INTRODUCTION
6.1 This Chapter deals with one of the more difficult and controversial aspects of adoption law, namely the selection of adoptive parents. This topic generated more response than any other area of DP 341 and is clearly a focal point of community interest in adoption.
6.2 The following will be looked at:
- an overview of the present law and practice;
- specific eligibility characteristics; and
- selection practice.
OVERVIEW
Current law and practice
6.3 The following is a brief examination of three areas of present law and practice in relation to the selection of adoptive parents:
- control of the eligibility requirements and selection processes;
- eligibility requirements; and
- selection processes.
Control of the eligibility requirements and selection process
6.4 The agencies2 oversee the administrative procedures of selection, being the assessment of applicants for their suitability to adopt and the allocation of children to approved applicants. Before granting an order for adoption, the Court must be satisfied that the adoption will promote the welfare and interests of the child.3
Eligibility requirements - Introduction
6.5 Eligibility requirements are set out in the Adoption Act and in more specific eligibility criteria formulated by the Director-General of DOCS or the principal officer of a private adoption agency under powers contained in the Adoption Regulation.4
6.6 In relation to DOCS, these criteria are published in the Government Gazette.5 The Adoption Act and the gazetted criteria generally limit selection to married couples of good character and repute who are under a specific age, healthy, and for local adoptions, infertile. Certain non-prescribed eligibility requirements also exist.
6.7 For most of the requirements on eligibility, however, there is a degree of flexibility. The requirements are likely to be relaxed when it is difficult to find a suitable placement for a child, and the prospective adopters, notwithstanding their failure to meet the particular requirement, appear well qualified to serve the needs of the child.6
Eligibility requirements under the Adoption Act
6.8 Age. Under the Adoption Act, the applicants must normally be 21 years or older and must be either 18 years older (male applicants) or 16 years older (female applicants) than the child.7
6.9 Marital status. Subject to various qualifications, the Court may only make an adoption order in favour of a married couple. In restricted circumstances, a single applicant or de facto applicants may adopt a child.8
6.10 Character. Each applicant must be of “good repute” and “a fit and proper person to fulfil the responsibilities of a parent.”9
6.11 Religion and education. The religious convictions of the applicants and their intentions regarding the religious education of the child are not relevant to their general suitability to adopt.10 However, the Court is required, when considering the applicants’ suitability to adopt a particular child, to have regard to the “religious upbringing or convictions (if any) of the child and of the applicant or applicants”.11 The Adoption Act requires the Court to consider whether the applicants are suitable to adopt the particular child having regard to, among other things, any wishes of the parent or guardian in consenting to the adoption as to the religious upbringing of the child.12
6.12 The Court must also consider the education (if any) of the applicants.13 This seems to refer to the educational similarities between the applicants and the child, rather than, for example, a preference for well-educated applicants.
6.13 Health. The Court must also consider the health of the applicants and child.14 In practice, this has been interpreted as requiring that the applicants’ state of health should not interfere with their ability to care for the child.
Eligibility requirements under the Adoption Regulation
6.14 Pursuant to the Adoption Regulation, DOCS has published in the Government Gazette more specific criteria for the assessment of adoption applicants.15 These criteria include an applicant having “the capacity to be a loving parent to an adopted child and to meet the social, cultural and special needs” of the child.16 They also require an applicant to “have the capacity and willingness to ... ensure the child is fully aware of his or her ... culture and origin from the time of placement ...”17 Applicants must be between 21 and 55 years and must not be more than 41 years older than the first child to be adopted and 46 years older than subsequent children.18 At a minimum, couples (both married and unmarried) must have a relationship of at least three years continuous duration.19 Applicants for local adoptions must also be infertile.20 If the applicants already have a child, the child must be at least two years older than the child to be adopted.21
6.15 The private agencies, in determining their own criteria pursuant to the Adoption Regulation, generally reflect the gazetted criteria of DOCS. However, the private agencies have also developed their own criteria which applicants to those agencies must meet. Some criteria include a lower maximum age limit, the acceptance of open adoption, a limit on the number of children already in the family, religious affiliation or the removal of an infertility requirement for applicants.22
6.16 In addition to the eligibility requirements prescribed in legislation, the agencies usually require in practice that applicants meet an undertaking for one parent to be a full-time carer of the adopted child for a certain period after adoption.
Selection processes
6.17 Prescribed selection procedures for the agencies are set out in the Adoption Regulation. These administrative procedures include: agencies supplying information to prospective adopters about the selection process, criteria and fees; agencies permitting approvals of applicants to be made subject to certain conditions; agencies being required to give reasons for declining an applicant or approving an applicant subject to conditions; and the agencies’ procedures for the review of assessments.23
6.18 In practice, applicants normally go through an initial process of registering their interest in adoption with an agency and providing certain information and also attending information sessions.24 This initial process is intended to serve an educational purpose. Those who remain applicants after this preliminary phase are then assessed for their suitability.25 Since there are usually far more people wishing to adopt than children available for adoption,26 the agencies periodically approve a limited number of applications, so that at any given time there is a “pool” of potential adopters with whom available children may be placed.
6.19 The placement of a child with particular applicants is not governed by set rules, but essentially results from a professional decision made by the agency staff, based on their views about which of the available adopters will best meet the immediate and long-term needs of the particular child. The birth parents may also be involved in selecting suitable adoptive parents.27
6.20 The selection procedure differs in the case of the adoption of “special needs” children, intra-family adoptions, intercountry adoptions and adoption of children in foster care.28 In the case of intra-family and foster care adoptions, the suitable adoptive parents are already known, so the only question is whether the child’s legal relationship with the persons having his or her care should be changed by adoption. In the case of “special needs” adoptions, there tend to be fewer potential applicants available, and so the agencies often seek out applicants for the particular needs of the child awaiting adoption. This may involve co-operation among the agencies to find the most suitable applicants.
6.21 The final endorsement of the applicants is the order for adoption made by the Court. The Court can make this order only if it is satisfied as to certain matters, such as the state of health of the applicants, or any wishes expressed by the birth parents.29 In particular, the Court has to be satisfied that the welfare and interests of the child will be promoted by the adoption.30 The Court invariably relies on the agencies for their assessment of the choice of adoptive parents.31 A submission by a Supreme Court judge commented:
Where the Department or an agency makes the application [to the Supreme Court] it has chosen the proposed parents, using whatever criteria and methods are involved. The appropriateness of the choice is set out in the report which accompanies the application. As there is no opposition, a judge has no way of testing whether the choice made is the correct one and must rely on the integrity of the organisation concerned. To this extent the court does act on decisions made by others...
In considering what is in the best interests of the child a judge can only rely on the evidence which is filed. If there is only one party before the court then there would have to be a clear inadequacy in that evidence for any doubts to arise as [to] whether, for example, a particular couple are the proper parents for the child involved.32
Discussion Paper 34
6.22 The Commission proposed several changes in approach to the present eligibility requirements. One was that where the child is capable of expressing wishes relevant to the selection of adoptive parents, those wishes should be given weight in accordance with the child’s maturity and understanding. A further proposed change was that applicants should not be disqualified on the ground of sexual orientation. The Commission also considered that infertility of the applicants should no longer be a requirement for suitability to adopt.
6.23 With respect to the maximum age of adoptive applicants, contact with and information about the birth family, health, the age gap between children in a family, and the involvement of birth parents in the selection process, the Commission’s view more closely accorded with the present legislation and practice with respect to eligibility requirements. The Commission’s proposal for the procedures on the operation of the “pool” is largely a clarification of present practice.
6.24 The Commission also invited comments in DP 34 on whether a full-time home carer for the child should be required in the first six months after the child is placed with a family.
General response to Discussion Paper 34
6.25 The Commission’s proposals on eligibility requirements in DP 34 generated much public response. Submissions generally agreed with the Commission’s proposals, except for those relating to same-sex adoptions and the age of prospective adopters. Submissions also agreed with the Commission’s proposals on the method of “pooling” adoption applicants. Submissions and response are dealt with more specifically under the various headings below.
SPECIFIC ELIGIBILITY CHARACTERISTICS
6.26 DP 34 raised the question of whether the following matters should be treated as relevant to eligibility to adopt:
- interaction with discrimination legislation;
- full-time carer;
- infertility;
- religion;
- cultural issues;
- issues of non-marginalisation and continuity;
- age;
- wishes of birth parents and child;
- health;
- spacing of children and examination of family relationships; and
- marital status and family structure;
6.27 The Commission, having reviewed these characteristics, sets out its conclusions below. In essence, there should be few specific legislative requirements relating to eligibility. Step-parent adoptions are considered separately in Chapter 4. Reviews and appeals on decisions made in the adoption process, including selection, are discussed in Chapter 3.
Interaction with discrimination legislation
6.28 To discriminate in the general sense of the word, that is, “to make a distinction, as in favour of or against a person or thing” or to “differentiate”,33 is an integral part of adoption selection. Some people will be chosen as suitable to adopt and some will not be. However, a more specific use of the word refers to discrimination under the various State and Federal anti-discrimination laws.34 State and Federal legislation set out unlawful forms of discrimination.
6.29 A person can discriminate as long as the decision does not impinge upon any of the prohibited grounds and areas under the legislation. Grounds of discrimination include sex, physical impairment, marital status, age, sexual preference and race. The main areas protected against discrimination are in public life, principally those of the administration of organisations, employment, housing, and the provision of goods and services. For example, State and Federal legislation prohibit discrimination in the provision of services on the grounds of sex, marital status, pregnancy, race or disability.
6.30 Both State and Federal anti-discrimination legislation do not prohibit discrimination where requirements are imposed which are reasonable in the circumstances.35
Relationship between adoption laws and the Anti-Discrimination Act 1977 (NSW)
6.31 As DP 34 noted in para 6.33, adoption could be construed as a “service” by a service provider under the Anti-Discrimination Act 1977 (NSW) (“the ADA”). The NSW Anti-Discrimination Board submits it should be, with the service provided to the relinquishing and the adopting or fostering parents.36 The service provider would be the agencies.
6.32 If so, one interpretation of the ADA is that the failure to supply a service on one of the prohibited grounds including sex, marital status or age could be discriminatory to relinquishing and adopting parents. Another interpretation is that while adoption could involve the provision of a service, it is a service provided only for children and is not, for example, a service for adults wishing to extend or complete their families. Alternatively, it could be argued that adoption should not be seen as the provision of a service at all, and therefore the discrimination legislation does not apply.37
6.33 At present, the ADA is limited in its application to adoption by section 54(1) of the ADA. This provision allows discrimination which occurs in compliance with the adoption legislation.38
Discussion Paper 34
6.34 In DP 34, the Commission proposed that the assessment of applicants should be conducted in a way that is consistent with the ADA and with similar Commonwealth laws and international agreements to which Australia is a party. However, the principle that the child’s best interests are paramount means it must be remembered that in any assessment, the purpose of adoption is not to provide children to fulfil the needs of adults who wish to create or complete their families.39 The purpose of adoption is to provide a child who cannot be cared for by his or her birth family with a permanent home.
Submissions and response
6.35 Submissions to DP 34 supported the Commission’s proposal that assessment should be consistent with discrimination laws, providing the child’s best interests are paramount.40 Submissions strongly emphasised that adoption is a service to children and not to adults.41 It is now well established that the child’s best interests come foremost, and that the main concern of decision-makers is to find homes in order to benefit children, not to supply children for the benefit of intending parents.
Conclusion
6.36 The process of selecting adoptive parents and the need to avoid unlawful discrimination are fundamentally in harmony.42 Both considerations require that the law be based on grounds that relate to the best interests of the child (being the essential consideration), rather than on stereotypes or grounds that are otherwise unrelated to the child’s welfare. For instance, the child’s “best interests” requirement should discourage any actions under discrimination legislation which seek to use adoption to achieve some other social ends. The assessment of applicants should be conducted in a way that is consistent with the ADA and with similar Commonwealth laws and international agreements to which Australia is a party, so long as it is also applied consistently with the principles that the child’s best interests are paramount and adoption is a service to children and not to adults.
Full-time carer
6.37 The question has been raised whether an adopted child in the first months of placement needs a full-time carer. This issue has risen to prominence because the proportion of families with dependent children where both parents are working has increased.43
Discussion Paper 34
6.38 The Adoption Act, Adoption Regulation and gazetted criteria do not specifically require that an adoptive parent needs to be a full-time carer. In DP 34, the Commission invited comments on the issue of whether one adoptive parent should be required to stay at home for the first months after the child is placed.
Submissions and response
6.39 Submissions were on the whole in favour of one adoptive parent staying at home in the first few months of placement as being in the best interests of an adopted child,44 although not necessarily as a requirement prescribed in legislation.45 Several argued that a full-time carer for at least one year was needed.46 DOCS noted that similar agencies, both interstate and overseas, require longer periods of full-time care from 18 months to 24 months.47
6.40 A submission by Concern NSW Inc, whilst acknowledging the desirability of a full-time carer in the first months of a placement, considered the policy out-of-step with normal practice in our culture. The submission observed that some people make better parents when they are not full-time carers. It considered that the policy of one full-time carer fails to take into account individual differences in families and is difficult to enforce. The policy encourages dishonesty in the relationship between the adoptive parents and the agency.48
6.41 Similarities and differences between natural and adoptive family formation. Should the formation of an adoptive family be singled out for special treatment in the area of a full-time carer? Some submissions considered the answer requires a preliminary understanding of what are the similarities and differences between adoption and biological parenthood and the formation of families by these two methods. On the similarities, one submission observed:
The community has acknowledged the importance of the initial months of a child’s entrance into a family through the provision of maternity leave and adoption leave for pre-school aged children ... these provisions recognise the impact of a child on new parents and the need to establish relationships between parents and child - factors which are just as critical for adoptive parents as birth parents.49
6.42 However, another submission noted that adoptive parenthood also involves the additional tasks of bonding to “someone else’s child”.50 Reasons given for the need for a full-time carer in adoption centred on two issues in submissions: to overcome previous disrupted placements in the child’s life, and the need for parents and child to bond and attach quickly.
6.43 An adopted child has experienced disrupted placements in his or her life, including the fact that the child has already had at least one, possible two or more separations, one from the birth mother and usually one or more from pre-adoptive foster parents.51 For a child who has already experienced a separation, the prospect of a further separation shortly after placement is not beneficial.52
6.44 The first year of adoption is a time of bonding and considerable learning and adjusting for the parents.53 They have not experienced pregnancy or the first important developmental weeks and have become parents virtually overnight. These features place considerable stress on parents to know a child and become competent parents quickly.54
6.45 A full-time carer in the first few months of an adoption placement maximises the child’s opportunity to form attachments.55 Issues of bonding and identity are subtly different in family formation by adoption. This is especially so in intercountry and cross-cultural adoptions where the child has additional adjustments to make, such as a new language and culture, and needs extra emotional support.56 Older children with behavioural difficulties and developmental delays caused by abuse, neglect, rejection or multiple carers, benefit from a full-time parent for the first few months of an adoption placement.57
6.46 Lessening of financial impact. Submissions offered suggestions on ways to minimise the possible financial drawbacks of a full-time carer in the first months of placement. Loss of income is particularly a concern in intercountry adoptions where adoptive parents have already incurred substantial sums in the process of adoption.58 Industrial awards in work places now provide maternity, paternity and adoption leave for up to 12 months, although the Barnardos submission recommended that the adoption leave entitlement be extended to school age children.59 This leave entitlement follows community recognition of the value of the role of parents and the need for a parent and child to bond and adjust.60 Couples with part-time or flexible jobs may be able to accommodate both their jobs and their primary caring role.61 The primary carer can be either parent or alternatively, either parent at some stage of the period can take time off work and the primary caring can be shared.62
6.47 However, submissions considered prospective adoptive parents had to be aware of two important issues in developing a successful adoption plan for a child. These were a willingness by prospective adoptive parents to plan ahead financially for the time when a full-time carer is required,63 and an understanding of the importance to the adopted child of quickly attaching to his or her new family during this dedicated time.64
6.48 Non-prescribed practice. As noted above, submissions strongly supported the practice of one full-time carer in the first months of a child’s adoption placement. However, submissions also indicated that the decision should be one made by an agency and its professional staff based on an individual child’s needs65 and not prescribed in legislation.66 Flexibility in developing the most appropriate case plan for each child in discussion with potential families is essential. For example, one submission pointed out the condition could be waived where the child has already been established with the family, prior to the adoption, as in a previous fostering of the child by that family.67 Parents with part-time or flexible work arrangements might be able to accommodate both their jobs and their primary caring role for the child.68
Conclusion
6.49 One of the adoptive parents should normally give full-time care to the child at least for the first six months, and up to twelve months. The length of this period should be governed by the facts of each case and the decision is more appropriately encouraged in practice rather than enforced by legislation. That is, this matter should be assessed by the relevant agency and its professional staff in relation to each child’s needs. For example, flexible work arrangements of one parent might suffice in the circumstances of one child, but not in the case of another. The decision would be made on the professional judgment of staff at the agency and could possibly evolve over the time period in discussions between the agency and the family. Whether or not a full-time carer was available for a child in the first months of his or her adoption would be one facet of the placement decision for that child.
6.50 In all standard work place practices and awards, consideration should be given to adoption leave being extended to school-age children who are adopted.
Infertility
6.51 The present gazetted criteria treat infertility as an eligibility criterion in the case of all local adoptions, except “special needs” adoptions. Infertility is not a requirement in the case of intercountry adoption.69
Discussion Paper 34
6.52 DP 34 asked for further comments on the issue of whether or not infertility should be among the matters taken into account in assessing applicants for adoption who are otherwise indistinguishable in terms of suitability to adopt children. This would give a preference to infertile applicants.
Submissions and response
6.53 Submissions indicated that it is difficult to assess the respective merits of fertile and infertile persons as adopters. For example, are infertile couples more committed to the welfare of adopted children than fertile couples because they cannot have their own biological children? Perhaps, as some submissions proposed, fertile adopters might find it easier than infertile adopters to acknowledge the importance of the child’s biological links, and to have a relationship with birth parents in the context of open adoption.70
6.54 However, submissions also observed that fertile couples who have children and apply to adopt could confront a different, yet onerous set of issues. The attitudes and feelings of the biological children of applicants must be considered. In some families, the adopted child feels different by virtue of his or her adoption.71 On occasions, the adopted child might feel he or she has a lesser or greater status in the family.72 These raise parenting issues and the capacity of the applicants to help all the children to feel equally valued and accepted in the family.73
6.55 As one submission commented, a strict approach to the principle of the child’s best interests as being paramount would suggest that infertility, being at best irrelevant to a child’s best interests, should not be considered at all.74 In theory, it could further be argued that it is contrary to the child’s interests to give preference to infertile individuals or couples because to do so limits the choice of adoptive parents for that child. Applicants’ attitudes to their own infertility or fertility would seem relevant only to the extent of the likely impact of those attitudes on a child’s well-being. One submission observed:
If adoption is to be clearly seen as a service to children, the nexus between infertility and suitability to adopt should be broken ... “infertility” is only relevant as a motivating factor in an application, the criterion being the readiness of the applicant to adopt, a criterion which relates equally to fertile or infertile applicants.75
6.56 Another submission approached the issue from the viewpoint of the infertile couple. While recognising that adoption is not a service for infertile couples, the submission considered that infertile couples have special needs and it would make sense to choose parents for a child from the huge pool of couples who do not have other means of creating a family.76 Another submission argued that although infertility should not be a requirement to adopt, if two sets of applicants were both suitable adoptive parents, one fertile and the other infertile, preference should be given to the infertile couple.77
6.57 Query whether removing the present infertility requirement would impact significantly in practice. A submission by one agency noted that although it had removed the criterion for several years, in its experience infertile applicants are still the majority of applicants.78
Conclusion
6.58 It is questionable whether parental fertility or infertility affects the child’s best interests one way or the other. There should not be a requirement that prospective adopters be infertile or a preference given to infertile adopters in either legislation or as a standard practice for eligibility. No preference should be given on the basis of applicants’ ability or inability to have their own biological children. This applies equally to all local and intercountry adoptions. In relation to intercountry adoption, it should be noted, however, that some adoption programs in the overseas countries have their own fertility requirements.79
Religion
6.59 At present, the suitability of adoptive parents to meet any wishes of birth parents for the religious upbringing of a child is just one factor in the placement decision.80 The Adoption Act indicates that the religious convictions of the applicants and their intentions regarding the religious education of the child are not relevant to their general suitability to adopt.81 However, the suitability of applicants having regard to any religious upbringing or convictions of the child, or any express wishes of a birth parent as to religious upbringing of the child, does require the Court’s consideration before an order for adoption is given.82
6.60 Article 20 of the United Nations Convention on the Rights of the Child states that when considering alternative forms of care for children (such as adoption) due regard must be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.83
Discussion Paper 34
6.61 The Commission proposed that the religious beliefs or practices of applicants should not be taken into account except where the child or birth parents have such beliefs or wishes.
Submissions and response
6.62 Submissions supported the Commission’s proposal without much comment. Most submissions treated religious preference as one element of a birth parent’s desire for the child’s upbringing.84 As pointed out in some submissions, birth parents often select a particular agency in the belief that it will more readily cater for their wishes as to religious beliefs or practices for their child.85
Conclusion
6.63 The religious beliefs or practices of applicants should not be taken into account, except where they can reasonably be regarded as useful in determining an applicant’s suitability to adopt a particular child. They are also relevant where there is likely to be future contact between the child and members of the birth family, and the birth parents have expressed wishes in relation to the religious upbringing of the child. The importance of birth parents’ wishes in the selection of adoptive parents is discussed more generally in Chapter 5. Religion can also arise where the child is older and already has certain religious beliefs and practices. The question of religion may also arise as part of a broader cultural heritage. The desirability of cultural continuity in an adoption placement is discussed in Chapter 8.
Cultural issues
6.64 Issues relating to the culture and race of a child when assessing prospective adoptive parents, and to the selection of adoptive parents for Aboriginal and Torres Strait Islander children are discussed in Chapters 8 and 9 respectively.
Issues of non-marginalisation and continuity
Discussion Paper 34
6.65 The Commission’s two proposals in DP 34 derived from the premise that in assessing the child’s best interests, the possibility of the child having to deal with important and visible differences between himself or herself and the adoptive parents and family should be taken into account when assessing the suitability of prospective adoptive parents.
Submissions and response
6.66 Both proposals were very strongly supported in submissions as the basis for the assessment of prospective parents and the placement decisions about children.86
Conclusion
6.67 First, maintaining continuity in children’s lives is desirable. Consideration should be given to any advantages that might derive from placement with adopters who will raise the child in familiar circumstances. More specifically, there will usually be advantages to children in placements which enable the children to maintain aspects of their lifestyle, language, and culture. Normally, it will be appropriate to place children with adopters of similar racial or ethnic background. The issue of cultural continuity is examined in Chapter 8 and specific recommendations made in that chapter.
6.68 Secondly, adoption placements should not be based on a preference for a particular sector or class of the community.87 They should take into account the existence of many family forms in the community, and the diversity of views about child rearing, lifestyle, and other values. They should, however, also recognise that adopted children might be harmed or distressed if, in addition to dealing with their adoptive status, they have to deal with other important and visible differences between their family and the families of their peers. It is proper in making adoption placements to seek to reduce such additional reasons why adopted children might feel disadvantaged by being seen as different from their peers.
Age
6.69 The Adoption Act currently states that an applicant for adoption must be at least 21 years old, with a minimum age difference between child and applicant of 18 years for a male applicant and 16 years for a female applicant, unless one of the applicants is related to the child or the Court otherwise decides.88 This has been retained in the Adoption Act since 1965.
6.70 No upper age limit is set out in the Adoption Act or Adoption Regulation, but the agencies have established their own age limits for their adoption programs.89 The upper age limit for an applicant under the DOCS’s gazetted criteria is no more than 41 years older than the child, unless the child has special needs.90 This age limit increases to 46 years older than the child if the applicant already has a child. There is an overall age limit on the adoption of children of 55 years, unless the child has special needs.91
6.71 Prior to 1987, when the gazetted criteria for assessment were introduced, an upper age limit was not a prescribed criterion in the selection of adoptive parents.92 However, DOCS practice has traditionally imposed an upper age requirement. For example, from 1975 to the mid-1980s, the upper age limit of “preferred applicants” for healthy newborn infants was 37 years at the time of application.93 National Minimum Principles in Adoption refer to a maximum age difference of 40 years for a first child and a maximum age difference of 45 years for later children.94
Discussion Paper 34
6.72 The Commission proposed that an upper age limit for adoptive parents be maintained. It proposed that children should not be placed for adoption with applicants who are more than 55 years of age, or more than 41 years older than the child, unless there are circumstances indicating that, notwithstanding this, the applicant is suitable to adopt the child.95
6.73 Reasons behind an upper age limit were canvassed in DP 34.96 Concerns existed among professionals working in adoption that older parents may find it difficult to adjust to the demands of modern parenting. Another concern is based on a belief that an adopted child should be placed with parents who are not markedly different from the parents of peers. Being a parent is a lengthy process and usually continues past childhood into the adult-parent relationship. Other concerns, therefore, centre on longevity, health and the physical vitality of older parents. These characteristics can create additional stress factors in the life of an adopted child from childhood through to adulthood.97 On the other hand, one submission noted that many older parents have indicated that their experience of life and greater maturity have greatly improved their ability to cope with the demands of child rearing.98
6.74 These concerns are valid considerations in the selection of parents for a child. However, do such concerns require a formal prescriptive ceiling on parental age or should such issues be examined in the particular case of applicants?99
Submissions and response
6.75 The Commission received many submissions criticising its proposal in DP 34 that an adoptive parent be no more than 41 years older than the child. These criticisms are summarised in the following paragraphs 6.76 to 6.81.
6.76 The limitation of applicants being no more than 41 years older than the child is arbitrary, subjective, inflexible and unfair. It can be used as an expedient to curtail would-be parents from applying to adopt, rather than a limitation based on any rational grounds. One submission commented:
We are concerned that couples are being denied the opportunity to parent an adopted child from infancy simply because the age of one partner puts them outside of someone’s subjective notion of what constitutes “normal”.100
6.77 Judgment of each case should be on its merits, such as the adoptive parent’s ability to meet the child’s interests, rather than by “magic numbers”.101 An age limit does not reflect the wider impetus to remove discrimination in legislation and in public policy.102
6.78 To impose a specific age limit is anomalous in the context of the Commission’s wider proposals in DP 34.103 Some submissions argued that there is an inconsistency between the upper age limitation proposal and the Commission’s proposed policy on other eligibility characteristics. The Commission should be consistent in its policy on eligibility characteristics.104
6.79 Patterns in the social “norms” of motherhood have changed. Trends indicate that women are delaying having their first child.105 In the past 30 years the average age of first-time mothers has risen from 24 to 29 years.106 As well, recent technological advances in the field of obstetrics have provided greater opportunities for fertility treatments. The combined effect of delaying child-bearing and investing years in unsuccessful fertility treatment is that many couples find themselves too old to adopt under the current age limits.
6.80 The Commission’s provisional view could lead to incongruous results in practice. A single parent under 41 years could adopt, while a couple would have to be under 41 years to adopt a new-born child. In this scenario, a single parent of 35 years would be eligible to adopt an infant, whereas a couple wishing to adopt, where the younger partner was 35 years but the older partner was just over 41 years, would be excluded under eligibility requirements from applying to adopt.
6.81 Social trends in the last 30 years have been towards an increase in divorces and subsequent marriages.107 In a later marriage, at older ages than in an earlier marriage, one or both partners might find they are infertile. In addition, for many couples one partner is several years younger than the other. Again, the age gap can preclude such couples from adopting, if one is over 41 years, even if the other is well within the prescribed age limits. If one of the primary criteria for substitute care for children is to follow community norms and trends, then having one parent above 41 years and one below could not be considered “unusual” by present community standards.108
Further issues
6.82 Is the “best interests of the child” so clearly linked to age per se so as to exclude all other considerations? If not, should the judgment of adoption professionals be unfettered by age restrictions, allowing them to consider a wide variety of would-be parents, so that the wide range of children relinquished for adoption find the best families to suit their individual needs, experiences and circumstances?
6.83 These tensions can be clearly seen in relation to the adoption of “special needs” and older children, and in relation to numbers of applicants to adopt.
6.84 “Special needs” and older children. Under the gazetted criterion, applicants must not be more than 41 years older than the child to be adopted and no more than 55 years of age.109 In relation to “special needs” children, under the gazetted criterion there is no upper age limit for parents to adopt, although DOCS does prefer placements within “normative guidelines”.110 The rationale behind setting an upper age limit on adoptive parents of healthy children seems to be that it is in the best interests of a child to have parents falling within certain ages considered “normal” in society and who are not too old when the child grows up. On that basis, excepting children with special needs from age restrictions under the gazetted criterion seems anomalous. If the rationale for this exception is that older parents possess better parenting skills for “special needs” children than for healthy newborn infants, then this must be questioned. In so far as an applicant of 55 years of age may only adopt a child of 14 years or older (complying with the maximum 41 year age gap), the question must also be asked whether older parents necessarily possess better parenting skills for older children, and conversely, whether they would not be suitable to parent young children.
6.85 Children with special needs and older children come to their adoptive family with distinct needs and longer separate personal histories. DOCS has recognised that “special needs” adoptions are demanding placements.111 Such adoptions require commitment, stamina, significant adjustment and different skills in their adoptive parents than those required for healthy newborn infants - all qualities which do not necessarily correlate to age and ageing.
6.86 The present gazetted age restrictions also allow for the risk that some parents, who want, but are too old to adopt, a healthy newborn infant, will accept instead a child who would not otherwise have been chosen by them. The 1991 Western Australian Adoption Legislative Review Committee expressed concern on this point:
Welfare personnel in Australia and overseas are recognising the need to find permanent families for children with special needs, whether these needs are psychological, physical or social. The tendency of adoption workers to match “marginal” applicants with “marginal” children is rightfully criticised by many commentators and identified as a probable cause of later difficulties in the adoption, often leading to breakdown (Zwimpfer, 1983). Placing a child with special needs (whether for reasons of ethnicity, handicap or age) with adoptive parents who had really wanted to adopt a healthy newborn child as similar to themselves as possible is significantly associated with adjustment difficulties (Fanshel, 1972). The answer appears to be recruitment of adoptive parents directed specifically at the needs of the actual children who require adoption.112
6.87 Numbers of applicants. It could be argued that the present ineligibility of would-be parents to be considered for adoption is based on an arbitrary age limit in gazetted criteria based to some extent on controlling the number of applicants.113
6.88 However, any decision as to the selection of an adoptive parent must remain focused on the adopted child’s best interests and not on that of the adult wishing to adopt. Although there is a need for greater flexibility in using age as an eligibility requirement, it does not mean that the age of a would-be parent is irrelevant in adoption. All the concerns raised above about older parents should be assessed in relation to the individual application as they relate directly to the child’s best interests. A prospective adoptive parent’s physical or mental capabilities, attitudes to child rearing and life expectancy might relate to age and ageing. Such attributes might be reason enough for the application to adopt to be declined.
6.89 A flexible age requirement has its disadvantages. Agencies with limited resources may find it difficult to administer effectively the potentially increased number of applications. A criticism of the less restrictive approach is that legislative or administrative silence on upper age limits misleads applicants who are unlikely to pass the initial assessment because of obvious factors relating to age. The potential of a large number of reviews and appeals is also a consideration.
Conclusion
6.90 First, the minimum age of both male and female applicants should be the same.114 Secondly, with respect to an upper age limit, the assessment of applicants should take into account the general desirability of placing children with adoptive parents who are of an age at which it is common for people in the community to become parents. However, the selection process should be flexible enough to allow placements with older applicants where this is shown to be appropriate for particular children. This principle should apply equally to local and intercountry adoptions and to all types of children. However, these decisions should be made in practice and an upper age limit should not be arbitrarily prescribed in legislation. Age is simply one factor to be considered in relation to the child’s interests.
6.91 The assessment should also take into account the extent to which by reason of age, ill-health or other factors the applicant might find it difficult to satisfy the needs of the adopted child in the way parents are expected to do, both before and after the adopted child reaches adulthood.
6.92 The Commission endorses the following approach to age set out in a guidance note on intercountry adoption by the Department of Health and Social Services, Northern Ireland:
Arbitrary rules should not be applied regarding the age of prospective adopters. However, age is one of several important factors, among others, in considering the suitability of prospective adopters. Each application should be considered individually, bearing in mind that both partners should be sufficiently young and fit to have a reasonable expectation of retaining health and vigour to bring up a child until adulthood, and especially during the demanding years of adolescence.115
Wishes of birth parents and child
6.93 The present law does, to some extent, accommodate the wishes of the birth parents as to the type of adoptive parents.116 In practice, they can also participate in the selection process.117 The legislation does not presently acknowledge a child’s wishes as to the type of adoptive parent, beyond requiring children of 12 years and older to consent to the adoption.118
Discussion Paper 34
6.94 The Commission’s provisional view was that any assessment should take into account the wishes of the birth parents and, where appropriate, other members of the birth family, 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.119 It also proposed that where the child is capable of expressing wishes that are relevant to the selection of adoptive parents, those wishes should be given such weight as is appropriate in the light of the child’s maturity and understanding, and other relevant considerations.120
Submissions and response
6.95 The Commission’s proposal allowing birth parents and children, who are capable of expressing wishes, input into the choice of adoptive parents was supported in the submissions.121
Conclusion
6.96 Any assessment should take into account the applicants’ attitudes to possible contact between the child and members of the birth family during the child’s life and to the obtaining of information under adoption information laws. Issues relating to the wishes of birth parents and those of the child are discussed in Chapters 5 and 3. Contact between the birth parents and child is examined in Chapter 7.
Health
6.97 The health of applicants is presently a gazetted criterion for assessing applicants to adopt.122 It is provided for in the Adoption Act and the Adoption Regulation.123 Parental health has a strong and obvious correlation with the child’s best interests. Physical and mental health is a relevant issue to the long-term financial and emotional care of a child.124 The Commission’s approach in DP 34, that the applicants’ health is a relevant assessment criterion,125 was generally supported in the submissions.126
Conclusion
6.98 An assessment should take into account the applicants’ health in assessing their suitability to adopt a child and at the time of placement.127
Spacing of children and examination of family relationships
6.99 The spacing of children is a gazetted assessment criterion.128 The Adoption Regulation prevents a child being placed with a pregnant applicant.129
Discussion Paper 34
6.100 The Commission proposed that any consideration of an applicant’s suitability to adopt a particular child would involve an examination of his or her family and other relationships.130 It also proposed that the assessment should give consideration to the effect on the child of any other children of the applicants. It was proposed that children should not be placed with applicants who have a child under two years of age, unless there are circumstances indicating that notwithstanding this the applicants are suitable to adopt the child.131
Submissions and response
6.101 Many submissions supported the Commission’s proposals on the spacing of children and the examination of family relationships.132 These standards derive from agencies’ experiences in adoption practice.
Further issues
6.102 A related issue brought to the Commission’s attention is whether the adopted child should be “slotted” into a family, that is, placed above or between existing children. Research has shown that a child’s ordinal position in a family carries with it understood privileges and responsibilities. “Slotting” a child can detrimentally alter the dynamics of the family for all children. DOCS practice has been to permit “slotting” only in exceptional circumstances and only if certain conditions are met. These include that the age of the child to be adopted is no less than two years younger than an existing older child and no less than three years older than an existing younger child. Also, all existing children in the family must be older than five years of age at the time of the application and able to understand and accept the consequences of the proposed adoption.
Conclusion
6.103 In considering an applicant’s suitability to adopt a particular child, the assessment should involve an examination of the applicant’s family and other relationships, including careful and thoughtful attention to the potential effect of the adoption on any sibling relationships, including how long each child has been with the family. This assessment should be on a case-by-case approach. However, as a guide, children should not be placed with an applicant who has a child under two years of age, unless there are exceptional circumstances indicating that notwithstanding this constraint, the applicant is suitable to adopt the child. This applies to “special needs” children as well as other children.133 The Commission supports the present DOCS approach to “slotting” and the assessment of each family’s particular circumstances. The Commission also supports the present approach in the Adoption Regulation excluding applicants from being placed with a child where one of the approved applicants is pregnant.
Marital status and family structure
Present eligibility requirements
6.104 At present under the Adoption Act, adoptions must be made in favour of a husband and wife jointly except in certain circumstances.134 One married partner can be the natural parent of the child.135
6.105 De facto couples can adopt if they have lived together for at least three years before applying for an adoption order and the child they wish to adopt has been brought up by them jointly for at least two years or is a “special needs” child.136 One partner can be the natural parent of the child.137 The Court can disregard the minimum time period of co-habitation and minimum time period of maintenance of the child in ordering an adoption if this serves the welfare and interests of the child.138
6.106 Aboriginal couples who are recognised as being married according to the traditions of the Aboriginal community or group to who they belong can adopt an Aboriginal child.139 One partner can be the natural parent of the child.140
6.107 A single person can adopt if the Court believes that it is desirable in the particular circumstances of the case.141 However, if the applicant is married and living with his or her spouse, that spouse must give written consent to the other spouse adopting.142
6.108 The length of a couple’s relationship is also a gazetted assessment criterion.143 It requires a minimum of three years marriage or co-habitation for couples prior to placement. The Adoption Act thus treats marital status as an important factor in promoting the interests and welfare of the child.144 The increasingly diverse nature of families in New South Wales challenges this assumption.145 The question now appears to be to what extent, if at all, marital status is a useful indicator of an individual’s or a couple’s suitability to adopt.146
Discussion Paper 34
6.109 The Commission proposed that any assessment of applicants should ensure that unfair or unjustified assumptions are not made about the relevance of applicants’ sexual orientation and their suitability as adoptive parents. The assessment should focus on the ability of the applicants to meet the parenting needs of the particular child. This reflects the view that the law should be flexible so as to maximise the range of choice for children who become available for adoption. Marriage is neither a necessary nor a sufficient indicator that a couple have a stable relationship or that they have good parenting skills. The same applies to the traditional male-female family structure; this should not be assumed to be the only family capable of serving the needs of adoptive children.
6.110 It seemed to the Commission that in terms of meeting the needs of the child, it is important to look at the strength of the applicants’ relationships with the important people in their lives, including their extended families, in order to predict their relationship with a particular child. It also seemed wrong to say that homosexual couples or single people or de facto couples can never be the right choice for any child.
6.111 The Commission acknowledged that there is some force in the argument that the experience of adopted children should not be rendered additionally different by being placed randomly or capriciously in atypical families: see above discussion at paragraph 6.68. However, the importance for children of placement in conventional family structures should not be overstated. The Australian community today has many different family forms, and the Commission believed it would be wrong for adoption law and practice to be based on an assumption that only the traditional nuclear family is capable of serving the needs of children.147
Submissions and response
6.112 The Commission is aware of strong community interest in this topic, especially about same-sex couple adoptions, and to a lesser extent, adoptions by non-married couples and single people. This is evident in the large number of submissions received on this topic compared with any other.148 Clearly, many opinions are held on who should be allowed to adopt children based on the would-be adoptive parent’s sexual orientation or marital status. Since most submissions expressed opinions on same-sex couples adopting, this aspect will be examined in more detail.
Submissions against adoption by same-sex couples
6.113 Discussions about marital status and family structure often reflect differences about personal morality and religious beliefs, and what individuals or groups believe social morality ought to be. This is reflected in the nature of many of the submissions against adoption by homosexuals. Expressions such as “immoral”, “not normal”, “unnatural”, “against God”, “against the Bible” were commonly used. Some expressions were more pejorative. Over half of the submissions against adoption by homosexuals give reasons which fall into the category of personal moral views and religious beliefs.
6.114 Of the other submissions, nearly all relate to fears and concerns about homosexuals bringing up children. These fears fall into two main categories: one relates to concerns about appropriate role modelling by parents, and the other is generally against homosexual adoption as a “social experiment” with the child. An associated fear is of a social stigma placed on a child brought up by homosexual parents.
6.115 As DP 34 notes149 there is a considerable body of literature and judicial law on the issues relating to homosexual parents.150
6.116 The Family Court of Australia has taken the view that a parent’s homosexuality is simply one factor to be taken into account in custody disputes. There is no presumption that a parent’s homosexuality per se renders a parent unfit as the custodian of the child.151
6.117 A final concern in this area, as with age, is to do with the marginalisation of adopted children. As one submission described it:
If one accepts the principle that in adoption differences between adoptive families and other families in the community should be minimised to assist the child in his adjustments one would consider sexual orientation of parents, like age, as factors which can separate a child from his peers ... For adopted children, living in a same-sex family would be just one more difference with which they must cope.152
Submissions supporting the Commission’s proposal in Discussion Paper 34
6.118 Several submissions by organisations working in the adoption area, and legal associations, supported the Commission’s view that any assessment should ensure that unfair or unjustified assumptions are not made about the relevance of applicants’ sexual orientation and their suitability as adoptive parents. The assessment should focus on the ability of the applicants to meet the parenting needs of children and the needs of the particular child.153 Submissions also raised the birth parents’ wishes as to the type of adoptive parent for their child as a significant factor in placing a child.154
Conclusion
6.119 Adoption law should allow a married or non-married couple jointly, and single persons, to be considered for adoption. It should allow a step-parent, whether married to or in a de facto relationship with the child’s birth parent, to adopt.155 This includes allowing suitable same-sex couples, as with heterosexual de facto couples, to adopt a child jointly or for the step-parent to adopt the child of his or her partner. A joint or step-parent adoption reflects the reality of the dual parenting commitment and responsibility to the child.156 As such, it benefits the child’s emotional and financial security. In the event of a separation, to resolve issues of custody, access and maintenance, same-sex couples would have access to the Family Court.157
6.120 There is no established connection, positive or negative, between people’s sexual orientation and their suitability as adoptive parents. It follows that there is no good reason for the law to exclude people from seeking to adopt on the ground of their homosexual orientation or family arrangements. These matters, like other aspects of the applicants’ lives, should be taken into account in assessing their suitability as adoptive parents, whether in the context of placing them in the “pool” or in the context of considering them in connection with the placement of a particular child.
6.121 Any assessment should focus on the suitability of the applicants to promote the best interests of the child. It should ensure that unfair or unjustified assumptions are not made about the relevance of the applicants’ sexual orientation or marital status to the applicants’ suitability as adoptive parents. Rather, the assessment should focus on the ability of the applicants to meet the parenting needs of the particular child, or if unknown, the parenting needs of the types of children for which adoption is being considered.
6.122 To be eligible for adoption, the adoptive parents must aim to provide the child with a supportive, permanent and nurturing environment. The Court and agencies should focus on the quality and duration of the parental relationship. An examination of the relationship should apply to all couples, married and non-married, heterosexual and homosexual. At a minimum, joint applicants, whether in a marital or de facto relationship, should establish they have been co-habitating with each other, for a continuous period of not less than three years before applying for an adoption order. Similarly, step-parent applicants should establish co-habitation with the child’s parent, whether in a married or de facto relationship, for a continuous period of not less than three years before applying for an adoption order.
6.123 Section 19(1B)(3) of the Adoption Act, requiring a single applicant to adopt who is married to obtain the consent of his or her spouse to the adoption if the two are living together, should be extended to the single applicant in a de facto relationship.
SELECTION PRACTICE
6.124 As DP 34 commented,158 the reference does not require a review of the details of the processes of assessment. This is a matter of administration and professional practice rather than legislative policy.159 The Commission is favourably impressed with the current approach. The present selection procedure was outlined above in paragraphs 6.17 to 6.20.
6.125 A few issues were raised in DP 34 and in submissions to it about the way in which applicants are assessed by the agencies. The issues are as follows:
- the breadth of legislative restrictions on eligibility to adopt;
- whether the assessment of parents should relate to a particular child;
- “pools” and placement; and
- education and training in the assessment process.
Legislative requirements
Discussion Paper 34
6.126 An issue considered in DP 34 was to what extent legislation, as distinct from selective professional practice, should determine who is eligible to adopt.160 The Commission’s view in DP 34 was that there should be very few legislative requirements relating to eligibility. The Adoption Act should exclude from consideration only those people who should not be allowed to adopt under any circumstances.161 It follows that the selection process, which the agencies administer, is the better method for determining who is eligible to adopt.
Submissions and response
6.127 Submissions generally supported the Commission’s approach that agencies are best positioned to determine the more detailed requirements for eligibility. However, many tended to support a greater role for legislation than that put forward by the Commission. Many submissions indicated that certain categories of people should be excluded from adopting under the legislation. However, these submissions often differed in the types of people they argued should or should not be excluded under the legislation. For example, some supported the initial exclusion of applicants based on age; others supported initial exclusion based on marital status and family structure.
Conclusion
6.128 There should be very few legislative requirements relating to eligibility. There are two reasons for this:
- First, the best interests of any particular child are unlikely to be promoted if the law initially excludes from any consideration individuals or families who might be suitable to adopt that child.
- Secondly, selection choices can respond to contemporary social conditions and changing community attitudes if suitability to adopt is determined by adaptive assessment considerations and not by legislatively entrenched requirements.
6.129 The role of the legislation should be to provide minimum requirements for eligibility, guiding the Court as to what it must examine in considering whether to grant an order for adoption. Beyond this, the difficult task of selecting the best parent possible for each child should be that of professionals appropriately trained in current child welfare knowledge and practice. The agencies, with much adoption expertise and experience, are best positioned to determine the more detailed requirements for eligibility.
6.130 Legislation should therefore support flexibility and adaptability in agency decision-making, rather than restrict the types of adoptive parents able to be considered by adoption professionals. Consequently, restrictions on eligibility under the adoption legislation should be few, although guidelines should identify the factors that may be taken into account in assessing suitability to adopt.
6.131 Apart from the above mentioned changes, the current division between legislative restrictions on allowing certain people to adopt and agency practice in selecting suitable adoptive parents should continue. That is, the agencies should determine selection practice and assessment processes in accordance with any legislative restrictions and their current professional judgment.
RECOMMENDATION 58
The legislation should permit an adoption order to be made in favour of either a couple (whether married or living in a de facto heterosexual or homosexual relationship) or a single person.
RECOMMENDATION 59
The legislation should require joint applicants to have been cohabitating for a continuous period of not less than three years before applying for an adoption order.
Assessment of parents for a particular child
Discussion Paper 34
6.132 The Commission took the provisional view in DP 34 that the assessment of applicants should be based on the suitability of the applicant in relation to the particular child.165
Submissions and response
6.133 Submissions supported the Commission’s proposal that the assessment of applicants should be based on their suitability in relation to the particular child. However, the Commission notes that in practice most assessments are made as to the general suitability of the applicants. With local adoptions, the successful applicants are then placed in a “pool” of eligible parents awaiting a child.
Conclusion
6.134 The assessment of an applicant should be based on the suitability of the applicant to adopt the particular child. If, however, the assessment has been made on general grounds as to suitability to be a parent, before placement of any child with the applicant, an assessment of the suitability of the applicant should also be made in relation to that particular child.166
“Pools” and placements
Discussion Paper 34
6.135 As DP 34 explained, the agencies involved in the placement of locally born healthy infants put approved applicants into a “pool” from which they can be selected as the most suitable adoptive parents for particular children.167 The DOCS “pool” generally numbers about 70 couples. It is large enough to provide a variety of applicants to meet the needs of children likely to be available in the next year or so, but small enough to be manageable in the selection of the most appropriate parent.168 This system has been operating since the late 1980’s.169 From time to time new applicants are added to the “pool” as numbers become depleted as a result of adoption placements or withdrawals from the “pool”.
6.136 In composing the “pool”, the agencies try to anticipate the needs of children likely to become available for adoption.170 Currently, applicants are chosen to be assessed for approval on the basis of qualities which make it likely that they will be placed with a child within two years of approval.171
6.137 The Commission considered that the present method of maintaining a “pool” of approved applicants is an appropriate way of dealing with the great imbalance between those wishing to adopt and children available for adoption, while still minimising the waiting time of children for placement. The Commission suggested certain guidelines on managing the “pool” system in DP 34.172 These were drafted as principles. For example, an applicant should be assessed as suitable for a particular child if he or she is able to meet the needs of that child and no one else could reasonably be expected to meet the needs of that child better. Another principle proposed was that membership of a “pool” does not create a right to have a child placed with an applicant.
Submissions and response
6.138 Submissions broadly agreed with the Commission’s proposal.173
Further issues
6.139 Should unsuccessful applicants be removed from the “pool” after a certain period of time? The benefits of imposing a time limit on remaining in the “pool” include: reducing the potential for applicants, unsuccessful after many years, to retain unrealistic expectations of a future placement; promoting the turnover of eligible applicants in a “pool”; and facilitating shorter waiting times for placement of children with suitable applicants from the “pool”.
6.140 Whether or not to impose a time limit on remaining in the “pool” should be a decision for the agencies: a legally imposed time limit is inappropriate and unnecessary. Under the Adoption Regulation, an applicant can be removed from the adoption register of persons approved as suitable to adopt if, because of a change in circumstances existing at the time of the agency approval, the applicant is no longer considered by the Director-General as suitable to adopt the child.174 As well, the Director-General or the principal officer of a private agency may at any time revoke approval of a person as suitable to adopt.175 Written reasons for the decision to revoke approval must be given and the applicant is to be advised of his or right to apply for a review.176
6.141 As an agency decision, limiting the period during which an applicant can remain in the “pool” can be seen as a practical and fair way of managing the numbers of applicants wanting to adopt. In canvassing this issue, the Commission assumed that the practice would continue of only placing in the pool applicants who are reasonably likely to have a child placed with them within two years; and a periodic review of an applicant’s suitability takes place.
6.142 Another method of managing the numbers of applicants in practice might be through a regular review process and consultation with the applicants as to their status, rather than imposing an arbitrary time limit. This review would include an update, and reassessment, of the applicant’s ability to meet the requirements for eligibility.177 However, a time might come, such as after several years of waiting, when the agency could conclusively determine that the applicant’s place in a “pool” must end because, on any reasonable assessment, there is no likelihood of a placement.
Conclusion
6.143 The present method of maintaining a “pool” of approved applicants is an appropriate way of dealing with the great imbalance between those wishing to adopt and children available for adoption, while still minimising the time a child must wait for a suitable placement. Also, any guidelines for “pool” management should be considered in practice by the agencies rather than prescribed in legislation. Any guidelines should support a “pool” membership consisting of applicants who are determined most likely to meet the needs of the children expected to become available in the near future. This approach means that the placement decision focuses on the needs of particular children rather than on the general eligibility of applicants as adoptive parents.
6.144 In the light of the submissions, the Commission supports selection of applicants (both joint and individual) for a “pool” based on the following approach:
- To be in a “pool”, applicants must have been approved as, and must continue to be, eligible to adopt children. The applications to adopt must remain current.
- An applicant is suitable, in relation to a particular child, if the applicant has been assessed as being well able to meet the needs of that child; no other applicants known to the agency appear better able to meet the needs of that child; and it appears unlikely that another applicant might be found, within a reasonable time and using reasonable efforts, who would be better able to meet the needs of that child.
- At any given time, the membership of the “pool” should be determined having regard to the need to maximise the likelihood of placing children who become available for adoption with adopters who will meet their needs to the maximum possible extent; the desirability of avoiding undue delay between entry into the “pool” of the applicant and placement of a child with the applicant; and the need to give appropriate consideration to all persons currently in the “pool” in relation to each child becoming available for adoption.
- Membership of the “pool” does not create any right to have a child placed with the applicant for the purpose of adoption.
- In relation to each child becoming available for adoption, the agency should consider in the first place whether any applicants are suitable to adopt that child. Birth parents should be given a reasonable opportunity to be involved in the process of selecting applicants from the “pool”.
- If an applicant in the “pool” is suitable to adopt the child, the child may be placed with that applicant for the purpose of adoption.
- If no applicant in the “pool” is suitable to adopt the child, the agency can take such steps as it sees fit to arrange placement of the child with suitable adopters. Such steps may include making inquiries from other adoption agencies, and other individuals or organisations, and may include the use of advertising or other reasonable measures in order to seek suitable adoptive parents for the child.
Education and training
Discussion Paper 34, submissions and response
6.145 Although DP 34 did not specifically canvass the issue of education and training of applicants during the selection process, submissions suggested that the agencies face a dilemma in selecting applicants into their programs for education and assessment. One submission observed that to assess all applicants is an expensive, frustrating and misleading approach for some applicants.178 While agreeing that selection considerations should comply with the intent of present laws against discrimination, another submission expressed concern that:
when applied, the number of applicants would far exceed the number of children to be adopted. To avoid this difficulty ... all applicants need to be well informed at the beginning of the assessment process of the number and needs of children available for adoption.179
6.146 The agencies doing the selecting have limited resources, both financial and in relation to staff numbers. As one submission noted, professional resources within the agencies limit the ability to assess adequately every applicant, with the number of prospective applicants far outweighing the number of local healthy infants available.180 Requirements which place limits on who will be considered provide a way of managing the imbalances between supply and demand, while at the same time enabling a child-focused process to predominate. It is not practicable to assess all enquirers and a substantial reduction of enquirers occurs by way of self-selection out of the adoption process and also by decisions made by the agency on the basis of maintaining a diverse “pool”.181 For example, in 1993 the Anglican Adoption Agency received 400 enquiries for 15 children.182 It is a question of resources and of needing to limit the “pool” so as to provide a range of approved applicants with a reasonable possibility of a placement within two years.183
6.147 While appreciating the limited resources of the agencies, arbitrary eligibility limits, such as age or fertility or marital status, should not be used as the mechanism for controlling the numbers of people interested in adopting. The purpose and focus of eligibility requirements is to serve the child’s best interests by finding the best possible parents for each child.
6.148 The “pool” system operates as a practical measure to reduce numbers of applicants. The agencies can assess applicants whom they determine satisfy the assessment provisions and criteria.184 Any approvals may be subject to conditions, including limitations on the duration of the approval or the type of child.185 Reasons for such decisions are to be given and rights of review exist.186
6.149 At present, persons seeking to adopt are given information about the nature of adoption, the numbers and characteristics of children needing placements, the requirements for approval and selection, and the processes of investigation, approval and selection.187
6.150 Applicants are encouraged to assess themselves against the eligibility requirements through initial advisory services, information seminars, and other compulsory education and training courses on adoption prior to any assessment.188 This involves preliminary education on the characteristics of adopting different types of children (local, “special needs” and intercountry) and the current practices and realities of adoption. Applicants can then make informed choices as to whether they wish to continue further with the selection process.
6.151 One submission by prospective adopters brought attention to an inherent conflict in the selection process where the agency acts as both educator and assessor of applicants. The submission commented:
[T]he extent of education for us has been completely inadequate ... The process of education and assessment should be separated to enable prospective adoptive parents to speak openly about their concerns and not feel intimidated during the education process.189
Conclusion
6.152 Unrealistic expectations of potential applicants should be managed through education and training seminars by the agencies.
6.153 A clear structural separation existing between the agency’s dual functions of education and assessment would reduce anxiety and encourage more active and freer participation in the education process by prospective adopters.
FOOTNOTES
1. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994).
2. For the purposes of this Chapter, “agencies” refers to both the Department of Community Services and the private adoption agencies, unless the context otherwise requires.
3. Adoption of Children Act 1965 (NSW) s 21(1).
4. Adoption of Children Regulation 1995 (NSW) cl 9 and Schedule 2, item 9.
5. Pursuant to the Adoption of Children Regulation 1995 (NSW), the New South Wales Department of Community Services “Criteria for Assessment of Adoption Applicants” is published in the New South Wales Government Gazette No 58 (8 May 1992) at 3264.
6. NSWLRC DP 34 at para 6.6. For example, exceptions can be made under the Act to marital status if the Court is satisfied the adoption will serve the interests of the child: Adoption of Children Act 1965 (NSW) s 19.
7. Adoption of Children Act 1965 (NSW) s 20. The requirement does not apply where one of the applicants is a parent or relative of the child or where the Court considers that, in the particular circumstances, it is desirable to make the adoption order. In addition, the Court is required to have regard to the applicant’s age, and that of the child, in considering the applicant’s suitability to adopt the particular child: s 21(1)(c)(i)(b).
8. s 19AA.
9. s 21(1)(c)(i)(a).
10. s 21A.
11. s 21(1)(c)(i)(b).
12. s 21(1)(c)(i)(b).
13. s 21(1)(c)(i)(b).
14. s 21(1)(c)(i)(b).
15. See “Criteria for Assessment of Adoption Applicants”.
16. “Criteria for Assessment of Adoption Applicants” criterion 2.
17. Criterion 5.
18. Criterion 6, other than for “special needs” adoptions.
19. Criterion 10.
20. Criterion 9, other than for intercountry and “special needs” adoptions. In relation to some intercountry programs, the overseas country has its own requirement as to infertility.
21. Criterion 7, other than for “special needs” adoptions.
22. Anglican Adoption Agency Submission (26 August 1994) at para 6.2 notes that the agency has removed the criteria of infertility for healthy infant adoption. Centacare requires applicants to demonstrate a willingness to be involved in information exchange and meetings with the child’s birth family throughout the child’s life.
23. Adoption of Children Regulation 1995 (NSW) cl 6(5), 10, 11, 13, 14, 20 and Schedule 2, item 9 (4).
24. cl 6(1), (2), (3) and (4).
25. cl 7, 8, 10 and 11.
26. This is particularly so in the case of local healthy newborn infants.
27. Adoption of Children Regulation 1995 (NSW) Schedule 1, Form 6; see further, Chapter 5.
28. Private agencies may only be involved in some categories of adoption; see further, Chapter 4.
29. Adoption of Children Act 1965 (NSW) s 21(1)(c)(i)(b).
30. s 21(1).
31. s 21(1)(a), (b) and (1A).
32. Justice BJK Cohen Submission (29 July 1994) at 2-3.
33. The Macquarie Dictionary (2nd ed, Macquarie Library, NSW, 1991) at 504.
34. Examples of State and Federal anti-discrimination laws include: Anti-Discrimination Act 1977 (NSW); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth).
35. For example: Anti-Discrimination Act 1977 (NSW) s 24(1)(b), 39(1)(b), 49B(1)(b), 49ZG(1)(b), and 49ZYA(1)(b); Racial Discrimination Act 1975 (Cth) s 9(1A) and 7(2); and Disability Discrimination Act 1992 (Cth) s 6. Under the Sex Discrimination Act 1984 (Cth) s 5(2) the requirement must not have the effect of disadvantaging persons of the same sex as the aggrieved person.
36. Anti-Discrimination Board of New South Wales Submission to Issues Paper 9 (14 August 1993) at 1. However, the Board supports the proposition that the child’s interests are paramount.
37. NSWLRC DP 34 at para 6.33.
38. For a more detailed discussion, see NSWLRC DP 34 at para 6.37.
39. NSWLRC DP 34 Chapter 6, Proposal 2 and para para 6.2.
40. For example: New South Wales Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 18; Anglican Adoption Agency Submission (26 August 1994) at para 6.1.
41. The Anglican Adoption Agency accepted “that the assessment of applicants should be conducted in a way that is consistent with the Anti-Discrimination Act, while still upholding that adoption is a service to children not to prospective parents”: Submission (26 August 1994) at para 6.3; The Presbyterian Women’s Association of Australia stated: “Adoption is not a provision of services to the parents as the paramount concern is the welfare of the child. Any service to parents should be consequential”: Submission (22 July 1994) at 5; Centacare Catholic Community Services (Adoption Services) agreed that: “... applicants, on meeting Departmental or Agency criteria should be entitled to a fair assessment. However, in supporting a child-focussed adoption where the principle that the child’s welfare is paramount, will mean that no applicant will have a right to a child”: Submission (11 August 1994) at 18.
42. See NSWLRC DP 34 at para 6.32-6.47.
43. For example, the proportion of couple families with dependant children (aged under 15 years) where both parents were employed increased from 35% in 1979 to 58% in 1995: Australia - Australian Bureau of Statistics Australian Social Trends 1996 (ABS, Canberra, 1995) at 31.
44. For example: Barnardos Australia Submission (26 July 1994); Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21; NSW Branch of the Australian Society of Social Workers Ltd Submission (11 August 1994); Latter Day Saints Social Services Submission (5 October 1994) at 12; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21; NSW Department of Community Services Submission (5 September 1994) at 26; and Anglican Adoption Agency Submission (26 August 1994) at 6.5.
45. Barnardos Australia Submission (26 July 1994).
46. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21; Latter Day Saints Social Services Submission (5 October 1994) at 12; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21; Centacare (Newcastle) Submission (29 July 1994) at 2.
47. NSW Department of Community Services Submission (5 September 1994) at 26.
48. Concern NSW Inc Submission (2 August 1994) at 5.
49. Barnardos Australia Submission (26 July 1994).
50. NSW Department of Community Services Submission (5 September 1994) at 26.
51. Latter Day Saints Social Services Submission (5 October 1994) at 12; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
52. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21.
53. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
54. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
55. NSW Department of Community Services Submission (5 September 1994) at 28.
56. NSW Branch of the Australian Society of Social Workers Ltd Submission (11 August 1994).
57. Barnardos Australia (an agency specialising in the adoption of older children) observed that, in its experience, “every child so far referred to our program has required a full-time parent for at least six - twelve months after placement. These children, whether pre-school aged or school aged, have experienced abuse, neglect, rejection, multiple carers/placements and thus have emotional damage, behavioural difficulties and a lack of trust in adults and may have developmental/learning delays ... It is Barnardos experience that placements have disrupted when both parents have been working full-time with a critical factor being the effect of emotional and physical exhaustion which results from working and parenting an older child placed by Barnardos”: Submission (26 July 1994).
58. Concern NSW Inc Submission (2 August 1994) at 5.
59. Barnardos Australia Submission (26 July 1994). The Industrial Relations Act 1991 (NSW) only provides for unpaid adoption leave of up to one year for a child under the age of 5 years who has not previously lived with the employee for a continuous period of six months, or who is not a child or step-child of the employee or his or her spouse: definition of “child” s 56 and 55. The 1991 Act is repealed by the Industrial Relations Act 1996 (NSW) s 408. The Industrial Relations Act 1996 (NSW) similarly allows unpaid adoption leave of up to one year for a child under five years of age, unless the child has previously lived with the employee for a minimum period of six months or is a child or step-child of the employee or his or her spouse: s 54 and 55(4). Although not prescribed in the Act, some workplaces do, in any event, extend adoption leave to school age children.
60. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21.
61. NSW Department of Community Services Submission (5 September 1994); Barnardos Australia Submission (26 July 1994).
62. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
63. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
64. NSW Department of Community Services Submission (5 September 1994) at 26.
65. For example, Barnardos Australia Submission (26 July 1994). The Anglican Adoption Agency does not have a requirement for an adopting parent to remain at home, but noted that in practice one parent does stay at home for the first year: Submission (26 August 1994) at 6.5.
66. Each case is varied and as such a policy on full-time care should not be set in legislation: Barnardos Australia Submission (26 July 1994), Anglican Adoption Agency Submission (26 August 1994) at 6.5.
67. NSW Branch of the Australian Society of Social Workers Ltd Submission (11 August 1994).
68. Barnardos Australia Submission (26 July 1994); NSW Department of Community Services Submission (5 September 1994) at 26; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 21.
69. “Criteria for Assessment of Adoption Applicants” criterion 9.
70. The Anglican Adoption Agency noted that “[u]nless the adoptive parents are in tune with their own needs and feelings, they will experience the child’s need to know of his or her adoption, as a threat. Acknowledgement and disclosure of adoption remind them of their infertility”: Submission (26 August 1994) at para 6.2.
71. Anglican Adoption Agency Submission (26 August 1994) at para 6.2.
72. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 22.
73. Anglican Adoption Agency Submission (26 August 1994) at para 6.2.
74. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 22.
75. NSW Department of Community Services Submission (5 September 1994) at 24.
76. Concern NSW Inc Submission (2 August 1994) at 5.
77. B and F Peterie Submission (14 July 1994) at 5.
78. Anglican Adoption Agency Submission (26 August 1994) at para 6.2.
79. New South Wales Law Reform Commission Intercountry Adoption and Parent Support Groups (Research Report 6, 1997).
80. Adoption of Children Regulation 1995 (NSW) cl 32 requires agencies to make all reasonable efforts to place a child with an approved person whose expressed intention for the religious upbringing of that child accords with any birth parent wishes.
81. Adoption of Children Act 1965 (NSW) s 21A.
82. Adoption of Children Act 1965 (NSW) s 21(1)(c)(i)(b).
83. Italics added.
84. B and F Peterie Submission (14 July 1994) at 5; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 18.
85. Latter Day Saints Social Services Submission (5 October 1994) at 11; Anglican Adoption Agency Submission (26 August 1994) at para 6.3. The NSW Department of Community Services comments that it is aware that some overseas adoption agencies will not accept applicants in Australia from particular faiths: Submission (5 September 1994) at 27.
86. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 22; NSW Department of Community Services Submission (5 September 1994) at 27; National Children’s and Youth Law Centre Submission (29 July 1994) at 9; Barnardos Australia Submission (26 July 1994). The Anglican Adoption Agency commented that “[t]he current practice that placements reflect community norms is based on substantive evidence from research and experience, that adopted persons see themselves as ‘different’ by virtue of their adoptions. To place children in circumstances which heighten that sense of difference places a great deal of psychological stress on adopted children leaving them more vulnerable ... It, therefore, is imperative for agencies to minimise this impact by seeking placements for children which do not exacerbate these differences by placing children with families who are outside the norms of the community. Children are acutely conscious of differences between themselves and their peers”: Submission (26 August 1994) at para 6.1. Centacare Catholic Community Services (Adoption Services) considered selection criteria should be influenced by the following principles: 1. “that adopted children should not be marginalised by placement in families which are atypical in the broader community.” 2. “that the final selection of adoptive parents where possible, should rest with the birth parents and therefore the pool should reflect the values and aspirations which birth parents hold with respect to the care and nurture of their children”: Submission (11 August 1994) at 18.
87. An important qualification to this is in relation to Aboriginal and Torres Strait Islander children and the value of cultural heritage in children’s lives, discussed in Chapters 9 and 8 respectively.
88. Adoption of Children Act 1965 (NSW) s 20.
89. Under powers to establish selection criteria in Adoption of Children Regulation 1995 (NSW) cl 9; Schedule 2, item 9(1).
90. “Criteria for Assessment of Adoption Applicants” criterion 6. Some private agencies have slightly lower age limits for infants.
91. “Criteria for Assessment of Adoption Applicants” criterion 6.
92. As informed by the Adoption Branch, NSW Department of Community Services.
93. New South Wales - Department of Youth and Community Services Adoption - Options for Reform (1985) at 9.
94. Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 at para 6(1) and National Minimum Principles in Adoption, June 1993 at para 6(1). Other States and Territories of Australia also impose upper age limits varying from mid-30’s to late-40’s.
95. NSWLRC DP 34 Chapter 6, Proposal 8.
96. NSWLRC DP 34 at para 6.91 and 6.92.
97. Western Australia - Adoption Legislative Review Committee Final Report: A New Approach to Adoption (February 1991) at 106.
98. ACCESS Australia’s National Infertility Network Submission (5 August 1994) at 3.
99. United Kingdom - The Department of Health, Welsh Office, Home Office, Lord Chancellor’s Department, Adoption: the Future (HMSO, London, November 1993) at 1, 9-10: This White Paper on the future of adoption in England and Wales draws upon the work of an interdepartmental working party, Review of Adoption Law, published in October 1992 as a consultation document. The White Paper notes that age is a relevant factor in any assessment of adopters based on a reasonable expectation that they will retain their health and vigour to care for a child until he or she is grown up. However, it also warns that “[g]overnment guidance will emphasise that rigidity of approach is out of place. Parents in their forties may well have much to bring to the care and upbringing of adopted children.”
100. Concern NSW Inc Submission (2 August 1994) at 5.
101. ACCESS Australia’s National Infertility Network Submission (5 August 1995) at 3.
102. Leslie Submission (28 July 1995) at 8; Concern NSW Inc Submission (2 August 1994) at 5.
103. Concern NSW Inc Submission (2 August 1994) at 5.
104. For example, the New South Wales Bar Association commented that “[t]he inconsistency in the report in recommending that there should be an age limit in respect of adoptive parents, but not perceiving any such difficulty in respect of single sex parents is worthy of criticism. The Association recommends that people should not be excluded from the pool of adoptive parents because of the marital status or sexual orientation, however a different view is taken in respect of persons who are not considered the right age, for example: ‘Social workers have informed the Commission of adoptees who have questioned why they are placed with older parents, who felt that the difference in age between their parents and those of the other children at school made them feel even more different.’ The legislation should not simply distinguish eligibility by reason of age”: Submission (16 September 1994) at 1-2.
105. Factors such as the increased rate of participation of women in the work force, long term career expectations, the changing roles of women generally, and the increasing financial imperatives of a two income household, have all contributed to this increasing age of child bearing and rearing. These factors were not foreseen at the time the original legislation was enacted.
106. Australian Bureau of Statistics Australian Social Trends 1996 (ABS, Canberra) at 40. “Norms” differ from vicinity to vicinity. In the Northern Sydney area in 1991, 11% of all women giving birth for the first time were aged 35 years and over, compared with 6% in the rest of the State: Concern NSW Inc Submission (2 August 1994) at 5 citing from H Longbottom, D Pakchung, I March and D Holt Midwives Data Collection: A Profile of Pregnancy Outcomes of Mothers and Infants in the Northern Sydney Health Area (Northern Sydney Public Health Unit, 1993).
107. Australian Bureau of Statistics Australian Social Trends 1995 (ABS, Canberra, 1995) at 34 and 36 comments: “Because of the increase in divorces, there are now a larger number of divorcees than before 1976, when the Family Law Act came into effect. This has led to a larger proportion of marriages being remarriages for one or both partners. Since people who remarry are older than those who marry for the first time, this is also a contributing factor to higher median age for all marriages ... In the 1980s remarriages accounted for around one-third of all marriages.”
108. Concern NSW Inc Submission (2 August 1994) at 5.
109. Criterion for Assessment of Adoption Applicants, criterion 6.
110. NSW Department of Community Services Submission (5 September 1994) at 23. Adoption Regulations 1989 (SA) reg 9(3)(o) requires applicants interested in adopting a child with special needs to show the capacity to provide the standard of care required to fulfil the needs of such a child.
111. New South Wales. Department of Youth and Community Services Adoption - Options for Reform 1985 at 13.
112. Western Australia - Adoption Legislative Review Committee Final Report: A New Approach to Adoption (February 1991) at 109.
113. For example, the New South Wales Department of Youth and Community Services gave the following reason for recommending the imposition of new upper age limits in the department report: “The Department recognises that any age criterion must be arbitrary. However, it believes that the age criteria proposed allows the placement of an adopted child into a family whose age approximates the norm for other Australian families. A maximum age difference between a baby and its adoptive parents of 40 years is commonly accepted by other States ... In taking this action in applying the new age criteria to the existing waiting list the Department considers that it has developed an age criterion which considers the needs of children and is the fairest treatment for applicants ... and is essential in view of the decline in the number of available children”: Adoption - Options for Reform (1985) at 9.
114. The Anti-Discrimination Board of New South Wales indicated that the minimum age difference between adopting adult and child should be the same for both men and women, otherwise it could be considered discriminatory: Submission to Issues Paper 9 (14 August 1993) at 3.
115. Department of Health and Social Services (Northern Ireland) Guidance Note on Procedures in Intercountry Adoption issued under covering letter (18 December 1992).
116. Adoption of Children Regulation 1995 (NSW) cl 32, 33, Schedule 1, Forms 1 and 6; see further, Chapter 5.
117. cl 33, Schedule 1, Form 6.
118. Adoption of Children Act 1965 (NSW) s 26(4A), s 33(1); Adoption of Children Regulation 1995 (NSW) cl 28 and Schedule 1, Form 5. However, a child who has attained the age of 12 years consents to his or her adoption by named applicants.
119. NSWLRC DP 34 Chapter 6, Proposal 4.
120. NSWLRC DP 34 Chapter 6, Proposal 3.
121. For example: Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 14, 15 and 20; NSW Department of Community Services Submission (5 September 1994) at 27; Anglican Adoption Agency Submission (26 August 1994) at para 6.4; NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 19.
122. “Criteria for Assessment of Adoption Applicants” criterion 8.
123. Adoption of Children Act 1965 (NSW) section 21(c)(i)(b); Adoption of Children Regulation 1995 (NSW) cl 8.
124. Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 at para 6(3) and National Minimum Principles in Adoption, June 1993 at para 6(3) state that the health of applicants must not impede their ability to care for the child; while the life expectancy of applicants, as well as their health, should be such that they can parent the child and provide quality care until the child attains independence.
125. NSWLRC DP 34 Chapter 6, Proposals 7 and 13.
126. For example: NSW Department of Community Services Submission (5 September 1994) at 25; Anglican Adoption Agency Submission (26 August 1994); NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 21.
127. NSWLRC DP 34 Chapter 6, Proposals 13 and 7.
128. “Criteria for Assessment of Adoption Applicants” criterion 7 requires a child (other than a child with special needs) placed with an applicant who already has a child to be at least two years younger than the existing child.
129. Adoption of Children Regulation 1995 (NSW) cl 31(2), (3) and (4).
130. NSWLRC DP 34 Chapter 6, Proposal 9.
131. NSWLRC DP 34 Chapter 6, Proposal 14.
132. Barnardos Australia Submission (26 July 1994); NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 20-21.
133. “Criteria for Assessment of Adoption Applicants” criterion 7 excludes children with special needs from the requirement that the child placed for adoption must be at least two years less than the age of the applicant’s child.
134. Adoption of Children Act 1965 (NSW) s 19(1).
135. s 19(1B)(4).
136. s 19(1A)(a) and (b).
137. s 19(1B)(4).
138. s 19(1B).
139. s 19(1A)(c).
140. s 19(1B)(4).
141. s 19(1B)(2).
142. Adoption of Children Act 1965 (NSW) s 19(1B)(3).
143. “Criteria for Assessment of Adoption Applicants” criterion 10. At the time of placement, married applicants must have been married for at least three years, or married for at least two years and immediately before that, married or co-habitating for at least one year. De facto applicants must have been co-habitating for at least three years before placement.
144. Although in practice the NSW Department of Community Services no longer discriminates against couples on the basis of marital status in its assessment of applicants: see Anti-Discrimination Board of New South Wales Submission to Issues Paper 9 (14 August 1993) at 3.
145. In 1995 in New South Wales, parents were married or in a de facto relationship in 42% of families; 9.5% of all families were one-parent families; 24.5% of all births were outside marriage. The crude divorce rate in 1994 (the number of divorces granted per 1000 of the estimated resident population) was 2.6; 50% of all divorces involved children: Australian Bureau of Statistics Australian Social Trends 1996 (ABS, Canberra) at 31-32.
146. Under the Adoption Act 1988 (SA) s 12(4) definition of “marriage relationship”: both de facto couples and married couples with a relationship of five years standing are similarly eligible to adopt. (Five years cohabitation is not always required; s 12(2) allows the court to order in favour of applicants where cohabitation has been less than five years if special circumstances exist.)
147. NSWLRC DP 34 at paras 6.71-6.72.
148. The Commission notes that of the 279 submissions received to NSWLRC DP 34, 153 submissions were against homosexuals adopting. Of the 153 submissions, 36 were also against de facto heterosexual couples adopting and 39 against single people adopting. Most submissions were by individuals, many being petitions or campaign letters, and some were by religious and local political or social groups.
149. NSWLRC DP 34 at paras 6.77 and 6.78.
150. For example: F L Tasker and S Golombok “Children raised by Lesbian Mothers: the Empirical Evidence” (May 1991) 21 Fam Law 184; C J Patterson “Children of Lesbian and Gay Parents” (1992) 63 Child Development 1025; A Shaista-Parveen “Homosexual Parenting: Child Custody and Adoption” (1989) 22 University of California Davis Law Review 1009; H Cosis Brown “Competent Child-Focused Practice: Working with Lesbian and Gay Carers” (1991) 15 Adoption and Fostering 11; In the Marriage of Schmidt (1979) 5 Fam LR 421; L v L [1983] FLC 91-353; M Otlowski “Doyle and Doyle: Family Court Awards Custody to Homosexual Father” (1992) 11 University of Tasmania Law Review 261.
The research evidence suggests that children brought up in homosexual households are not disadvantaged by the experience. Tasker and Golombok concluded in their study of lesbian mothers and their children that “[e]mpirical evidence demonstrates that the mother’s sexual orientation does not appear to influence the child’s well-being. Legal decisions concerning where the child should reside post-divorce should focus instead on the quality of parenting”: “Children Raised by Lesbian Mothers: the Empirical Evidence” at 187. Patterson, in a paper reviewing research evidence on the personal and social development of children with gay and lesbian parents, concluded that “[t]here is no evidence to suggest that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents ... despite the accumulation of a substantial body of research investigating these issues, not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children’s psychosocial growth”: “Children of Lesbian and Gay Parents” at 1036.
151. Otlowski “Doyle and Doyle: Family Court Awards Custody to Homosexual Father” at 266. Hannon J of the Family Court of Australia in Doyle v Doyle (1992) FLC 92-286 at 79, 122 stated that: “In determining the issue of custody it is the function of the Court to address the specific circumstances of the case to the particular welfare of the child who is the subject of the application. The morality and the sexual orientation of the parents are but two of the important factors to be considered but they are limited in their effect to what relevancy they have, directly or indirectly on the welfare of the child. The parent’s lifestyle is of no relevance without a consideration of its consequences on the child’s well-being. Homosexuality is relevant only if it affects the parenting abilities or the welfare of the child, and for that reason the fact of that homosexuality does require that the Court, even taking the most liberal view, scrutinise the parent’s way of life.”
Several State courts in the United States have taken a similar approach to the Family Court of Australia in custody disputes involving homosexual parents. See Shaista-Parveen “Homosexual Parenting: Child Custody and Adoption” at 1024: “These courts have held that homosexuality alone does not render a parent unfit as a matter of law. The courts ... instead require a specific showing that the parent’s homosexuality adversely affects the child. In these cases, the courts examine the facts of each case instead of presumptively denying custody to the homosexual parent. Thus, by treating homosexual parents fairly and by dismissing irrational preconceptions regarding them, these courts properly focus on the child’s best interests.”
152. Anglican Adoption Agency Submission (26 August 1994) at para 6.4.
153. For example: National Children’s and Youth Law Centre Submission (29 July 1994) at 9; NSW Branch of the Australian Society of Social Workers Ltd Submission (11 August 1994); Lawyers Reform Association Submission (9 May 1994); Centacare (Newcastle) Submission (29 July 1994) at 2; The New South Wales Bar Association Submission (16 September 1994) at 1-2. The NSW Committee on Adoption and Permanent Family Care commented: “[t]he Committee supports this proposal in principle and agrees that a general assessment of the applicants would need to consider their capacity to parent an adopted child, including their ability to meet the normative needs of that child and their acceptance by the birth family and the child. A placement decision should be made on the basis of this applicants being the most suitable for a particular child.”: Submission (30 August 1994) at 20. Barnardos Australia likewise supported the proposal in principle: “[w]hile Barnardos would agree that ‘unfair or unjustified assumptions are not made’ and that a person must not be discriminated against because of his/her sexual orientation, the assessment needs to focus on the needs of a particular child and must look at many other factors, including the wishes of the birth family and the child, if appropriate. As in all situations, the focus must be on the needs of the child and the selection of the family, regardless of its composition, which is best able to meet those needs”: Submission (26 July 1994) at 6. The NSW Department of Community Services made the following comment: “[a] person’s sexual orientation should not preclude them from expressing an interest in the adoption of a child. The assessment should focus on their capacity to parent a particular child taking into account the birth parent’s views and the child’s needs being paramount in the placement decision”: Submission (5 September 1994) at 28.
154. The NSW Department of Community Services recognised that there is a growing diversity of family types in the community and that interested families should be able to be assessed to determine if they have the suitable characteristics and strengths to meet the child’s needs: Submission (5 September 1994) at 24. However, it also cautioned that any changes would have limited impact in practice: “[i]n reality the opportunity for homosexual persons to adopt is limited. Relinquishing parents should have the right to express their views of the structure of the adoptive family; most relinquish in the hope their child will be placed with a heterosexual married couple. No overseas program would approve placement of a child with a homosexual person/couple”: at 25. The Anglican Adoption Agency also observed that birth parents using their services would be unlikely to agree to the placement of their children in homosexual families: “[a] frequently stated reason for relinquishment is for the child to have two parents, both a mother and a father”: Submission (26 August 1994) at para 6.3.
Adoption of Children Regulation 1995 (NSW) Schedule 1, Form 6 allows birth parents to express wishes as to whether they desire married adoptive parents, non-married adoptive parents or single adoptive parents.
155. See further Chapter 4 on step-parent and relative adoptions.
156. The Gay and Lesbian Rights Lobby commented: “[c]urrently, when a ‘single person’ applies to adopt a child, if the person is in a relationship, their partner is generally assessed by social workers as to her or his parenting abilities. The child will only be placed if both people would provide an environment from which the child would benefit. There can therefore be no reason not to make an adoption order in favor of a lesbians or gay male couple jointly. Concerns about the relationship ending are no more applicable to lesbian and gay male relationships than they are to heterosexual relationships”: Submission (29 August 1994) at 15.
157. Specifically through the referral of most State family law matters in respect of children to the Commonwealth under the Commonwealth Powers (Family Law - Children) Act 1986 (NSW) and picked up by the Family Law Amendment Act 1987 (Cth). More generally through the cross-vesting legislation: Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). As for heterosexual couples, the Family Court, with its counselling services, child’s representative system, and specialist expertise in custody, access and maintenance matters, is the most appropriate jurisdiction to determine issues on children arising from parental separation of same-sex couples. See also W v G (New South Wales Supreme Court, 2 February 1996, Hodgson J, No. 4607/94, unreported): in that case it was held that, on the basis of equitable estoppel, the defendant had an obligation to contribute to the costs of raising the two children born to the plaintiff in the course of the defendant’s lesbian relationship with the plaintiff. A related issue is making provision for children of same sex couples in the event of the deaths of the parents. It is likely that a successful application for provision could be made under the Family Provision Act 1982 (NSW). The Domestic Relationships Bill 1996 (NSW) has not yet been tabled in Parliament but is expected to be tabled in the near future. The effect of the Bill is to extend the operation of the De Facto Relationships Act 1994 (NSW) to, inter alia, same-sex couples. The Bill provides for rights to redistribution of property on the breakdown of a same-sex couple relationship and maintenance for children for whom both parties have accepted long term responsibilty.
158. NSWLRC DP 34 at paras 6.101- 6.103.
159. However, the assessment process is guided to some extent by legislation. See for example Adoption of Children Regulation 1995 (NSW) Parts 3 and 5, Schedule 2, cl 3, 4, 9(4) and 10.
160. NSWLRC DP 34 at paras 6.98 and 6.100.
161. NSWLRC DP 34 at para 6.100.
162. Adoption of Children Act 1965 (NSW) s 8.
163. Similar to Adoption of Children Act 1965 (NSW) s 20, which requires a male applicant to be a minimum of 18 years older than the child and a female applicant to be a minimum of 16 years older than the child.
164. Adoption of Children Act 1965 (NSW) s 21(1)(c)(i)(a) and NSW Department of Community Services Submission (5 September 1994) at 24.
165. NSWLRC DP 34 Chapter 6, Proposal 1.
166. Barnardos Australia Submission (26 July 1994).
167. NSWLRC DP 34 at paras 6.101 and 6.104.
168. DOCS has expressed a concern that private agencies operating with smaller pools may not have a sufficient variety of applicants to make the best possible selection for the child in need of care.
169. A Roughley Identifying Adoption Practice and 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 12-13.
170. Anglican Adoption Agency Submission (26 August 1994) at para 6.4; Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 18.
171. Roughley Identifying Adoption Practice and Problems in Relation to the Local Adoption of Infants at 13.
172. NSWLRC DP 34 at para 6.105.
173. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 24; Barnardos Australia Submission (26 July 1994); NSW Department of Community Services Submission (5 September 1994) at 29.
174. Adoption of Children Regulation 1995 (NSW) cl 18(1)(d).
175. cl 19(1).
176. cl 19(2) and (3).
177. This is supported by Adoption of Children Regulation 1995 (NSW) cl 18(1)(d) where an applicant can be removed from the adoption register of approved persons because a change in circumstances makes the applicant no longer suitable to adopt the child in the opinion of the Director-General.
178. NSW Department of Community Services Submission (5 September 1994) at 23.
179. NSW Committee on Adoption and Permanent Family Care Submission (30 August 1994) at 18.
180. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 19.
181. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 19.
182. Anglican Adoption Agency Submission (26 August 1994) at para 6.3.
183. Centacare Catholic Community Services (Adoption Services) Submission (11 August 1994) at 19.
184. Adoption of Children Regulation 1995 (NSW) cl 10(1), 11(1) and 12(1).
185. cl 10(1), 11(1), 12(3) and 13.
186. cl 14 and 20 (1); Schedule 2, item 9(4).
187. cl 6(5); Schedule 2, item 9(3).
188. Under cl 8(6) the agencies may require the applicant to attend an adoptive parent education and training course before assessment.
189. Leslie Submission (28 July 1994) at 4.
