10 Eligibility to adopt

Introduction

  1. 10.1 The Adoption Act 1984 (Vic) sets out eligibility criteria which applicants must meet in order to be able to adopt a child.1
  2. 10.2 Couples, step-parents and relatives of a child must satisfy the eligibility criteria in order to be able to make an application to the Secretary or principal officer to be assessed and approved to adopt.2 All applicants, including sole applicants, must also satisfy the eligibility criteria before the court can make an adoption order.3
  3. 10.3 This chapter is divided into three parts.
  4. 10.4 The first part of this chapter explains the eligibility framework in the Adoption Act and the adoption of adults.
  5. 10.5 The second part considers the eligibility requirements that must be satisfied before an applicant can adopt from the local adoption program. The Adoption Act prescribes that couples who meet eligibility criteria based on their relationship status and living arrangements can apply to be assessed for approval to adopt.4 Sole applicants, including single people, are only eligible to adopt if special circumstances exist in relation to the child which make the adoption desirable.5 This part also reviews the consequences of widening the eligibility criteria under the Adoption Act.
  6. 10.6 The third part of this chapter considers ‘known-child’ adoption. Currently, only step-parents and relatives are able to adopt children known to them.6 Known-child adoptions are generally discouraged. The Adoption Act demonstrates a preference for orders under the Family Law Act 1975 (Cth).7
  7. 10.7 This part also examines whether the Adoption Act should provide a pathway to adoption from permanent care, and in what circumstances. The Adoption Act does not specifically allow a person caring for a child subject to a permanent care order under the Children, Youth and Families Act 2005 (Vic) (the CYF Act) to adopt that child.

Eligibility framework

  1. 10.8 The Adoption Act recognises two types of adoption, based on the nature of the consent given to the child’s adoption by its natural parents:
  • General consent.8 Natural parents may give general consent to their child’s adoption. Once consent is given, the child comes under the guardianship of the Secretary or principal officer9 and the child is able to be adopted by a couple, or by one person in special circumstances, with whom they have had no previous relationship. General consent is given in local adoption.
  • Specific consent.10 Natural parents may give consent to their child’s adoption by a specific step-parent or relative. Once consent is given, the child does not come under the guardianship of the Secretary or principal officer11 and their legal relationship with their non-resident parent is only severed at the time the adoption order is made. Specific consent is given in known-child adoption.

Adoption of adults

  1. 10.9 The Adoption Act recognises that anyone who has ‘brought up, maintained and educated’ a person as if they were their parent12 (such as a foster parent), is eligible to adopt a person who has attained the age of 18.
  2. 10.10 An adult can be adopted provided special circumstances exist that make the adoption desirable.13 Consent of the person’s natural parents is not required,14 but the consent of the person being adopted is required.15
  3. 10.11 From 2010 to 2016, 74 out of 244 adoptions (30 per cent) were adult adoptions.16
  4. 10.12 The Commission has not made recommendations regarding the eligibility requirements to adopt a person who has attained the age of 18. The Adoption Act appropriately reflects a person’s autonomy to choose to be adopted by a parental figure in their life, once they have reached adulthood.

Local adoption

  1. 10.13 In Australia, local adoptions are defined as adoptions of children who were born or permanently reside in Australia, and who are able to be placed for adoption with prospective adoptive parents with whom generally they have had no previous contact or relationship.17
  2. 10.14 In Victoria, to adopt through the local adoption program, applicant(s) must be:18
  3. a) a couple in a qualifying relationship
  4. b) a sole applicant in special circumstances.
  5. 10.15 Adoption by couples and single people are discussed in turn below.

 

Adoption by a couple

Current law and practice

  1. 10.16 Couples must satisfy the eligibility criteria under the Adoption Act before the Secretary or principal officer may assess their suitability to adopt a child.19 Later in the process, the court may make an adoption order in their favour if the eligibility criteria are satisfied.20
  2. 10.17 The eligibility criteria stipulate that couples must have been:
  • married for no less than two years21
  • in a traditional Aboriginal marriage for no less than two years22
  • in a registered domestic relationship for no less than two years23
  • living in a domestic relationship for no less than two years24
  • living with each other in any combination of the relationships referred to above, for no less than two years.25
  1. 10.18 Couples are not eligible where one person within a domestic relationship is married to another person or in a registered domestic relationship with another person.26 For example, if they have not divorced their previous partner.
  2. 10.19 Same-sex couples are eligible to adopt if they have been in a registered domestic relationship or living in a domestic relationship for no less than two years.27
  3. 10.20 In 2015–16, of the adoptive parents who adopted through a local adoption program in Australia, 43 (95.6 per cent) were married and one couple (2.2 per cent) was in a de facto relationship.28
Relationship of two years duration
  1. 10.21 All couples are required to have been in a relationship for at least two years.29
  2. 10.22 The two-year eligibility threshold developed from adoption agency practice under the previous Adoption of Children Act 1964 (Vic). That Act was silent on a ‘two-year’ requirement but agency practice at the time required couples to have been married and living together for at least two, preferably three, years30 to allow a couple time to make the adjustments ‘necessary to bring stability to the marital relationship’.31
  3. 10.23 The 1983 Report of Adoption Legislation Review Committee recommended that qualifying relationships under the Act should have continued for a period of no less than two years.32 This was later reflected in the Adoption Act, with the reasoning that it established that a couple were in a ‘stable relationship’.33
  4. 10.24 A need for stability is recognised four times within the Adoption Regulations 2008 (Vic) in relation to the assessment criteria, which includes an assessment of ‘the stability and quality of the applicants’ relationship with each other’.34 DHHS policy also highlights the

    importance of stability in a relationship, due to the likelihood that an introduction of a child into a relationship will create further pressure.35

  5. 10.25 Other jurisdictions also impose a duration requirement on couples. A two-year relationship period is required of couples wanting to adopt in New South Wales36 and the Northern Territory.37
  6. 10.26 To be eligible to adopt in the Australian Capital Territory and Tasmania, couples are required to have lived together for at least three years.38 In South Australia, couples are required to have been living together for at least five years.39
  7. 10.27 In Queensland, the recent Adoption and Other Legislation Amendment Bill 2016 removed the requirement that a couple must have lived together for a period of two years.40
Application of the two-year period
  1. 10.28 There is an inconsistency in the drafting of the Adoption Act regarding the application of the two-year period.
  2. 10.29 The eligibility requirements under section 11 require that all couples have been in a qualifying relationship for no less than two years ‘before the date on which the order is made’.41 This suggests that couples who have been in a relationship for less than two years could apply to the Secretary or principal officer to be assessed for approval to adopt and have a child placed with them, provided that they meet the two-year threshold by the time the adoption order is made.
  3. 10.30 However, this suggestion is inconsistent with other provisions in the Adoption Act, including:
  • section 10A, which requires the relationship to have existed for two years before an application for an adoption order is made
  • section 20A, which requires the Secretary or approved agency to be satisfied that a couple has been in a qualifying relationship for at least two years before they make arrangements or enter into negotiations to assess the suitability of a person to adopt a child.
  1. 10.31 Sections 10A and 20A were implemented in 1997 to reflect the practice at the time that applications for approval to adopt were deferred until the two-year period had elapsed.42 However, section 11 was not amended.
Cohabitation requirement
  1. 10.32 Couples who have been living in a domestic relationship for no less than two years are eligible to apply for approval to adopt.43 The Adoption Act defines a ‘domestic relationship’ as:

a relationship between 2 persons who are living together as a couple on a genuine domestic basis (irrespective of sex or gender) and who are neither married to each other nor in a registered domestic relationship with each other.44

  1. 10.33 By this definition, the Adoption Act distinguishes between types of couples by imposing an additional requirement that couples in a domestic relationship be ‘living together’ which does not apply to couples who are either married, in a traditional Aboriginal marriage, or who are in a registered domestic relationship.45
  2. 10.34 The cohabitation requirement also applies to couples who have lived in any combination of the qualifying relationships under the Adoption Act, for example, a couple who were living in a domestic relationship and then married—they must have been ‘living with each other’ for a period of two years.46
  3. 10.35 Section 20A of the Adoption Act also imposes a cohabitation requirement. A couple cannot be assessed for their suitability to adopt a child unless they have been ‘married to each other or living in that relationship with each other for not less than 2 years’.47 The same requirement applies to step-parent adoptions and adoption of a child who is related to a person’s partner.48 The cohabitation requirement effectively bars all couples who are not married from being assessed to adopt if they have lived apart at any point in the preceding two years.49
Introduction of cohabitation requirement
  1. 10.36 The cohabitation requirement was introduced to the Adoption Act in 1997 when adoption by de facto couples was first permitted.50
  2. 10.37 The 2015 Adoption by Same-Sex Couples: Legislative Review recognised the potential for discrimination against same-sex couples, who are unable to marry in Australia, caused by the cohabitation period. The review recommended that a new category of a ‘registered relationship’ be recognised under the Adoption Act, thereby allowing same-sex couples who register their relationship to achieve equality with married couples under the Act.51 Inconsistency of the cohabitation requirements in the Adoption Act was identified, but was considered beyond the scope of that review.52
  3. 10.38 The inconsistency was considered by the Parliamentary Scrutiny of Acts and Regulations Committee, which found that the provisions ‘may engage the Charter’s rights against discrimination on the basis of marital status’. They sought further information as to the compatibility of the Bill53 with Charter rights.54
  4. 10.39 Ultimately, the cohabitation requirement was not amended by the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic).55
Other definitions of ‘domestic relationship’
  1. 10.40 A cohabitation requirement lies within the definition of ‘domestic relationship’ in the Adoption Act.56 The definition is similar to other definitions in Victorian and Commonwealth legislation, though not all definitions require a couple to live together.
  2. 10.41 In 2001, the Statute Law Amendment (Relationships) Act 2001 (Vic) amended some Victorian Acts to give legal recognition to the rights and obligations of people in domestic relationships. Some of these definitions included a cohabitation requirement.57
  3. 10.42 The Relationships Act 2008 (Vic) defines ‘domestic relationship’ in a similar way to the definition under the Adoption Act and includes the requirement of ‘living together’.58 However, a 2016 amendment recognised the registration of domestic relationships in which only one person lives in Victoria, thereby legally recognising couples who live apart.59
  4. 10.43 The CYF Act defines a ‘domestic partner’ as someone who is not married to, but is ‘living as a couple’ with, another person on a genuine domestic basis. This does not include a specific requirement of ‘living together’.60 In determining whether people are domestic partners, the CYF Act requires a range of circumstances to be taken into account, including a couple’s financial or personal commitment and support for each other, whether or not they are living under the same roof.61
  5. 10.44 The Family Law Actconsiders a range of circumstances when determining whether a couple are in a de facto relationship and are living together on a genuine basis.62 Those circumstances include the nature and extent of a couple’s common residence.63 However, if a couple does not live together, this does not mean that they are not in a de facto relationship.
  6. 10.45 In the Victorian Court of Appeal decision of Giller v Procopets, Justice Neave considered that a de facto relationship need not come to an end when cohabitation ceases, thereby recognising that couples living apart may still be recognised as a couple by law.64

Responses

  1. 10.46 In its consultation paper, the Commission asked whether the requirement of ‘cohabitation’ was consistent with contemporary family life and in the best interests of the child, and if so, whether such a requirement should apply to all couples applying to adopt.
  2. 10.47 The Commission heard support for retaining the cohabitation requirement under the Adoption Act.65 Some people submitted that cohabitation demonstrates a commitment to a relationship66 and it was in the best interests of children that their parents live together.67
  3. 10.48 The Commission also heard some support for the cohabitation requirement in the Adoption Act to apply equally to all couples eligible to adopt,68 thereby requiring an extension of the provision to cover couples who are married, in a traditional Aboriginal marriage or a registered relationship.
  4. 10.49 VANISH told the Commission that cohabitation is consistent with contemporary family life and in the best interests of children. It submitted that being married does not indicate greater stability than other relationships, and so the Adoption Act should apply the cohabitation requirement for a minimum of two years for all couples who wish to adopt.69
  5. 10.50 The Law Institute of Victoria submitted that there should be a minimum cohabitation requirement of at least two years, to demonstrate a stable relationship. It was submitted that if the purpose of the cohabitation requirement is to ensure that couples have time to make adjustments to bring stability into a relationship, then such a requirement should apply to all couples equally.70
  6. 10.51 The Commission also heard of concerns about mandating the cohabitation requirement, as the requirement would be inconsistent with societal norms71 and inconsistent with contemporary family life.72
  7. 10.52 The Commission for Children and Young People supported an update of the current eligibility criteria to ensure the criteria reflect diverse familial arrangements. It suggested that:

The best interests of a child are served when the determination of suitability to adopt is based on holistic, thorough assessment of ability to meet the needs of a child or children, rather than arbitrary relationship status and cohabitation requirements.73

  1. 10.53 OzChild considered that decisions made as to the placement of a child with any person should be made in their best interests and not be connected to a cohabitation requirement.74
  2. 10.54 At a consultation with the Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby (VGLRL), participants spoke of the need to remove the cohabitation requirement. A participant considered the requirement to be:75
  • inconsistent with contemporary family life, as families can live apart for various reasons, including for work or to care for elderly parents
  • inconsistent with other legislation, such as the Relationships Act, which allows couples who do not live together to register their relationships76
  • discriminatory, as the cohabitation requirement poses the idea that couples in a domestic relationship have more to prove than couples who are married, and such provisions disproportionately apply to the LGBTI community.
  1. 10.55 A participant at the same consultation suggested that either the cohabitation requirement needs to be removed from the definition of ‘domestic relationship’, or the Adoption Act should define that ‘living together’ does not mean cohabitation, but rather a mutual commitment to a shared life.77
  2. 10.56 The Commission also received feedback on whether the two-year period provided a reliable demonstration of the stability of a couple’s relationship.
  3. 10.57 Barnardos Australia, which provides adoption services in New South Wales, submitted that a relationship should be of at least two years duration, preferably longer, for all couples, regardless of the type of relationship.78
  4. 10.58 At a roundtable with the legal sector, the Commission was told by some participants that the two-year timeframe was arbitrary and a very short period in which to demonstrate relationship stability. However, some considered that any reasonable timeframe was better than none.79
  5. 10.59 Another participant at the same roundtable questioned whether cohabitation for two years is meaningful to demonstrate stability. If a marriage is accepted as stable, then they suggested it should be sufficient for couples in a domestic relationship to make a declaration of a commitment to remain in a stable relationship, or that they intend to maintain that stability for the child.80
Co-parenting
  1. 10.60 Another issue raised during the consultation and submission process was the lack of legal recognition that the Adoption Act gives to co-parenting arrangements. Co-parenting arrangements involve parenting by more than two people or across families and households by people who identify as parents, co-parents or donors.81
  2. 10.61 Participants in a roundtable with the Rainbow Families Council and the VGLRL explained that in some cases, children are being raised by more than two people. For example, a lesbian couple and a donor father may all be playing an active role in a child’s upbringing. However, the Adoption Act does not recognise any such family arrangement.
  3. 10.62 Participants explained that generally the law has been reluctant to recognise more than two parents. Where there are more than two parents, they can seek legal recognition of their roles in a parenting order in the federal family law system. However, these orders provide for contact rather than parental responsibility for more than two people.82

Commission’s conclusions

Cohabitation requirement
  1. 10.63 Central to the review of the eligibility criteria is the need for modernisation of the Adoption Act to reflect contemporary views of family and to ensure that the Act does
    not contain any unnecessary or unreasonable discrimination.
  2. 10.64 The Charter and the Equal Opportunity Act 2010 (Vic) prohibit discrimination based on marital status in certain fields of activity.83However, legal protection is not absolute. The law can impose reasonable limits on Charter rights84 and permit discrimination in certain situations,85 such as the need to ensure children are protected. Eligibility criteria are necessary in adoption law for this reason. The welfare and interests of the child remain the paramount consideration, above equal rights for people who want to adopt.86
  3. 10.65 There have been two notable amendments to the Adoption Act’s eligibility criteria regarding family structure. The recognition of couples in a domestic relationship and same-sex couples reflects and goes some way to removing unnecessary discrimination.
  4. 10.66 The cohabitation requirement that applies only to couples in a domestic relationship discriminates based on marital status and is inconsistent with Charter rights. To achieve consistency, the Commission considered whether the requirement should apply to all qualifying couples under the Adoption Act or be removed entirely.
  5. 10.67 If the cohabitation requirement applied to all couples, this would be inconsistent with other legislation about couples. A couple would need to live together to adopt, but not to marry or register their relationship.
  6. 10.68 Couples may live apart due to work or family commitments but be able to provide a stable, secure and beneficial environment in which to raise a child. Some couples may have been together for many years, but in the two years before an application to adopt

    have spent some time living in different locations due to work or family commitments, thereby excluding them.

  7. 10.69 The cohabitation requirement is intended to demonstrate the stability of a relationship. It is not certain it does so. Further, it applies to certain types of relationships and not others on the basis of marital status.
  8. 10.70 The assessment criteria under the Adoption Act and Adoption Regulations and the assessment process are a more robust and comprehensive way to ensure that only suitable people in a stable relationship are approved to adopt. The Commission examines the adoption assessment criteria in Chapter 11.
  9. 10.71 The Commission considers that the cohabitation requirement should be removed from the Adoption Act and the definition of ‘domestic relationship’ be amended to remove the term ‘living together’.87 The Act should remove any implication that couples in any qualifying relationship are required to live together.

Recommendation

  1. 41 The eligibility criteria under the Adoption Act should not require or imply that couples in a domestic relationship live together.

 

Two years duration
  1. 10.72 The requirement that all eligible relationships under the Adoption Act be of at least two years duration is based on historical practice rather than evidence.
  2. 10.73 It is important to provide stability to a child. Use of any particular time period appears arbitrary and does not ensure the stability of a couple’s relationship. The Commission considers that stability within a couple’s relationship is best determined by an assessment as part of the approval process.88
  3. 10.74 However, the Commission acknowledges that use of a duration requirement provides a helpful and transparent benchmark for couples who wish to apply to adopt. For example, couples who have only been together for three months know that they will not be able to apply. Imposing a time period is also consistent with other Australian jurisdictions.
  4. 10.75 There is no evidence to indicate whether the two-year period should be increased or decreased in the best interests of children. The Commission considers there is no need to amend the two-year requirement as it is currently applied in the Adoption Act.
  5. 10.76 Section 11 of the Adoption Act should be amended to ensure consistency with sections 10A and 20A, to require that couples have been together for at least two years prior to being assessed to adopt a child, and not two years before the date on which an adoption order is made.
Co-parenting
  1. 10.77 The Adoption Act does not contemplate more than two people adopting a child or adoption by two people who are not in a marital or domestic relationship, such as two friends.
  2. 10.78 Adoption is only one of the legal frameworks that provide legal recognition to a family. The project timeframe has not allowed the Commission to consider permitting more than two people to adopt a child.

Adoption by a single person

Current law and practice

  1. 10.79 The Adoption Act allows the court to make an adoption order in favour of one person. A person can adopt if they are single.89
  2. 10.80 A person in a relationship can also adopt as a sole applicant, but their partner’s consent is required if:
  • the couple is married or in a registered domestic relationship and living together90
  • the couple is in a domestic relationship and has been for at least two years.91
  1. 10.81 In each case, the court must not make an adoption order in favour of one person unless it is satisfied that ‘special circumstances’ exist in relation to the child which make the adoption desirable.92
  2. 10.82 Step-parents who wish to adopt their partner’s child apply to the court to adopt as a sole applicant.93Relatives of a child may also apply to adopt as a sole applicant.94
  3. 10.83 The law relating to the eligibility of one person to adopt has remained fixed since 1984.
  4. 10.84 From 2010 to 2016, there were four adoptions by a single person in Victoria. All were adoptions of a child with special needs.95 In 2015–16, there was only one adoption by a single person in Australia.96
Special circumstances
  1. 10.85 The Adoption Act does not define ‘special circumstances’.
  2. 10.86 When the Adoption Act was introduced, it was envisaged that ‘special circumstances’ would reflect situations where a child had an existing strong relationship with a single person, or the child would cope better with one parent to relate to.97 In practice ‘special circumstances’ is interpreted to mean that single people can only adopt children with ‘special needs’.98
  3. 10.87 The special needs adoption program includes children older than 12 months and children with complex needs, such as children with a disability or children who come from difficult backgrounds and may have experienced abuse or neglect.99
  4. 10.88 The limitation in the Adoption Act is not unique to Victoria. In the Northern Territory,100 Tasmania101 and South Australia,102 an adoption order can be made in favour of one person on similar terms to Victoria.
  5. 10.89 However, in New South Wales,103 Queensland,104 Western Australia105 and the Australian Capital Territory,106 eligibility requirements for one person to adopt are similar to those that apply to couples.
  6. 10.90 A review of research undertaken in the United States examined the process outcomes of adoption by single parents.107 It considered practice where children available for adoption by single parents were special needs children.108 The review found that:

it is time for a change in thinking about single persons as adoptive parents. They are not applicants of less capacity than two parent families. Rather, these are families which have unique strengths and can provide stable homes for children.109

  1. 10.91 In its submission to the Commission, the Australian Christian Lobby (ACL) referred to research studies into family structures.110 A number of studies relied upon by the ACL concluded that children from single-parent families overall fare less well than children in intact two-parent families.111 The Commission considers this research has limited, if any, application to adoption as the parents studied are generally not single parents by choice, unlike single applicants for adoption.112
  2. 10.92 In the United States and the United Kingdom, there has been a significant increase in the number of households headed by single parents. Thirty per cent of households are single-parent households, the majority of which were headed by single mothers. A 2016 study observed:

There is a large body of research on the psychological wellbeing of children in single-mother families formed by divorce. These studies have consistently shown that children whose parents divorce are more likely to show emotional and behavioural problems than are children in intact families. … However, the children’s difficulties appear to be largely associated with aspects of the divorce, rather than single-parenthood, in itself. One factor that has been found to be related to children’s adjustment problems is conflict between parents.113

Children of single mothers by choice have not been exposed to parental conflict and are less likely to have experienced the economic hardship or maternal psychological problems that commonly result from marital breakdown and unplanned single parenthood.114

  1. 10.93 A 2016 United Kingdom study, Single Mothers by Choice: Mother-child Relationships and Children’s Psychological Adjustment, conductedin relation to women who choose to become mothers through donor insemination, found that children of single mothers by choice experienced similar levels of parenting quality to children in two-parent relationships.

The solo mothers did not differ from the partnered mothers in terms of anxiety, depression, or stress associated with parenting.115

Although the children of solo mothers were no more likely to experience psychological problems than were those with a mother and father, higher levels of financial difficulties, and higher levels of parenting stress were each associated with higher levels of children’s emotional and behavioural problems within the solo mother families ... It is important to emphasize, however, that the solo mother families did not differ from the two-parent families in the association between financial hardship, parenting stress, and child adjustment problems, indicating that these risk factors were operating in a similar fashion in both family types.116

Children, Youth and Families Act 2005 (Vic)
  1. 10.94 The limitation on adoption by single people is inconsistent with the approach under the CYF Act.
  2. 10.95 Under the CYF Act, the Children’s Court of Victoria can make permanent care orders for children who cannot live with their parents, in favour of one person as well as couples.117 The same suitability criteria apply to both groups.118
Assisted reproductive technology and adoption
  1. 10.96 In Victoria, women who are not in a relationship are permitted to undertake assisted reproductive treatment.119 In 2014–15, single women made up the largest proportion of women undertaking IVF treatment (50 per cent).120
  2. 10.97 In 2007, the Victorian Law Reform Commission found that ‘single people are able to provide secure and loving environments for children’121and recommended that the Adoption Act allow single applicants to adopt in accordance with the same criteria as couples.122 This recommendation was not implemented.

Responses

  1. 10.98 In its consultation paper, the Commission asked whether the requirement that single people can adopt only in ‘special circumstances’ is consistent with the best interests of the child. If the provision required amendment, the Commission asked what criteria should apply.
  2. 10.99 The Commission received considerable support for the removal of the special circumstances provision,123 and heard that single applicants should be assessed and be able to adopt in the same way as couples.124 Many submissions considered the barriers discriminatory.125
  3. 10.100 In a consultation with Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby (VGLRL), it was suggested that the requirement of ‘special circumstances’ discriminates against a group of people who are eligible to undertake assisted reproductive technology, foster children, and parent children under a permanent care order.126
  4. 10.101 The VGLRL submitted that the different treatment of single people and couples under the Adoption Act is at odds with the Equal Opportunity Act and the Charter, which recognise the right to not be treated differently due to relationship status.127
  5. 10.102 Connections UnitingCare submitted that the provision is both discriminatory and contradictory, as:

‘healthy’ infants cannot be placed with single applicants as the legislation excludes them, however some of our most vulnerable children with special circumstances can be placed with a single person. In practice, this involves children with complex special needs being placed with single applicants provided all other placement options are exhausted first.128

  1. 10.103 At a roundtable with the disability and mental health sector, some participants agreed that the special circumstances requirement should be removed from the Adoption Act. Participants said the requirement sends a message that single people are not adequate to be parents but they can have a child with a disability. Such a provision is nonsensical and reinforces negative attitudes towards disability.129
  2. 10.104 Some people said there was no basis for the inconsistency between the Adoption Act and the CYF Act criteria for prospective carers.130 Additionally, removal of such discriminatory barriers would be in line with the recent amendments to same-sex adoption and with other Australian legislation.131
  3. 10.105 The Law Institute of Victoria (LIV) expressed the view that the barrier posed by the special circumstances requirement is out of step with modern values and inconsistent with the best interests of a child. The LIV submitted that the court should have full discretion to determine a person’s suitability, unfettered by questions of relationship status.132
  4. 10.106 Some commented that it is more important to assess the person’s qualities, merits or ability to care for the child.133
  5. 10.107 Some concern was expressed about the potential lack of a support network in which to raise a child.134 It was recognised that such support systems could come from relative or close friends,135 not just from a relationship partner.
  6. 10.108 The Commission also heard from people opposed to amendment or removal of the ‘special circumstances’ provision in the Adoption Act. Some submissions suggested that it is in the best interests of a child to have a mother and a father136 and adoption by a single person should only occur in the minority of cases.137
  7. 10.109 The Australian Christian Lobby submitted that the current provision is appropriate to ensure the best interests of a child are the paramount consideration. It submitted that there is ‘evidence that the well-being of children is best served when they experience the love of both a mother and father in a safe, secure and stable relationship’.138
  8. 10.110 The Women’s Forum submitted that the current eligibility provisions in the Adoption Act should be maintained and strengthened. It explained that an amendment to the single person provisions would effectively preference the desires of adoptive parents over the needs of vulnerable children.139

 

Commission’s conclusions

  1. 10.111 The limitation in the Adoption Act that only permits adoption by single people in special circumstances appears to assume that adoption by one person is less beneficial to a child than adoption by a couple, and that it is generally not in the best interests of a child. Restricting adoption to children with special needs is illogical and discriminates against all parties.
  2. 10.112 The Adoption Act and adoption practice make a significant differentiation between couples and single people on the basis of marital status. This is inconsistent with the Charter and the right to recognition and equality before the law.140 Discrimination on the basis of marital status is not necessary or relevant to ensure the safety, wellbeing and interests of a child who is eligible to be adopted.
  3. 10.113 The law in Victoria already recognises that single people are suitable parents, able to provide children with a safe, stable and secure environment. Single people are eligible to care for a child under CYF Act orders, undertake IVF on their own, and adopt children with special needs (generally seen as a more challenging undertaking than an adoption through the infant adoption program).
  4. 10.114 The requirement of ‘special circumstances’ should be removed from the Adoption Act.141 The Commission considers that eligibility criteria should not differentiate between applicants on the basis of their relationship status. Concerns about safety, security and stability of a single person can be appropriately addressed as part of the adoption assessment process.

Recommendation

  1. 42 The eligibility criteria under the Adoption Act should permit single people to adopt on the same basis as couples.

 

Consequences of widening eligibility criteria

  1. 10.115 Widening the eligibility criteria under the Adoption Act may lead to an increase in the number of applications for approval to the Secretary or principal officer to adopt a child from the local adoption program. It is important to note that widening the eligibility criteria has no causal link with the number of adoptions.
  2. 10.116 Eligibility criteria should not be used as a means of limiting the number of people who apply to the Secretary or principal officer to be approved as suitable to adopt.This principle was recognised when the Adoption Act was last reviewed in Victoria, and is still relevant today.142
  3. 10.117 The Adoption Legislation Review Committee recognised that a process was needed to reduce the number of applications to adopt young children. The Committee considered that an educational program for applicants would be helpful, together with the random selection of persons eligible to apply.143 It proposed that a ballot should be held and publicised each year to determine which applications proceeded to the assessment process. Unsuccessful applicants would be able to review their application every 12 months.144
  4. 10.118 Currently, the information and training programs which are a prerequisite to an application to adopt145 play an important part in limiting the number of applications by educating prospective applicants about the realities of the adoption process.
  5. 10.119 The DHHS Adoption and Permanent Care Procedures Manual also envisages the opening and closing of an applicant list. Prospective applicants are advised whether the infant adoption program is accepting applications or, if the program is closed, when it will reopen.146
  6. 10.120 The Adoption Act does not provide a ‘right’ to be assessed to adopt. However, the Adoption Act requires the Secretary or principal officer to notify the person and give reasons for deferring or refusing to make a decision on an application for approval.147
  7. 10.121 The Commission has observed that applicants have an expectation that if they apply to the Secretary or principal officer, they will be assessed. The Adoption Act does not provide a mechanism to manage the number of applicants and their expectations.
  8. 10.122 The Adoption Act 2009 (Qld) contains specific provisions for managing applications for approval.148 It requires the chief executive of the department to decide each year whether the number of prospective adoptive parents with ‘different profiles’ approved to adopt are enough to meet the needs of children.149
  9. 10.123 The chief executive determines the number of prospective parents to be assessed with regard to the number and profiles of people already on the register and must consider whether:150
  • if too few people are assessed, the need for adoptive parents may not be met within a reasonable time
  • if too many people are assessed, this may be an inefficient use of resources, unnecessarily raise expectations of prospective adoptive parents and unnecessarily intrude on their privacy and personal affairs.
  1. 10.124 If the chief executive is satisfied that the number of people registered is significantly higher than the number of adoptions, the expression of interest register may be closed (equivalent to an application to adopt in Victoria).151 The QueenslandAct also provides guidance on deciding the priority of who may be selected.152

Commission’s conclusions

  1. 10.125 The Commission considers that every eligible person under the Adoption Act should be entitled to apply to the Secretary or principal officer to be assessed for approval to adopt. However, an application for approval should not create an entitlement to be assessed.
  2. 10.126 The Adoption Act should require the Secretary to manage and determine the number of prospective adoptive parents needed to meet the future needs of children and decide the number of parents who should be assessed. This is consistent with the principle that adoption is a service for children, not prospective adoptive parents.
  3. 10.127 In managing applications for approval to adopt, consideration should be given to anticipating the number of children able to be adopted and their needs. Any mechanism to manage application numbers should be equitable and, as far as possible, within the best interests of a child. The mechanism should be publicly available and transparent.

Recommendation

  1. 43 The Adoption Act should require the Secretary to manage the assessment of applications to adopt a child in a way that:
  2. a. anticipates the number of children likely to be adopted and their particular needs
  3. b. ensures that there is a wide range of prospective adoptive parents to select from, reflective of the wide range of people eligible to adopt (couples, same-sex couples and single people)
  4. c. provides for ongoing monitoring and review of how the applications are processed to ensure that there are enough suitable prospective adoptive parents to meet the needs of children
  5. d. ensures that the assessment process is both published and transparent to all persons wanting to adopt a child.

 

Known-child adoption

  1. 10.128 A known-child adoption is the adoption of a child by a specific person who has a pre-existing relationship with the child.153 For a child to be adopted, specific consent to that adoption needs to be given by the child’s natural parents.154
  2. 10.129 The Adoption Act recognises two types of known-child adoption:
  • adoption by a step-parent
  • adoption by a relative of a child.
  1. 10.130 At the time the Adoption Act was introduced, approximately half the adoptions in Victoria were by step-parents.155 Today, known-child adoptions are not common and the Adoption Act limits when they can occur.
  2. 10.131 In 2015–16, there were 10 known-child adoptions in Victoria.156

Current law and practice

Step-parent adoption

  1. 10.132 Adoption by the spouse or domestic partner of a parent of a child (a step-parent) severs a child’s legal relationship with one of their natural parents while preserving their legal relationship with their other parent.157
  2. 10.133 If a child’s natural parents have given their specific consent to the adoption,158 a step-parent must also apply to the Secretary or principal officer to be assessed as suitable to adopt.159
  3. 10.134 A step-parent can apply to the court for an adoption order as a sole applicant,160 provided they have been married to the child’s parent, or living in that relationship, for at least two years.161
  4. 10.135 To make an adoption order, the court must be satisfied that:162
  • the making of an order in relation to the guardianship or custody of the child under the Family Law Act (such as a parenting order) would not make adequate provision for the welfare and interests of the child163
  • exceptional circumstances exist which warrant making an adoption order164
  • an adoption order would make better provision for the welfare and interests of the child than an order under the Family Law Act.165
  1. 10.136 If an adoption order is made, the step-parent is deemed to be the parent of the child jointly with the child’s parent as if they had been married to each other at the time the child was born.166 The Adoption Act uses the word ‘married’ regardless of whether the step-parent and other parent are in a marital relationship or a domestic relationship.
  2. 10.137 In 2015–16, there were 76 step-parent adoptions in Australia.167
Leave of the Family Court
  1. 10.138 Under the Family Law Act, leave of the Family Court of Australia168 is required before an application for an adoption order can be filed by a step-parent in the County Court.169 This requirement is not reflected in the Adoption Act.
  2. 10.139 Natural parents of a child are recognised under the Family Law Act as having parental responsibility for a child.170 That parental responsibility ceases to exist when the Family Court grants leave to a step-parent to make an application for an adoption order and an adoption order is then made in a state court.171 Upon the adoption of a child, any parenting order that was in place is no longer in force.172
  3. 10.140 The Adoption Act does not prevent a person from making an application for an adoption order in Victoria if leave of the Family Court has not been granted. However, without leave, a natural parent’s parental responsibility under the Family Law Act does not cease. A child will continue to be recognised by the family law jurisdiction as a child of both their natural parents173 and any parenting order would continue to be in force.174 This means that the Family Court could entertain further applications by either of the child’s natural parents, despite any adoption.175
  4. 10.141 In deciding whether to grant leave, the Family Court must consider whether it would be in the best interests of the child.176 The Family Court explores a wide range of additional considerations,177 but the primary considerations are:178
  • the benefit to the child in having a meaningful relationship with both parents
  • the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.179
  1. 10.142 The adoption legislation in the Australian Capital Territory, Queensland and South Australia specifies that an order for adoption by a step-parent may not be made without leave of the Family Court.180

Adoption by a relative

  1. 10.143 The Adoption Act contains a separate provision for adoption orders made in favour of a relative of a child. A relative is defined as a ‘grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity’.181
  2. 10.144 The court can make an adoption order in favour of a relative of a child as a sole applicant, or together with their partner,182 if they are married or have been living in a domestic relationship for no less than two years.183
  3. 10.145 A relative of a child cannot adopt unless the court is satisfied that:184
  • the making of an order in relation to the guardianship or custody of the child under the Family Law Act (such as a parenting order) ‘would not make adequate provision for the welfare and interests of the child’
  • exceptional circumstances exist which warrant making an adoption order185
  • an adoption order would make better provision for the welfare and interests of the child than an order under the Family Law Act.
  1. 10.146 In 2015–16, there were three adoptions by a relative in Australia.186

Orders under the Family Law Act

  1. 10.147 There is a presumption in the Adoption Act against adoptions by step-parents and relatives in favour of Family Law Act orders.187
  2. 10.148 Parenting orders under the Family Law Act deal with a range of parenting arrangements,188 and may confer or allocate parental responsibility for a child.189 Parenting orders remain in force until a child turns 18, marries or enters into a de facto relationship.190
  3. 10.149 Parenting orders are different from adoption orders in that they do not sever a child’s legal relationship with their natural family or alter their birth certificate.
  4. 10.150 The Adoption and Permanent Care Procedures Manual provides some explanation as to when a parenting order would be considered inadequate and an adoption order preferred.191 Circumstances include when greater ‘legal security’ is needed or it would give a child ‘a greater sense of belonging within the family’,192 or where a parent has died or been ‘totally absent from the child’s life’, or where the parents have a ‘history of violence’ or a child was ‘conceived by rape’.193 Generally, a combination of circumstances is required.194
  5. 10.151 The preference for alternative orders is present in other Australian adoption laws.
    In New South Wales,195 South Australia,196 Western Australia197 and the Australian Capital Territory,198 the making of an adoption order must be ‘preferable’ or ‘clearly preferable’
    to orders under alternative legislation.

Concerns with known-child adoption

  1. 10.152 The Adoption Act favours Family Law Act orders for several reasons. An adoption order has the effect of severing a child’s legal relationship not only with their natural parent, but with the natural parent’s wider family and relatives.199 Additionally, the child’s birth certificate would no longer reflect their natural parentage and their birth name could be changed.200
  2. 10.153 DHHS practice recognises that altering a child’s legal identity could heighten the risk of ‘genealogical confusion’ for the child.201 For example, in the case of adoption by a step-father, the adoption severs the natural father’s legal relationship with the child and the child’s legal relationship with their natural father’s family. This may decrease the chances of the child having ongoing contact with that side of their family.202 When a relative adopts a child, it can distort family relationships. For example, when a grandmother adopts a child, in law she becomes the child’s mother and the mother becomes the child’s sister.203
  3. 10.154 At the time the Adoption Act was introduced, adoption was increasingly being used by step-parents. In 1981–82, 57 per cent of adoptions in Victoria were by step-parents.204 The 1983 Adoption Legislation Review Committee was opposed to step-parent adoption as a ‘widespread practice’205 and considered relative adoption should only be permitted in special circumstances.206
  4. 10.155 In her 1984 paper, Children in Stepfamilies: their Legal and Family Status, Patricia Harper questioned the necessity of step-parent adoptions:

It is questioned whether such a complete and final severance of ties is in the best interests of the child. In most cases, if not all cases the step-parent is already caring for the child and will continue to do so whether or not the child is adopted. Thus, a complete severance of the ties between the child and the natural parent and family by means of adoption seems neither necessary nor appropriate in order to ensure that the step-parent continues to care for the child and would not appear to be in the best interests of the child.207

  1. 10.156 The National Principles in Adoption discourage step-parent and relative adoptions.208 These principles state that such adoptions should not be considered ‘unless it can be demonstrated that a lesser order would not serve the needs of the child’.209 The principles express a preference for orders through the Family Court that do not interfere with the biological relationship between the child and their birth family and siblings.210

Fees for known-child adoption

  1. 10.157 In Victoria, the Adoption Act does not permit the charging of fees by the Secretary or principal officer for adoption application and assessment processes.
  2. 10.158 The Adoption Act includes a specific offence prohibiting payment or reward in consideration of the adoption of a child, including prohibiting payment for the making of arrangements with a view to the adoption of a child.211
  3. 10.159 In some jurisdictions, payment is permitted for the arrangement of a known-child adoption. For example, in Queensland, step-parents are required to pay both an application fee and an assessment fee.212
  4. 10.160 In Western Australia, fees can be charged in relation to an adoption, such as fees for counselling,213 although known-child adoption is exempt from such fees.214 Step-parents, certain relatives or carers are required to pay for the preparation of the written report by the CEO to the court for use in the adoption proceedings.215

Responses

  1. 10.161 In its consultation paper, the Commissionasked whether the limited circumstances in which step-parents and relatives can adopt under the Adoption Act are appropriate and if not, what changes are required.
  2. 10.162 There was support for the current provisions under the Adoption Act that give preference to orders under the Family Law Act.216 This support was largely because alternative legal frameworks, such as permanent care and parenting orders, provide for a child’s care without severing the child’s relationship with their natural family.217
  3. 10.163 Patricia Harper submitted that the arguments against step-parent and relative adoptions she made in 1986218still hold, and parenting orders under the Family Law Act should remain the preferred option.219
  4. 10.164 Connections UnitingCare submitted that the current provisions in the Adoption Act are adequate as the Family Court provides a legal avenue for step-parents and extended family to formalise care arrangements. However, it submitted that greater clarity is needed about the circumstances in which step-parent adoption would be appropriate and the Adoption Act should provide guidance as to when a step-parent adoption will meet the ‘exceptional circumstances’ criterion.220
  5. 10.165 The LIV submitted that the Adoption Act should be simplified for known-child adoptions.221 The VGLRL also supported simplification of the adoption process in some step-parent situations, such as:
  • where a child has no other legal parent. For example, they were born to a single parent, their other parent has died, they were born through international surrogacy and one commissioning parent is already recognised.
  • where the other legal parent (the non-custodial parent) consents to the adoption.222
  1. 10.166 The VGLRL submitted that in such situations it is a burden for step-parents to have to first get leave from the Family Court to demonstrate that an application for adoption is in a child’s best interests, and then apply to the County Court and demonstrate the same thing.223
  2. 10.167 Some submissions said that step-parents should never be able to adopt.224 VANISH submitted that the Adoption Act should not permit adoption by a relative or step-parent under any circumstances, as such arrangements are not in the best interests of children and are inconsistent with contemporary relationships and arrangements.225

Charging of a fee

  1. 10.168 The Commission was told that adoption agencies are not funded to process known-child adoptions.226 Connections UnitingCare submitted that such assessments are largely undertaken in good faith on a pro bono basis, which would be unlikely to continue without additional funding.227
  2. 10.169 At a roundtable with approved adoption agencies, it was explained that, given the high workload of the agencies and funding issues, step-parent adoptions are not a priority. This was because they are generally not urgent situations, as the child and adoptive parent are simply legalising an existing relationship. One participant said that their waiting list for step-parent adoptions was between six and 12 months, whereas in the infant adoption program it was three months.228
  3. 10.170 Another participant at the roundtable described step-parent adoption as a ‘donation’ to a family that is not necessarily in need, but is wanting to formalise an existing relationship.229
  4. 10.171 The Commission was told that some step-parents are adamant that they want to adopt, even when they are told about other options such as parenting orders. As they do not pay for assessment, adoption is a cheaper option for step-parents than applying for a parenting order.230
  5. 10.172 An added barrier is that the Adoption Act makes it unlawful for payments to be made in relation to an adoption.231 The Commission was told that with sufficient safeguards in the Act, agencies could charge a service fee for step-parent adoption.232

Commission’s conclusions

  1. 10.173 The Adoption Act clearly favours parenting orders over adoption for all known-child applications. The Commission finds merit in the arguments against known-child adoption and supports the continuation of the current intention of the Adoption Act.
  2. 10.174 Permanently ending legal recognition of a parent–child relationship, even when a child’s natural parent is deceased, is a serious step that should be approached with caution. The importance of such a decision in the context of a stable step-family arrangement suggests that it should be made by the person to be adopted upon reaching the age of 18.
  3. 10.175 The Commission makes no recommendations in relation to how a step-parent or relative may apply to adopt.The Commission considers that orders under the Family Law Act should continue to be the preferred alternative to adoption. The legal test set out in sections 11(6) and 12 in the Adoption Act should continue.
  4. 10.176 However, to modernise the Adoption Act, minor amendments to terminology are required. The Commission recommends in Chapter 2 that the terms ‘guardianship’ and ‘custody’ used in sections 11(6)(a) 12(a) be replaced with the term ‘parental responsibility’.233
  5. 10.177 The Adoption Act does not provide a definition of ‘exceptional circumstances’. The Commission considers that this is an appropriately high test, which must only be satisfied if the circumstances warrant redefining a child’s family and identity in the way that adoption would do. There are reasons why the court may make a known-child adoption and a specific definition may narrow the application of the Adoption Act and the court’s discretion.
  6. 10.178 However, the Commission notes that the test of ‘exceptional circumstances’ should not be satisfied by factors such as:
  • an adoption order would provide the right of inheritance from a step-parent or relative
  • an adoption order would provide the means of changing a child’s name or birth certificate.

Leave of the Family Court

  1. 10.179 The Family Law Act requires that step-parents who wish to adopt must first be granted leave to apply from the Family Court.234 This is not reflected in the Adoption Act.
  2. 10.180 Concerns were raised with the Commission that the requirement that step-parents have to apply to two separate courts is onerous.235 The Family Law Act requires that leave of the Family Court be granted and it is outside the Commission’s terms of reference to make any recommendations which limit the application of the Family Law Act.
  3. 10.181 The requirement under the Family Law Act is established law. To ensure harmonious operation of the legislation, the requirement for leave should be reflected in the Adoption Act.

Administrative fee for step-parent adoptions

  1. 10.182 Unlike infant adoptions, applications to adopt by step-parents, when considered on the basis of risk, generally do not require urgent priority of the Secretary or principal officer. Children are already in the care of their natural parent and their step-parent and that arrangement is likely to continue whether an adoption order is made or not.
  2. 10.183 The Commission considers that it is reasonable to expect that if a step-parent wishes to adopt a child before that child turns 18, they should contribute to the Secretary or principal officer’s administrative costs of considering and assessing their application to adopt.
  3. 10.184 Children who reach the age of 18 may apply to be adopted by a step-parent or relative on their own initiative. The Secretary or principal officer need not be involved in an adult adoption, and thus no fee would apply.

 

 

Recommendation

  1. 44 Where a step-parent wishes to adopt a child, the Adoption Act should:
  2. a. reflect that leave from the Family Court of Australia must be granted before an application to adopt may be filed
  3. b. permit the Secretary to charge a fee for the administrative cost of arranging a step-parent adoption.

 

Adoption from care

  1. 10.185 The Adoption Act does not provide a way for a person with parental responsibility for a child under a permanent care order to adopt that child.
  2. 10.186 Adoption is only one of the ways that parental responsibility is transferred from a child’s natural parents to other people. In Victoria, permanent care orders are used when a child is in Victoria’s child protection system to provide a permanent family for a child who is not able to live with their natural family.236
  3. 10.187 A permanent care order does not sever the legal relationship with the child’s natural parents like an adoption order does.237 Permanent care orders do not alter a child’s birth record, do not affect the child’s right to inherit from their natural parents, and expire when the child turns 18.238
  4. 10.188 The CYF Act provides a hierarchy of permanency objectives and requires that in a case plan prepared for the child,239 the permanency objectives be considered in that order of preference.240 Adoption is placed third out of five possible objectives, ahead of permanent care and long-term out-of-home care.241
  5. 10.189 The preference in the CYF Act is for placement with family members, including adoption.242 This does not appear to be consistent with the Adoption Act which imposes restrictions on adoption by relatives, preferring orders under the Family Law Act over adoption orders.243
  6. 10.190 Adoption from care by a person known to the child would be a form of known-child adoption. In this section, the Commission considers whether there should be a pathway between permanent care orders under the CYF Act and adoption.
  7. 10.191 The Commission for Children and Young People is undertaking the Permanency Amendments Inquiry to review legislative amendments to permanent care orders under the CYF Act which took effect on 1 March 2016. That inquiry is being undertaken independently of this review of adoption laws and its findings are expected by March 2017. The Commission will not have the benefit of considering the outcome of that inquiry as part of this review.

 

Current law and practice

  1. 10.192 The eligibility requirements under the Adoption Act only enable two types of known-child adoption; adoption by a step-parent or relative.244 They do not enable adoption by a particular person who cares for the child under CYF Act orders, including under a permanent care order.
  2. 10.193 As a form of known-child adoption, specific consent by a natural parent would be required for adoption by a child’s carer under CYF Act orders. Specific consent can only be given to an adoption by a relative of the child or a step-parent of the child.245
  3. 10.194 If a child is in the child protection system and general consent to adopt is given by the natural parents, the child becomes available for adoption from the local adoption program by a person with whom they have no previous relationship. However, the Adoption Act does provide that a child who has been brought up, maintained and educated by the applicant can be adopted upon turning 18.246 This would allow a permanent carer, a foster carer or similar to adopt when the child becomes an adult.
  4. 10.195 The Adoption Act recognises the operation of the CYF Act. After consent is given by the natural parents, ‘a child who is the subject of a care by Secretary order or long-term care order’ under the CYF Act does not come under the guardianship of the Secretary or principal officer while awaiting adoption.247 This is because, under these orders, parental responsibility for the child is already conferred on the Secretary to the exclusion of all other persons.248
  5. 10.196 Currently, there is no established pathway between orders made under the CYF Act and the Adoption Act.
  6. 10.197 In comparison, there is an established recognition between orders under the CYF Act and orders under the Family Law Act. If a permanent care order is in place, it is suspended upon the making of an application under the Family Law Act in its place249 and if a permanent care order is made in the Children’s Court, if registered in the Family Court, it will have the same effect as if it were an order made in the Family Court.250

Policy of adoption from care

  1. 10.198 Approaches to ‘permanency’ are inconsistent between Australian jurisdictions.
  2. 10.199 The New South Wales Government has a policy of increasing the use of adoption.251 In 2015–16, adoptions by a carer in New South Wales accounted for 68 of the 70 carer adoptions in Australia.252 However, the number of adoptions from care in New South Wales fell 22 per cent from the previous year. This reduction reflects, in part, the use of guardianship orders for children in out-of-home care as an alternative to adoption.253
  3. 10.200 The New South Wales policy was introduced in 2014 under a suite of legislative amendments under the Child Protection Legislation Amendment Act 2014 (NSW). The legislative changes facilitated the use of adoption for children in out-of-home care, and established a framework that simplified adoption from care.254
  4. 10.201 In Western Australia, amendments to the Adoption Act 1994 (WA), which came into effect in 2012255 reintroduced adoption from care.256
  5. 10.202 Adoption from care was considered recently by two South Australian inquiries.
  6. 10.203 The 2015 Adoption Act 1988 (SA) Review considered research into outcomes for children adopted from care.257 The review concluded that adoption from care should be a last resort. All other options, such as orders under child protection legislation, were considered adequate to provide security and stability for a child without undermining long-term identity formation.258
  7. 10.204 The South Australian Child Protection Systems Royal Commission delivered its final report on 5 August 2016. Its views relating to adoption from care accorded with the findings of the Adoption Act 1988 (SA) Review.259 The Royal Commission concluded that:

Adoption is no panacea for the current shortage of suitable care placements for children who cannot remain with their families of origin. The fact that there is a cohort of families who are interested in starting or growing their families through local adoption, and who may relieve placement pressure in the care system, is irrelevant to the question of a child’s best interests.260

  1. 10.205 The Royal Commission supported greater use of a form of guardianship (Other Person Guardianship) under the South Australian child protection legislation,261 which delegates guardianship and decision-making power to the family caring for the child.262 The use of such orders, as an alternative to adoption, was also supported by the Adoption Act 1988 (SA) Review.263

Responses

  1. 10.206 The intersection between adoption and permanent care was an issue raised in submissions and during the Commission’s consultation process.
  2. 10.207 In a roundtable with permanent care and adoptive families, the Commission was told of frustrations permanent care parents face in the limited legal recognition of their parental responsibilities compared to adoptive parents:
  • Lack of recognition they feel as a permanent care parent. A participant said that as a permanent care parent, they felt ‘90 per cent the parent’ compared to an adoptive parent.
  • Lack of recognition by federal laws. For example, the difficulty in establishing parentage in order to obtain a passport for the child.
  • The role the label of ‘permanent care’ plays in disclosing a child’s history. For example, the use of the word ‘care’ reveals that they have needed out-of-home care.
  • The ongoing risk of court proceedings. For example, natural parents might come back to the court years after a permanent care order is made and the lack of security permanent care parents feel with the nature of their court order.264
  1. 10.208 Some people spoke of the sense of belonging that adoption gives a child, which cannot be provided by a care order.265 Professor Meredith Temple-Smith submitted that permanent care orders can be seen as different. They do not amount to a statement by the carer family that ‘I will never let you go’.266
  2. 10.209 Dan Barron detailed his experience as a parent of two children under permanent care orders and the difference between adoption and child protection. He submitted that while a permanent care order may be the best option for children who are living within a kinship placement, in stranger placements a modified form of adoption could be recognised. He submitted that the strength of adoption is that it makes parents for life. That legal status provides benefits for the child. A permanent care order does not make the new parents ‘legal parents’ of the child in the fullest sense and expires at the age of 18.267
  3. 10.210 Mr Barron explained the difficulties permanent care parents have in proving their parental responsibility for a child. Under permanent care, a child’s birth certificate is not altered. Government departments use this document for many purposes to establish parental responsibility. He said that there is a lack of legal recognition of Victorian permanent care parents under federal law, including:
  • Applying for an Australian passport for the child requires the birth certificate, which does not establish the permanent carer’s parental responsibility for the child despite a permanent care order.
  • Centrelink does not recognise a permanent care parent as being responsible for paying child support if a couple separates.
  • Permanent care parents are excluded from paid parental leave, as the federal scheme considers them more like foster carers than adoptive parents.268
  1. 10.211 A parent of a permanent care child spoke of her frustration at being prevented from adopting, despite it being a long time since her child had had contact with their natural parents.269
  2. 10.212 The Commission received submissions from Barnardos and the Institute of Open Adoption Studies which operate in New South Wales.270 Barnardos submitted that the approach in New South Wales is ‘excellent for enabling the adoption of non-Aboriginal children from care’. It told the Commission:

Barnardos experience is that ‘third party orders’ (such as Permanent Care Orders) are inferior to adoption in relation to ongoing security for children. This is because Permanent Care Orders stop at age eighteen and young people’s best interests are served by having lifelong connections beyond age eighteen and into adulthood. Furthermore, adoption is superior to ‘third party orders’ as these orders can be much more easily challenged than Adoption Orders. Barnardos experience is that threats to challenge third party orders in NSW can destabilise placements and lead to a breakdown of important relationships, even though these challenges are rarely successful.271

  1. 10.213 However, the experience and perception of people who have been adopted can be quite different.
  2. 10.214 Thomas Graham submitted that permanent care and parenting orders provide both care and protection for children, and support relationships without legally severing the child from their family as adoption does.272 He explained:

One of the great myths about adoption is that has a happy endings for all, all the time. That there are no long term costs or harmful effects. Our indigenous people are the most compelling example of the devastating effects the sustained removal of children from their parents, over many decades, has on families. The social consequences have been devastating on a personal, family and social level, costing the nation billions of dollars each year. Modernising adoption to increase its frequency and numbers will not stem the flow of children into out-of-home-care; it simply highlights that many families are broken, parents are floundering and their children are screaming for help. Adoption doesn’t address the issue of struggling families and parents it just preys on their children.273

  1. 10.215 Fae Cuff told the Commission that she would have preferred guardianship or permanent care to adoption. She considered that permanent care parents still form the same relationship with a child as they would if the child were adopted, but in permanent care, the child keeps their identity.274
  2. 10.216 Permanent care or alternative care orders were the preferred option for many.275 It was acknowledged that in some cases there is a need to sever legal parenting responsibility from natural parents, but not to sever a child’s legal identity, heritage and contact with their natural family.276
  3. 10.217 Grandparents Victoria told the Commission that permanent care is preferable to adoption for several reasons, including that it keeps open a possible reunification with natural families, and provides greater opportunity for natural parents to have contact with their children. Grandparents Victoria does not support the New South Wales model of adoption from care.277
  4. 10.218 The Office of the Public Advocate (OPA) was also concerned about the priority of adoption over permanent care, or other long-term care options, in the CYF Act. It submitted that adoption should not be more readily available as an option from care, without the ‘full, free and informed consent of the parents’. Parents with disabilities and mental illness would be especially vulnerable if adoption from care could occur without consent.278
  5. 10.219 The OPA also submitted that there would be concerns with obtaining informed consent from natural parents who have had their children removed by the state:

Almost always, the parents want their child returned to them. In these circumstances, it is difficult to see how the parents can give a free and unpressured consent to adoption. At most, it will be a highly constrained consent, rather than free consent.279

  1. 10.220 A concern that emerged from the Commission’s consultation processes was that government would move children from permanent care to adoption.280 Much of this concern arose from the policy in New South Wales and the placing of adoption ahead of permanent care in the permanency objectives hierarchy under the CYF Act.281
  2. 10.221 Adoption Origins Victoria submitted that it was concerned about a potential push towards adoption from care so as to ‘transfer to the adoptive parents the problem of the government’s failure to provide effective remedial input and parenting services to vulnerable children and their parents’.282
  3. 10.222 The Commission was told in a roundtable with approved adoption agencies that to use adoption would be a ‘big call’ when a child is in care and already has stability. A participant queried whether an agency should be stepping in and deciding that a child should be adopted from care, or let the child decide when they have the right to do so.283

Commission’s conclusions

  1. 10.223 Adoption is a distinct and separate legal framework from the child protection system.
  2. 10.224 The consent of a child’s natural parents is the fundamental requirement in adoption. It should only be dispensed with in the circumstances recommended in Chapter 8. In that chapter, the Commission recommends that dispensation grounds relating to child protection situations284 should be removed.
  3. 10.225 However, the Commission accepts that there may be limited circumstances where adoption of a child by their permanent care parents would be appropriate, for example, where the child’s natural parents have given their consent to an adoption or have died.
  4. 10.226 The Adoption Act should specify the circumstances in which adoption of a child by their permanent care parents can occur. The requirements that should be met are discussed below.
  5. 10.227 The Commission recognises the importance of permanency and stability for children. However, as discussed in Chapter 1, there is little empirical evidence to support an assertion that adoption is the most beneficial form of permanent placement for a child who is not able to live with their parents. Permanent care orders provide carers with the parental responsibility and stability required for children in out-of-home care. Parenting orders can also provide this stability.
  6. 10.228 The Commission observes that the New South Wales approach of setting targets to increase the numbers of adoptions from care, along with relaxing the grounds on which to dispense with consent and reducing decision timeframes, creates a risk that some adoptions will resemble forced adoptions.
  7. 10.229 The Commission acknowledges the challenges and frustrations permanent care parents face in obtaining legal recognition of their legal parental status at a federal level. However, adoption should not be used as a means of correcting these deficiencies.

Requirements for adopting from care

  1. 10.230 As a form of known-child adoption, adoption from permanent care should be subject to principles similar to those that apply to adoption by a step-parent or relative.
  2. 10.231 Eligibility to adopt from care should be limited to people who have had a permanent care order under the CYF Act in their favour for at least two years. Imposing this requirement is consistent with the other two-year requirements in the Adoption Act which imply stability of relationships.285 This would also ensure that children are not quickly moved from permanent care to adoption.
  3. 10.232 Specific consent to the adoption must be given by the natural parents. Where consent is not given, the grounds for dispensing with consent in relation to an adoption from permanent care should not include the ‘child protection’ grounds.286 This is consistent with the new grounds for dispensing with consent in Recommendation 40.287
  4. 10.233 As permanent care parents have already been assessed as suitable parents under the CYF Act, they should not be required to be assessed as suitable under the Adoption Act. The Adoption Act should provide that a permanent care parent is suitable to adopt, provided that the court is satisfied that while caring for the child under a permanent care order, they have demonstrated a willingness and capacity to:
  • meet the child’s needs
  • preserve the child’s identity and connection to their culture of origin and their relationship with their natural family, including wider family members.288
  1. 10.234 The Secretary or principal officer should report on these matters to the court.
  2. 10.235 The court should only make an adoption order if it is satisfied that an adoption would be in the best interests of the child, and:
  • the continuation of the permanent care order under the CYF Act or the making of an order under the Family Law Act would not make adequate provision for the best interests of the child
  • exceptional circumstances exist which warrant redefining a child’s family in the way that an adoption would do
  • the adoption would make better provision for the best interests of the child than the continuation of the permanent care order under the CYF Act or the making of an order under the Family Law Act.289
  1. 10.236 Lack of contact between a child and their natural parents should not in itself be a reason to support a move to adoption.290

Leave of the Children’s Court

  1. 10.237 The President of the Children’s Court is a County Court judge.291 In effect, she is able to hear adoption matters in the County Court and CYF matters in the Children’s Court.
  2. 10.238 It would be necessary, upon the making of an adoption order, for the permanent care order to be discharged. CYF Act jurisdiction is with the Children’s Court and the revocation of a permanent care order is a decision of that Court.292
  3. 10.239 The Children’s Court would have extensive knowledge of the circumstances of that child and their particular needs. The Commission proposes that leave of the Children’s Court should be granted before proceedings may be commenced for adoption of a child in the County Court. This would be consistent with the requirement under the Family Law Act that leave should be granted by the Family Court in relation to a step-parent adoption.293
  4. 10.240 The requirement for leave should be reflected in the Adoption Act. Best practice would also be to reflect this provision in the CYF Act. The Children’s Court should not grant leave to apply unless it is satisfied that:
  • making an adoption order would be in the best interests of the child in accordance with the best interests principles under the Adoption Act
  • an adoption order would be clearly preferable to the continuation of the permanent care order.
  1. 10.241 Leave to apply to adopt should only be granted by the President, or delegate of, the Children’s Court. That Court should also provide reasons for its decision.

 

Recommendations

  1. 45 The Adoption Act should permit the adoption of a child from permanent care only where the child has been living in the applicant’s care under a Children, Youth and Families Act 2005 (Vic) permanent care order for at least two years.
  2. 46 The Adoption Act should enable a permanent carer to be eligible to adopt if the court is satisfied that:
  3. a. Leave to apply has been granted by the President of the Children’s Court of Victoria or her nominee.
  4. b. The natural parents, or appropriate persons, have provided specific consent to the adoption or the court has dispensed with consent in the circumstances recommended in Recommendation 40.
  5. c. The terms of an adoption plan have been agreed on the same basis as any other application for adoption.
  6. d. While caring for the child under a permanent care order, the person has demonstrated a willingness and capacity to meet the child’s needs and preserve the child’s identity and connection to their culture of origin and the child’s relationship with their natural family, including wider family members.
  7. e. The continuation of the permanent care order under the Children, Youth and Families Act 2005 (Vic) or the making of an order under the Family Law Act 1975 (Cth), would not make adequate provision for the best interests of the child and an adoption order would make better provision for the best interests of the child.
  8. f. Exceptional circumstances exist which warrant the making of an adoption order.
  9. 47 The Adoption Act should not permit a permanent carer to adopt unless leave to apply has been granted by the President of the Children’s Court of Victoria or her nominee. In determining an application for leave, the President of the Children’s Court must be satisfied that:
  10. a. the making of an adoption order would be in the best interests of the child; and
  11. b. an adoption order would be clearly preferable to the continuation of the permanent care order under the Children, Youth and Families Act 2005 (Vic).

If leave of the court is granted, a permanent care order should cease to have effect upon the making of an adoption order.

 

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