2 A new Adoption Act: principles and modernisation

Introduction

  1. 2.1 This chapter provides the Commission’s recommendations for the structure and key features of a new Adoption Act designed to meet the needs of Victorians in the 21st century.
  2. 2.2 The need for greater transparency and clarity in the expression of the legislation was a key theme from consultations and is an overarching aim for the recommendations of the Commission to modernise adoption law. Fae Cuff captured this view succinctly and precisely with her comment that ‘the Adoption Act needs to be clear and in language that is understood by all not just academics’.1
  3. 2.3 This chapter provides recommendations to ensure the aims, structure and language of the Adoption Act are clear and accessible.
  4. 2.4 Modern Victorian legislation often includes objects and principles. An objects section clarifies the aims or goals of the Act and provides a framework for what the Act aspires to do. Principles help decision makers to implement the objects by providing guidance about the things they should consider. Adoption legislation in some other Australian jurisdictions includes objects and principles.2
  5. 2.5 The Commission considers that a new Adoption Act should include both objects and principles.
  6. 2.6 This chapter considers the objects and overarching principles that should be included in new adoption legislation. It also makes some observations and recommendations about changes to terminology to ensure that language used is clear, contemporary and in harmony with other legislation.
  7. 2.7 Chapter 5 provides recommendations about specific principles to guide the assessment of the best interests of the child, and Chapter 7 provides recommendations about more detailed decision-making principles for Aboriginal and Torres Strait Islander children.

A new Adoption Act

  1. 2.8 The Adoption Act became law in 1984. Since that time there have been numerous and significant amendments to it.3 The amendments have reduced the readability of the Act. It is now difficult to understand and navigate.
  2. 2.9 In addition to the reduction in clarity due to amendments, drafting practice has also changed.
  3. 2.10 Features of modern drafting that help improve the clarity and accessibility of legislation, such as the inclusion of objects and principles, the use of plain English, shorter sections, and greater use of headings have only become common since the Adoption Act became law.

Commission’s conclusion

  1. 2.11 The report provides recommendations for modernising adoption legislation. It is clear from consultations that people find the Adoption Act difficult to work with and understand; any further amendment would compound these problems.
  2. 2.12 Amending the current Act would require the Office of the Chief Parliamentary Counsel to use an existing structure that is now 33 years old and reflects drafting practice from 1984.
  3. 2.13 Rather than making further amendments to the existing Act, a new Adoption Act should be created. It would be preferable for the Office of the Chief Parliamentary Counsel to make a fresh start, enabling it to structure a new Adoption Act in accordance with contemporary drafting practice to ensure that the Act is clear and accessible.
  4. 2.14 Consultation revealed that some parts of the Adoption Act are difficult for decision makers or people involved in adoption to understand or work with. Some parts of the Act are out of date or lack clarity, some do not work as well as they could, and some are viewed as inappropriate for people who need to use the Act, such as adopted people, natural parents, adoptive parents and other family members.
  5. 2.15 The Commission notes that matters excluded by the terms of reference will also need to be considered to ensure that the legislation is cohesive and coherent.
  6. 2.16 The Commission acknowledges that if a new Adoption Act is drafted, the Office of the Chief Parliamentary Counsel will work with the instructing officer from DHHS to determine if some matters are more appropriately placed in the Act or in subordinate legislation. In some cases, the Commission’s recommendations indicate that it considers a matter is more appropriately included in the Regulations than the Act.

Recommendation

  1. 1 The Adoption Act 1984 (Vic) should be repealed and replaced with a new Adoption Act that:
  2. a. incorporates the legislative reforms recommended in this report
  3. b. retains the content of provisions that have not been addressed in this report, and
  4. c. is structured and expressed in accordance with contemporary drafting practice.

 

An objects section for the Adoption Act

Current law

  1. 2.17 Some Victorian legislation includes an objects or objectives section.4
  2. 2.18 The objects or objectives section provides guidance about the aims or goals of the Act.
    It provides a reference framework for what the Act aspires to do.
  3. 2.19 The Adoption Act does not include an object or objectives section. This means that there is nothing in the Act that clearly sets out the overall aims.
  4. 2.20 The Interpretation of Legislation Act 1984 (Vic) provides that:

In the interpretation of a provision of an Act or subordinate instrument—a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose
or object.5

  1. 2.21 An object section may assist in the interpretation of the Act.6 It may be used by a court to resolve ambiguity or uncertainty.
  2. 2.22 However, courts have said that there are limits on the use of purposes or objectives sections.7

Responses

  1. 2.23 The consultation paper asked whether the Adoption Act should include a section identifying the main object of the Act. It also asked how the main object should be described.
  2. 2.24 There is not universal agreement about the goals or aims of the Adoption Act or whom the Act is designed to serve. A number of people thought that the Adoption Act would be improved by a section that clarified the objects of the Act.8 The Centre for Excellence in Child and Family Welfare suggested that ‘an “object” … would be helpful in making the purpose of the adoption legislation concrete and unambiguous’.9
  3. 2.25 Ideas about the objects of the Act included:
  • the best interests as a key objective and detail in the Act about what the term means10
  • consideration of how adoption will affect a child’s future life11
  • placing the child and their needs at the centre of any decision making12
  • adoption as a service for the child13
  • ensuring openness in adoption14
  • providing access to information15
  • compliance with Australia’s obligations under the United Nations Convention on the Rights of the Child16
  • reference to consistency with the Charter of Human Rights and Responsibilities Act 2006 (Vic)17
  • ensuring access to cultural heritage18
  • making the child’s safety and long-term stability the basis of decision making19
  • attaining permanency and respect for existing attachments of the child to their adoptive family.20
  1. 2.26 VANISH submitted that there needs to be a clarification of the different parties served by the Adoption Act. Its submission identified the groups that are, or may be, served by the Adoption Act and suggested that the focus of adoption law should shift. It proposed that:

Victoria’s adoption legislation be amended so as to properly reflect and respect the needs of the majority of people directly affected by adoption in the state, rather than favour the interests of an anticipated, but unknown and likely relatively small, number of people affected by future adoptions.21

  1. 2.27 Two submissions suggested that an adapted version of the objects in the New South Wales legislation would be appropriate.22
  2. 2.28 The Office of the Public Advocate supported the inclusion of an objects section. It suggested the following, which it based on the Queensland legislation:

To provide for the adoption of children in Victoria and for the access to information about parties to adoption in a way that:

(a) Promotes the well-being, rights and best interests of adopted persons throughout their lives,

(b) Supports efficient, accountable, accessible, compassionate and respectful practice in the delivery of adoption services,

(c) Complies with the Victorian Charter of Human Rights

(d) Complies with Australia’s obligations under the Hague Convention and under international Conventions, including the Convention on the Rights of the Child

(e) Ensures openness in adoption.23

Commission’s conclusion

  1. 2.29 The Commission considers that a new Adoption Act should set out clearly what its aims are. The need for greater transparency and clarity in the legislation was a key theme from consultations. A section that clearly sets out the objects of the Act in one place would improve transparency and clarity.
  2. 2.30 The adoption legislation in the Australian Capital Territory, New South Wales and Queensland includes an objects section.24
  3. 2.31 Adoption law and practice should comply with the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, it is not necessary to include this as an object in adoption legislation because the Charter is part of Victorian law. Making compliance with the Charter one of the objects of the Act would not add anything to the rights and responsibilities that already exist.
  4. 2.32 The Commission has identified six goals that it considers should be listed as objects in providing for adoption in Victoria.
  5. 2.33 A key theme that emerged from the Commission’s consultation was that adoption has lifelong effects. Therefore, the focus of decision making needs to shift to consider the impact of the decision on the life of the adopted person as an adult, not just as a child. The Act should include an object to ensure that the best interests of the child concerned, both in childhood and in later life, must be paramount.
  6. 2.34 Ensuring the focus is not just on the short term will help provide for better decision making in the best interests of the child. This is not intended to suggest that people who have been adopted as children are subject to best interests considerations as adults.
  7. 2.35 Responses to the consultation paper, discussed below at [2.53], forcefully made the point that adoption is a service to the child; its purpose is not to form families. This fundamental idea should be emphasised through the inclusion of an object to ensure that adoption is to be regarded as a service for the child and that adoption is centred on the needs of the child rather than an adult wanting to care for a child.
  8. 2.36 Many people involved in adoption told the Commission that there is a greater need for adoption support services, including post-adoption support. This is discussed in detail in Chapter 15. Adoption has lifelong effects and a variety of needs may arise for those involved in an adoption. In light of this ongoing need, an object of the Act should be to ensure that appropriate adoption support services are available to eligible people at all stages of adoption, including after adoption.
  9. 2.37 A clear theme that arose in consultation was the need to provide for more openness.
    An object of the Adoption Act should be that it promotes openness and assists a child to know and have access to his or her birth family and cultural heritage.
  10. 2.38 A key purpose of the Adoption Act is to provide adopted people and people closely affected by an adoption with access to information. This part of the Adoption Act is discussed in Chapter 16. An object of the Act should be to ensure that people involved in or affected by adoption can have access to information about the adoption.
  11. 2.39 Adoption law and practice should comply with Australia’s obligations under treaties and other international agreements. The United Nations Convention on the Rights of the Child (CRC) and the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption specifically address adoption. They should be referenced expressly in an object. However, a range of other international agreements are relevant and the Commission draws particular attention to the Declaration on the Rights of Indigenous Peoples and the Convention on the Rights of Persons with Disabilities.
  12. 2.40 While the drafting of the objects of any new laws will ultimately be a matter for the Victorian Parliament and the Office of Chief Parliamentary Counsel, the Commission has proposed objects for new adoption laws.

Recommendations

  1. 2 The Adoption Act should specify that the object of the Act is to provide for adoption in a way that:
  2. a. ensures that the best interests of the child concerned, both in childhood and in later life, are the paramount consideration in adoption law and practice
  3. b. ensures that adoption is regarded as a service for the child concerned which is centred on the needs of the child rather than those of an adult seeking to care for a child
  4. c. ensures that appropriate adoption support is available to eligible people at all stages of an adoption and after adoption

 

 

  1. d. promotes openness in adoption and assists a child to know and have access to their family of origin and cultural heritage
  2. e. ensures that people involved in or affected by an adoption can have access to information about the adoption
  3. f. complies with Australia’s obligations under treaties and other international agreements, in particular the obligations arising under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Convention on the Rights of the Child.

Principles for the Adoption Act

Current law

  1. 2.41 Principles provide guidance for decision makers about the things they should consider in carrying out the objects of the Act.
  2. 2.42 Principles sections are used reasonably frequently in contemporary Victorian legislation.
  3. 2.43 Some Victorian legislation includes an objects or objectives section, and principles.25
  4. 2.44 The Adoption Act does not include a principles section. It includes the overarching ‘paramount consideration’, which could be described as the core principle: ‘In the administration of this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration.’26
  5. 2.45 There is also a secondary principle stated in the Adoption Act that ‘In all matters relating to the exercise of powers and the performance of duties under this Act, the Secretary and the principal officer of an approved agency shall have regard to adoption as a service for the child’.27 Because this is located well into the Act (section 32) rather than with the ‘paramount consideration’ (section 9), some people may not be aware of this principle.
  6. 2.46 Other guidance is included but this is scattered throughout the Act. There is no comprehensive statement providing principles.
The Children, Youth and Families Act
  1. 2.47 The Children, Youth and Families Act 2005 (Vic) (the CYF Act) includes:
  • best interests principles28
  • decision-making principles29
  • additional decision-making principles for Aboriginal children30
  • an Aboriginal child placement principle31
  • further principles for placement of an Aboriginal child.32
  1. 2.48 The CYF Act includes a requirement that decision makers ‘must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act’.33 It also details who the decision makers are who must have regard to the decision-making principles: the court, the Secretary of the Department, and community services.34
  2. 2.49 The CYF Act states that the decision-making principles are ‘intended to give guidance in the administration of this Act’.35

Responses

  1. 2.50 The consultation paper asked whether the Adoption Act should include general principles to guide the exercise of power. It also asked what any principles should be.
  2. 2.51 Many people thought that the Adoption Act would benefit from the inclusion of principles to guide decision makers.36
  3. 2.52 People considered a range of matters to be important in decisions about adoption. Many of these matters are discussed in detail in other chapters. In summary they are:
  • that principles should relate directly to the United Nations Convention on the Rights of the Child37
  • the child’s best interests as an overarching paramount principle38 (considered in detail in Chapter 5)
  • separate decision-making principles about the adoption of Aboriginal and Torres Strait Islander children39 (considered in detail in Chapter 7)
  • that adoption is a service for the child and not a ‘family-forming’ service40
  • that all parties and families should be treated with respect and understanding41
  • that stability and permanency are important for children42
  • that adoption should be a last resort and a range of other options should be considered first, for example, care by extended family43
  • that extended family should have a role in decision making about adoption wherever possible44
  • that consent to an adoption must be free from duress, pressure or coercion45 (considered in detail in Chapter 8)
  • that siblings should remain together where possible and that consideration should be given to siblings’ connections as part of any contact arrangements46 (considered in detail in Chapter 4)
  • the child’s right to participation in decision making about adoption47 (considered in detail in Chapter 3)
  • the maintenance of the child’s identity such as their name or names, identity, language, culture and religious ties48 (considered in detail in Chapter 5)
  • openness in adoption and rights of the child to have ongoing connection and
    contact with their extended family, culture and community49 (considered in detail in Chapter 4).

Adoption is a service for the child not a family forming service

  1. 2.53 Many people emphasised that adoption should be viewed as a service for the child not a family-forming service. The submission of Adoption Origins Victoria captures the key ideas: ‘Adoption is a help line for a child not a service for adults wishing to create a family. [N]o adult has a right to adopt a child, nor should adoption be used as a supply chain for family formation.’50
  2. 2.54 Women’s Forum Australia suggested that: ‘Adoption as an institution is first and foremost a response to a need (being the needs of vulnerable women facing a crisis pregnancy and vulnerable children in need of a stable, loving and permanent family), and only a means of family formation for adoptive parents in the second place’.51

Stability or permanency—adoption as a last resort

  1. 2.55 There was broad support for the idea that stability or permanency is very important for a child or young person.52 Participants from Bounce Youth Leaders, a peer leadership training program for young people who have personally experienced out-of-home care, emphasised the importance of safety and stability.53 Some of them said that a feeling of belonging to a family is important because ‘you are more secure and comfortable taking opportunities’.54
  2. 2.56 While it was widely agreed that stability or permanency are important for a child or young person, there was a divergence of views about whether or not adoption is an appropriate way to achieve stability or permanency. Some people considered that adoption provides well for stability or permanency. Barnardos Australia told the Commission that ‘the Victorian government should be moving to ensure many more Victorian children are adopted from care each year’.55
  3. 2.57 Strong views were expressed by a large number of people that adoption is not a good way to achieve stability or permanency. Many people considered that adoption should not be used at all, or that it should be a last resort.56 A range of reasons were given for this including: the ‘lie’ of adoption;57 trauma caused by adoption;58 identity issues arising from adoption;59 the availability of other options to provide permanency or security for the child or young person, which better acknowledge their existing and ongoing relationship with their natural family;60 and the desirability of a child remaining with their parents where possible, and where this is not possible, within kinship networks.61
  4. 2.58 In relation to identity VANISH commented:

Adoption legally removes one set of parents and replaces them with another set of parents, and the child is recognised in law ‘as if born to’ the new parents. This compounds the child’s loss of family by violating their rights to preservation of name, heritage, identity, and often also family relationships, across the life cycle. This is inappropriate and unnecessary, and it can and does occur even in ‘open’ adoptions. Research findings and personal testimonies over several decades demonstrate that these factors negatively impact the adopted person’s identity development and well-being throughout their entire life, not just during childhood, and inter-generationally.62

  1. 2.59 Many submissions emphasised the other options for providing security to a child, such as parenting orders made under the Family Law Act 1975 (Cth) or permanent care orders made under the CYF Act for children who are in the child protection system.63

Extended family

  1. 2.60 Numerous people identified the importance of extended family and the desirability of retaining the child within their extended family wherever possible.
  2. 2.61 Submissions identified three ways in which decision makers should consider extended family when making decisions about adoption. The first, which relates to the above discussion of adoption as a last resort, was that options for care by the extended family should be fully explored and ruled out before adoption is considered.64 Grandparents Victoria submitted that:

Adoption should never be applied if the extended family is willing and able to raise the child and in all cases the extended family of the child should have the right to prove their capacity and willingness to raise the child. The application of extended family to raise the child must be given priority consideration, even if the parent initially approves the adoption. In the cases where members of the biological family other than the parents want to raise the child, adoption should not proceed because parenting orders are sufficient to provide permanency and stability to the child’s life.65

  1. 2.62 The second type of involvement suggested for extended family was that they should be involved in decision making about adoption.66
  2. 2.63 The third role suggested for extended family was in relation to openness in adoption and rights of the child to have ongoing connection and contact with their extended family, culture and community.67

 

Commission’s conclusion

  1. 2.64 The Commission considers that the inclusion of principles to guide decision making about adoption would assist with implementing the objects of the Act. The objects and principles should be collected in one place near the start of the Act rather than scattered throughout as they currently are.
  2. 2.65 The inclusion of both objects and principles is consistent with contemporary adoption legislation in other states and territories.68 It is a legislative response to the theme, which resonated through consultations, of a need for greater transparency and clarity in adoption law.
  3. 2.66 There are four parts to the Commission’s recommended new legislative principles:
  • a statement of objects that clearly outlines the key goals of adoption legislation (Recommendation 2 discussed above at [2.29])
  • general principles to guide decision making about adoption (Recommendations 3 and 4 below)
  • best interests principles to provide guidance about the matters for decision makers to consider in determining a child’s best interests (Recommendation 23 discussed in Chapter 5 at [5.126])
  • additional decision-making principles for Aboriginal and Torres Strait Islander children incorporating the Aboriginal Child Placement Principle (Recommendation 29 discussed in Chapter 7 at [7.116]).
  1. 2.67 For principles to be effective the legislation needs to specify to whom they apply. It is important to emphasise that decision-making principles apply to all decision makers in adoption, not just the court. The Act should specify that decision makers are to have regard to the principles (where relevant) in making any decision or taking any action under the Act. This should apply to the court, the Secretary, principal officers of approved agencies and any other persons and bodies involved in the administration of the Act.
  2. 2.68 The Act should clarify that the role of the principles is to give guidance in the administration of the Act. It should state that the principles do not create, or confer on any person, any right or entitlement enforceable at law.
  3. 2.69 The Commission has considered responses to the consultation paper as well as the guiding principles included in the adoption legislation of other Australian jurisdictions. It has identified six matters that should be included as general principles to guide decision making about adoption.
  4. 2.70 Principle 1: The best interests of the child concerned, both in childhood and in later life, must be the paramount consideration. This principle was strongly supported in responses to the consultation paper, and is required by the terms of reference. It reflects the requirements of the CRC and, in particular, article 21, which requires that: ‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration’.69 These considerations are at the heart of the Adoption Act and should be at the forefront of the mind of all people involved in making decisions under the Act.
  5. 2.71 Principle 2: Adoption is a service for the child concerned and no adult has a right to adopt a child. Recommendation 2(b) is that an object of the Adoption Act should be to provide for adoption in a way that ensures that adoption is regarded as a service for the child concerned which is centred on the needs of the child rather than those of an adult seeking to care for a child. This is a key principle of adoption and a protective factor for ensuring that decisions are made with the best interests of the child as the paramount consideration.
  6. 2.72 Principle 3: Consent to adoption must be fully informed and free from duress, pressure or coercion. Consent is discussed in detail in Chapter 8 and recommendations are made to improve the consent process and ensure that consent is freely given on an informed basis. Throughout the review the Commission heard from many people who were subject to forced adoptions. The immense grief and trauma associated with forced adoptions means that the attention of decision makers should be focused on ensuring that consent is informed and free. The apologies given by both the Australian and Victorian Parliaments, and commitments to ensure that this does not occur again, reinforce the importance of this aspect of adoption.
  7. 2.73 Principle 4: If a child is capable of forming their own views on a matter concerning their adoption, they must be given the opportunity to express those views freely. These views are to be given due weight in accordance with the age and maturity of the child. This principle reflects the right provided by article 12 of the CRC.70 The Commission was told that while the child is the central figure in the adoption, current adoption law does not provide well enough for their views to be considered at key stages in the adoption process. The child’s right to participation should be included as a principle to ensure that the person whom the decision most affects has an opportunity to be heard.
  8. 2.74 Principle 5: Anyone involved in the adoption process should be given the information that they reasonably need to participate effectively in a manner and form that enables them to understand. This means that information may need to be provided in different forms for different people. For example, someone who does not speak English as their first language may require an interpreter. This principle is important in order for people involved in adoption to participate effectively, to help ensure consent is freely given on an informed basis, and to help ensure that those involved in adoption are treated with respect and retain their dignity.
  9. 2.75 Principle 6: A person or body exercising a function or power under this Act in relation to an Aboriginal or Torres Strait Islander child must observe the decision-making principles for Aboriginal and Torres Strait Islander children.
  10. 2.76 The Commission’s proposed principles to guide decision making about the best interests of the child are discussed in Chapter 5 and Recommendation 23.
  11. 2.77 The Commission’s proposed decision-making principles for Aboriginal and Torres Strait Islander children are discussed in Chapter 7 and Recommendation 29.

Recommendations

  1. 3 The Adoption Act should include a suite of overarching principles which include general principles (described in Recommendation 4), the best interests principles (described in Recommendation 23), and the decision-making principles for Aboriginal and Torres Strait Islander children (described in Recommendation 29). The Adoption Act should specify that:
  2. a. Decision makers and others providing services under the Adoption Act including the court, the Secretary, principal officers of approved agencies and any other persons and bodies involved in the administration of the Act are to have regard to the principles set out in the Act (where relevant) in making any decision or taking any action under the Act.

 

  1. b. The principles give guidance in the administration of the Act and do not create, or confer on any person, any right or entitlement enforceable at law.
  2. 4 The general principles should specify that:
  3. a. The best interests of the child concerned, both in childhood and in later life, must be the paramount consideration.
  4. b. Adoption is a service for the child concerned and no adult has a right to adopt a child.
  5. c. Consent to adoption must be fully informed and free from duress, pressure or coercion.
  6. d. A child who is capable of forming their own views on a matter concerning their adoption must be given the opportunity to express them freely and these views are to be given due weight in accordance with the age and maturity of the child.
  7. e. Anyone involved in the adoption process should be given the information that they reasonably need to participate effectively, in a manner and form that enables them to understand the relevant process.
  8. f. A person or body exercising a function or power under this Act in relation to an Aboriginal or Torres Strait Islander child must observe the decision-making principles for Aboriginal and Torres Strait Islander children.

 

Terminology in the Adoption Act

Responses

  1. 2.78 The consultation paper asked if there was terminology that should be changed because it is unclear, outdated or inconsistent with other law.

Adopted child or adopted person

  1. 2.79 Some people said that the term ‘child’ is problematic because it fails to account for the effects of adoption over the lifetime of a person and is infantilising.71
  2. 2.80 The Australian Association of Social Workers ‘supports the use of the term “best interests” of the adoptee, and not just “child’s best interest”, as it refers and better captures the effect of key decisions throughout the [person’s] life … not just childhood’.72
  3. 2.81 Another submission stated that: ‘Adoption needs to be viewed as an act that is done to a child, that not only effects them as a child, but also as an adult. So the terminology should read something like “the best interests of the child, including the best interests of the adult they become”’.73
  4. 2.82 The use of the term ‘best interests of the child’ was described as problematic when the adopted person is no longer a child.74

 

Description of parents

  1. 2.83 Strong views were expressed about the terminology that should be used to describe mothers and fathers from the family of origin. A number of people considered that ‘birth mother’ is disrespectful and that ‘natural mother’ is a preferable term.75 Alternatively, people considered that no adjective should be applied to the parents from the family of origin; they should be described as ‘mother’ or ‘father’ with no adjective attached.76
  2. 2.84 Adoptions Origins Victoria submitted that it:

rejects the use of ‘birth’ as a qualifier of Mother or Father and prefers either that there be no qualifier accorded to the parent or the word ‘natural’ be used. We believe that the term ‘birth mother’ is linked to the practice of forced adoption and as such is a traumatising phrase and should be abandoned. Adoption Origins Victoria understands that the term ‘birth mother’ was originally used by social workers in the USA to distance the child from its mother of origin and we seek the immediate abolition of the use of that term.77

  1. 2.85 VANISH considered that the terms ‘birth mother’ and ‘birth father’ fail to acknowledge the person’s ongoing role in the adopted person’s life:

The terms frequently used in the adoption sector for the natural parents are ‘birth mother’ and ‘birth father’. This implies that their role was and remains related to the birth of the child. However, in reality when a child is relinquished or removed, the familial relationships already in place do not cease to exist. Whether or not contact is ongoing or frequent, the child is still genetically and psychologically connected to his or her parents, siblings, grandparents and ancestors. This does not change, even when the relationships are legally severed.78

  1. 2.86 Independent Regional Mothers Combined submitted that ‘the terminology birth mother indicates the womb of a woman is used as a breeding commodity’.79 It stated that ‘Natural mothers are natural mothers—adoptive mothers are unnatural mothers—they did not give birth to the stolen child and cannot cover up these crimes by demanding natural mothers to be referred to as birth mothers’.80
  2. 2.87 Professor the Hon. Nahum Mushin, chair of the Forced Adoptions Apology Reference Group and the Forced Adoptions Implementation Working Group, emphasised that adoption law must be sensitive to the needs of people affected by forced adoption. He described the terminology used to refer to biological parents in the area of forced adoptions, indicating that they are referred to as the ‘parents’ without any adjective preceding the noun. If there is a need to distinguish between parents, adjectives are used for the adoptive family; for example, ‘adoptive mother’. He expressed the view that adoption law should use this language.81

‘As if the child had been born to’

  1. 2.88 The Adoption Act uses the term ‘as if the child had been born to’ to describe the legal effect of an adoption order providing that:

Subject to this Act and to the provisions of any other Act that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order—

 

(a) the adopted child shall be treated in law as a child of the adoptive parent or adoptive parents, and the adoptive parent or adoptive parents shall be treated in law as the parent or parents of the child, as if the child had been born—

(i) to the adoptive parent; or

(ii) to the adoptive parents.

(b) the adopted child shall be treated in law as if the adopted child were not a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person shall be treated in law as if the person were not a parent of the child.82

  1. 2.89 Some submissions suggested that the use of the phrase ‘as if the child had been born to’, is unnecessary.83 ARMS (Vic) submitted that:

There is no need to say ‘as if born to’ in legislation as that is obviously part of their parental rights, duties, obligations and liabilities. Adding ‘as if born to’ is superfluous and creates a false impression in the minds of the adoptive parents. This is a legal and actual lie. The law should not support this lie. How we describe adoption is important. The reality is that they are parenting another family’s child and the relationship will never be ‘as if born to’.84

Terminology that is inconsistent with other legislation or outdated

  1. 2.90 The consultation paper noted that some terminology in the Adoption Act was inconsistent with other legislation and suggested it may be appropriate to update the language used in the Adoption Act to ensure consistency and clarity.
  2. 2.91 Child & Family Services Ballarat and the Law Institute of Victoria submitted that the terms ‘guardianship’ and ‘custody’ should be updated to align with other legislation.85 The Law Institute of Victoria referred to the terminology used in the Family Law Act, which uses the terms ‘”spends time with”, “lives with” and “parental responsibility” ... in place of “contact”, “custody” and “guardianship”’.86
  3. 2.92 OzChild submitted that the use of the term ‘whole blood’ or ‘half-blood’ should be removed when defining a relative. It also considered that the term ‘Aborigine’ is offensive towards Aboriginal people and should no longer be used.87

Commission’s conclusions

Adopted child or adopted person

  1. 2.93 Adoption decisions have lifelong effects and an adopted person is an adult for much longer than they are a child. Adoption legislation should use the term ‘adopted person’ rather than ‘adopted child’ wherever reference is to the person as an adult.88
  2. 2.94 In some instances it is necessary to use the term ‘child’, primarily in reference to the best interests concept. Best interests decision making can take into account the interests of the child both in childhood and in later life. The language used to guide best interests decision making should focus decision making on future, not just immediate, consequences. However, the term ‘best interests of the person’ would be undesirable because it would be inappropriate for decisions to be made in the ‘best interests’ of an adult. Generally, legal adults are free to make their own decisions, good or bad, and it is not the role of the state to intervene to make decisions for adults in their ‘best interests’.

Description of parents

  1. 2.95 At times it is necessary to distinguish between the various parties to an adoption in order to define and protect their rights and duties.
  2. 2.96 The Commission has considered the responses to the consultation paper, the approach taken by the Senate Community Affairs Reference Committee in its report, Commonwealth Contribution to Former Forced Adoption Policies and Practices, and approaches taken in other jurisdictions to the language used to describe parents.89
  3. 2.97 The Adoption Act uses the terms ‘adopted child’ or ‘adopted person’, ‘adoptive parent(s)’ and ‘natural parent(s)’ to differentiate between the parties to an adoption. Terminology used in adoption legislation in other states and territories includes ‘natural parents’,90 ‘birth parents’91 and ‘biological parents’.92
  4. 2.98 The language of adoption is a disputed area that elicits strong reactions. The Commission recognises the extreme trauma and distress resulting from forced adoptions and the ongoing effects of this trauma on parents and children who were subject to forced adoptions.
  5. 2.99 The Commission also acknowledges the argument that terms such as ‘birth mother’, ‘birth father’ or ‘biological parents’ may minimise the idea that the parents will have an ongoing role in the adopted person’s life, and may suggest that the role of the parents is limited to providing the genetic material for the child.
  6. 2.100 The use of the term ‘natural parent’ is also problematic and may cause distress because it may suggest that the adoptive parent is an ‘unnatural parent’ and that the relationship is ‘unnatural’.
  7. 2.101 The Commission’s recommendations aim to reduce any trauma associated with adoption. Terms such as ‘birth parent’ may retraumatise those involved in forced adoptions and may have the effect of making the person who gave birth to a child feel like a commodity.
  8. 2.102 On balance, the Commission considers that the language used in adoption legislation should be ‘mother’ to describe the person who gave birth to the child wherever possible. If it is necessary to draw a distinction for clarity, the terms ‘natural mother’ and ‘adoptive mother’ should be used. Similar distinctions should be drawn between ‘natural father’ and ‘adoptive father’, and ‘natural parents’ and ‘adoptive parents’, where necessary.
  9. 2.103 Those involved in adoptions are free to describe themselves in any way they wish. The way individuals involved in adoption describe their relationships with each other will not necessarily correspond with the language used in adoption legislation.

‘As if the child had been born to’

  1. 2.104 The Commission has considered the strong views expressed about the lack of openness in adoption and the ‘lie of adoption’. A new description of the legal effect of an adoption order should remove the words ‘as if the child had been born to the adoptive parent; or to the adoptive parents’.
  2. 2.105 The Commission has considered the approach taken in other states and territories to describing the legal effect of an adoption.93 In all states and territories, the legal effect of an adoption is to sever the legal rights and responsibilities of the natural parents and give the adopting parents these legal rights and responsibilities. The phrase ‘as if the child

    had been born to the adoptive parents’ is only used in Victoria and the Australian Capital Territory.94 The other states and territories use a variety of terminology.

  3. 2.106 One approach is to describe the child as becoming the child of the adoptive parents and ceasing to be the child of the natural parents. Some jurisdictions describe both parts of this changed relationship as a factual status,95 while some describe the first part as a change in legal status (with a phrase like ‘becomes in law a child of the adopted person’) but describe the second part as a factual status (with a phrase like ‘ceases to be a child of the birth parents’), without expressly acknowledging that this is the legal relationship.96
  4. 2.107 The current description used in Victoria does touch on the legal effects of the adoption, using the phrase ‘shall be treated in law as the parent or parents of the child, as if the child had been born to the adoptive parent or to the adoptive parents’. While this construction reflects how the child will be treated in law, it does so with a legal fiction that the child was born to the adoptive parents.
  5. 2.108 A description of the legal effect of adoption should avoid the unqualified use of phrases like ‘ceases to be a child of’97 or ‘stops being a child of a former parent’.98 These phrases perpetuate the legal fiction that the child is no longer a child of the natural parents. Although the legal effect of an adoption order is to permanently transfer full parental responsibility to the adoptive parent(s), this does not erase the facts of their birth and links with their family of origin.
  6. 2.109 The description should define the effect of an adoption in a way that focuses on its legal effects. The focus of the definition should be on the permanent transfer of parental responsibilities to the adoptive parents and ending of parental responsibilities for the natural parents. It should incorporate the changes in entitlements to legal benefits that flow from these changes to legal parenthood.
  7. 2.110 It should do so in a way that avoids legal fiction and provides the best chance of effective open adoption by acknowledging that the change in legal parenthood does not alter the facts of the child’s birth. The child remains ‘a child’ of the natural parents even though the parents no longer have legal parental rights and responsibilities. Emotional ties remain, as does the possibility that practical ties will continue through ongoing contact between the child and their family of origin.
  8. 2.111 The New South Wales Law Reform Commission considered similar issues in its 1997 review of adoption law.99It recommended that legislation should ‘avoid language which fosters notions of “ownership” of children, while recognising the profound and permanent changes in legal status which occur’.100
  9. 2.112 The exact wording to achieve this desired legal policy outcome is a matter for the Office of the Chief Parliamentary Counsel. The Adoption Act 2000 (NSW) may provide a useful model.101 It accurately describes the permanent change in legal parenthood. At the same time, it avoids language that obscures the facts of the adoption or fails to recognise that the natural parents will always be parents of the adopted child, although adoption means that they are not the legal parents.

 

Terminology that is inconsistent with other legislation or outdated

  1. 2.113 The Commission considers that terminology in adoption legislation should be updated to align with other legislation.
  2. 2.114 The Adoption Act uses the terms ‘guardianship’ and ‘custody’.102 These concepts were removed from both the CYF Act as part of amendments made in 2014, and from the Family Law Act 1975 (Cth) as part of amendments made in 1995.103 These terms were replaced with ‘parental responsibility’ which is defined in the CYF Act and the Family Law Act as ‘all the duties, powers, responsibilities and authority which, by law (or custom), parents have in relation to children’.104 This change was intended to displace the idea that parents have rights over children and instead focus attention on the responsibilities that parents have towards their children.105
  3. 2.115 A number of other Australian states and territories use the concept of ‘parental responsibility’.106
  4. 2.116 Subject to the two limitations discussed below, the ‘guardianship and custody’ terminology in the adoption legislation should be replaced with the term ‘parental responsibility’. This would align it with the CYF Act and the Family Law Act, which is likely to make it easier for decision makers to work with. It would also align it better with contemporary views and the CRC by focusing attention on the responsibilities adoptive parents have towards adopted children rather than on rights that they have over children.
  5. 2.117 There are two important clarifications to the recommendation. First, any changes to the adoption legislation to use the term ‘parental responsibility’ must ensure that the general requirement for the consent of natural parents to an adoption (or in limited cases that their consent is dispensed with by the court) is clearly retained. This needs to be clear because of the interactions between the Adoption Act and other Acts such as the CYF Act, which may allocate sole parental responsibility to someone other than the natural parents.107 Even if someone other than the natural parents has sole or exclusive parental responsibility for a child, the legislation should clarify that consent of the natural parents to their child’s adoption is still required.
  6. 2.118 The other clarification is that the various references in the Adoption Act to a ‘guardian’ for a non-citizen child under the Immigration (Guardianship of Children) Act 1946 (Cth) should be retained to ensure consistency with this legislation.108
  7. 2.119 The term ‘access’, which is used in the Adoption Act to describe arrangements for various people with whom the child is not living to have contact with the child, should be replaced with ‘contact’.109 Amendments to the CYF Act in 2013 replaced the term ‘access’ with ‘contact’ because access was considered to be ‘outdated’.110 The term ‘contact’ should be used for consistency with the CYF Act and it should be defined in the same way.111 The term ‘contact’ is not used in the Family Law Act, which refers to people with whom the child ‘is to spend time’ and people ‘with whom the child is to communicate’.112

    However, it is preferable to provide for consistency with the state legislation, because many of those involved in providing services and in making decisions about adoption are familiar with the definition of ‘contact’ used in the CYF Act.

  8. 2.120 Recent amendments to the Adoption Act mean that same-sex couples and people who do not identify with a particular sex or gender are eligible to adopt in Victoria. There were no corresponding changes to the consent provisions. The existing consent provisions do not anticipate a situation where the parents who would provide consent to an adoption are, for example, two fathers or two mothers.113 The consent provisions should be amended to clearly provide for parents who are same-sex couples or parents who do not identify with a specific sex or gender to provide consent to adoption.
  9. 2.121 The term ‘Aborigine’, which is used throughout the Adoption Act, is often considered inappropriate and may cause offence.114 The term ‘Aboriginal person’ or ‘Aborigine’ does not include Torres Strait Islander people, although it has been defined to do so in the Adoption Act.115 The Commission recognises that Torres Strait Islanders are a separate people in origin, history and way of life.
  10. 2.122 Adoption legislation in Queensland, Western Australia, New South Wales and the Australian Capital Territory acknowledges that Torres Strait Islanders are a separate people in origin, history and way of life.116
  11. 2.123 The Adoption Act should use the terms ‘Aboriginal or Torres Strait Islander person’ or ‘Aboriginal or Torres Strait Islander child’. This should be defined in a way that is consistent with the definition in the CYF Actbut the term ‘Aboriginal or Torres Strait Islander person’ should be used in full throughout the Act rather than the shorthand ‘Aboriginal person’ to refer to both Torres Strait Islander people and Aboriginal people.117
  12. 2.124 Consideration should also be given to removal of the terms ‘whole blood’ or ‘half-blood’ from the definition of relative. These terms may be outdated and are potentially offensive because they may be seen as pejorative terms. In Wales, for example, concerns were raised when a 2013 Bill included the term half-blood in a definition of family. It was revised to remove this term.118 However, the Commission notes that this terminology is used in other Victorian Acts. Harmonisation of legislation and avoidance of unintended consequences may require that this term be retained, until such time as it may be reviewed in all Victorian legislation.119

 

Recommendations

  1. 5 Where possible, the Adoption Act should use the term ‘mother’ to describe the person who gave birth to the child. If it is necessary to draw a distinction for clarity, the terms ‘natural mother’ and ‘adoptive mother’ should be used. Similar distinctions should be drawn where necessary between ‘natural father’ and ‘adoptive father’, and ‘natural parents’ and ‘adoptive parents’.
  2. 6 The Adoption Act should avoid language that obscures the facts of the adoption or fails to recognise that the natural parents do not change, even though their legal status does. In particular, the explanation of the effect of an adoption order should:
  3. a. avoid the use of the phrase ‘as if the child had been born to’
  4. b. focus on the permanent transfer of parental rights and responsibilities to the adoptive parents
  5. c. specify that the child permanently ceases to be entitled to any legal benefits that flow from the relationship with their natural parents and instead becomes entitled to any legal benefits that flow from the relationship with their adoptive parents.
  6. 7 The Adoption Act should modernise or clarify other language and concepts including in the following ways:
  7. a. Use the term ‘parental responsibility’ instead of ‘guardians’, ‘guardianship’ and ‘custody’, except when referring to guardianship under the Immigration (Guardianship of Children) Act 1946 (Cth).
  8. b. Clearly provide that the fact that someone other than the natural parents has parental responsibility for the child, including sole or exclusive parental responsibility, does not affect the requirement for the consent of the natural parents to the adoption.
  9. c. Use the term ‘contact’ instead of ‘access’ to describe arrangements for contact with the child.
  10. d. Ensure that the consent provisions provide for consent to adoptions by two parents who are of the same sex or gender as well as by a parent or parents who do not identify with a specific sex or gender.
  11. e. When referring to either an Aboriginal or Torres Strait Islander person, use the terms ‘Aboriginal or Torres Strait Islander person’ and ‘Aboriginal or Torres Strait Islander child’ rather than the shorthand ‘Aboriginal person’ or ‘Aboriginal child’.
  12. f. Define the terms ‘parental responsibility’, ‘contact’, ‘Aboriginal or Torres Strait Islander person’ and ‘Aboriginal and Torres Strait Islander child’ consistently with the definitions in the Children, Youth and Families Act 2005 (Vic).

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