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

RECOMMENDATION 2

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

RECOMMENDATION 3

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

RECOMMENDATION 4

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

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

RECOMMENDATION 5

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

• the best interests of the child;
• in the event of an open adoption, that a [satisfactory] adoption agreement has been negotiated;
• the Cultural Heritage Placement Principle;
• the Aboriginal Child Placement Principle; and
• the Torres Strait Islander Child Placement Principle.

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

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

RECOMMENDATION 7

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

RECOMMENDATION 8

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

RECOMMENDATION 9

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

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

RECOMMENDATION 10

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

RECOMMENDATION 11

The present system of licensing established by s 10 and 11 of the Adoption Act (under which, respectively: a charitable organisation may apply to the Director-General for approval as a private adoption agency; and the Director-General may grant or refuse the application on certain grounds and subject to certain conditions and requirements) should be retained.

RECOMMENDATION 12

Section 34 of the Adoption Act (which appoints the Director-General guardian of a child awaiting adoption) should be retained and its application extended to a non-citizen child upon that child entering Australia.

RECOMMENDATION 13

The Court should have the power, on the application of any interested person (including the child) or of its own motion, at any time between the giving of consent (or its dispensation) and the making of an adoption order and, in the case of intercountry adoptions, from the time of allocation of the child, to do any one or more of the following:

(a) appoint a preliminary hearing;

(b) give such directions relating to the hearing of an application for adoption as the Court sees fit, including orders as to care and custody of the child and any order that a court has power to make at the final hearing;

(c) determine who should be notified of the preliminary hearing and give such directions as to notification as the Court sees fit;

(d) appoint a guardian ad litem for the child and give such directions relating to the role of the appointment as the Court sees fit;

(e) direct that the child have legal representation;

(f) direct that any person including the child and/or the prospective adoptive parents should or may attend personally before the Court at such time during the hearing of the application for adoption as the Court directs.

RECOMMENDATION 14

The Court should be required to ascertain and take into account the child’s views, perceptions and feelings, provided that the child should not be obliged to express views. The views and wishes of the child should be given due weight by the Court in accordance with the child’s age and maturity.

RECOMMENDATION 15

The existing provisions of s 25(1) of the Adoption Act should be amended

• to allow an application for discharge to be made by the Director-General, Attorney-General or any other interested person; and
• to give the Court the power to require the Director-General to investigate the circumstances of any application for discharge and report back to it.
• In all other respects s 25 should be retained.

RECOMMENDATION 16

The provisions of the Adoption Information Act 1990 (NSW) should be merged with the Adoption Act and the new legislation be described as the “Adoption Act”.

RECOMMENDATION 17

The legislation should reproduce the substance of the offences in the Adoption Act, except those offences under s 49 and 49A which are designed to prevent members of the birth family from interfering with the adoption process or the adoptive family. These latter offences should be repealed.

RECOMMENDATION 18

The adoption proceedings should continue to be heard in a closed court, except as otherwise ordered by the Court.

RECOMMENDATION 19

Section 66 of the Adoption Act (which provides that, except as the Court otherwise orders, the contents of agency reports must not be disclosed to anyone) should be retained.

RECOMMENDATION 20

Section 65 of the Adoption Act (which allows the Court to act upon evidence which, in its opinion, may assist it to deal with the matter at hand, whether or not the evidence is in admissible form) should be retained.

RECOMMENDATION 21

The New South Wales Government should give consideration to a reference of power over adoption to the Commonwealth, in consultation with the other States and the Commonwealth.

RECOMMENDATION 22

The New South Wales Government should negotiate with the Commonwealth with a view to having the provisions of the Family Law Act relating to step-child adoption repealed, or rendered inapplicable to New South Wales.

RECOMMENDATION 23

Jurisdiction over adoption should be transferred to the Family Court. In the meantime, the adoption jurisdiction should continue to be exercised by the Supreme Court of New South Wales.

RECOMMENDATION 24

The present appeals and review system should continue. Any external appeals process to general tribunals on decisions relating to the selection of adoptive parents should not be allowed.

RECOMMENDATION 25

Section 18 of the Adoption Act should be amended as follows:

Subject to this Act, the Court may, on application, make an order for the adoption of a person who:

(a) had not attained the age of eighteen years on the date on which the application was filed in the Court; or

(b) had attained that age before that date and, prior to attaining that age and for at least five years:

(i) had been brought up, maintained and educated by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her, or their child; or

(ii) had, as a ward within the meaning of the Children (Care and Protection) Act 1987 (NSW), been in the care or custody of the applicant or applicants or of the applicant and a deceased spouse of the applicant.

RECOMMENDATION 26

The marital status of the person to be adopted should be irrelevant to the making of an adoption order.

RECOMMENDATION 27

Section 26(6) of the Adoption Act, which provides that consents of certain persons, such as the parents or guardians of a child, are not required in the case of a child who has attained the age of 18 years before the making of the adoption order, should be retained.

Adult applicants for adoption should be able to apply directly to the Court for an adoption order, without the need to obtain the consent or support of the Director-General or an agency.

RECOMMENDATION 29

A report to the Court by the Director-General, pursuant to s 21 of the Adoption Act, should not be required in the case of adult adoptions.

RECOMMENDATION 30

The legislation should permit an adoption order to be made in favour of step-parents and relatives providing that

• the child has an established relationship of at least five years’ duration with the applicant to adopt;
• consent to the proposed adoption has been specifically given by the “appropriate person/s” in accordance with, and as defined in, s 26 of the Adoption Act; and
• an order for adoption would make better provision for the best interests of the child than parenting orders under the Family Law Act or any other order for the care of the child.

RECOMMENDATION 31

An order for adoption should be permitted in favour of a step-parent solely. An order for adoption in favour of a step-parent should not have legal affect on the parental relationship between the child and the parent with whom the step-parent is cohabiting.

RECOMMENDATION 32

Applications for adoption by step-parents or relatives should, like other adoptions, be made with the consent of the Director-General or on behalf of the applicants by the Director-General or by the Principal Officer of an authorised adoption agency.

RECOMMENDATION 33

The Court should not be able to dispense with the making of a DOCS report in step-parent and relative adoptions.

RECOMMENDATION 34

In relation to applications to adopt children in care:

(a) Section 18(2) of the Adoption Act (which requires applicant/s to obtain agency support for the making of an adoption application, should be retained.

(b) The Court should not make an order for adoption in favour of the child’s foster parents unless:

• the Director-General and/or the agency have made a report to the Court; and
• the order makes better provision for the best interests of the child than parenting orders under the Family Law Act or any other order for the care of the child.

RECOMMENDATION 35

In relation to applications to adopt children in private placements:

(a) Section 18(2) of the Adoption Act, which requires applicants to obtain agency support for the making of an adoption application, should be retained.

(b) The Court should not make an order for adoption in favour of the applicants unless:

• the Director-General and/or the agency have made a report to the Court; and
• the order makes better provision for the best interests of the child than parenting orders under the Family Law Act or any other order for the care of the child.

RECOMMENDATION 36

Section 68A of the Adoption Act (which gives the Director-General power to provide financial or other assistance to prescribed children) should be retained.

RECOMMENDATION 37

Legislation should provide that

• consent to adoption of a child cannot be given until 30 days after the birth of that child;
• thirty days after consent has been given, consent becomes irrevocable;
• at least seven days before the last day on which consent can be revoked, the person or child giving consent must be notified in writing by the relevant agency that he or she has a right to revoke consent by a day specified in the notice; and
• an adoption order cannot be made before the revocation period expires.

RECOMMENDATION 38

Consents to adoption should continue to remain “general,” that is, not nominating identified adoptive parents, except where the child is to be adopted by a step-parent or relative or where consent is given by a child to his or her own adoption. In those cases the consent should be “specific”, that is, nominating the applicants to adopt.

RECOMMENDATION 39

Where the child to be adopted is in foster care or in a private placement, the birth parents or guardians of a child may give consent to either the adoption of the child by any persons (general consent) or, the adoption of the child by the child’s foster parents or carers (specific consent), providing those foster parents or carers have had care of the child for not less than two years.

RECOMMENDATION 40

The prescribed forms of consent for a general consent, a step-parent or relative consent or consent by a child who has attained the age of 12 years should:

• be written in plain language;
• clearly state the legal effect of signing;
• include information as to who has guardianship of the child after the consent has been given, but prior to the adoption order;
• state the last date up until which the consent can be revoked;
• give clear instructions as to how to revoke consent and make clear that the process can be begun again at any time;
• include information on the ability of the birth parent or guardian to have access to the child in the period between giving consent and the time consent becomes irrevocable;
• provide for the consent to be witnessed; and
• state that the person giving consent must be provided with a copy of all forms signed by him or her.

RECOMMENDATION 41

The Statement of Requests form (Form 6) prescribed under the Adoption Regulation 1995 (NSW) should be used in taking general consent and consent from a child who has attained the age 12 years. A statement of wishes as to the religious upbringing of the child and the religion of the adoptive parents should be removed from the general consent form (Form 1) and included in Form 6.

RECOMMENDATION 42

The witness to a general, step-parent or relative consent or consent by a child who has attained the age of 12 years must complete a separate statement on the instrument of consent attesting that he or she:

• witnessed the birth parent, guardian or child give consent;
• sighted documents of identity of the person or child giving consent;
• is satisfied that at least 14 days before the date on which consent was given, the person or child giving consent was provided with a copy of the consent form and with written information about the adoption by the Director-General of DOCS or the principal officer of a private adoption agency, including information on the legal implications of adoption, the alternatives to adoption and the legal consequences of signing the consent;
• has attached a report prepared by a social worker or psychologist accredited by the Director-General of DOCS (who is not the caseworker for the applicants and is not the agency case worker for the birth parent or child) being the independent counsellor stating that the independent counsellor:

  (a) has explained to the person or child giving consent the legal effects of an adoption and procedures including the procedure for revoking the consent to adoption, and is satisfied that the person or child giving consent understands these procedures and the effect of signing the consent;

  (b) has counselled the person or child giving consent on the emotional effects of adoption and the alternatives to adoption, including, in relation to birth parents, the feasibility of keeping the child; and

  (c) that the independent counsellor is not aware of any mental, emotional or physical unfitness of the person or child giving consent to provide consent.

RECOMMENDATION 43

The witness to a general, step-parent or relative consent or consent by a child who has attained the age of 12 years may be any person capable of witnessing a signature and being satisfied as to the identity of the signatory. It is not necessary that the witness be a person belonging to one of the categories presently set out in clause 22 of the Adoption Regulation.

RECOMMENDATION 44

The consent forms for the guardian of a ward under the Children (Care and Protection) Act 1987 (NSW) and guardian of a non-citizen child awaiting adoption under the Immigration (Guardianship of Children) Act 1946 (Cth) should continue to be attested by a witness prescribed by clause 22 of the Adoption Regulation in the manner set out in the present Forms 2 and 3 in Schedule 1.

RECOMMENDATION 45

Legislation should provide that the Court must not make an adoption order unless it is satisfied, among other things, that it has received the instrument of consent in the prescribed form.

RECOMMENDATION 46

Legislation should provide that consent to the adoption of a child under 18 years should be obtained from every person who is a parent or guardian of a child or who has parental responsibility for the child, except in the following circumstances:

• where the child in respect of whom an adoption application is made has attained the age of 12 years, in which case consent is only obtained from the child;
• the parent or guardian or person who has parental responsibility for the child is the applicant for the adoption order; or
• the consent has been dispensed with by a Court order.

RECOMMENDATION 47

The legislation should require the agency to make reasonable efforts to locate the birth father and notify him of the proposed adoption and his rights in relation to his child.

RECOMMENDATION 48

The legislation should require the agency to give notice of the proposed adoption and information concerning participation in open adoption to any person who has actual care of the child.

RECOMMENDATION 49

A child who has attained the age of 12 years must consent to his or her adoption, unless the Court is satisfied that there are special reasons related to the best interests of the child why the adoption order should be made, notwithstanding that the child has refused to consent.

RECOMMENDATION 50

The consent of a child who has attained the age of 12 years to his or her adoption should be the only consent required.

RECOMMENDATION 51

The agency must provide a child who has attained 12 years of age with independent counselling prior to signing any consent and during any period of revocation of consent.

RECOMMENDATION 52

The first name of a child over the age of 12 months should not be changed on the making of an adoption order unless the Court is satisfied that there are special reasons relating to the best interests of the child that would justify a change of his or her first name.

RECOMMENDATION 53

A child who has attained the age of 12 years must consent to any change in his or her first name, unless the Court is satisfied that there are special reasons related to the best interests of the child why his or her first name should be changed, notwithstanding that the child has refused to consent.

RECOMMENDATION 54

Before the Court approves a change in the child’s first names or surname, it must ascertain and give due consideration to the child’s wishes and feelings on this point, having regard to the age and understanding of the child.

RECOMMENDATION 55

Section 32(1) of the Adoption Act should be amended as follows:

The Court on application made in accordance with subsection (1A), may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where it appears to the Court that:

(a) after reasonable inquiry, that person cannot be found or identified;

(b) that person is in such a physical or mental condition as not to be capable of properly considering the question whether the person should give his or her consent;

(c) the Court is satisfied that it is necessary to override the wishes of the parent or guardian in order to give effect to the best interests of the child.

RECOMMENDATION 56

The consent of a child who has attained 18 years of age prior to the making of an adoption order cannot be dispensed with by the Court.

RECOMMENDATION 57

The legislation should provide that the Court must not make an order for the adoption of a child unless it is satisfied that the applicant or each of the applicants is or are:

• resident or domiciled in New South Wales at the time of making the application;
• over the age of 21 years and a minimum of 18 years older than the child (unless the applicant is a birth parent or relative of the child); and
• of good repute and a fit and proper person/s to fulfil the responsibilities of a parent.

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.

RECOMMENDATION 60

The legislation should require that a step-parent applicant has been cohabitating with the child’s parent for a continuous period of not less than three years before applying for an adoption order.

RECOMMENDATION 61

The parties to the adoption should reach agreement as to openness prior to the placement of the child with the adoptive family.

RECOMMENDATION 62

In applying for an adoption order, the parties must present to the Court their agreement for openness in the adoption. Prior to making an adoption order, the Court must be satisfied that the proposed arrangements are in the child’s best interests and are proper arrangements in the circumstances.

RECOMMENDATION 63

Adoptive parents of children under 18 years of age and adult adoptees should have the option of applying for a birth certificate in one or both of two forms:

• The first form should be exactly the same as the amended birth certificate which is currently issued for an adoptee, showing details of the adoptive parents and adoptive siblings, if any.
• The second form should be divided into two sections. The top section should show details of the birth parents and any birth siblings. The bottom section should show details of the adoptive family and the date of adoption.

RECOMMENDATION 64

Where one of two joint applicants to adopt dies before the making of the Adoption Order, the surviving adoptive parent should have the right to apply to the Registry of Births, Deaths and Marriages for a notation as to the deceased’s intention to adopt the child to be entered on the child’s amended birth certificate.

RECOMMENDATION 65

Agencies should continue to devote resources to post-adoption support, including provision of mediation services by appropriately qualified workers.

“Cultural heritage” should be defined, for the purposes of the legislation, to include:

“beliefs, morals, laws, customs, religion, superstitions, art, language, diet, dress and race”.

RECOMMENDATION 67

Legislation should require DOCS or the agency to take all reasonable steps to establish the cultural heritage of the child to be adopted.

RECOMMENDATION 68

A Cultural Heritage Placement Principle should be applied to every placement for adoption. The Cultural Heritage Placement Principle should take the following form:

When a child in need of permanent care is to be placed outside his or her birth family, then the order for priority of placement should be:

1. with an applicant or applicants of the same cultural heritage as the child;

2. with an applicant or applicants of a similar or compatible cultural heritage as the child;

3. with an applicant or applicants of a different cultural heritage from the child, who have demonstrated:

• the capacity to assist the child to develop a healthy and positive cultural identity;
• a willingness to learn about and teach the child about his or her cultural heritage;
• a willingness to foster links with that heritage in the child’s upbringing; and
• the capacity to help the child should he or she encounter racism or discrimination in school or in the wider community.

RECOMMENDATION 69

The legislation should contain a statement that provisions are enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is absent in customary Aboriginal child care arrangements.

RECOMMENDATION 70

The legislation should define an Aboriginal child as one of Aboriginal descent.

RECOMMENDATION 71

The legislation should require DOCS or an agency to make reasonable inquiry as to whether the child to be adopted is an Aboriginal child.

RECOMMENDATION 72

The legislation should deal expressly with the placement of Aboriginal children by the inclusion of an Aboriginal Child Placement Principle.

RECOMMENDATION 73

If, on reasonable inquiry, DOCS or the agency is satisfied that a child is Aboriginal, DOCS or the agency should apply the following Aboriginal Child Placement Principle in placing the child:

• The first preference for placement of an Aboriginal child should be with an applicant or applicants belonging to the community, or one of the communities, to which the birth parent or birth parents of the child belong.
• If it is not practicable or not in the best interests of the child to place him or her in accordance with the first preference, then the child should be placed with an applicant or applicants of another Aboriginal community.
• If it is not practicable or not in the best interests of the child to place him or her in accordance with the first or second preferences, then the child should be placed with a non-Aboriginal applicant or applicants. The Court must be satisfied that the applicant or applicants have the capacity to assist the child to develop a healthy and positive cultural identity and are willing to learn about, and teach the child about, his or her Aboriginal heritage and foster links with that heritage in the child’s upbringing.

RECOMMENDATION 74

In considering an application for adoption of an Aboriginal child, the Court must be satisfied that the Aboriginal Child Placement Principle has been properly applied.

RECOMMENDATION 75

Where DOCS or a private adoption agency has determined that a child to be placed for adoption is Aboriginal, prior to taking consent to the adoption, a consultation should be arranged between the birth parent(s) and an approved Aboriginal agency for the purpose of exploring the possibility of arranging care for the child in accordance with Aboriginal customary law.

RECOMMENDATION 76

If a birth parent refuses to consult face to face with the Aboriginal agency, the birth parent should be provided, at least 7 days before the taking of a consent, with an information kit prepared by the Aboriginal agency and setting out the matters that would have been canvassed by it in a consultation. When signing the consent form, the birth parent must sign an acknowledgement that he or she has read and understood the matters contained in the information kit.

RECOMMENDATION 77

The legislation should require the involvement of both an Aboriginal adoption worker employed by DOCS, or the private adoption agency, and an Aboriginal agency at all times in the placement process following taking consent for the adoption of the child.

RECOMMENDATION 78

Section 19(1A)(c) of the Adoption Act,(which allows people married by Aboriginal tradition to adopt) should be retained.

RECOMMENDATION 79

A Torres Strait Islander child should be defined as one of Torres Strait Islander descent.

RECOMMENDATION 80

The legislation should require DOCS or an agency to make reasonable inquiry as to whether the child to be adopted is a Torres Strait Islander.

RECOMMENDATION 81

The legislation should deal expressly with the placement of Torres Strait Islander children by the inclusion of a Torres Strait Islander Child Placement Principle.

RECOMMENDATION 82

If, on reasonable inquiry, DOCS or the agency is satisfied that a child is a Torres Strait Islander, DOCS or the agency should apply the following Torres Strait Islander Child Placement Principle:

• The first preference for placement of a Torres Strait Islander child should be with the child’s extended family.
• If it is not practicable or not in the best interests of the child to place him or her in accordance with the first preference, then the child should be placed with an applicant or applicants from the community, or one of the communities, to which the birth parent or birth parents belong.
• If it is not practicable or not in the best interests of the child to place him or her in accordance with the first or second preferences, then the child should be placed with an applicant or applicants of another Torres Strait Islander community.
• If it is not practicable or not in the best interests of the child to place him or her in accordance with the first, second or third preferences, then the child should be placed with a non-Torres Strait Islander applicant or applicants. The Court must be satisfied that the applicant or applicants have the capacity to assist the child to develop a healthy and positive cultural identity and are willing to learn about, and teach the child about, his or her Torres Strait Islander heritage and foster links with that heritage in the child’s upbringing.

RECOMMENDATION 83

In considering an application for adoption of a Torres Strait Islander child, the Court must be satisfied that the Torres Strait Islander Child Placement Principle has been properly applied.

RECOMMENDATION 84

Where DOCS or an agency has determined that a child to be placed for adoption is a Torres Strait Islander, prior to taking consent to the adoption, a consultation should be arranged between the birth parent(s) and an approved Torres Strait Islander agency for the purpose of exploring the possibility of arranging care for the child in accordance with Torres Strait Islander customary law.

RECOMMENDATION 85

If a birth parent refuses to consult face to face with the Torres Strait Islander agency, the birth parent should be provided, at least 7 days before the taking of a consent, with an information kit prepared by the Torres Strait Islander agency and setting out the matters that would have been canvassed by it in a consultation. When signing the consent form, the birth parent must sign an acknowledgement that he or she has read and understood the matters contained in the information kit.

RECOMMENDATION 86

The legislation should require the involvement of a Torres Strait Islander agency at all times in the placement process following taking consent for the adoption of the child.

RECOMMENDATION 87

Section 50 of the Adoption Act (which makes it an offence to make, give or receive payment or reward for the making of any arrangements for adoption, other than authorised expenses or fees, and which applies equally to local and intercountry adoptions) should be retained.

RECOMMENDATION 88

Payment of expenses reasonably incurred in the adoption, including reasonable legal expenses and expenses incurred by the sending country, but excluding compulsory donations, should continue to be authorised under the legislation.

RECOMMENDATION 89

Legislation should stipulate that unexpended monies paid in advance by applicants must be refunded at the completion of an adoption.

RECOMMENDATION 90

Legislation should prohibit applicants from having any contact, direct or indirect, with birth parents until the child has been allocated to those applicants by the overseas adoption authority and the allocation has been approved by DOCS and accepted by the applicants.

RECOMMENDATION 91

DOCS should be designated by appropriate Federal laws as the Central Authority in New South Wales having the authority, within New South Wales, over intercountry adoption given to Central Authorities by the Hague Convention.

RECOMMENDATION 92

No person or body other than DOCS should be permitted to:

• receive expressions of interest;
• decide whether or not to approve an applicant;
• issue approval/non-approval letters;
• seal the home study as an original;
• administer the appeal process in circumstances of non-approval; and
• approve an allocation made by the overseas authority.

RECOMMENDATION 93

Existing parent support groups, or any other non-government organisation, should be eligible to apply to be accredited to undertake the arrangement of intercountry adoptions.

RECOMMENDATION 94

Sections 10 and 11 of the Adoption Act (which provide, respectively, that a charitable organisation can apply for approval as a private adoption agency and that the Director-General may grant or refuse the application) should be retained.

RECOMMENDATION 95

Legislation should require an accredited body to be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

RECOMMENDATION 96

Legislation should explicitly give DOCS the power to supervise an accredited body’s composition, operation and financial situation and to require that an accredited body provide DOCS with audited accounts.

RECOMMENDATION 97

Legislation should provide for licensing requirements which restrict the directors, administrators and employees of an accredited body from receiving remuneration which is unreasonably high in relation to the services rendered.

RECOMMENDATION 98

Legislation should provide for licensing requirements which require DOCS and accredited bodies to act expeditiously in the process of an adoption.

RECOMMENDATION 99

Legislation should provide for licensing requirements which authorise accredited bodies to perform the following functions:

• to conduct information, preparation and education seminars;
• to assess expressions of interest;
• to arrange for assessment of applicants and preparation of the home study by an appropriate professional;
• to provide counselling;
• to prepare and collate required documentation;
• to forward adoption documentation to the overseas authority;
• to liaise and negotiate with the overseas authority;
• to receive allocation notifications;
• to arrange for the preparation of post-placement reports by an appropriate professional;
• to provide to DOCS and the overseas authority post-placement reports; and
• to obtain an adoption order in New South Wales, where applicable.

RECOMMENDATION 100

Legislation should provide for licensing requirements which prohibit accredited bodies being involved in fund raising, sponsorship and the sending of aid to an institution with which it has an intercountry adoption program.

RECOMMENDATION 101

Clause 29(2) of the Adoption Regulation (which provides that, before placing a child from overseas for adoption, the Director-General must obtain a report about the social, developmental and medical history of that child and his or her family) should be retained.

RECOMMENDATION 102

DOCS and the accredited agency must ensure that information received by them concerning the child’s origin, identity of birth parents and medical history is preserved and that access to such information is given to the adoptive parents and to the child, in accordance with the Adoption Information Act 1990 (NSW).

RECOMMENDATION 103

The State Government should negotiate with the Federal Government to include in conditions for the granting of an adoption visa the requirement that applicants travel to collect their allocated child.

RECOMMENDATION 104

Sections 46 and 47 of the Adoption Act (which provide, respectively, for the recognition of foreign adoptions where the adopters have been resident for at least 12 months or domiciled in the foreign country and for declarations of validity of such foreign adoptions) should be retained, although not as the only circumstances in which foreign adoptions will be recognised.

RECOMMENDATION 105

Legislation should give to the Director-General the power to “designate” countries which have ratified the Hague Convention and/or which conduct intercountry adoption in accordance with the Hague Convention. An adoption order made in a “designated” country in accordance with the law of that country should have, so long as it has not been rescinded under the law in force in that country, the same effect as if it were an order for adoption made in New South Wales, unless the adoption is manifestly contrary to the principles and practice provided for by the New South Wales adoption legislation.

RECOMMENDATION 106

Where a child is adopted from a non-designated country, legislation should require that a declaration of validity of the foreign adoption order be obtained in New South Wales.

RECOMMENDATION 107

Legislation should neither specifically prohibit nor specifically allow social parents to adopt a child born of a surrogacy arrangement.

RECOMMENDATION 108

The general provisions of the legislation should apply to applications to adopt following a surrogacy arrangement, in accordance with the recommendations in Chapter 4 of this Report relating to intrafamily and private placements.

RECOMMENDATION 109

Issues of genetic identity and access to information for children born with the aid of donor reproduction technology should not be dealt with in adoption legislation. The issues of any required consents, suitability for such procedures, or the keeping of, and access to, information surrounding donor reproduction technology should be the subject of a separate review and dealt with in specific legislation.

RECOMMENDATION 110

Issues of genetic identity and access to information for children born as a result of embryo donation should not be dealt with in adoption legislation. The issues of any required consents, suitability for such procedures, or the keeping of, and access to, information surrounding embryo donation should be the subject of a separate review and dealt with in specific legislation.