5. The best interests and rights of the child

 

Introduction

  1. 5.1 The terms of reference ask the Commission to review the Adoption Act 1984 (Vic) to ensure that the best interests and rights of the child are the foremost consideration in any decision under the Adoption Act.
  2. 5.2 This chapter focuses on how the Adoption Act aims to provide for the best interests and rights of the child. It explores the current provisions for the best interests of the child, including how the Adoption Act attempts to balance and protect the rights and interests of all parties in an adoption to ensure each adoption is in a child’s best interests.
  3. 5.3 The Commission is seeking the views of the community on any changes that may be required to the Adoption Act to ensure that the best interests and rights of the child are paramount.

United Nations Convention on the Rights of the Child

  1. 5.4 The principle of making decisions in the best interests of the child is well established in international law.1
  2. 5.5 Article 3 of the United Nations Convention on the Rights of the Child (CRC) provides a general ‘best interests of the child’ principle which applies to all actions concerning children:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.2

  1. 5.6 Article 21 of the CRC provides specifically for the best interests of the child in an adoption.3 The wording is stronger than the general best interests of the child principle in article 3. It stipulates that in an adoption, the best interests of the child are to be the paramount consideration rather than a primary consideration:

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 and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons

concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary.4

  1. 5.7 This requires that in adoption decisions, the best interests of the child take precedence over all other interests, including those of birth parents, adoptive parents and political, state security or economic interests.5 It calls for the child and his or her needs to be at the centre of any decisions about adoption.
  2. 5.8 An adopted child is entitled to all the rights in the CRC. The specific rights provided in relation to adoption should be read in the context of all the rights provided in the CRC.6 These include:
  • the principle of non-discrimination7
  • the right for the child to know and be cared for by his or her parents8
  • the right for the child not to be arbitrarily separated from his or her parents and to be raised by them9
  • the right for the child to be heard in matters affecting them.10
  1. 5.9 There is also a ‘presumption within the Convention that children’s best interests are served by being with their parents wherever possible’.11
  2. 5.10 Australia ratified the CRC on 17 December 1990.

Provision for best interests in the Adoption Act

  1. 5.11 The Adoption Act includes an overarching provision which requires that: ‘In the administration of this Act, the welfare and interests of the child concerned shall be regarded as the paramount consideration.’12
  2. 5.12 The provision requiring that the welfare and interests of the child are the paramount consideration was introduced by the Adoption of Children Act 1964 (Vic).13
  3. 5.13 In 1964, when this principle was introduced, the Second Reading Speech in the Legislative Council described it as ‘the keynote of this proposed legislation. All else in this Bill really stems from the primary consideration that the welfare and interests of the child are paramount.’14
  4. 5.14 The Adoption Act and the Adoption Regulations 2008 (Vic) use inconsistent terminology to refer to the idea that the best interests of the child are the paramount consideration. In addition to the phrase ‘welfare and interests of the child’, the following phrases are used: ‘best interests of the child’,15 ‘best interests of the welfare of an adopted child’16 and ‘child’s interests’.17
  5. 5.15 It appears that the various terms are used interchangeably and are not intended to convey different meanings. It seems likely that these inconsistencies have arisen through the multiple amendments that have been made to the legislation since 1984.
  6. 5.16 Both the Children, Youth and Families Act 2005 (Vic) (CYF Act) and the Family Law Act 1975 (Cth), which are key pieces of legislation in decision making about Victorian children, use the term ‘best interests of the child’ rather than ‘welfare and interests of
    the child’ or the other formulations of this idea provided in the Adoption Act or Adoption Regulations.18
  7. 5.17 In its 1997 Review of the Adoption of Children Act 1965 (NSW), the New South Wales Law Reform Commission considered the difference between the terms ‘welfare and interests of the child’ and ‘best interests of the child’. It concluded that ‘welfare and interests’ of the child and ‘best interests’ are interchangeable. It recommended the use
    of the term ‘best interests of the child’.19
  8. 5.18 There is a risk that the different wording might lead decision makers to interpret each formulation differently and therefore make inconsistent decisions.
  9. 5.19 The Commission’s preliminary view is that to ensure clarity for decision makers, as well
    as consistency with international conventions and other legislation, it would be preferable if the Adoption Act was changed to require that the ‘best interests of the child shall be the paramount consideration’ and that this terminology should be used consistently throughout the Adoption Act and Adoption Regulations.
  10. 5.20 The remainder of this chapter refers to the best interests of the child rather than the welfare and interests of the child.

Question

  1. 1 Should the Adoption Act use consistent terminology to guide decision makers in a decision relating to adoption? If not, in what circumstances should terminology other than the best interests of the child be used?

 

Best interests of the child in other legislation

  1. 5.21 The best interests concept has been criticised as:
  • indeterminate and subject to the values and views of the decision maker20
  • paternalistic and paying insufficient attention to the rights of children as human beings with agency and views of their own21
  • susceptible to being used as a vehicle for political or ideological views.22
  1. 5.22 One possible response to criticisms of the best interests concept is to provide guidance in the legislation about how to determine the best interests of the child. The Adoption Act does not provide any guidance about what factors should be considered.
  2. 5.23 A number of other Acts that provide for decision making about Victorian children give guidance about how to decide what is in a child’s best interests. This section outlines
    the guidance provided by the Family Law Act and the CYF Act.
  3. 5.24 It also considers the guidance provided in adoption law in other Australian states and territories about how to decide a child’s best interests.
  4. 5.25 These other laws might provide some ideas about how the best interests of the child could be better determined under the Adoption Act. The Commission is seeking the community’s views on whether decision making about the best interests of the child could be improved by providing guidance to decision makers, and if so how.

<strong_em>Family Law Act 1975 (Cth)

  1. 5.26 The Family Law Act provides the main law in Australia on issues relating to parenting arrangements after parents have separated.23
  2. 5.27 It requires that ‘in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration’.24
  3. 5.28 It details matters that the court must consider to determine a child’s best interests.25 They are divided into primary considerations and additional matters. The two primary considerations are:
  • the benefit to the child of a meaningful relationship with both parents
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.26
  1. 5.29 The court is required to give greater weight to the second consideration.27
  2. 5.30 The Family Law Act provides an extensive list of additional considerations for determining the child’s best interests.28 They are not listed in a hierarchy. Many overlap with best interests considerations in the adoption law from other states and territories discussed below, so are not listed separately here.

<strong_em>Children, Youth and Families Act 2005 (Vic)

  1. 5.31 The CYF Act underpins the Victorian system of statutory child protection. It requires that the best interests of the child must always be paramount for the purposes of the Act.29
  2. 5.32 In all cases when deciding whether something is in the best interests of a child, a decision maker under the CYF Act must consider the need to protect the child from harm, to protect the child’s rights and to promote the child’s development, taking into account the child’s age and stage of development.30
  3. 5.33 Like the Family Law Act, the CYF Act provides an extensive list of additional considerations ‘where they are relevant to the decision or action’. Many of these overlap with best interests considerations in the adoption legislation of other states and territories discussed below, so are not listed separately here.

 

Adoption Acts in other Australian states and territories

  1. 5.34 The Adoption Act 2000 (NSW) gives guidance about how to determine the best interests of the child. It requires the decision maker to consider the following matters:
  • wishes expressed by the child
  • the child’s age, maturity, level of understanding, gender, background and family relationships, and any other characteristics of the child that the decision maker thinks are relevant
  • the child’s physical, emotional and educational needs, including their sense of personal, family and cultural identity
  • any disability that the child has
  • wishes expressed by either or both parent(s)
  • the relationship of the child with his or her parents and siblings (if any) and significant other people (including relatives) that the decision maker considers to be relevant
  • the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood
  • the relationship of the child with the proposed adoptive parents
  • the suitability and capacity of the proposed adoptive parents, or any other person,
    to provide for the needs of the child, including emotional and intellectual needs
  • the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to these things
  • the alternatives to an adoption order, and the likely short-term and long-term effects on the child of changes in their circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs
    of the child.31
  1. 5.35 Adoption law in other states and territories gives varying levels and types of guidance
    for determining a child’s best interests. The matters considered relevant include:
  • the term ‘best interests’ refers to childhood and the rest of the person’s life32
  • the likely effect of the decision on the life course of the child33
  • consideration of ethnicity and religion of the birth parents, and the principle that it is preferable to place a child with a family that has the same ethnic and cultural origins as the child’s birth parents to facilitate an environment that will promote the child’s cultural heritage and identity34
  • the child’s age, level of understanding, level of maturity, gender, and personal characteristics35
  • the child’s physical, emotional and educational needs36
  • the views of the child37
  • the relationship of the child with their parents, siblings and any other relatives38
  • the benefits of placing a child with the same family as any sibling of the child
    who is also to be adopted or has previously been adopted39
  • the child’s relationship with the adoptive parents40
  • the suitability and capacity of the adoptive parents to meet the child’s needs41
  • the alternatives to adoption to secure permanent family arrangements42
  • possible ongoing contact with members of the child’s birth family, or the exchange of information between the child or the child’s adoptive parents and members of the child’s birth family.43
  1. 5.36 It may assist decision makers to have guidance in the Adoption Act about the factors that should be considered in determining the best interests of the child. The Commission is interested in the community’s view on this matter.

Question

  1. 2 Should the Adoption Act provide guidance about how to determine what
    is in a child’s best interests? If yes:
  2. (a) What should decision makers be required to consider?
  3. (b) Should all the matters have equal weight or should some be weighted more heavily than others?
  4. (c) If some matters should be weighted more heavily than others, what
    are they?

 

People with an interest in the adoption and the best interests concept

  1. 5.37 The child’s best interests are the paramount consideration in decisions about adoption. The needs of the child are at the centre of decision making and are prioritised over the needs and interests of other parties in the adoption. This does not mean that other parties in an adoption have no rights or interests.
  2. 5.38 In this chapter, ‘parties in an adoption’ refers only to the adopted child, the birth parents and the adoptive parents. There are many other people who have a significant interest in an adoption and who play an important role in a child’s life. These include siblings of the adopted child, relatives of the child (including extended family), carers, community members, and members of the child’s cultural or ethnic group. The way in which the Adoption Act provides for and balances each of these interests to uphold the child’s best interests is also considered.
  3. 5.39 There are different views about how to determine what is in the best interests of a child, and how the interests of each party in an adoption should be balanced to uphold the best interests of the child.
  4. 5.40 As outlined above, there is a presumption in the CRC that it is in a child’s best interests to be with his or her parents wherever possible.44 The CRC provides a set of minimal procedural requirements to help ensure adoptions are in the best interests of the child including:
  • an adoption of a child is authorised only by competent authorities
  • the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians
  • if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary.45
  1. 5.41 These elements are provided for in the Adoption Act.
  2. 5.42 The Adoption Act does not provide explicit guidance or principles about how to ensure that decisions are in the best interests of the child. However, it does include various features that protect the rights and interests of all parties in an adoption, to ensure
    it is in a child’s best interests.
  3. 5.43 The key ways it does this are:
  • a general requirement that the parents of a child consent to an adoption46 (discussed at [5.55]–[5.96])
  • an ability to revoke consent within specified timeframes47 (discussed at [5.92]–[5.94])
  • an ability for the court to dispense with the consent of a parent in particular circumstances48 (discussed at [5.97]–[5.99]
  • eligibility requirements for people who wish to adopt a child49 (discussed in
    Chapter 7)
  • an ability for the birth parents to express wishes in relation to the religion, race
    or ethnic background of the proposed adoptive parent(s)50 (discussed in Chapter 7)
  • a requirement to consider the wishes of the child51 (discussed at [5.108]–[5.127])
  • a requirement that the child is represented in particular circumstances52 (discussed
    at [5.128]–[5.155])
  • the ability to provide for ongoing information exchange or contact between the adopted child and the parents53 (discussed at [5.100]–[5.107])
  • rights for various people with a legitimate interest in an adoption—including relatives who are not parties in the adoption—to access information about the adoption54 (discussed in Chapter 8).
  1. 5.44 The Commission is interested in community views on whether the Adoption Act has achieved the right balance between the interests of each party in an adoption, and has provided for the interests of non-parties who are important in the child’s life, while still ensuring that the best interests of the child are paramount.
  2. 5.45 The next sections outline the provisions in the Adoption Act that attempt to balance the rights of the parties in an adoption. They also consider how the interests of non-parties to an adoption who have a significant interest in the adoption, such as siblings and other relatives, are provided for. The Commission seeks the community’s views on how all these provisions might be improved.

 

Relatives and community members of the child and best interests

  1. 5.46 There are many people who are not a party in an adoption, but who have a stake in it, and whose role should be considered in any decision about the best interests of the child. They include the adopted person’s siblings, grandparents, aunts and uncles, the children of adoptive parents, and carers. They may also include the extended family and the child’s cultural and linguistic community.
  2. 5.47 The ways the Adoption Act currently provides for the benefits to the child of maintaining connection to these people and the interests of these people are:
  • requirements that the people seeking to adopt the child have a suitable appreciation of the importance of contact with parents and family and exchange of information about the child with the child’s parent and family55
  • the ability, in some circumstances, for the court to place conditions on an adoption order providing for parents to receive information about the child and parents and relatives of the child to have contact with the child (discussed at [5.100–5.107])56
  • an ability to make consent to the adoption of an Aboriginal or Torres Strait Islander child subject to conditions that the relevant parent, specified relatives, and members of the Aboriginal or Torres Strait Islander community to which the child belongs have rights to have contact with the child (discussed in Chapter 6)57
  • rights for various people with a legitimate interest in an adoption—including relatives who are not parties in the adoption—to access information about the adoption58 (discussed in Chapter 8).

Child’s relationships in other legislation

  1. 5.48 Some other states and territories provide stronger obligations to consider the relationship of the child with their parents, siblings and any other relatives. For example, adoption law in the Australian Capital Territory requires that in forming a view about the best interests of a child or young person, a person making a decision must take into account the relationship the child or young person has with the parents, any siblings and any other relatives.59
  2. 5.49 Queensland adoption law focuses more explicitly on the child’s relationships with siblings, both pre- and post-placement, for adoption and finalisation of an adoption order.
    It requires the Department of Communities, Child Safety and Disability Services to have regard to the consideration that it would ordinarily be in a child’s best interests to be placed with the same family as any sibling of the child who is also to be adopted or has previously been adopted.60
  3. 5.50 The Adoption Act 2009 (Qld) provides principles to be followed, including that it may
    be in a child’s best interests to have ongoing emotional connections, contact or exchange of information with their birth family.61
  4. 5.51 Queensland adoption law aims to protect the best interests of the child through a number of requirements aimed at ensuring the parents’ focus is primarily on that child. One way
    it does this is by trying to ensure there are age gaps between the child placed for adoption and any other children. This includes:
  • Eligibility criteria requiring that a woman seeking to adopt is not pregnant, that a person seeking to adopt is not undergoing fertility treatment, and that anyone seeking to adopt does not have custody of a child less than one year old or a child who has been in their custody for less than one year.62
  • Requirements for the department to consider that it would ordinarily be in a child’s best interests to be the youngest child in their adoptive family by at least two years
    at the time of the placement, and that no other children should join the adoptive family for at least one year after the placement. These considerations do not apply where siblings are placed together with the same family.63
  1. 5.52 While these requirements are included in the best interests of the adopted child, they may also promote the best interests of other children in the family by ensuring that parents have sufficient time to devote to each child and help manage sibling jealousy, which may be accentuated if the children are very close in age.
  2. 5.53 The Commission understands that as a matter of policy, issues relating to fertility, pregnancy and spacing of children are considered as part of the assessment process determining whether someone is suitable to adopt.64 However, in Victoria this is a matter of practice rather than a legislative requirement.
  3. 5.54 Questions about how to provide for a child’s contact with members of their family
    of origin are asked following [5.107].

Questions

  1. 3 Should the Adoption Act have requirements about the age differences between the adopted child and any other children in the family? If yes, what requirements?
  2. 4 Should the Adoption Act include a principle requiring decision makers to consider placing siblings for adoption in the same family? If not, in what other ways could the Adoption Act ensure that sibling relationships are considered
    in decisions about adoption?

 

Consent and ‘best interests’

  1. 5.55 The starting point of the Adoption Act is that consent for an adoption is required from the child’s mother and father, or in the case of a non-citizen child, the person who
    is the guardian of that child under the Immigration (Guardianship of Children) Act 1946 (Cth).65 In some circumstances it is possible for a court to dispense with consent.66
    This is discussed below.
  2. 5.56 The general requirement for consent protects the rights of the birth parents.67 It also protects a child’s right to know and be cared for by their parents,68 not to be arbitrarily separated from their parents and to be raised by them.69
  3. 5.57 The importance placed on consent being properly obtained and valid is emphasised by the fact that the Adoption Act includes offences relating to improperly obtained consent. It is an offence for someone to falsely represent themselves to be a person whose consent is required to an adoption.70 It is also an offence to use a consent document knowing that it is forged or altered, or to use a consent document knowing that the signature was obtained by fraud or duress.71
  4. 5.58 The Adoption Act places great importance on the proper witnessing of consent documents. To ensure documents are correctly witnessed, the Act includes an offence
    for a person who does not follow the rules for witnessing a consent document.72
  5. 5.59 There are different consent provisions for Aboriginal and Torres Strait Islander children, discussed in Chapter 6.

Forced adoption and the apologies

  1. 5.60 In the past, some adoptions occurred without effective consent, against the will
    of parents. These are known as ‘forced adoptions’.
  2. 5.61 In 2012 the Senate Community Affairs References Committee completed its report on the Commonwealth Contribution to Former Forced Adoption Policies and Practices. It defined ‘forced adoption’ as an ‘adoption where a child’s natural parent, or parents, were compelled to relinquish a child for adoption’.73 This included situations where no consent was given, where alternatives to adoption were not explained, where consent was given under duress, and where consent was revoked.74
  3. 5.62 On 25 October 2012 the Parliament of Victoria issued a formal apology to those affected by past forced adoption practices in Victoria.75 The apology acknowledged that ‘many thousands of Victorian babies were taken from their mothers, without informed consent, and that this loss caused immense grief’.76 It also acknowledged ‘the devastating and ongoing impacts of these practices of the past’ and offered an unreserved apology to all those harmed.77 The apology included a commitment to ‘never forget what happened and to never repeat these practices’.78
  4. 5.63 On 21 March 2013, the Prime Minister Julia Gillard apologised on behalf of the Australian Government to people affected by forced adoption or removal policies and practices.79 The apology included commitments ‘to make sure these practices are never repeated’ and to ‘remember the lessons of family separation’. It also stated that the nation’s focus will be ‘on protecting the fundamental rights of children and on the importance of the child’s right to know and be cared for by his or her parents’.80
  5. 5.64 There are ongoing concerns from some community members that consent to adoptions may be forced or coerced. Forced adoptions occurred in Victoria under previous adoption legislation, despite those laws containing consent provisions.81
  6. 5.65 For Victorians affected by forced adoption, the commitments made in the apologies
    to avoid repeating the mistakes of the past are critical.
  7. 5.66 Ensuring free and informed consent to adoption requires a robust legal framework. But that alone is insufficient. It also requires concerted effort from all those involved in the adoption process, from social workers and counsellors to those witnessing and taking consent, and from the court, to ensure that provisions are complied with properly.

Who provides consent?

  1. 5.67 If the child’s parents are or were married at any time between conception and the birth
    of the child, the people whose consent is required are the mother and her husband,
    or former husband.82
  2. 5.68 If the child has been adopted previously, the appropriate people to give consent are the adoptive parents.83
  3. 5.69 Consent is not required if the court is satisfied that there is no appropriate person to give consent to the adoption.84
  4. 5.70 If the child’s parents were not married to each other at any time between conception and the birth of the child, the Adoption Act sets out a range of situations in which a man is presumed to be the father and therefore, in addition to the mother, the appropriate person to give consent to an adoption.85

Requirements to identify and contact father

  1. 5.71 The Adoption Act does not place a positive obligation on anyone to identify the father.
    It does provide some obligations to contact a man reasonably believed to be the father
    of the child.86
  2. 5.72 The Secretary or principal officer of the approved agency arranging the adoption must contact a man he or she believes on reasonable grounds may be the father. This must happen within two business days of the mother giving her consent to the adoption.87
    This obligation to contact the man believed to be the father only applies if his name
    or address is known.88
  3. 5.73 The man believed to be the father must be advised that the Secretary or principal officer believes that he may be the child’s father. He must also be advised that his consent will not be required unless he commences proceedings to obtain a declaration of paternity, in which case he must do so before the end of the period that the mother can revoke consent.89
  4. 5.74 The court may dispense with the requirement to contact the man believed to be the father. The Secretary or principal officer must apply for this dispensation within two business days of the mother giving consent.90 The Adoption Act does not specify any grounds for dispensation but it seems likely that this provision would cover situations where the court considered it appropriate that the mother should have sole decision-making responsibility. This might include situations of rape or incest, or situations where there would be an unacceptable risk of harm to the mother or child if the father was informed.
  5. 5.75 As discussed in Chapters 6 and 8, a child’s access to their cultural and genetic heritage may be key to their identity. Knowledge of their father and his family, and contact with them, are generally acknowledged to be in the best interests of the child. This raises the possibility that there should be a more positive duty on those involved in the adoption process to identify the father.
  6. 5.76 Queensland law imposes a greater duty to identify the father than Victorian law.
    It requires the Department of Communities, Child Safety and Disability Services
    to take reasonable steps to establish the identity and location of the father.91
  7. 5.77 It also requires that the father or a person reasonably suspected to be the father
    be notified that the mother and any guardian has given consent to the adoption.
    He must be told how he may:
  • give consent to the adoption, or
  • establish whether he is the child’s father, or
  • apply for a parenting order for the child in the Family Court of Australia.92
  1. 5.78 The Queensland legislation provides for situations where it considers that it would not
    be appropriate to contact the father. There is no requirement for the department to contact the father in cases of incest, rape, or if there would be an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption.93

Questions

  1. 5 Should there be a greater obligation to identify and contact the father of the child to obtain his consent to an adoption? If yes, what steps are reasonable
    to try to obtain a father’s consent?
  2. 6 Are there any situations when no attempts should be made to contact the father to seek his consent to an adoption? If yes, what are they?

 

Providing effective consent

Information and counselling requirements
  1. 5.79 For consent to be effective it must be in a prescribed form signed by the person giving consent.94 A consent form includes specific information to ensure that information provided about the effect of an adoption order is consistent and that the person providing consent understands the effect of an adoption order.
  2. 5.80 In most cases the form includes a statement that when the court makes an adoption order, the person giving consent will lose his or her rights as a parent of the child, those rights will be transferred to the person or persons who adopt the child, and the child will be treated in law as the child of the person or persons who adopt the child.95
  3. 5.81 If consent is given in Victoria, the person giving consent must have received counselling from an approved counsellor.96
  4. 5.82 The person giving consent must have received written information from the person who gave them counselling. Information must be provided about the effect of an adoption order, the alternatives to adoption, and the names and addresses of organisations that provide family support services. Generally this information should be provided no less than seven days before consent is given.97
  5. 5.83 If consent is given outside Victoria, the counselling requirements do not apply.98 However, in all cases where consent is given in Victoria or overseas, the person giving consent must have received information about the effect of the adoption order, procedures for revoking consent and for extending the period for revoking consent.99
  6. 5.84 A document of consent that is signed in accordance with the law of another state or territory is a valid form of consent to the adoption of the child.100
Requirements for witnessing and taking consent
  1. 5.85 The consent form must be signed in the presence of two eligible witnesses.101
  2. 5.86 If consent is given in Australia, there are two classes of eligible witness. One witness must be drawn from each class of witness.102
  3. 5.87 The first category of witness is a person approved by the Secretary or principal officer of an approved agency. Generally this witness would be the approved counsellor who provided counselling before the consent was given. If this person is unavailable, or it is not practical for the person to be present, the witness must be a person who has a detailed knowledge of adoption practice. In particular, they must be knowledgeable about the effects of an adoption order, the procedure forextending the period for revoking consent and the procedure for revoking consent.103
  4. 5.88 The second category of witness is court officials.104
  5. 5.89 If consent is given in a country outside Australia, the two types of witness are an Australian diplomatic officer and a judge or magistrate in that country.105
  6. 5.90 When consent is signed outside Australia, one of the two witnesses must provide information to the person giving consent about the effect of an adoption order and the alternatives to adoption available in Victoria. Generally this information should be provided no less than seven days before consent is given.106
  7. 5.91 The witnesses must sign a prescribed statement. Irrespective of whether consent is signed in Australia or outside, a witness must not sign the statement unless he or she believes that the person giving the consent understands:
  • the effect of an adoption order
  • the procedure for revoking consent to the adoption
  • the procedure for extending the period for revoking consent to the adoption.107

 

Rights to revoke consent

  1. 5.92 A consent to the adoption of a child may be revoked within 28 days from the date
    on which consent was signed.108
  2. 5.93 The timeframe for revoking consent may be extended by a maximum of 14 days.109
  3. 5.94 If the Secretary or principal officer considers that it is no longer possible to place the child with the proposed adoptive parent or parents, each person who gave consent must be informed in writing of the right to revoke consent. The timeframe for revoking consent
    is 56 days after the notice is given.110

Ineffective consent

  1. 5.95 Generally, consent may not be given earlier than 14 days after the birth of the child. Where it is in the best interests of the child, the court can order that consent may
    be given earlier.111
  2. 5.96 Consent will not be effective if:
  • It was not given in accordance with the Adoption Act.112
  • It was obtained by duress or fraud.113
  • It was revoked before it had become irrevocable.114
  • A material part of the document providing consent has been altered without authority.115
  • The person giving or purporting to give consent was not in a fit condition to give consent, or did not understand the nature of the consent when the document
    was signed.116
  • The document providing consent was signed before the birth of the child.117

Questions

  1. 7 Should any changes be made to the current consent provisions? If yes,
    what changes?
  2. 8 Should any other people be consulted about, or required to consent to,
    an adoption? If so, who?

 

 

Court may dispense with consent

  1. 5.97 The Adoption Act enables the court to dispense with a person’s consent to an adoption
    in certain circumstances.118
  2. 5.98 These are:
  • The person cannot be found, after reasonable inquiry.119
  • The person’s physical or mental condition means they are not capable of properly considering the question of whether they should give consent, and this situation is unlikely to change (this requires a certificate signed by a minimum of two registered medical practitioners).120
  • The person has abandoned, deserted, persistently neglected or ill-treated the child.121
  • The person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person.122
  • The person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child.123
  • The person has such a physical or mental disability, or is otherwise so impaired,
    that the person would be unable to meet the needs of the child.124
  • For any reason the child is unlikely to be accepted into, or to accept, a family relationship with the person.125
  • There are any other special circumstances by reason of which, in the interests
    of the welfare of the child, the consent may properly be dispensed with.126
  1. 5.99 The Commission understands that generally in practice the court is only asked to dispense with consent if the person cannot be found. However, as detailed above, the Adoption Act provides for consent to be dispensed with in a range of other circumstances.

Question

  1. 9 Are the grounds for dispensing with consent appropriate for adoption in contemporary Victoria? If not, what changes should be made?

 

Conditions on an adoption order

  1. 5.100 The Adoption Act refers to ‘access to the child’. The term used throughout this section
    is ‘contact with the child’ which is the more contemporary way of describing this idea.127
    A question about updating the terminology in the Adoption Act is asked in Chapter 9.
  2. 5.101 An adoption order may be made subject to conditions relating to contact with the child or the provision of information about the child.128
  3. 5.102 The ability for the court to place conditions on an adoption order only applies to adoption orders made with the consent of the parent or parents.129 It does not apply to situations where consent was dispensed with by the court.
  4. 5.103 Conditions relating to contact with the child and information about the child may be made where the court is satisfied that:
  • circumstances exist which make it desirable to do so130
  • after consent to the adoption, the birth parent(s)and the adoptive parent(s) have agreed that the adoption order should be made subject to certain conditions.131
  1. 5.104 Two types of condition may be made on the adoption order. The first are conditions providing that specified people have the right to have contact with the child. This may
    be the child’s parents or other relatives.132
  2. 5.105 The other type of condition that may be made is one that requires the adoptive parent or parents to provide information about the child. In this case, the Adoption Act provides for the Secretary or principal officer of an approved agency to act as an intermediary. Information is provided to the Secretary or principal officer and passed on to the parent(s).133
  3. 5.106 It is possible to add the conditions described above to an adoption order after an adoption.134 It is also possible for the court to vary or revoke conditions after an adoption.135 The court must be satisfied that it is in the ‘best interests of the welfare
    of the adopted child’.
  4. 5.107 Special provisions in the Adoption Act enable the parents of Aboriginal and Torres Strait Islander children to give conditional consent to an adoption, providing that consent is only given subject to conditions about ongoing contact with the child. These provisions are discussed in Chapter 6.

Question

  1. 10 Should the court be able to put conditions on an adoption order in a broader range of circumstances if it is in the best interests of the child? These circumstances might include situations where:
  2. (a) the court has dispensed with the consent of a parent but it is in the best interests of the child to have contact with the parent or with relatives
    of that parent
  3. (b) consent was given but the adoptive parents and the birth parent giving consent have not agreed about contact or exchanging information about the child.

 

 

Questions

  1. 11 How should adoption law provide for the child’s contact with family members other than parents? For example:
  2. (a) Should contact arrangements be considered as part of a best interests principle?
  3. (b) Should a decision maker, such as DHHS, be required to consider contact with family members other than parents after an adoption?
  4. (c) Should the court be required to consider making conditions for contact with family members other than parents after an adoption?
  5. 12 Are there any other issues within the terms of reference that should be considered in determining the best interests of the child and balancing the rights and interests of other people with an interest in the adoption? If yes, what are they?

 

Wishes of the child

  1. 5.108 Article 12 of the CRC provides a right for a child who is capable of forming his or her own views to express those views freely in all matters affecting him or her. It requires that the views of the child are given due weight in accordance with the age and maturity of the child.136
  2. 5.109 This right, often described as the right to be heard or the right to participation, has been identified by the United Nations Committee on the Rights of the Child as one of the four general principles of the CRC which ‘highlights the fact that this article establishes not only a right in itself, but should also be considered in the interpretation and implementation of all other rights’.137
  3. 5.110 Recently, the United Nations Committee on the Rights of the Child expressed concern ‘that only three out of eight jurisdictions in [Australia] require the consent of the adopted child (as of 12 years of age) prior to adoption’.138

The child’s wishes in the Adoption Act

  1. 5.111 The Adoption of Children Act 1964 (Vic) included a general requirement for the consent of a child from the age of 12 years.139 This requirement was removed from the 1984 Act. It was replaced with the current requirements for mandatory counselling and consideration of the wishes of the child.
  2. 5.112 One reason for this change was the view that a child’s signature on a consent form
    did not necessarily demonstrate that the child understands the implications of adoption
    or of consent.140
  3. 5.113 A second concern was that requiring a child’s consent places a heavy responsibility
    on a child and ‘may subject the child to unwarranted pressure and manipulation from
    the parents’.141
  4. 5.114 There is currently no requirement in Victoria that the child consent to their adoption. Instead, children must receive counselling subject to their age and understanding,
    and consideration must be given to the wishes of the child.
  5. 5.115 In general, counselling must be provided to the child a minimum of 28 days before the adoption order is to be made.142 Counselling is not required if the court is satisfied that
    it would not be appropriate considering the age and understanding of the child.143
  6. 5.116 The counsellor must counsel the child about the effects of the adoption and provide
    a written report to the court.144
  7. 5.117 The court must be satisfied that the wishes of the child have been ascertained and have been given due consideration. The age and understanding of the child are taken into account.145

The child’s consent or wishes in other legislation

  1. 5.118 Some other states and territories require the consent of a child to their adoption if the child is aged 12 or older.146 For example, the Adoption Act 2000 (NSW) requires the consent of the child to an adoption if the child is 12 to 18 years of age, capable of giving consent, and the court has not dispensed with the child’s consent.147
  2. 5.119 The Adoption Act 2009 (Qld) removed a requirement that a child aged 12 years or older consent to an adoption. This was replaced with requirements to provide: information
    to help the child form their views about the proposed adoption; counselling;
    and a requirement that the court consider the child’s views before deciding whether
    or not to make an adoption order.148
  3. 5.120 The new requirements aimed to:

balance a child’s right to participate in the decision making with ensuring the child does not feel responsible for the decision and is not under undue pressure, particularly where the decision involves choosing between a birth parent and the person who is caring for the child.149

  1. 5.121 Similar provisions in the Family Law Act were also removed. Prior to 1983, the Family Law Act included a requirement that the court did not make an order contrary to the child’s wishes if the child was aged 14 or older, unless there were special circumstances that made it necessary to do so.150
  2. 5.122 This requirement was removed in 1983. There were concerns that it sometimes had the effect of forcing a child to express a preference in favour of one parent, which many children did not want to do.151 There was also concern that pressure was sometimes placed on a child to express preference for a particular parent and the associated risk that the wish expressed was not the genuine wish of the child.152 The age of 14 was seen as arbitrary and unsatisfactory for that reason.153
  3. 5.123 It was replaced with the requirement that the court consider any wishes expressed by the child and give the wishes the weight that the court considers appropriate in the circumstances of the case.154 A provision was also included which provided unambiguously that no one may require a child to express his or her wishes.155
  4. 5.124 The Family Law Act still says that no one may require a child to express his or her wishes.156
  5. 5.125 The requirement to consider the wishes of the child was amended in 2006 to require that the child’s views be considered. The change from ‘wishes’ to ‘views’ was aimed at enabling ‘a child’s perceptions and feelings’ to be considered ‘and […] for any decision to be made in consultation with the child without the child having to make a decision or express a “wish” as to which parent he or she is to live with or spend time with’.157 The amendment to ‘views’ was not intended to prevent a child from expressing wishes if he
    or she wanted to do so.158
  6. 5.126 The current formulation requires that in determining the child’s best interests, one of the considerations is ‘any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views’.159
  7. 5.127 The two main ways that the Family Court currently finds out the child’s views are through a report prepared by a family consultant or by appointing an independent children’s lawyer.160 A family consultant is a psychologist or social worker who specialises in child and family issues after separation and divorce.161 The role of the independent lawyer is discussed below.

Question

  1. 13 In some states and territories, children aged 12 and over consent to an adoption. Should this be required in Victoria? If not, are there any changes that should be made to the Adoption Act to ensure it provides appropriately for the views and wishes of the child?

 

Representation of the child

  1. 5.128 To give effect to the right in article 12 of the CRC for children to express views in all matters affecting them, article 12 provides that:

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.162

  1. 5.129 The Adoption Act requires that the child must have separate representation in the following three circumstances:
  • a contested application for adoption
  • an application for an order to dispense with the consent of a person to the making
    of an adoption order
  • an application to discharge an adoption order.163
  1. 5.130 The Adoption Act also gives the court a broad power to order that the child has separate representation, if it appears to the court that the child should be separately represented.164
  2. 5.131 The court may order that a child be separately represented if someone applies for the child to be separately represented. It may also do so of its own accord without anyone applying.165 The range of people who may apply for a child to be separately represented
    is broad; it includes ‘any other person’.166
  3. 5.132 The Adoption Act does not provide any guidance about how the person appointed to provide separate representation should carry it out.

Representation of the child in other legislation

  1. 5.133 There are two key models used for the legal representation of a child in Australia. They are a ‘best interests’ model and a ‘direct representation’ model.167
  2. 5.134 In a best interests model the lawyer ‘determines how the child is represented on the basis of the lawyer’s own understanding of the child’s best interests’.168
  3. 5.135 In a direct representation model the child provides instructions to the lawyer. The lawyer must act in accordance with the child’s instructions irrespective of their views on the best interests of the child. A direct representative has the same duties in relation to the child as they would have in relation to an adult client. These duties include confidentiality, competent representation, and undivided loyalty.169
  4. 5.136 This section outlines the approach taken to the legal representation of children in the Family Law Act and the CYF Act. It also considers how adoption laws in other Australian states and territories provide for a child to be represented.
  5. 5.137 The Commission is seeking the community’s views on the circumstances in which a child should have separate legal representation under the Adoption Act and how this representation should be provided. Elements of laws from elsewhere may be appropriate for application in Victoria.

<strong_em>Family Law Act 1975 (Cth)

  1. 5.138 The Family Law Act provides for the appointment of an independent children’s lawyer if ‘it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer’.170
  2. 5.139 The Family Law Act uses the best interests model of representation. The independent children’s lawyer is not the child’s legal representative, and is not obliged to act on the child’s instructions in relation to the proceedings.171 Rather, the role of the independent children’s lawyer is as an ‘impartial best interests advocate’.172
  3. 5.140 The Family Law Act outlines the duties and obligations of the independent children’s lawyer.173 Guidance on how to carry out the role is also provided by the Guidelines for Independent Children’s Lawyers.174
  4. 5.141 The Family Law Act requires that the independent children’s lawyer:
  • form an independent view, based on the evidence available, of what is in the best interests of the child175
  • act in what they believe to be the best interests of the child in relation to the proceedings176
  • make a submission to the court suggesting a particular course of action if they believe that it is in the best interests of the child.177
  1. 5.142 It also provides specific duties to:
  • act impartially in dealings with the parties to the proceedings178
  • ensure that any views expressed by the child are fully put before the court179
  • analyse any report or document that relates to the child and is to be used in the proceedings, to identify those matters that the lawyer considers to be most significant for determining the child’s best interests, and bring these matters to the court’s attention180
  • endeavour to minimise the trauma to the child associated with the proceedings181
  • facilitate an agreed resolution of matters, to the extent to which doing so is in the best interests of the child.182
  1. 5.143 The lawyer may tell the court any information that the child communicates to them if they consider it is in the best interests of the child.183 This applies even if it is against the wishes of the child.184 However, the independent children’s lawyer is not required to tell the court any information the child communicates to them.185

<strong_em>Children, Youth and Families Act 2005 (Vic)

  1. 5.144 The CYF Act provides for both the direct representation and the best interests models
    of representation for child protection matters.186
  2. 5.145 Generally, a child aged 10 or over must have separate legal representation in child protection matters in the Family Division of the Children’s Court.187
  3. 5.146 Legal representation to a child aged 10 or over is usually on a direct representation basis. A legal practitioner must act in accordance with any instructions given or wishes expressed by the child, so far as it is practicable to do so having regard to the maturity
    of the child.188
  4. 5.147 The court may decide that a child aged 10 or over is not mature enough to give instructions to a lawyer.189 In reaching this decision the court considers the child’s ability to form and communicate his or her own views, the child’s ability to give instructions in relation to the primary issues in dispute, and any other relevant matter.190
  5. 5.148 In general, independent legal representation is not required for a child under 10, or for a child aged 10 or over when the court has decided the child is not mature enough to give instructions. In both cases, in ‘exceptional circumstances’ the court may decide that it is in the best interests of a child to be legally represented.191
  6. 5.149 Legal representation for a child under 10, or for a child who the court has decided is not mature enough to instruct a lawyer, is on a best interests model.192 The legal practitioner must act in accordance with what he or she believes to be in the best interests of the child and communicate to the court the instructions given or wishes expressed by the child to the extent that it is practicable to do so.193

Adoption Acts in other Australian jurisdictions

  1. 5.150 Adoption legislation in the other states and territories provides for the legal representation of children in various ways. Some does not provide for separate legal representation.194 Other legislation provides for separate legal representation but does not provide any direction about how it should be carried out.195 The third group provides for representation and gives direction about how this should be carried out. This latter approach is taken in Queensland, Western Australia and New South Wales.
  2. 5.151 The Queensland approach provides purely for the best interests model. It requires that the lawyer must act in the child’s best interests, regardless of any instructions from the child. It also requires that the lawyer present the child’s views and wishes to the court as far
    as possible.196
  3. 5.152 The Western Australian legislation provides for both the direct representation model and the best interests approach. The direct representation approach, in which the lawyer acts on the instructions of the child, is taken if the child has sufficient maturity and understanding to give instructions and wishes to give instructions.197 If the child does not have sufficient maturity and understanding, or does not wish to give instructions, the legal practitioner must ‘act in the best interests of the child’.198
  4. 5.153 The New South Wales legislation provides for both direct representation and best interests representation. The direct representation approach is used if the child is capable of giving instructions to a lawyer.199 If the child is not capable of giving instructions, a best interests style of representation is used.200 There is a presumption, which can be challenged, that
    a child aged 10 or over is capable of giving instructions to a lawyer.201
  5. 5.154 New South Wales also enables the court to appoint a person to act as a representative of the child if there are special circumstances that warrant the appointment and the child will benefit.202 This person is a guardian ad litem. They are not a legal representative for the child; they are responsible for safeguarding and representing the interests of the child and instructing the lawyer representing the child.203 If a guardian ad litem is appointed, the court must also appoint a legal practitioner to represent the child and the legal practitioner must act on the instructions of the guardian.204
  6. 5.155 Western Australia also provides for the appointment of a non-legal representative for the child. The department must appoint a suitably qualified person to represent a child who is a prospective adoptee or adoptee and has a disability that is likely to affect the placement of the child.205 A suitably qualified representative must also be appointed to represent a parent who is under 18 years of age and who is considering the adoption of her or his child.206 The representative may instruct a legal representative on the child’s behalf.207

Questions

  1. 14 In what circumstances, if any, should a child have separate legal representation in adoption proceedings?
  2. 15 Should the Adoption Act provide guidance about the duties and role of a legal representative? For example, should a lawyer act in what they think is the best interests of the child, or should they follow the instructions of the child even
    if they don’t think this is in the child’s best interests?
  3. 16 Should the Adoption Act provide for non-legal representation or support
    of a child in adoption proceedings? If yes, what kind of representation or support should this be?

 

 

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