legal advice provided by community legal centres.61
5.80 Any written information should clearly set out that a birth parent must receive notice of revocation at least seven days before the day on which the revocation period expires. All information would need to be updated regularly to take into account changes to adoption law and practice and contact details, support services and financial assistance. The information could be developed with assistance and practical information provided by groups such as birth parent associations, local councils, the NSW Women’s Information and Referral Service,62 and community centres, such as charitable organisations. Copies of the written information should be available in community languages.
5.81 Written information relevant to all birth parents in the expanded form suggested above should be provided to every consenting birth parent at least 14 days before a consent is taken from that person.63 All agencies’ written information should provide a similar standard of information. In summary, information should include:
- information on the alternatives to adoption;
- information on financial and other support services available to a birth parent who wants to raise his or her child;
- information on the possible emotional effects, both short and long term, of relinquishing a child for adoption;
- a warning that it may not be possible to grant all or any of the birth parent’s wishes in relation to the proposed adoption;
- information relating to the legal effect of giving consent and of an adoption order;
- information on the ability of the birth parent to exercise access to his or her child after consent and prior to the end of the revocation period; and
- information on the ability to revoke consent.
5.82 As well as being provided with general birth parent information, other more specialised written information on, for example, intra-family adoption or adoption of wards, should be provided to those birth parents contemplating these types of adoption.
5.83 The witness should state on the form of consent that he or she is satisfied that the written information was supplied to the person giving consent not less than 14 days prior to signing the consent form.
Video taping the giving of consent
5.84 One submission suggested that in order to ensure that the consent of a birth mother was not made under duress, the signing of the consent, including the verification by the witness that the birth mother is aware of her rights, should be recorded on video tape, in much the same manner as police interviews are currently recorded. Video-taping of interviews was introduced as a means to ensure that the person being questioned was properly advised of his or her rights and was not subjected to undue pressure during the questioning process.
5.85 The Commission does not support video taping the giving of consent. An explanation of rights to the birth parent at this point is too late to be effective. Birth parents need time to consider fully the issues well before they contemplate signing a consent. The consultation process has shown that birth parents who feel dissatisfied with the consent taking procedures are angry and frustrated about the fact that they were allowed to enter into a legally binding arrangement without fully understanding the legal, emotional or social consequences.
5.86 Provision of the written information discussed above would adequately inform birth parents about adoption and alternatives well before the moment of signing the consent. Other recommendations, regarding the timing of consents and the procedures for witnessing consents, would also provide proper protection to birth parents.
Timing and revocation of consent
Form of consent
RECOMMENDATION 38
Consents to adoption should continue to remain “general,” that is, not nominating identified adoptive parents, except where the child is to be adopted by a step-parent or relative or where consent is given by a child to his or her own adoption. In those cases the consent should be “specific”, that is, nominating the applicants to adopt.
RECOMMENDATION 39
Where the child to be adopted is in foster care or in a private placement, the birth parents or guardians of a child may give consent to either the adoption of the child by any persons (general consent) or, the adoption of the child by the child’s foster parents or carers (specific consent), providing those foster parents or carers have had care of the child for not less than two years.
RECOMMENDATION 40
The prescribed forms of consent for a general consent, a step-parent or relative consent or consent by a child who has attained the age of 12 years should:
- be written in plain language;
- clearly state the legal effect of signing;
- include information as to who has guardianship of the child after the consent has been given, but prior to the adoption order;
- state the last date up until which the consent can be revoked;
- give clear instructions as to how to revoke consent and make clear that the process can be begun again at any time;
- include information on the ability of the birth parent or guardian to have access to the child in the period between giving consent and the time consent becomes irrevocable;
- provide for the consent to be witnessed; and
- state that the person giving consent must be provided with a copy of all forms signed by him or her.
RECOMMENDATION 41
The Statement of Requests form (Form 6) prescribed under the Adoption of Children Regulation 1995 (NSW) should be used in taking general consent and consent from a child who has attained the age 12 years. A statement of wishes as to the religious upbringing of the child and the religion of the adoptive parents should be removed from the general consent form (Form 1) and included in Form 6.
Witnessing consent
RECOMMENDATION 43
The witness to a general, step-parent or relative consent or consent by a child who has attained the age of 12 years may be any person capable of witnessing a signature and being satisfied as to the identity of the signatory. It is not necessary that the witness be a person belonging to one of the categories presently set out in clause 22 of the Adoption Regulation.
BIRTH FATHER'S CONSENT
Current law and practice
Consent
5.87 Under the Adoption Act, consent to the adoption of a child is generally required from a birth mother and father who are married or who live in a “common household”.64 Where the child is ex-nuptial65 and the birth mother and father do not live together after the child’s birth, consent is generally only required from the mother.66
5.88 Consequently, it could appear that consent is not required from any birth father who does not have an established relationship with the mother. However, the Adoption Act also states that consent to an adoption is required from any person who is the child’s guardian.67 A guardian includes a birth father, although not married to and not living with the mother, having custody of the child or who is deemed a guardian of the child under any State or Federal law.68 The Family Court of Australia held in Hoye v Neely69 that an unmarried father is a “guardian” whose consent is required under the Adoption Act.70 On the authority of this decision,71 the present position is that the unmarried father’s consent is required even where he has not lived with the mother and child in a common household - unless the father has specifically been refused custody and guardianship by a court order. Amendments to the Family Law Act,72 subsequent to Hoye v Neely, which introduce the language of “parental responsibility” rather than “guardianship”, are unlikely to change this analysis.73
5.89 Despite the interpretation in Hoye v Neely, in practice it appears that the consent of a birth father has not usually been sought if the child is ex-nuptial and the parent-child relationship falls outside the “common household” test. However, some agencies74 try to obtain the agreement of the birth father to the adoption.75
5.90 In DP 34, the Commission pointed out that present variations in agencies’ policies regarding the involvement of birth fathers may lead to birth mothers selecting an agency on the basis of the extent to which they will put pressure on her to identify the birth father. The Commission suggested that it may be preferable to have more uniformity in policies in this area.
5.91 With step-parent adoptions, the consent of the birth parent who is also an applicant to the adoption is not required.76 However, the consent of the other birth parent is required. See further, Chapter 4.
Notice of consent
5.92 Although the consent of a birth father to the adoption of an ex-nuptial child may not be required depending on whether he has an established relationship with the child or the child’s mother,77 the Adoption Act still requires an agency to notify such fathers of the birth mother’s consent or the impending adoption before the adoption order is granted by the Court.78 The requirement to give such notice is limited to those men who are registered as the birth fathers or are legally presumed to be the birth fathers.79 The agency is required to make reasonable inquiries to ascertain whether any person fits into these categories.80 If such a man can be identified, a notice is to be served on him, informing him that the birth mother has consented to the adoption or that an application for adoption has been made in relation to the child.81 The father may then, within two weeks, file an application “relating to the care, custody and guardianship” of the child and the Court may determine such an application. If the father fails to do so within the specified two weeks, the Adoption Act provides that he “may not ... do anything that is inconsistent with the making of the adoption order”.82
5.93 Where such notice is neither given to the father nor dispensed with by the Court, the father cannot do anything inconsistent with an adoption order, apart from being joined as a party to the adoption proceedings in order to oppose it.83
Discussion Paper 34
5.94 The Commission took the provisional view in DP 34 that consent should be obtained from those persons who already have parental rights and responsibilities in relation to the child, since those rights and responsibilities will be removed by adoption.84 Consent would therefore be required from both parents regardless of their marital status.85 This view accords with Federal legislation, such as the Family Law Act and child support legislation, in that birth fathers of children acquire parental responsibilities,86 including the obligation to provide financial support, regardless of their relationship with the mother of the child. Such responsibilities can only be displaced by court orders.
5.95 DP 34 therefore suggested that consent should be required from all birth fathers (or formally dispensed with), except those who have lost their custody and guardianship rights and responsibilities by court orders.87 Under the Family Law Act custody and guardianship rights and responsibilities are now referred to as “parental responsibility”.
5.96 The Commission also proposed that adoption legislation provide that notice should normally be served on birth fathers so they could, if they chose, apply for parenting orders, or appear or make representations relating to the proposed adoption orders. The existing provisions relating to fathers whose consent is not required, which are rather complex and unsatisfactory,88 would not be retained.89 In the Commission’s provisional view, there was no need for the adoption legislation to contain complex provisions about presumptions of paternity, or to refer to the “putative” father. These matters are covered in other legislation.90 It was sufficient for the adoption legislation to refer simply to fathers.91
5.97 In DP 34, the Commission also highlighted the importance of information and openness for the child and the fact that open relationships with birth fathers can be as beneficial for adoptees and their adoptive families as relationships with birth mothers. The relationship between the birth father and the birth mother is not always an indication of the kind of relationship that a birth father wishes to have or is capable of having with the child of that relationship.
Submissions and response
5.98 One of the issues canvassed in submissions was the circumstances in which the consent of a birth father of an ex-nuptial child should be required. Involvement of the birth father may raise problems where the relationship between the birth parents has broken down or never really existed, or where the birth father is known to be violent or abusive. In these circumstances, the birth mother may not wish the birth father to be involved. Her wishes must be balanced against the interests of the child in knowing, or at least having information about, both his or her biological parents.
5.99 Submissions generally agreed with the Commission’s view that birth fathers have a right to be informed of a proposed adoption and be given an opportunity to participate in the decision. Some disagreed on the extent of this right. There were objections to the proposal that most birth fathers be notified of the proposed adoption of their child, and consent to it, on the ground that it failed to address the situation where a child is conceived as the result of a casual encounter or where a casual relationship has broken down after conception but well before birth. Other submissions acknowledged that a father in any of these situations was still the legal father of the child and would therefore have some rights to have notice of the adoption and the right to be heard at the adoption hearing. The Law Society of New South Wales (“the Law Society”) was concerned that the Commission’s suggestion that most birth fathers must give consent would nurture the perception of such a “right”:
[T]his fails to address the reality that such parents may be properly seen as only of passing relevance to the birth-mother (in the case of a casual encounter) and of perhaps even less relevance to the child (other than perhaps, at a later time, as an object of curiosity).92
5.100 The Law Society also disagreed with the Commission’s argument that there should be consistency with Federal legislation, on the grounds that this did not reflect public opinion namely that:
the casually encountering father should have no rights whatsoever, and probably does not even deserve either formal notice or the right of appearance at any preliminary hearing...93
5.101 The Australian Association of Social Workers Ltd was of the view that paternal consent should be required only where the relationship between the birth parents was “meaningful”.94 The difficulty with this argument is that it is not clear on what criteria a relationship is to be judged meaningful. It also fails to take into account that an adoptee may have a great interest in obtaining information about his or her biological father, irrespective of the type of relationship that existed between his or her parents.
5.102 Centacare proposed that birth fathers who were aware of the mother’s pregnancy should be notified where the mother had consented to the adoption, and be given 14 days in which to apply for custody of the child.95 The consent to an adoption order should be dispensed with in certain circumstances such as where the child was the result of sexual assault or incest.96
5.103 The Commission had proposed that consent should be obtained from those who already have parental rights and responsibilities in relation to the child. From this, the Commission had extrapolated at paragraph 7.32 of DP 34 that consent to adoption did not need to be obtained from birth fathers who had lost their custody and guardianship rights by the operation of court orders. The New South Wales Bar Association (“the Bar Association”), DOCS and the Post Adoption Resource Centre (“PARC”) disagreed with this proposal in their submissions. According to the Bar Association, this statement was a:
misapprehen[sion of] the role of fathers who do not have custody and guardianship rights, but who continue to be involved in the lives of their children by way of access orders and child support and otherwise.97
5.104 DOCS supported the Commission’s proposal, but felt that it should extend to all fathers, even those who have lost custody and guardianship rights through the courts. Leaving the proposal in its current form would mean that the consent of fathers whose children become wards of the State would not be required, although there is no similar suggestion that the mothers of these children would also lose their right to consent.98
5.105 Submissions also made the point that parental rights and responsibilities can be conferred on parties who are not the legal parent or guardian of the child. DOCS suggested that adoption legislation should only require the consent of a legal parent or guardian - with notice of the proposed adoption being served on other persons who have the legal care, custody and control of the child.99
5.106 Several of the submissions commented upon the practical problems associated with paternal consent in the adoption process. These include the problems of obtaining information about the identity of the father from the birth mother, where the mother will not or cannot provide such information. It was suggested that birth mothers should be advised of the advantages to children of knowing the identity of both their birth parents.100 Centacare believed that the birth mother should be able to refuse to disclose the identity of the father, but should be required to sign an affidavit indicating this as her decision.101 It would then be a matter for the Court to decide whether or not to dispense with the consent of the birth father in the particular case. The affidavit should then be made available to the child as part of the information available under the adoption information legislation.102 This would avoid the possibility of the child believing in the future that his or her birth father did not care about him or her enough to place his name on the birth certificate.
5.107 In general, submissions suggested there should be clarification of the rights of birth fathers and clarification of the obligations of agencies with respect to any notification to and consent by birth fathers.
Conclusion
5.108 An agency should be required to obtain the consent of the birth father or apply to have it formally dispensed with. If the birth father is not known, or represents a danger to the birth mother and child, or is withholding his consent merely to upset the birth mother, it would be appropriate for the agency to apply to the Court to dispense with the birth father’s consent and approve the adoption order. The Court’s decision to exercise its discretion to dispense with the father’s consent would be made upon the consideration of the particular facts of the case and the best interests of the particular adoptee. If there is no apparent reason why the birth father’s consent cannot or should not be obtained, the agency should be required to make reasonable efforts to locate the birth father, notify him of the proposed adoption, and provide him with information about participating in the adoption process or obtaining custody of the child.
5.109 In every case, the birth father’s consent would either be obtained, or dispensed with by the Court. This would mean that there would not be any birth fathers left in the situation where their consent has not been obtained or the requirement of the agency to obtain it has not been formally removed by the Court. A birth father who cannot be reasonably located before the adoption order, who later finds out about the adoption and wishes to participate in the child’s life, could apply to the Family Court for parenting orders under the Family Law Act, although he would not be able to overturn the adoption order.
5.110 Although consent should only be required from the child’s parents or guardian, the relevant agency should give notice of the proposed adoption and information concerning participation in open adoption to any person who has actual care of the child, even though he or she is not the child’s parent or guardian. Such persons should also be provided with the opportunity to participate in a plan for openness.
Further issue: practical problems associated with notifying birth fathers
5.111 The obligation to seek the consent of the father to the adoption of a child raises several practical problems. As noted above, DOCS’s current practice is to involve birth fathers in the adoption process by seeking, wherever possible, their consent to any proposed orders. Practical difficulties present when the father no longer has a relationship with the birth mother, even though he has been identified by the mother. If he is unaware of the pregnancy, or refuses to acknowledge paternity, or his whereabouts are simply unknown there are clearly practical difficulties in seeking his consent. At what point are attempts to locate and notify the birth father causing unreasonable delays in an adoption placement?
5.112 Previously, DOCS had at its disposal information from a wide range of government agencies which could be used to identify the whereabouts of fathers who were no longer in contact with the child’s birth mother. However, as mentioned in paragraph 7.15 of DP 34, privacy legislation has considerably restricted the sources of information which can be used by DOCS. DOCS is now restricted to searching the electoral rolls (which are available to the public), the Community Tracing Section of the NSW Police Service, and reliance upon the last known address of the father according to DOCS’s own records. These are considerably less successful methods of locating the father.
Conclusion
5.113 The legislation should state that the relevant agency need only make reasonable efforts to locate and notify the birth father, using any of the resources currently legally available to it in order to locate him. This approach does not diminish the requirement to obtain the consent of a birth father to the adoption of his child. If a birth father cannot be located after all reasonable attempts have been made, then it is for the Court to decide whether or not his consent should be dispensed with in the particular case. This enables a balance to be struck between the right of birth fathers to be informed about the existence of their children and to participate in their lives; the ability and resources of the agencies to conduct searching processes; and the interests of the adoptee in not having a beneficial placement unduly delayed by lengthy searches for a birth father.
5.114 Birth fathers who cannot be located before an adoption order is made and who subsequently learn of the adoption are not precluded from participating in the child’s life. Under the Family Law Act they can apply for parenting orders, such as an order for contact with the child.103
CONSENT OF THE CHILD
Current law and practice
5.115 An order for adoption of a child who has attained 12 years of age cannot be made unless the child has consented to the adoption. In that way, the child’s consent is specific although this is not spelt out in s 27 (which provides that consents are to be general except where they are in favour of a parent or relative).104
5.116 The Court can make an adoption order for a child aged between 12 and 17 years even if the child has refused to consent to the adoption or his or her consent has not been sought “if the Court is satisfied that there are special reasons, related to the welfare and interests of the child, why the order should be made”.105 A child cannot revoke his or her consent.106
5.117 The child’s consent is the only consent required where the child is from 12 to 17 years of age and has been brought up, maintained and educated by the applicants for a period of 5 years before the making of the application.107 The adoptee’s consent is the only consent required where the adoptee is 18 years or older.108
5.118 An appropriate witness109 must attest to the child’s consent, the identity of the child, the receipt by the child of written information on the legal implications and consequences of adoption not less than three days prior to the giving of consent, and his or her satisfaction that the effects of signing the consent have been explained to and understood by the child. As for birth parents, this refers to an understanding of the legal effects only.
5.119 Children of 12 years or older must consent to a change of their first names, unless the Court is satisfied that special reasons exist for a change of first name related to the child’s welfare.110 The form of consent allows a child in giving his or her consent to the adoption to nominate the name by which the child wishes to be known after the adoption.111 In other respects, although the child’s welfare is required to be treated as the paramount consideration, the legislation makes no provision for active participation by the child in the adoption process (except in so far as the child selects his or her adoptive parents by reason of consent being specific).112
Discussion Paper 34
5.120 The Commission’s provisional view was that the guidelines for the making of adoption orders should include a provision to the effect that the Court should not make an order without the agreement of a child of 12 years and over except where it is satisfied that the order will nevertheless promote the child’s welfare.113
Submissions and response
5.121 DOCS thought that requiring children to consent to the adoption placed them in a difficult position if they were unable or unwilling to make a choice. It suggested that the requirement that the child should consent to the adoption should be removed from the adoption legislation. Instead, the legislation should ensure that a child’s views are heard and that appropriate weight is given to them, commensurate with the child’s age and understanding. It proposed that no adoption should proceed with respect to a child who is over the age of 10 if it is against that child’s wishes, and a child aged 14 and over should be given equal status with adults in adoption proceedings.114
5.122 A number of submissions similarly argued that children should be given greater opportunities to participate in the adoption process through, for example, representation of the child’s wishes in the hearing of the application for an adoption order. There was very little comment on the issue of counselling the child prior to an adoption order being made.
5.123 In relation to changing an adoptee’s name, some submissions, particularly those responding in relation to intercountry adoption, suggested that rather than legislating on the naming of older children, the adoptive parents should be educated on the advantages and disadvantages of changing a child’s name. The decision would then be made between adoptive parent and child.115 The issue of changing the names of intercountry adoptees is discussed fully in Chapter 10.
Conclusion
5.124 The Commission acknowledges DOCS’s concern with placing a child in a difficult position if he or she is unwilling or unable to make a decision about his or her adoption. However, the chances of a placement succeeding where the adoptee of this age has not consented to it are slight.
5.125 Counselling should play a significant role in the adoption of a child aged 12 years or older. It is essential that a suitably qualified counsellor prepares the child, works through any issues troubling him or her and ensures that he or she understands all the ramifications of the adoption and its alternatives. Having been properly counselled, the child should then be able to consent, or not, to his or her own adoption. Merely taking into account his or her wishes is insufficient for a child of this age. Accordingly, no order of adoption should be made regarding a child who has attained the age of 12 years without the child’s consent, unless there are special reasons related to the best interests of the child why the adoption order should be made.
5.126 Safeguards to ensure the child’s fully informed and voluntary consent should be at least as stringent as those required in the process of taking birth parent’s consent, including enabling the child to revoke consent. The recommendations made above in relation to timing and revocation of consent, the form of consent and witnessing consent apply equally to the consent of children and the consent of adults.
5.127 In addition, where a child is giving consent, he or she should be able to nominate formally the names by which he or she wishes to be known after the adoption. Impartial guidance and counselling should be provided to the child throughout the consent-taking period. This includes providing information relating to the effect of giving consent and adoption procedures, including revocation of consent, in a way the child can understand. The child should also be given assistance in completing any documents and, where relevant, in revoking consent.
5.128 As the child’s consent would be in relation to nominated applicants, the usual requests made by a birth parent on the Statement of Requests form would not be relevant. These requests largely relate to the birth parents’ choice of adoptive parents. However, the child should be able to complete a Statement of Requests form setting out his or her wishes as to the names by which he or she is to be known and contact with birth parents and relatives. As with requests made by birth parents, these wishes would not be binding but should be taken into account in the making of an adoption order.
5.129 In relation to the child’s names, the Commission strongly supports the agencies’ educating adoptive parents on the importance of retaining given names and the integral link between a person’s name and their complete sense of identity. All children of sufficient understanding and maturity should be consulted about any proposed changes to their first names and surnames, and the Court must give careful consideration to the child’s wishes on this point.116 Furthermore, children of 12 years or older should consent to any change in their first name.
RECOMMENDATION 49
A child who has attained the age of 12 years must consent to his or her adoption, unless the Court is satisfied that there are special reasons related to the best interests of the child why the adoption order should be made, notwithstanding that the child has refused to consent.
RECOMMENDATION 50
The consent of a child who has attained the age of 12 years to his or her adoption should be the only consent required.
RECOMMENDATION 51
The agency must provide a child who has attained 12 years of age with independent counselling prior to signing any consent and during any period of revocation of consent.
RECOMMENDATION 53
A child who has attained the age of 12 years must consent to any change in his or her first name, unless the Court is satisfied that there are special reasons related to the best interests of the child why his or her first name should be changed, notwithstanding that the child has refused to consent.
RECOMMENDATION 54
Before the Court approves a change in the child’s first names or surname, it must ascertain and give due consideration to the child’s wishes and feelings on this point, having regard to the age and understanding of the child.
DISPENSING WITH CONSENT
Current law and practice
5.130 In certain circumstances, the Court has power to dispense with the consent of the birth parent or guardian. Basically, all consents can be dispensed with by the Court, except for the consent of an adoptee over 18 years of age.117
5.131 Applications to dispense with consent may involve “contested” adoption hearings, in which one or both birth parents are seeking to prevent the loss of their parental rights and an agency, or the applicants in intra-family adoptions, are seeking to persuade the Court that the circumstances warrant making the adoption order against the wishes of the birth parents. In practice it appears, however, that fully contested matters are very rare. While it does happen that some birth parents are not willing to give consent, in most cases they tend not to appear in Court to contest the application to dispense with their consent.
5.132 There are a number of grounds on which consent might be dispensed with, so that the adoption order can be made without consent. The most obvious, and least controversial, are where the person whose consent is required cannot be found, or is incapable of giving consent.
5.133 Section 32(1) of the Adoption Act sets out the grounds on which the Court may dispense with consent of a person. These are where it appears to the Court that:
(a) after reasonable inquiry, that person cannot be found or identified;
(b) that person is in such a physical or mental condition as not to be capable of properly considering the question whether the person should give his or her consent;
(c) that person is, in the opinion of the Court, unfit to discharge the obligations of a parent or guardian by reason of the person’s having abandoned, deserted, neglected or ill-treated the child;
(d) that person has, for a period of not less than one year, failed, without reasonable cause, to discharge, or to make suitable arrangements to discharge, the obligations of a parent or guardian, as the case may be, of the child;
(e) the child is in the care of a foster parent or foster parents, the child has established a stable relationship with that person or those persons and the interests and welfare of the child will be promoted by the child’s remaining in the care of that person or those persons;
(f) the child is in the care of a person or persons other than a parent, relative or foster parent and the interests and welfare of the child will be promoted if negotiations can be conducted and arrangements made with a view to the adoption of the child;
(f1) the child is the subject of an adoption in a country outside the Commonwealth and the Territories of the Commonwealth, being an adoption to which s 46 would, but for the requirements specified in subsection (2)(b) of that section, apply;118
(g) there are circumstances, other than those referred to in paragraphs (a)-(f1), in which, by dispensing with the consent, the interests and welfare of the child will be promoted; or
(h) a notice of intention to seek an order dispensing with the consent has been served personally on that person and that person has not, within 14 days after the date of service of the notice, filed, with the nominated officer, a notice of intention to oppose the making of the order.
Discussion Paper 34
5.134 In DP 34,119 the Commission argued that s 32(1)(g) extends the Court’s power too far in allowing it to dispense with the parents’ consent simply by substituting its own view of the child’s welfare for those of the parents. The argument concluded that legislation should ensure that consent should be dispensed with only where there is serious concern for the child’s welfare, not merely where the Court thinks that adoption would, on balance, be advantageous for the child. This conclusion does not involve a compromise of the principle that the child’s best interests are paramount. Rather, it reflects a view that courts and welfare authorities are not necessarily able to make better judgements about children’s welfare than the parents who are initially entrusted by the law with responsibility for their children.
5.135 The Commission’s proposal was that the grounds for dispensing with consent should include the existing grounds under paragraphs (a)-(d) of s 32(1). The grounds under paragraphs (e)-(h) should be abolished. They should be replaced with the ground that:
the court is satisfied that the advantages to the child of becoming part of a new family and having a new legal status are so significantly greater than the advantages to the child of any alternative option as to justify overriding the wishes of the parent or guardian.120
5.136 A decision to dispense with consent requires the Court, first, to be satisfied that one of the grounds is established, and secondly, to consider whether to exercise its discretion to dispense with consent. The second aspect should be governed by the principle that the child’s best interests are to be regarded as the paramount consideration and, in determining this question, the Court should be assisted by legislative guidelines.121
Submissions and response
5.137 Submissions supported the retention of the Court’s power to dispense with consent and felt that this power should be limited to extreme circumstances where the child’s best interests will only be served by an order for his or her adoption.122 PARC’s submission went further than the Commission’s proposal and suggested that paragraphs (c)-(h) of s 32(1) should be abolished and replaced by the Commission’s suggested ground that:
The Court is satisfied that the welfare of the child will be so significantly advanced as to justify overriding the wishes of the parent or guardian.123
5.138 PARC believed this rightly places emphasis on the child’s interests rather than the Court making negative judgements about the birth parents.
5.139 Barnardos supported the abolition of the existing grounds for dispensing with consent under paragraphs (e)-(h) of s 32(1) and their replacement with the Commission’s proposed new ground. However, it also thought that grounds in paragraphs (c) and (d) of s 32(1) still reflect aspects of parental fault rather than reflecting the needs of the child and might be better dealt with under the proposed new ground.124
5.140 One submission disagreed with the Commission’s approach in DP 34 and felt that the current law should be retained on the basis that the proposed amendments would not only discourage responsible actions by birth parents, but also place the rights of birth parents over the rights of the child.
5.141 The proposed grounds for dispensing with the birth father’s consent varied in the submissions, and referred to issues such as whether the child was the result of sexual assault, the capacity of the parent to care for the child, and the motivations of the parent who denied consent.
5.142 The Bar Association was of the view that consent should be dispensed with when the child was the result of sexual assault or incest.125 The AASW argued that where relations between the birth parents were brief or involved sexual assault, consent to adoption by the birth father should not be required.126
5.143 Both the ASSW and Centacare submissions referred to the occurrence of birth fathers withholding consent simply to frustrate the wishes of the birth mother.127 Their view indicated that in this situation, where the birth father has no wish to have any kind of parental relationship with the child, the birth father’s consent should be dispensed with.
Conclusion
5.144 The grounds for dispensing with consent should include the existing grounds under paragraphs (a) and (b) of s 32(1).
5.145 The principles underlying paragraphs (c) and (d) of s 32(1) are relevant considerations in determining whether making an adoption order without parental consent will be in the best interests of the child. However, the way the provisions are presently drafted focuses on the fault of the parent involved rather than the interests of the child. The Commission’s proposed new ground itself gives proper parameters for deciding whether a particular placement is in the best interests of a child and consequently whether to dispense with consent. Removing paragraphs (c) and (d) from s 32(1) removes the temptation to build the case for the adoption on a finding of fault with the birth parent and instead focuses on the positive attributes of the placement for the adoptee.
5.146 If the Commission’s proposed new ground is substituted for paragraphs (c) and (d), this would also obviate the need for the specific grounds contained in paragraphs (e) to (h). The grounds under paragraphs (c)-(h) should be abolished. They should be replaced with the ground that:
the Court is satisfied that it is necessary to override the wishes of the parent or guardian in order to give effect to the best interests of the child.
5.147 The Court must have the discretion to dispense with the consent of a birth parent where he or she has not been found. In making its decision, the Court should have regard to the agency’s report detailing the steps taken to locate the birth parent.
5.148 The exercise of the Court’s discretion to dispense with consent must be governed by the principle that the child’s best interests are to be regarded as the paramount consideration.128 The Court would have regard to the guidelines recommended in Chapter 2 in determining the best interests of the child.129
5.149 Applications to dispense with consent could be made at a preliminary hearing or at the application for adoption.130
RECOMMENDATION 55
Section 32(1) of the Adoption Act should be amended as follows:
“The Court on application made in accordance with subsection (1A), may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where it appears to the Court that:
(a) after reasonable inquiry, that person cannot be found or identified;
(b) that person is in such a physical or mental condition as not to be capable of properly considering the question whether the person should give his or her consent;
(c) the Court is satisfied that it is necessary to override the wishes of the parent or guardian in order to give effect to the best interests of the child.
PARTICIPATION OF THE BIRTH PARENTS
Current law and practice
5.150 Except in the case of relative or step-parent adoptions, where consent is specific, birth parents must consent to the child being adopted by any eligible person or couple selected by an agency.131 However, birth parents can express their wishes in relation to the adoptive parents and the child. These wishes can be taken into account when considering a placement, having regard to the long term interests of the child and the possibility of the child having contact with members of the birth family or obtaining information about them at any time in the child’s life.
5.151 The general consent form provides for the religious wishes of the birth parent to be recorded (and, as discussed earlier, this is presently the only birth parent wish expressed on the consent form itself). Also discussed above, a Statement of Requests form used in conjunction with the general consent form allows birth parents to express their wishes for the placement of the child at any time from when the consent is signed to before the end of the revocation period.132 These wishes cover a variety of placement requests including the race or ethnic background of proposed adoptive parents, their marital or other status, receipt of information about the child or involvement in the process of selecting adoptive parents. The birth parents must acknowledge on these forms that their wishes may not be met.
5.152 The Adoption Regulation requires the agencies to make all reasonable efforts to place the child in conformity with the birth parents’ wishes as to religious upbringing, ethnicity or the domestic arrangements of the adoptive parents. If this is not practicable, the agency can place the child elsewhere. In that case, the birth parents must be informed, where possible, and the reasons for the alternative placement must be presented to the Court.133
5.153 In relation to a general consent, apart from expressing certain wishes to the agency as outlined above, the Adoption Act does not allow the birth parents to control or influence the selection of adoptive parents or the way in which the child is raised.
5.154 In practice, when relinquishing parents express a desire to participate in the selection of adoptive parents, they are commonly invited to discuss with the agency the sort of people they would like to adopt their child. In adoptions of healthy infants, an agency usually invites relinquishing parents to make a selection from a number of non-identifying profiles of applicants that are thought to be suitable for their children. This is discussed in Chapter 7.
Discussion Paper 34
5.155 The Commission proposed that the form of consent should contain provision for the birth parents to express any views relating to the selection of the adoptive parents or the child’s upbringing. Such views would be taken into account in the early planning of the adoption.134
Submissions and response
5.156 The Commission’s proposal allowing birth parents and the child (where the child is capable of expressing wishes) some participation in choosing the adoptive parents was supported in the submissions.135 Some emphasised that expressing such wishes does not make the consent “conditional”, although the agency should strive to meet any requests as far as possible.136 The needs of the child must take precedence in the placement decision.137
5.157 DP 34 also indicated that birth parents’ wishes expressed on consent forms would not be absolutely binding on agencies but should be taken into account when considering the best possible placement for the child.138 The NSW Committee on Adoption and Permanent Family Care suggested that if the birth parent’s requests could not be met, then the parent must be advised of this during the period of revocation.139
5.158 Most submissions supported the retention of a general consent.140 DOCS, however, suggested that when the child has been in the care of a relative or spouse of the birth parent or in long-term foster care, birth parents should be able to nominate those people as the adoptive parents.141 The Commission supports this approach (see Recommendation 39 above).142
Conclusion
5.159 The ultimate responsibility for meeting the best interests of the child in a placement must remain with the agency. Birth parents’ wishes and the reality of their expectations for adoptive parents will be discussed in the course of independent counselling before the consent is taken. If it is apparent that it will not be possible to fulfil certain requirements, the agency should discuss the matter with the birth parents, either before the consent is signed or during the revocation period, giving the birth parents the opportunity to revoke the consent or consider a change in their requests. It may be, for example, that an agency has three adoptive families in its pool, all of whom meet the needs of the child but who fail to meet one or more of the birth parents’ criteria. In this situation, birth parents might be happy to select one of the three files or they may decide to approach another agency. Discussing the limitations of the pool of adoptive parents should be a part of discussions between birth parents and the agency regarding the realities of the adoption under consideration.
5.160 In the case of a child with special needs, the agency needs to make birth parents aware in counselling prior to taking the consent that the pool of prospective adoptive parents is limited and that this will need to be taken into account when trying to meet stated requests.143 It is the agency’s role to ensure that the needs of the child are met by the placement arrangement.
5.161 Birth parents should continue to be able to express a range of requests about the adoptive family and participate in its selection. Present legislation and practice support this approach with forms providing for the formal expression of birth parent wishes covering the areas described above. The recommendation is made above that all birth parent wishes, including those relating to matters of religion, should be contained on the one form, which should be the Statement of Requests form currently used in conjunction with the general consent form. Recommendations are made above as to when consents should be general and when they should or could be specific.
Intercountry adoption
5.162 Birth parents’ wishes should be accorded serious regard in all adoptions. However, meeting birth parents’ wishes in intercountry adoptions raises problems. Under current law, applicants obtain a New South Wales adoption order for an overseas child. However, before entering Australia the child has already been adopted by the same applicants in the child’s country of origin. The complicated cross-country legal procedures and the limits on adoption policy caused by jurisdictional boundaries are examined in Chapter 10. A problem associated with obtaining birth parents’ wishes in intercountry adoptions is that the birth parents’ wishes may not be known and cannot be ascertained, especially if a stigma of illegitimacy surrounds the relinquishment of the child in the country of origin.
FOOTNOTES
1. Adoption of Children Act 1965 (NSW) s 31(2).
2. s 31(3) and (4): unless, in the case of a consent on, or within three days after, the day on which the child was born it can be shown that, at the time of the consent, the mother was in a fit condition to give the consent.
3. The Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994); Post Adoption Resource Centre Submission (5 August 1994) at 10; Social Issues Committee, Presbyterian Women’s Association of Australia, New South Wales Submission (22 July 1994) at 6; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 27: the consensus of the Committee was to support the 30 day proposal.
4. The Law Society of New South Wales Submission (24 August 1994) at 7.
5. Barnardos Australia Submission (26 July 1994).
6. The Australian Association of Social Workers (NSW Branch) Submission (11 August 1994).
7. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 22. This view was also shared by Centacare (Newcastle) Submission (29 July 1994) at 2. Centacare’s own research into consents taken by them between July 1993 and June 1994 showed that equal numbers of birth parents decided to continue to parent their children having made the decision within the first 10 days after birth as did those who needed more time, that is 25-60 days: see Centacare Submission (11 August 1994) at 24.
8. Centacare Submission (11 August 1994) at 24.
9. Centacare Submission (11 August 1994) at 24.
10. Adoption of Children Act 1965 (NSW) s 27 and 29.
11. “Relative” as defined in s 6 means a grandparent, uncle or aunt of the child.
12. Adoption of Children Regulation 1995 (NSW) cl 21(d).
13. Adoption of Children Regulation 1995 (NSW) Schedule 1, Forms 1, 2, 3, 4 and 5. Form 1 is a general birth parent consent form, while Form 4 is a birth parent consent form specifically for relative or step-parent adoptions.
14. Schedule 1, Form 9. In intra-family adoptions, the consenting parent can indicate on a Statement of Requests form whether he or she wants access to the child to continue after the adoption.
15. Schedule 1, Form 6.
16. Pursuant to the Adoption Information Regulation 1996 (NSW) once the adopted person is 18 years or older, the birth parent is entitled to receive from DOCS or a private adoption agency various pieces of information including as to the marriage or death of the adopted person: cl 8.
17. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994) at para 7.62.
18. Anglican Adoption Agency Submission (26 August 1994) at 7.2; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
19. Compared with the Commission’s view in NSWLRC DP 34 at para 7.62 that the giving of consent should not have the effect of transferring guardianship to the Director-General. See New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 29; Barnardos Australia Submission (26 July 1994). See Chapter 3 of this Report for the Commission’s recommendation.
20. Adoption of Children Regulation 1995 (NSW), Schedule 1, Forms 1 and 4.
21. Schedule 1, Form 4.
22. Schedule 1, Form 4.
23. The categories of witnesses to the five types of consent forms are the same, depending on whether the consent form is signed in New South Wales, interstate or overseas. See Adoption of Children Regulation 1995 (NSW) cl 22.
24. cl 22(1).
25. cl 22(2).
26. cl 22(3).
27. cl 22(1)(b) and (c).
28. See cl 23 and Schedule 1, Forms 1 and 4.
29. Schedule 1, Forms 1 and 4: statement of person qualified to witness an instrument of consent (i).
30. cl 23(1) para (e).
31. For example, J Burrows Submission (9 May 1994).
32. J Condon “Psychological Disability in Women who Relinquish a Baby for Adoption” (1986) 144 Medical Journal of Australia at 117.
33. One submission added that women should be warned of the possibility of secondary infertility following relinquishment, i e that this child may be the only child that they have.
34. E Cahill Submission (26 July 1994): the issues of long term, unresolved grief, the loss of grandchildren and the loss of meaningful bonding with immediate family were never discussed with this birth mother.
35. LDS Social Services Australia (Sydney Agency) Submission (5 October 1994) at 6.
36. Western Australia - Adoption Legislative Review Committee Final report: A New Approach to Adoption (February 1991) Recommendation 66 at 96.
37. Final report: A New Approach to Adoption Recommendation 66 (ii) at 96.
38. See Adoption of Children Regulation 1995 (NSW) cl 23 and Schedule 1, Form 1.
39. Schedule 1, Form 4.
40. Adoption of Children Regulation 1995 (NSW), witnesses statements in Schedule 1, Forms 1 and 4.
41. National Children’s and Youth Law Centre Submission (29 July 1994) at 2.
42. R McGowan of the TRIAD Society for Truth in Adoption of Canada believed birth parents should receive counselling during pregnancy and after delivery independent of anyone involved in the placement of infants: Submission (29 July 1994).
43. Adoption of Children Regulation 1995 (NSW) Schedule 1, Form 2.
44. Schedule 1, Form 3.
45. Adoption of Children Act 1965 (NSW) s 28. In addition, upon the Director-General ceasing to be the guardian of the child by placing the child in the care of a parent or guardian, the consent is deemed to be lawfully revoked: s 28(3).
46. Adoption of Children Regulation 1995 (NSW) cl 26. The letter of revocation must reach the Supreme Court by 4 pm on the 30th day after the signing of consent. If this falls on a weekend or public holiday, then the 30th day is taken to be the following working day (see New South Wales Department of Community Services, Information about Adoption (for birth parents) at 9).
47. See Adoption of Children Regulation 1995 (NSW) Schedule 1, Forms 1 and 4.
48. A Roughley Identifying Adoption Practice and the Problems in Relation to the Local Adoption of Infants Project prepared at the request of the New South Wales Law Reform Commission (September 1993) at 11.
49. NSWLRC DP 34 Chapter 7, Proposal 5.
50. New South Wales Department of Community Services Submission (5 September 1994) at 32.
51. The Law Society of New South Wales Submission (24 August 1994) at 7-8.
52. New South Wales Department of Community Services Submission (5 September 1994) at 35; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
53. D Wellfare Submission (9 May 1994).
54. Anglican Adoption Agency Submission (26 August 1994) at para 7.1.
55. Anglican Adoption Agency Submission (26 August 1994) at para 7.1. The Agency does not seek temporary care orders but uses voluntary care. However, Centacare would use temporary care orders in 20% of cases: A Roughley Identifying Adoption Practice and the Problems in Relation to the Local Adoption of Infants at 6.
56. Adoption of Children Regulation 1995 (NSW) cl 26.
57. For example, L Harvey Submission (2 August 1994).
58. New South Wales Department of Community Services Submission (5 September 1994) at 31.
59. S Wells “Post-Traumatic Stress Disorder in Birth Mothers” (1993) 17 Adoption and Fostering 30. One survey of 300 British birth mothers suggested that the trauma experienced at the loss of their child may be lifelong. Almost 50% felt that their physical health had been affected and almost all felt their mental health had been affected and that this has in turn affected other personal relationships. Intensive traumatic responses were linked to feelings of not having participated actively in decision-making and having no information about the child after relinquishment.
60. L D S Social Services Australia (Sydney Agency) Submission (5 October 1994) at 18-19 suggested that prior to any counselling, information should be formally provided to each birth mother setting out her options and the legal consequences of either disclosing or withholding information about the birth father.
61. L Harvey supported an information kit as a means of giving birth parents information about alternative counselling and services that are provided by representative groups who are separate from the adoption agencies: Submission (2 August 1994). R McGowan of the TRIAD Society for Truth in Adoption of Canada indicated that legal advice should also be provided independently so that birth parents can be well informed of their legal rights both now and in the future: Submission (29 July 1994).
62. A “first stop” contact point for women seeking up-to-date and accurate referral information on a range of issues established by the New South Wales Department of Women.
63. In comparison, the current law requires a witness to the consent to certify that, at least 3 days before giving the consent, the birth parent was given written information on the legal effects of the adoption and the consent and the alternatives available: Adoption of Children Regulation 1995 (NSW) cl 23(b) and Schedule 1 forms.
64. “Common household” is shorthand for the Adoption of Children Act 1965 (NSW) s 26(3)(b)(iii) text of a child whose parents are unmarried but “... lived together after the child’s birth as husband and wife on a bona fide domestic basis in a household of which the child formed part ...”
65. “Ex-nuptial child” is shorthand for the s 26(3)(a)(ii) and (b)(ii) text: “a child ... whose parents were not married to each other at the time of the child’s conception and have not subsequently married each other.”
66. Adoption of Children Act 1965 (NSW) s 26(3)(a).
67. See definition of “guardian” in s 6 and also s 26(2) and 26(3)(b).
68. s 26(3A).
69. (1992) 107 FLR 151.
70. s 6 contains a definition of “guardian” which includes somebody who is a guardian under a law of the Commonwealth. In Hoye v Neely, the Family Court held that the Adoption of Children Act 1965 (NSW) s 26(3A) did not apply because the father of an ex-nuptial child was his or her guardian under the Family Law Act 1975 (Cth) and hence his consent to the adoption was required as a guardian under s 26(3).
71. In the Supreme Court case of C v Director-General of the Department of Youth and Community Services (1982) 7 Fam LR 816 at 819, Waddell J held that the Adoption of Children Act 1965 (NSW) s 26(2) and (3) provided a context in which “guardian” is not to be given its full legal meaning and hence the consent of the father to the adoption of an ex-nuptial child was not required. The suggestion is that if the New South Wales Parliament had wanted to require consent from unmarried fathers falling outside the “common household test,” it would have amended the Adoption Act accordingly.
72. See Family Law Act 1975 (Cth) Part 7 Division 2. Under the amended Act each parent is no longer a “guardian” but has “parental responsibility” for the child.
73. Family Law Act 1975 (Cth) s 61C(1) provides that the father of a child (whether or not ex-nuptial) has parental responsibility for the child. “Parental responsibility” is defined in s 61B as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
74. For the purposes of this Chapter, “agencies” refers to both DOCS and the private adoption agencies, unless the context otherwise requires.
75. NSW Department of Community Services Submission (5 September 1994) at 30. DOCS generally expressed concerns about the ambiguous standards in the current legislation for the presumption of paternity and provisions for paternal consent, which require the agencies to make their own interpretations of the requirements for birth fathers’ consents in most adoptions. Acknowledging father’s rights under other legislation, DOCS’s practice has been to recognise a father’s right to participate in an adoption decision and, should he support the proposal, accord him the right to consent. Where the birth mother wished the child to be adopted, and the father withheld consent, DOCS’s practice has been to place the child in the care of the father. This practice was subject to the father taking steps to acknowledge his paternity and the absence of any “care and protection” concerns. See also Anglican Adoption Agency Submission (26 August 1994) at para 7.1 which commented that in some cases, fathers who have not been involved have preferred to sign a supportive affidavit rather than a formal consent.
76. Adoption of Children Act 1965 (NSW) s 26(5).
77. See s 26(3).
78. s 31A and 31E.
79. This is a summary of s 31A. See also s 31E.
80. s 31A.
81. s 31A(4). Under s 31B notice to the father may be dispensed with by the Court if DOCS or the agency is unable to locate the father, the physical or mental condition of the father warrants it, or other circumstances exist where dispensing notice will promote the interests and welfare of the child.
82. s 31D.
83. s 31D(2) and 23(2).
84. NSWLRC DP 34 Chapter 7, Proposal 1.
85. NSWLRC DP 34 Chapter 7, Proposal 4.
86. Unless other legal presumptions of parentage apply. For example, see Family Law Act 1975 (Cth) s 60H on legal presumptions of parentage of children born as a result of artificial conception procedures.
87. See NSWLRC DP 34 at para 7.32.
88. See D Hambly and J Chart “The Adoption of Children (Amendment) Act 1980” [1980] Australia Current Law 39; R Chisholm “End of Uniformity: New Adoption Laws for New South Wales” (1980) 5 Legal Services Bulletin 49.
89. NSWLRC DP 34 Chapter 7, Proposal 2.
90. Family Law Act 1975 (Cth) Part 7; Children (Equality of Status) Act 1976 (NSW) and Artificial Conception Act 1984 (NSW), both intended to be repealed by the Status of Children Bill 1996 (NSW). See Status of Children Bill 1996 (NSW) cl 37.
91. NSWLRC DP 34 Chapter 7, Proposal 3.
92. The Law Society of New South Wales Submission (24 August 1994) at 5-6.
93. The Law Society of New South Wales Submission (24 August 1994) at 6.
94. The Australian Association of Social Workers Ltd (NSW Branch Office), Submission (11 August 1994).
95. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 27.
96. The New South Wales Bar Association Submission (16 September 1994) at 2.
97. The New South Wales Bar Association Submission (16 September 1994) at 2. Support is given to the Bar Association’s view by Cervera’s study which indicated that many unmarried fathers remained involved in the life of the baby both during and after the mother’s pregnancy. See N Cervera “Unwed Teenage Pregnancy: Family relationships with the Father of the Baby” (1991) 29 Families in Society :The Journal of Contemporary Human Services 1.
98. New South Wales Department of Community Services Submission (5 September 1994) at 30.
99. New South Wales Department of Community Services Submission (5 September 1994) at 30.
100. A Roughley Identifying Adoption Practice and the Problems in Relation to the Local Adoption of Infants at 10.
101. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 27. This accords with the Commission’s suggestion in NSWLRC DP 34. If birth mothers do not identify the birth father to adoption workers they are asked to sign an affidavit, which forms part of the adoption application information, declaring their decision not to inform the birth father: see Roughley at 10.
102. Roughley at 10.
103. Family Law Act 1975 (Cth) s 64B, 64C, 65C and 65D.
104. Also, Adoption of Children Regulation 1995 (NSW, Schedule 1, Form 5 provides for the child to consent to the making of an adoption order in favour of the applicants named in the consent form.
105. Adoption of Children Act 1965 (NSW) s 33. Note that the birth parents’ and guardian’s consent is also required, except in certain circumstances, for example, s 26(4) and (6).
106. Adoption of Children Act 1965 (NSW) s 28.
107. s 26(4A). However, s 33(2) allows the Court to make an adoption order for such a child where the child’s consent has not been given.
108. s 26(6).
109. Prescribed witnesses are set out in cl 22 of Adoption of Children Regulation 1995 (NSW) and are the same categories as for birth parent consent.
110. Adoption of Children Act 1965 (NSW) s 38(2A).
111. Adoption of Children Regulation 1995 (NSW) cl 28 and Schedule 1, Form 5. This includes both the child’s first name(s) and surname: see New South Wales Department of Community Services Information About Adoption (for children) at 6. The form also requires a witness to the child’s consent to state that he or she has explained the effects of an adoption and its procedures and is satisfied the child understands these procedures and the effect of signing the consent.
112. For example, for children younger than 12 years, upon adoption children take such first names as the Court approves on the application of the adoptive parents. All children automatically take the surname of their adoptive parents, unless a child has been generally known by a particular surname and the Court decides to retain it: Adoption of Children Act 1965 (NSW) s 38.
113. NSWLRC DP 34 at para 7.81.
114. New South Wales Department of Community Services Submission (5 September 1994) at 34.
115. For example, Haley Submission (24 July 1994) at 2.
116. For example, Adoption Act 1988 (SA) s 23(2) states that before a Court orders a change in the name of a child, any wishes of the child should be taken into account. The Court cannot change the name of a child who is over 12 years unless the child consents or is intellectually incapable of consenting: s 23(3). The Adoption of Children Act 1994 (NT) s 48(3) requires the Court, before approving a change in a child’s first name or surname, to ascertain and give due consideration to the child’s wishes and feelings on this point, having regard to the child’s age and understanding.
117. Adoption of Children Act 1965 (NSW) s 32, 33. Another exception would be the consents of the Ministers of the Crown for obvious practical reasons: see D Smith “The Law of Adoptions” a paper presented for Continuing Legal Education Department College of Law (Newcastle, NSW, 31 May 1995) at 33.
118. In essence, s 46 provides for the recognition of a foreign adoption order in New South Wales as long as the applicants have been resident in that country for at least 12 months or domiciled there: s 46(2)(b). The foreign adoption order has a similar effect to a local adoption order: s 46(2)(c) and (d). The process of obtaining a foreign adoption order must also be a substantially just process for it to be recognised in New South Wales: s 46(3).
119. NSWLRC DP 34 at paras 7.63 - 7.76.
120. See NSWLRC DP 34 at para 7.75.
121. NSWLRC DP 34 Chapter 7, Proposal 7.
122. For example, E Berzins Submission (27 July 1994) at 13.
123. Post Adoption Resource Centre Submission (5 August 1994) at 10.
124. Barnardos Australia Submission (26 July 1994); See also New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 29.
125. The New South Wales Bar Association Submission (16 September 1994) at 2.
126. The Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994).
127. The Australian Association of Social Workers Ltd (NSW Branch Office) Submission (11 August 1994); Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 27.
128. This recommendation addresses the potential problem highlighted in NSWLRC DP 34 at para 7.67, that a mere Court finding that an adoption benefits a child could make any grounds for dispensing with consent unnecessary and be open to exploitation of, for example, poor or disadvantaged birth parents.
129. Recommendation 4.
130. See further, Chapter 3.
131. Adoption of Children Act 1965 (NSW) s 27. For step-parent and relative adoption, see Chapter 4.
132. Adoption of Children Regulation 1995 (NSW) Schedule 1, Forms 1 and 6.
133. Adoption of Children Regulation 1995 (NSW) cl 32 and 33.
134. NSWLRC DP 34 Chapter 7, Proposal 6.
135. For example, Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 4 and 5; New South Wales Department of Community Services Submission (5 September 1994) at 27; Anglican Adoption Agency Submission (26 August 1994) at para 7.2; New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 19 and 28.
136. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
137. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
138. NSWLRC DP 34 at paras 7.61-7.62. An American court rejected the notion that the guardian of a child could only consent to the child’s adoption if the adoptive parents agreed to permit continued contact between the child and the birth family. An appellate court subsequently ruled that a lower court lacked the power to attach this condition to the consent and that doing so would inappropriately elevate the importance of allowing contact above all the other factors to be considered when deciding if the adoption was going to be in the child’s best interests: In re M M 619 N E 2d 702 (III, 1993); discussed by T Hafemeister in “Current Legal Issues in Adoption” (1994) 18 State Court Journal 11(4).
139. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
140. For example, New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
141. New South Wales Department of Community Services Submission (2 September 1994) at 33.
142. See further, Chapter 4.
143. New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 28.
