1 Introduction

The process of this review

  1. 1.1 In December 2015 the Attorney-General asked the Commission to provide recommendations to government on the modernisation of the Adoption Act 1984 (Vic) and the Adoption Regulations 2008.
  2. 1.2 The Chair of the Commission exercised his powers under section 13(1)(b) of the Victorian Law Reform Commission Act 2000 to constitute a Division to guide and oversee the conduct of the reference. The Chair of the Commission was the Chair of the Division.
  3. 1.3 Commissioner Liana Buchanan was appointed Principal Commissioner for Children and Young People on 4 April 2016 and did not participate in the reference. Commissioner Eamonn Moran retired as a Commissioner on 3 September 2016. He took no part in the Commission’s consideration of the Adoption by Same Sex Couples Review.
  4. 1.4 The Chair sought input from Professor Cathy Humphreys, Professor of Social Work at the University of Melbourne, and Professor John Tobin, Co-Director of Studies, Human Rights Law at Melbourne Law School at the University of Melbourne. They provided expert advice on the best interests of the child.
  5. 1.5 The Commission released a consultation paper on 10 August 2016, which provided background information, set out the legislative framework, and invited the public to respond.
  6. 1.6 The Commission received 61 submissions. Most are public and are on the Commission’s website.1 The submissions are listed at Appendix A.
  7. 1.7 The Commission held 38 public consultations from 10 August to 16 September 2016. The consultations are listed at Appendix B. Regional meetings were held in Bendigo, Geelong, Mildura and Shepparton. The Commission heard from a wide range of people, including:
  • individuals affected by adoption, either as adopted people or parents
  • groups representing adopted people, natural mothers and grandparents
  • families with young adopted children and children in care
  • legal practitioners with practices in adoption, permanent care and family law
  • young people who had been in care
  • adoption agencies and agencies that provide adoption parties with access to information
  • social workers involved in adoption
  • members of culturally and linguistically diverse communities
  • organisations with responsibility for caring for vulnerable children
  • Aboriginal and Torres Strait Islander peak bodies
  • the Working Party for the Recognition of Torres Strait Islander Child Rearing Practices.
  1. 1.8 The Commission explored avenues to seek the views of children. The Commission did not meet directly with children because the reference timeframe did not permit appropriate ethical and procedural requirements to be fulfilled. The Commission conducted a roundtable discussion with youth leaders from Project Bounce, a program for young people who have left out-of-home care.2

The scope of this review

Matters included

  1. 1.9 The terms of reference asked the Commission to make recommendations to modernise and amend the Adoption Actand Adoption Regulations.
  2. 1.10 At the time of its introduction, the Adoption Act represented a significant change in Victorian adoption policy. However, it is now over 30 years old, and in many respects out of step with modern understanding of the needs of children and contemporary law in relation to family and community. The overall aim is to ensure that the best interests of the child are paramount. The Adoption Act should operate harmoniously with other laws that have come into force since 1984. It should be structurally sound and in accordance with the way laws are drafted today. The Commission’s recommendations are directed towards these general outcomes.
  3. 1.11 The Commission identified areas in which the Adoption Act was in conflict or inconsistent with other Victorian or Commonwealth laws, for example:
  • the limits on the right of single people to adopt
  • the right of natural parents to express preferences about the religion, race and ethnic background of the adoptive parents
  • the inconsistency between recent amendments to the Adoption Act allowing adoption by same-sex couples and an exemption in the Equal Opportunity Act 2010 (Vic) which allows a religious body to discriminate as long as it acts in accordance with the ‘doctrines, beliefs or principles’ of the religion.
  1. 1.12 The terms of reference also required the Commission to look closely at specific aspects of adoption law, including:
  • how a child’s identity is recorded on a birth certificate
  • requirements about prospective parents’ relationship status
  • addressing any gaps in the information provisions
  • ensuring that the Adoption Act upholds the principles of the Charter of Human Rights and Responsibilities Act 2006 (Vic)and the United Nations Convention on the Rights of the Child.

 

Matters not included

  1. 1.13 Some matters, though relevant to the community and to adoption itself, are outside the scope of the review. Although the Commission acknowledges that they are matters of importance to many, the following could not be considered in this review:
  • Intercountry adoption programs and commercial surrogacy. The Government sees these matters as more appropriately considered at a national level.
  • Adoption by same-sex couples. The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) amended the Adoption Act to enable the adoption of children by same-sex couples and people who do not identify with a specific sex or gender. This legislation came into effect in September 2016. The Commission has considered some consequences of this legislation as part of its consideration of the Act’s harmonious operation with other relevant areas of law.
  • Contact statements. Provisions relating to contact statements and the associated offence were removed by the Adoption Amendment Act 2015 (Vic).
  1. 1.14 Some of those consulted believed the terms of reference should have included intercountry adoption programs and commercial surrogacy. It was observed that excluding intercountry adoption was artificial, as the Adoption Act provides for this form of adoption in Victoria. Others said expatriate adoptions should have been considered, as the children affected by this form of adoption are particularly vulnerable.3
  2. 1.15 Other matters were raised by the community but are not within scope of this review. These matters are briefly addressed in the following paragraphs:
  • Should adoption exist?
  • Reforms to child protection and the Children, Youth and Families Act 2005 (Vic)
    (CYF Act)
  • Should there be more adoptions?

The legal effect of adoption

  1. 1.16 Following birth, a child’s natural parent or parents are the child’s legal parents. An adoption order ends the legal relationship between the child and their parents.4 The law no longer recognises the natural parents as the parents of the child. The adoptive parents assume all the parental rights and responsibilities that belonged to the child’s birth parents before the adoption order was made. The law views the child as the adoptive parents’ child, as if the child had been born to them.5
  2. 1.17 This change is reflected in a number of ways. The child’s surname generally changes to the adoptive family’s surname. The child’s given names may also change.6 A new birth certificate is created which replaces the original birth certificate and indicates that the child was born to the adoptive parents.7 The child’s inheritance rights change.8
  3. 1.18 The change is permanent unless it is revoked by another order of the court, which ‘discharges’ the adoption.9
  4. 1.19 Adoption is one of a number of ways that parental responsibility is transferred from a child’s parents to other people. Two other main ways are:
  • permanent care orders under the CYF Act
  • parenting orders under the Family Law Act 1975 (Cth).
  1. 1.20 Unlike adoption orders, these orders do not extinguish the legal relationship between
    a child and the child’s parents. Also unlike adoption orders, they expire when the child turns 18.
  2. 1.21 The overarching principle which governs adoption in Victoria is that the ‘welfare and interests of the child’ are the ‘paramount consideration’.10This puts the child’s welfare and interests above the interests of the child’s birth parents, people wanting to adopt and adoptive parents.

Should adoption exist?

  1. 1.22 Many people urged the Commission to consider whether adoption should continue to exist. They said it can never be in the best interests of a child to change their identity and sever their relationship with their natural family.
  2. 1.23 This view was often expressed by people who had experienced forced, closed adoption practices. The Commission heard the same reports about people who were adopted under an open adoption process,11 who experienced a similar sense of loss and pain.
  3. 1.24 The terms of reference assume the ongoing existence of adoption in Victoria, so the Commission has not considered the option of abolishing adoption. While that question is outside the scope of the present review, it has been considered by other reviews of adoption law. None recommended that adoption should be abolished.12

Child protection and the Children, Youth and Families Act

  1. 1.25 There was community criticism that the terms of reference did not permit the Commission to consider the amendments to the CYF Act which came into effect on 1 March 2016.
  2. 1.26 A large number of people expressed the view that adoption should only be used in very limited circumstances, as a last resort.13 Many considered that permanent care orders under the CYF Act provide a preferable option in child protection situations. These orders do not legally sever existing family relationships. Currently, adoption is generally not used for child protection purposes in Victoria.
  3. 1.27 The CYF Act amendments introduced adoption as one of a list of ‘permanency objectives’ for children in the child protection system. The changes require the Department of Health and Human Services (DHHS) to consider adoption before other forms of permanent care.
  4. 1.28 The Commissioner for Children and Young People is reviewing the changes to the CYF Act, and is due to report in March 2017.

 

Should there be more adoptions?

  1. 1.29 Concern was expressed during consultations that the changes to the CYF Act, and this review by the Commission, will be used to increase the number of adoptions of children in the child protection system.
  2. 1.30 Where adoption is the permanency objective of a case plan made under the CYF Act, the adoption would be carried out under the Adoption Act. Thus the provisions of the Act relating to consent and dispensing with consent are within the scope of the reference.
  3. 1.31 The Adoption Act requires parental consent to an adoption, or the court may dispense with consent for a wide range of reasons. Concern was expressed about whether the grounds for dispensation are sufficiently robust to prevent a ‘new wave of forced adoptions’.14
  4. 1.32 The report considers these questions in context, for example in relation to consent and the grounds for dispensing with it in Chapter 8, and the role of the courts in Chapter 14.
  5. 1.33 The Commission makes no recommendations about whether the number of adoptions should increase or not. This is a matter of government policy, not a matter for the Commission.

The context of this review

Acknowledging the past

  1. 1.34 Many people have experienced adoption or been exposed to issues relating to adoption. The number affected (including natural parents, adoptive parents and the adopted person) has been estimated to be one in 15.15Many of these experiences were of closed and ‘forced’ adoption practices, which resulted in significant trauma. These practices have been the subject of inquiries, which led to apologies by the Commonwealth Parliament and state and territory parliaments.16
  2. 1.35 The Commission acknowledges the harm caused by past forced adoptions. In making its recommendations, the Commission has been mindful of the urging of the Senate Community Affairs References Committee in its report into the Commonwealth contribution to former forced adoption policies and practices to ensure that the mistakes of the past are never repeated.17

The present era

  1. 1.36 The Adoption Actbrought in open adoption, reflecting changes in social values and understanding. Since then, community attitudes and laws relating to family have developed further (the Assisted Reproductive Treatment Act 2008; Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), and changes to the Family Law Act 1975 (Cth)). Australia also ratified the United Nations Convention on the Rights of the Child in 1990.18
  2. 1.37 The Adoption Act has accommodated some of these changes through amendment, incorporating the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, gradually increasing the rights of access to information, introducing the right for de facto couples to adopt and most recently, the right for
    same-sex couples to adopt. The key amendments are set out in the Commission’s consultation paper.19
  3. 1.38 Amendments have been piecemeal and have made the Adoption Act complex and difficult to navigate. In addition, the language is out of date and its structure is not in keeping with modern drafting.

Adoption laws around Australia

  1. 1.39 The states and territories have jurisdiction over adoption and child welfare laws. Some efforts have been made to harmonise national adoption policy and practice. Model adoption legislation was enacted in 1965 as an ordinance of the Australian Capital Territory,20and was implemented in Victoria in the Adoption of Children Act 1964 (Vic). In 1993, National Principles in Adoption were developed through the Community and Disability Services Ministers’ Conference. To date the National Principles have no legal standing.
  2. 1.40 Most Australian states and territories have conducted reviews of their adoption laws in recent years.21

Adoption numbers in Australia22

  1. 1.41 Numbers of adoptions in Australia are at an all-time low. From a high in 1971–72 of almost 10,000 adoptions nationally, 45 local adoptions were finalised in Australia in 2015–16. Of these, 15 were in Victoria.23
  2. 1.42 More males (28) were adopted than females (17). No siblings were adopted. All local adoptees were under five, with 47 per cent aged under 12 months.
  3. 1.43 The median age of mothers at the time of the child’s birth was 26, with ages ranging from 14 to 42. Most (93 per cent) were not in a registered marriage. In contrast, almost all (96 per cent) of the adoptive parents involved in local adoptions in 2015–16 were in a registered marriage. One de facto couple (2.2 per cent) adopted a local child.
  4. 1.44 Nationally, 94 per cent of local adoptive parents were aged 30 or over.
  5. 1.45 For almost 64 per cent of local adoptions, consent for the adoption was given by the mother only. For the remaining 36 per cent, both parents provided consent, compared to 40 per cent in 2014–15 and 24 per cent in 2013–14.
  6. 1.46 At the time of finalising, a degree of contact or information exchange between families was agreed to in 89 per cent of local adoptions. Since 2001–02, the proportion of local adoptions where the birth and adoptive families agreed to allow some type of contact or information exchange has generally been well above 80 per cent.24
  7. 1.47 During 2015–16, 151 known-child adoptions were finalised nationally.25 While the overall number of adoptions continues to fall, known-child adoptions represent an increasing proportion of all adoptions (54 per cent in 2015–16, compared with 45 per cent in 2012–13). Of the known-child adoptions, 97 (64.2 per cent) were in New South Wales, 22 in Western Australia (14.6 per cent) and 10 (6.6 per cent) in Victoria. The Australian Institute of Health and Welfare (AIHW) reports that the numbers of known-child carer adoptions in New South Wales have reduced, reflecting in part the application of guardianship orders for children in out-of-home care, from late 2014.26

Adoption numbers in Victoria27

  1. 1.48 In Victoria in 2015–16, there were 15 local adoptions and 10 known-child adoptions.28 In 2014–15, there were 24 local adoptions and five known-child adoptions.29 For each of these periods, all known-child adoptions were adoptions by step-parents.
  2. 1.49 In relation to local adoptions in Victoria in 2014–15, slightly more females (13) were adopted than males (11). Their ages ranged from one to two years. The median age of mothers at the time of the child’s birth was 23, with their ages ranging between 16 and 40 years. Almost all mothers (96 per cent) were not in a registered marriage. In contrast, all adoptive parents were in a registered marriage. Adoptive parents’ ages ranged between 30 and 49 years. In 75 per cent of local adoptions (18), consent to the adoption was given by the mother only. At the time of finalising, almost 96 per cent of local adoptions involved agreement to a degree of contact or information exchange between parties.30
  3. 1.50 Of the 24 local adoptions in 2014–15, five were arranged by DHHS Adoption and Permanent Care teams and 19 were arranged by a non-Government approved adoption agency.
  4. 1.51 The Commission reviewed and collected de-identified data from 244 County Court adoption matters from 1 July 2010 to 30 June 2016. In that period the court decided 168 applications for adoption orders in relation to children and 74 for adults.31 Two applications were contested. There were three applications to dispense with a mother’s consent and 14 orders to dispense with a father’s consent.32 The Court made 17 orders for discharge of an adoption order. All the applications for discharge were made by adults. No application was made for discharge on the grounds that the order had been obtained by fraud, duress or improper means.33 There were 11 adult adoptions during 2014–15.34

 

Open adoption

  1. 1.52 Severance of the legal relationship between the child and their natural parents is an essential characteristic of modern adoption legislation.
  2. 1.53 Victoria’s first adoption legislation, the Adoption of Children Act 1928 (Vic) introduced the amended birth certificate for adopted people. This was seen as necessary to ‘cover up … the fact of an adoption’ and protect the child from the ‘unfortunate stigma of illegitimacy’.35 The Adoption of Children Act 1964imposed secrecy at all stages of the process. The practice of issuing an amended birth certificate was maintained, and the records of the adoption order were kept secret. The original birth certificate was only made available by court approval.36
  3. 1.54 Over the 20th century, the focus and purpose of adoption legislation shifted. The Adoption Actmade significant changes to practice and introduced open adoption.37

What is open adoption?

  1. 1.55 Open adoption facilitates sharing of information and contact between the adoptive and biological parents of an adopted child, before and/or after the placement of the child, and perhaps ongoing.38 At a minimum it allows an initial exchange of information between the adoptive and natural families, including information about the backgrounds of the parents. It may involve meetings between natural and adoptive parents, and periodic exchange of information. The type of contact varies, from face-to-face meetings to telephone calls or annual letters, reports and photos. If parties agree, identifying information may be exchanged and parties may have ongoing contact.39
  2. 1.56 Typically, contact arrangements in Victoria commence as ‘semi-open’.40 Non-identifying information is given to the birth and adoptive parents by the agency at the beginning of the placement, and birth parents may have a role in selecting the adoptive parents from profiles.41 Contact may become ‘fully open’ over time as the families begin to feel confident to make and maintain direct contact.
  3. 1.57 At the time of the introduction of open adoption the level of openness was limited, due to fears that natural parents would intrude into the adoptive family, compete with the adoptive mother and confuse the child. Many believed that closed adoptions would still be possible and only a minority of adoptions would embrace openness. By 1997 it was reported that the majority of adoptions had some degree of openness.42 In 2014–15, 96 per cent of Victorian local adoptions agreed to a degree of contact or information exchange between families.43
  4. 1.58 There is little research about the practice and effects of open adoption in the Victorian context. A 2005 study looked at the experience of 60 children aged between eight and 16 who were adopted in Victoria as healthy infants. It documented patterns of post-placement contact between the children and their birth families.
  5. 1.59 In summary, the study found that:
  • Of the 60 children, 37 had some post-placement contact with their natural families, 19 experiencing regular, ongoing, in-person contact.
  • Twenty three children had no contact with their natural family at all.
  • Visiting was the primary form of contact when it did occur.
  • Adoptive and birth families often had less contact than had been planned at the time of placement.
  • Most contact was with the birth mother, but contact also occurred with other birth family members, particularly grandparents. There was a relatively low level of contact with birth fathers, particularly ongoing or substantial contact.
  • Some children experienced emotional disturbance associated with their contact, or lack of it, with their natural family. For some children this disturbance took the form of sadness, anger, missing, yearning for, and worrying about the birth family. Others experienced feelings of rejection, confusion and pain over separation from the birth mother.
  • No matter what pattern of contact children had, a minority of them were troubled by their contact situation. Common experiences reported by parents of these children included emotional distress associated with feelings of rejection, missing the birth family, and concern for them.
  • Even for the children troubled by their contact situation, contact was seen to satisfy their desire for information about their origins, and gave them a feeling of being reconnected with their birth family. It also seemed to have a positive effect on their identity and self-esteem.
  • Adoptive parents felt the contact itself was a positive experience for the child, and usually for themselves as well.
  • Children seemed to benefit most from ongoing, regular contact with their natural family. It was important that contact was stable and predictable rather than intermittent and unpredictable.44
  1. 1.60 Another study, in 2007–2008, explored the experiences of mandated contact arrangements from the natural parents’ perspective. The study interviewed 15 Victorian mothers who had relinquished a child for adoption under the Adoption Act.45 At the time of interview, the women were aged between 21–50 years.
  2. 1.61 The study found that:
  • Court-ordered openness does not seamlessly translate into regular contact between the mother and her relinquished child.
  • Only seven of the 15 mothers experienced ongoing face-to-face contact with their adopted child. Two had suspended contact themselves, three had experienced complete contact breakdowns with the child, and three had information-only exchange mandated in their adoption order.
  • Generally the mental health of the mothers was significantly poorer than that of the general population, demonstrating elevated levels of anxiety and depressive symptoms.
  • At the time of setting the contact conditions, the mothers had not understood what their contact needs would be, or what their child’s contact needs would be.
  • The mothers felt a reduced sense of entitlement and reluctance to intrude on the adoptive family’s life. They did not generally enforce contact where it diminished or broke down.
  • Generally mothers valued the existence of an enforceable condition, despite not enforcing it.
  • All found contact difficult and traumatic but overall felt contact was better than no contact.
  1. 1.62 From these studies it can be seen that even where openness is mandated and attempted, it is not always achieved, and that open adoption is not able to provide an unqualified solution for a child’s loss of connection with their biological family, or a mother’s loss of her child.

Adoption in practice

  1. 1.63 Broadly speaking, there are three main stages in the adoption process:
  2. 1) A child’s parents (or parent) make a decision to have their child adopted (or a court decides that an adoption should proceed without the agreement of the parents or parent).
  3. 2) The child is placed with new parents who have been approved to adopt a child.
  4. 3) A court makes an order which finalises the adoption.
  5. 1.64 The legal requirements and procedures are set out in Victoria’s adoption legislation and court rules:
  • the Adoption Act 1984 (Vic)
  • the Adoption Regulations 2008 (Vic)
  • the Supreme Court (Adoption) Rules 2015 (Vic).
  1. 1.65 Both the Supreme Court of Victoria and County Court of Victoria have jurisdiction to make adoption orders.46 In practice the County Court makes most of the adoption orders in Victoria.
  2. 1.66 DHHS is responsible for the adoption system.47 Adoptions are arranged by adoption and permanent care teams within DHHS and approved non-government agencies. These teams are involved in all aspects of the adoption process. They assist parents who are considering having their child adopted, assess and approve people who want to adopt a child, facilitate and monitor placements of children with the adoptive parents, and provide reports to the court when it is deciding whether to make an adoption order. They also run adoption information services which assist adopted people and family members seeking information about past and current adoptions.
  3. 1.67 Applicants are required to apply to the agency in their region. The exception is CatholicCare, which has statewide coverage.
  4. 1.68 The adoption process is set out in detail in Chapter 3 of the Commission’s consultation paper.

 

Adoption as ownership

  1. 1.69 The transfer of legal parenthood resembles the transfer of ownership of property, in which the legal rights of adoptive parents prevail over biological reality.48 This was consistent with contemporary understanding of the family at the time adoption legislation was developed in Australia, when ‘ownership’ of a person was not foreign to the law.49 The concept of children as property is inherent in the processes of adoption, with transfer of ownership, naming rights and indefeasibility of title.
  2. 1.70 These concepts no longer sit comfortably with the modern understanding of adoption. However, while adoption discourse focuses on the best interests of the child and openness has been introduced, the overall legal framework has not changed.
  3. 1.71 Adoption continues to create a new legal parentage for the adopted child, who receives a new birth certificate which features the names of their adoptive parents ‘as if the child had been born’ to them,50 and legally severs them forever from their natural family. It is difficult to reconcile these effects with current understanding of the best interests of children, which emphasises as a need and a right their continued relationship with their family of origin.51
  4. 1.72 Adoption has been seen historically as a private family matter in which the state should not be involved once an adoption order is legalised.52 Contemporary values emphasise the purpose of adoption as a service for children whose family are not able to care for them. The Commission considers that as the state arranges their adoption, it is appropriate that it assume some responsibility for the needs and rights of these children. This view has informed the Commission’s recommendations in relation to adoption support, discussed in Chapter 15.

Themes and issues

  1. 1.73 Overarching themes and issues emerged from research and community consultations, which informed the Commission’s analysis and recommendations, and are introduced in the following paragraphs:
  • lifelong effects of adoption
  • trauma
  • identity
  • openness and barriers to it
  • participation of the child
  • support
  • transparency and clarity.

 

Lifelong effects of adoption

  1. 1.74 Consultations and submissions emphasised the lifelong effects of adoption. The focus of decision making needs to shift to consider the effects on the adopted person as an adult, not just as a child. Discussion and recommendations in this report take into account the understanding that adoption is permanent, that an adopted person becomes an adopted adult, and adoption affects an adopted person’s extended, past and future families.

Trauma

  1. 1.75 It is now accepted that people affected by past forced adoption practices have experienced trauma.53 However, some people who have experienced ‘successful’ adoptions with happy, loving adoptive families have also experienced trauma. Adopted people have described psychological and emotional harm to the child and parent, and the ongoing, intergenerational effects of changing a person’s identity and severing their legal relationship with their family. Research also points to genealogical confusion in adopted people, particularly where information about and contact with natural parents has not been exchanged.

Identity

  1. 1.76 Identity formation can be problematic for adopted people, leading to a range of difficulties during childhood and in later life.54 While there are divergent views on the causes and possible solutions for these issues, it is clear that a lack of genuine openness in many adoptions compounds this problem.

Openness

  1. 1.77 When open adoption was introduced under the Adoption Act, it opened up access to information about past adoptions. It was also intended to enable ongoing contact and information exchange between the adopted child and their family of origin.
  2. 1.78 However, it is clear to the Commission that open adoption is not entirely effective in practice in Victoria. A strong culture of confidentiality and sometimes secrecy remains. Some confidentiality is justified to protect parties’ psychological or physical safety. However, there is a continuation of historical legislative provisions which are not consistent with the principle of openness and not in the best interests of the adopted person.
  3. 1.79 The benefits of openness for all parties are now sufficiently established to enable the Adoption Act to take steps towards greater openness.

Barriers to openness

  1. 1.80 Secrecy still pervades the adoption process.
  2. 1.81 Many provisions in the Adoption Act impose barriers to openness which are not justified or necessary. For example:
  • Records relating to adoption are closed and access to adoption information is restricted and regulated.
  • The child is given a new identity and name on the making of the adoption order.55
  • Natural parents and adoptive parents are not told each other’s full names. The proposed adoptive parents (the applicants for the adoption order) never see the child’s birth certificate56 and do not know the child’s surname. Searching for adoption information and contact must be mediated by the agency or Adoption Information Service. Adoptive parents are not able to include the name of the child’s family of origin in their adopted identity.
  • Adoptive parents are not required to tell their child they are adopted.
  • Adoption proceedings are heard in closed court.57
  1. 1.82 A range of provisions inhibits openness in relation to birth certificates. The birth certificates of adopted people are discussed in Chapter 6.
  2. 1.83 Likewise, openness is compromised by a range of provisions in relation to access to information:
  • Before the age of 18, an adopted child is not entitled to apply for information through an adoption information service without their adoptive parents’ agreement.58
  • An adoption information service cannot give the child any information which would reveal the natural parents’ identities without their consent (or evidence of their death).59
  • An adoption information service cannot give an adoptive parent information which would reveal the identity of a natural parent without that person’s consent.60
  • Records relating to adoptions cannot be made available to anyone in most circumstances.
  • All documents filed in court are confidential61 and must be kept secret.
  1. 1.84 During consultations, great sadness was expressed by those affected by past adoption practices, and by adoptive parents whose efforts to maintain contact with natural parents and siblings are frustrated by the requirements of confidentiality.
  2. 1.85 Additionally, the preservation of secrecy in the adoption process sits uncomfortably with reforms to other laws relating to family and children, which provide greater rights to extended family to be informed of events and involved in decision making affecting a child.
  3. 1.86 While submissions and consultations expressed widespread general support for the principle of openness in adoption, there remain concerns about its practical implementation.62 Some consider it is not open enough, but others raised concerns about the effect of openness on individual privacy.63
  4. 1.87 Throughout this report the Commission makes recommendations to facilitate greater openness in the adoption process. In formulating its recommendations, the Commission has been mindful that some confidentiality remains appropriate, to protect those who may be at risk of harm.

 

Participation of the child

  1. 1.88 Adopted people told the Commission that the needs of prospective parents have taken precedence over their interests too often. They pointed out that often the person to be adopted is the object of the decision, not an informed and active participant.
  2. 1.89 While the child is the central figure in an adoption, current law does not provide well for children’s views to be considered at key stages. The ‘best interests of the child’ principle requires that the child be informed and participate in decisions as much as possible.
  3. 1.90 In this report the Commission has tried to ensure that the voices of adopted people are heard.

Support

  1. 1.91 It was traditionally assumed that support is not necessary after an adoption. Now it is known that support is needed to help all parties affected by adoption at key points in their lives. This includes natural parents and their families, siblings, children and subsequent generations. For open adoption to be effective, all parties to an adoption need support, before and after the adoption.

Transparency and clarity

  1. 1.92 The community and stakeholders spoke about the need for greater transparency and clarity in the expression of the legislation. There was consensus that the best interests principle should be clarified, and the objects of the Adoption Act expressed. Adoption agencies want clarity in a range of decision making contexts. Adoption information services want clarity about release of adoption information. Applicants for adoption asked for more information about the rules and processes of adoption. These matters are addressed throughout the report.

Challenges for the Commission

  1. 1.93 In conducting this review, the Commission has extensively researched the law and practice of adoption in Victoria and other jurisdictions, and has consulted widely with the community. However, it has faced certain challenges during its inquiries, in particular:
  • lack of data
  • limited research.

The lack of data

  1. 1.94 To inform the review, the Commission sought detailed data from DHHS in relation to adoption numbers, practices and services.
  2. 1.95 DHHS provides data annually to the Australian Institute of Health and Welfare (AIHW), for publication in its report Adoptions Australia.64 However, because the AIHW does not report on a range of matters which the Commission sought to investigate, the Commission sought additional data from DHHS.
  3. 1.96 There were difficulties obtaining some of the data the Commission sought, as Victorian agencies do not maintain consistent, comprehensive statewide data on adoption services. In some cases manual review of files was undertaken to provide information requested by the Commission.
  4. 1.97 The Commission negotiated with Statutory and Forensic Services in DHHS’s Community Services Programs & Design Branch to determine which data could feasibly be made available. In answer to specific questions agreed between DHHS and the Commission, data was provided to Statutory and Forensic Services by the regional agencies which provide adoption services. Overall, the data was inconsistent and unclear and the Commission was not able to rely on it.
  5. 1.98 The Commission considers DHHS should maintain comprehensive, reliable and consistent statewide data on the operation and service delivery of adoption services. Data collection should not simply comply with national reporting requirements but should be designed to assist the Department to understand how the services are being provided and evaluate whether they meet the needs of children and other clients, and to provide an evidence base to improve policy and performance in this area.
  6. 1.99 Likewise, comprehensive data is not available about adoption matters heard in the County Court. Limited data is provided in the Court’s annual reports. The Commission collected de-identified data from a review of County Court adoption files from 1 July 2010 to 30 June 2016. The team reviewed all applications related to adoptions made in that period. Generally, judicial reasons for the making of an adoption order are not published. The role of the court is discussed in Chapter 14.

Research—the effects of adoption

  1. 1.100 Research has demonstrated the harmful effects of placement instability, and the importance of timely decisions to meet children’s needs for permanency when they are separated from a parent. Research also shows that delay and ‘drift’ cause both short-term and lifelong damage. However, there is a lack of empirical evidence to support the assumption that adoption is the most beneficial form of permanent care.
  2. 1.101 Assertions and arguments about the superior outcomes of adoption focus on its short-term benefits without addressing its lifelong effects.65 Research has not explored or compared particular permanency solutions over the long term.66
  3. 1.102 Almost all the evidence about the long-term effects of adoption is based on experiences of forced, closed adoption practices. Early support for open adoption assumed that the harm of adoption was caused by lack of information and contact between the adopted person and their natural family. It was not considered whether adoption itself might be part of the problem.
  4. 1.103 During the review process the Commission was told of the long-term damage caused by adoption as a result of past adoption practices.People adopted under an open adoption system also told the Commission about similar damage. One parent spoke about adoptive parents generally observing that their adopted children and adults appeared to have less resilience when faced with life’s challenges.67 Adopted people described a sense of loss of identity and connection with their natural family.68
  5. 1.104 There is limited research into open adoption in Australia, and questions remain about how it works in practice over the life of an adopted person. While some research is emerging from the United States and the United Kingdom, the different policy and legislative environments in these jurisdictions make its application to the Victorian context doubtful.69
  6. 1.105 This gap should be rectified before policy is formulated on the basis of an assumption that adoption is the best form of care to provide permanency for children who cannot live with their parents. This assumption is not supported by sound evidence.
  7. 1.106 The Commission acknowledges that the child protection system in Victoria struggles to manage the growing number of children requiring out-of-home care. However, it has come to the view that caution is needed before embracing adoption as a solution to the needs of children in out-of-home care.70

Other forms of care

  1. 1.107 As observed above, many people expressed disappointment that the terms of reference did not permit the Commission to consider adoption in the context of other options for the care of children.
  2. 1.108 The following section provides a brief outline of other forms of orders and discusses the issue of permanency in the context of this review.

Permanent care orders

  1. 1.109 The AIHW observed in its annual report, Adoptions Australia 2015–1671 that some Australian jurisdictions have focused on improving stability and permanency for children ‘through long-term care and protection orders that transfer guardianship and custody of a child’.72 As an example, the AIHW refers to the use of permanent care orders in Victoria as ‘an alternative to adoption’.73 The report also includes data in relation to permanent care orders made in Victoria.74
  2. 1.110 Permanent care orders were introduced in Victoria in 1992.75 The intention of a permanent care order is to provide a permanent substitute family and to create enduring bonds for a child who is not able to live with their biological family and for whom there is no consent to adoption. Permanent care orders are made in relation to children in Victoria’s child protection system.76
  3. 1.111 Unlike an adoption order, a permanent care order does not extinguish the legal relationship between the child and their natural parents. A permanent carer is required to preserve the child’s identity and connection to their culture of origin, and the child’s relationships with their birth family.77 A permanent care order usually includes conditions about ongoing contact between the child and members of their birth family.78
  4. 1.112 A permanent care order is also more open to challenge by the child’s parents than an adoption order.79 This is said to create uncertainty about the permanence of the placement, which can affect a child’s sense of security and act as a barrier to the recruitment of prospective permanent care families.
  5. 1.113 Permanent care orders are made by the Children’s Court of Victoria under the CYF Act. They grant a person ‘parental responsibility’ for the child ‘to the exclusion of all other persons’, including the child’s parents.80 Parental responsibility encompasses ‘all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children’.81 A permanent care order remains in force until the child turns 18 or marries.82
  6. 1.114 Today, substantially more permanent care orders are made in Victoria than adoption orders. In 2015–16, 503 permanent care orders were made, compared to 15 orders for local adoption and 10 orders for known-child adoption. In 2014–15, 277 permanent care orders were made, compared to 24 orders for local adoption and five orders for known-child adoption.83 While the number of permanent care orders made each year in Victoria has fluctuated year-to-year since their introduction in 1992, the number of orders has continued to increase over time.84 The Children’s Court of Victoria has granted 4466 permanent care orders since 1992.85

Adoption as a source of permanency

  1. 1.115 Placement instability and ‘drifting’ in out-of-home care leads to poor mental health outcomes and ever-increasing state expenditure.86 Adoption is promoted by some as a solution to problems in the child protection area. This view assumes that adoption is the most beneficial form of permanent care for a child who is not able to live with their parents.
  2. 1.116 The Commission recognises the importance of timely decisions to meet children’s needs for permanency. However, a range of options is available. The question to be asked is: what is the best form of care for each child in their particular circumstances?
  3. 1.117 A 2005 report by the Standing Committee on Human and Family Services, Overseas Adoption in Australia: Report on the Inquiry into Adoption of Children from Overseas87criticised an ‘anti-adoption’ culture in Australia and advocated a revision of the approach to adoption. The committee expressed its concern that ‘due to past practices, adoption generally has become the poor relation of child protection in Australia’.88
  4. 1.118 As discussed above, in Victoria, permanent care orders provide a long-established alternative to adoption. While foster care is a temporary arrangement that aims to reunite children with their birth parents, permanent care orders are made when reunification is not possible. The order is usually made after a child has spent some time in foster care, and expires when the child turns 18.89
  5. 1.119 A group of young people who had experienced a range of out-of-home care situations told the Commission that children want to feel that they belong:90

Belonging means a sense of love, a family unit; love from them, trusting them, bonding with them, knowing they’ll be by your side, nurturing. You feel like someone ‘has your back’ and can’t just throw up their hands and say, ‘not my problem’.

  1. 1.120 These young people did not identify adoption as providing a different sense of belonging than permanent care.91
  2. 1.121 A report for the Australian Institute of Family Studies in 2007 reviewed 21 studies researching outcomes for children and young people in care.92 The authors drew a range of conclusions:
  • The majority of children in care obtain a stable and suitable placement within their first 12 months in care. Ongoing and severe placement disruption affects a relatively small sub-group of children in care.93
  • Placement disruption extending beyond 12 months should be closely monitored.
  • Children with a history of placement disruption experienced an average of 11 placements during their time in care. The study showed a strong coincidence of early trauma and abuse and subsequent placement instability.
  • Children with a history of placement disruption tend to have a family history characterised by significant trauma.
  • Foster care appears to be unsuitable for a small sub-population of young people in care. There is an urgent need for a wider range of placement options for this sub-group.
  1. 1.122 In relation to the last point, the options include family-like placement, intensive therapeutic support and group residential accommodation. The authors do not mention adoption.94
  2. 1.123 The Commission does not regard adoption as the solution to problems in the child protection area, but as one of a range of options, to be considered for each child in their particular circumstances.

Structure of this report

  1. 1.124 Adoption law and practice are complex and multi-layered. The terms of reference for this review did not lend themselves to neat partition. The report follows as closely as possible the sequence of the adoption process. It commences with analysis of the way the Adoption Act might be modernised and the principles that should apply to the practice of adoption.
  2. 1.125 Chapters 3–5 broadly focus on the adopted child, covering their participation in the process, post-adoption contact arrangements between the child and their natural parents, and the paramount principle guiding adoption decisions: the best interests of the child.
  3. 1.126 Chapter 6 discusses the birth certificates of adopted people. Adopted people are issued with new birth certificates which identify the people who have adopted them as their parents.
  4. 1.127 Chapter 7 looks at how the law should provide for the adoption of Aboriginal and Torres Strait Islander children. Chapter 8 discusses the natural parent’s consent to the adoption of their child, which is the starting point of adoption.
  5. 1.128 The focus then turns to applicants for adoption. Chapter 9 discusses the difficult question of discrimination in adoption law, policy and practice, in which decisions made in the best interests of the child may conflict with the rights of others. Chapters 10–12 discuss eligibility to adopt, assessment and suitability and the selection of adoptive parents. Chapter 13 examines exceptions in the Equal Opportunity Act 2010 (Vic) which may permit a faith-based organisation to refuse to provide adoption services to particular people.
  6. 1.129 An adoption becomes final when the court makes an adoption order. Chapter 14 discusses the role of the court in adoption.
  7. 1.130 Chapter 15 considers whether the Adoption Act provides sufficient support for people affected by adoption, including not only the adopted person but also their natural parents and adoptive parents.
  8. 1.131 Chapter 16 explores people’s rights to adoption information. Many people who were adopted under previous, closed adoption practices are affected by these rules as well as those adopted under the current legislation.
  9. 1.132 Chapter 17 concludes the report.

Footnotes

Main menu

Back to top