5 Best interests of the child

Introduction

  1. 5.1 This chapter provides recommendations about the matter at the heart of adoption—ensuring that the best interests and rights of the adopted child are the foremost consideration in any decision under the Adoption Act.
  2. 5.2 A view expressed in a submission captures what the Commission considers the aim for anyone taking an action or making a decision under the Adoption Act should be: ‘You want those children to look back as adults and be content with the decisions that were made on their behalf … so put yourself in their shoes’.1
  3. 5.3 Past decision making about adoption has not always had this focus. The history of forced adoption and the Stolen Generations in Victoria clearly demonstrate the detrimental consequences of adoption decision making that did not focus on the best interests and rights of the child. These events denied adopted people the chance to grow up in their family and culture.
  4. 5.4 The Commission recognises that the trauma and loss caused by forced adoption and the Stolen Generations are not ‘finished’. They are ongoing and ripple through generations.
  5. 5.5 The recommendations in this chapter aim to ensure that the best interests of the child, both in childhood and in later life, are the paramount considerations in adoption decision making. The recommendations reflect a contemporary understanding of the best interests of the child.
  6. 5.6 The recommendations made in this chapter address the need to use consistent terminology to describe the best interests concept; the situations in which a change of name should be permitted for an adopted child; and the matters that should be considered in determining the best interests of the child.

United Nations Convention on the Rights of the Child

  1. 5.7 The principle that children hold rights and that decision makers are required to make decisions in their best interests to help uphold these is well established in international law.2
  2. 5.8 Australia’s endorsement of children’s rights and the best interests concept as a key mechanism for giving expression to these rights is demonstrated by its ratification of the United Nations Convention on the Rights of the Child (CRC) on 17 December 1990.
  3. 5.9 Article 3 of the CRC provides a general ‘best interests of the child’ principle:

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.3

  1. 5.10 Article 21 of the CRC provides specifically for the best interests of the child in an adoption.4 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 only 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.5

  1. 5.11 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.6 It calls for the child and their needs to be at the centre of any decisions about adoption.
  2. 5.12 The United Nations Committee on the Rights of the Child describes the best interests concept as a mechanism for ensuring the full expression of a child’s rights:

The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child … ‘an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.’ … there is no hierarchy of rights in the Convention; all the rights provided for therein are in the ‘child’s best interests’ and no right could be compromised by a negative interpretation of the child’s best interests.7

  1. 5.13 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.8 These include:
  • the principle of non-discrimination9
  • the right for the child to preserve their identity, including nationality, name and family relations10
  • the right, as far as possible, for the child to know and be cared for by his or her parents11
  • the right for the child not to be arbitrarily separated from his or her parents and to be raised by them12
  • the right for the child to be heard in matters affecting them.13
  1. 5.14 There is also a ‘presumption within the Convention that children’s best interests are served by being with their parents wherever possible’.14

Consistent ‘best interests’ terminology

Current law

  1. 5.15 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. 5.16 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’.15 The wording used for this overarching provision does not include the words ‘best interests’.
  3. 5.17 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).16The Second Reading Speech 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.’17
  4. 5.18 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’,18 ‘best interests of the welfare of an adopted child’19 and ‘child’s interests’.20
  5. 5.19 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 these terms are interchangeable. It recommended use of the term ‘best interests of the child’.21
  6. 5.20 Both the Children, Youth and Families Act 2005 (Vic) (the 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.22
  7. 5.21 The change in wording from ‘welfare’ to ‘best interests’ was made to the Family Law Act in 1994 to align the terms of the principle with the CRC.23 The explanatory memorandum to the Family Law Reform Bill 1994 indicates that the aim of this change was to ensure consistency with the CRC but that there was no intention to change the substantive law.24 Case law has treated this terminology as having the same meaning, accepting that no change to the substantive law was intended.25
  8. 5.22 Adoption law in all other states and territories includes the principle that the best interests of the child are paramount. This principle is expressed variously as the best interests of the child,26 welfare of the child,27 welfare and interests,28 welfare and best interests,29 best interests of the child, both in childhood and in later life,30 and wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life.31 The South Australian Adoption (Review) Amendment Act 2016 uses the phrase ‘best interests, welfare and rights of the child’.32

Responses

  1. 5.23 Responses to the consultation paper said that consistent terminology should be used to describe the best interests principle throughout the adoption legislation.33
  2. 5.24 Those who expressed a view on the terminology considered that ‘best interests of the child’ should be used consistently in preference to the current variable terms.34 Reasons included aligning the language in the adoption legislation with other legislation such as the CYF Act, the Family Law Act and with international agreements such as the CRC.35
  3. 5.25 A concern raised about the phrase ‘best interests of the child’ is that it fails to account for the lifelong effects and take a sufficiently lifelong view of adoption.36 Sharyn White suggested that:

what needs to be taken into account is that the person adopted does not remain a child. The wording has been aimed at children, not acknowledging that adoption does not end. It affects the person over their whole lifespan, and beyond, as the adopted person’s children are also attached to a false ‘family’ tree.37

Commission’s conclusion

  1. 5.26 Consistent terminology should be used in adoption legislation to ensure clarity for decision makers, as well as consistency with international conventions and other legislation.
  2. 5.27 The current formulation that ‘the welfare and interests of the child concerned shall be regarded as the paramount consideration’38should be replaced with the requirement that the ‘best interests of the child concerned, both in childhood and in later life, must be the paramount consideration’. This formulation brings the terminology in line with the CRC and harmonises with the ‘best interests’ terminology used in the CYF Act and the Family Law Act.39
  3. 5.28 The Commission considered including the words ‘rights of the child’ to emphasise that the child is a rights holder. However, it decided that this was unnecessary and potentially confusing. The United Nations Committee on the Rights of the Child has emphasised that:
  • the concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognised in the Convention
  • all the rights provided for in the CRC are ‘in the “child’s best interests”’40
  • children’s rights are ‘universal, indivisible, interdependent and interrelated’.41
  1. 5.29 A key theme that emerged from consultation was that adoption has lifelong effects and that the focus of decision making needs to shift to consider the entire life of the adopted person. The United Nations Committee on the Rights of the Child has commented that in giving full effect to the child’s best interests, one of five parameters to bear in mind is the ‘short-, medium- and long-term effects of actions related to the development of the child over time’.42
  2. 5.30 The inclusion of the words ‘both in childhood and in later life’ in the recommendation aims to ensure the decision maker focuses on the long-term best interests of the adopted person, rather than taking a short-term perspective.

Recommendation

  1. 20 The principle that the best interests of the child are the paramount consideration in adoption should be expressed consistently at all times in the Adoption Act or Regulations using the phrase ‘best interests of the child concerned, both in childhood and in later life’ rather than ‘welfare and interests of the child’.

 

Changing the adopted child’s name

Current law

  1. 5.31 An adopted child’s given names and surnames may be changed when they are adopted.
  2. 5.32 The child’s surname usually changes to the surname of the adoptive parent(s) or, where a couple are adopting and they have different surnames, one of those surnames, provided the court approves.43 The court may also decide that a different surname is appropriate.44
  3. 5.33 The child’s given names may also change if the adoptive parents request it in the application for the adoption order and the court approves.45
  4. 5.34 Before approving a change of given name, the court must be satisfied that, as far as practicable depending on the child’s age and understanding, the wishes and feelings of the child have been found out and considered.46
  5. 5.35 The Adoption Act specifies that it does not prevent a change to the adopted child’s name after the adoption in accordance with any other law.47

 

Responses

  1. 5.36 There were strong views about changing a child’s name when they are adopted. Views varied widely from those that considered that names, including surnames, should never be changed48 through to those that considered that the child’s names should always be able to be changed by the adoptive parents.49 Many people emphasised the importance of a child’s name to their identity.50
  2. 5.37 A small number of people submitted that it should always be possible for the adoptive parents to change an adopted child’s given name.51
  3. 5.38 Others said that there was a need for flexibility about changes of name.52 One submission suggested that ‘encouraging the inclusion of an original name somewhere into the child’s new name would be more realistic than legislating against changing a name outright’. It explained that:

there are occasions when new adoptive parents may struggle to ‘bond’ with a child whose name they cannot associate positively with, or indeed whose name they may have a negative past association with. For some families giving a child a new name may be an important way of embracing and claiming that child in their new family.53

  1. 5.39 Some people proposed education for prospective adoptive parents about the importance of retaining a child’s name. This might include its links to a child’s family of origin and culture and its potential to enhance contact.54
  2. 5.40 The Law Institute of Victoria submitted that the court should make a decision about changes of name on the basis of the child’s best interests, taking account of the specific facts and needs of that child. It submitted that the Adoption Act ‘should not prescribe any default position regarding the name of a child’.55
  3. 5.41 Many people expressed the view that changing a child’s given names is not in the best interests of the child.56 The key reasons people gave for not changing a child’s given names were the importance of maintenance of identity, identity confusion caused by changing a child’s given names, and potential trauma to the child caused by changing their name.57
  4. 5.42 One submission said ‘a child might feel coerced into changing their name to feel accepted, a decision they may one day come to regret’.58
  5. 5.43 Grandparents Victoria submitted:

A child’s name is one of the first words they learn to recognise … the older a child gets, the more he or she learns to associate their own name with their sense of identity. To change a child’s given names because they have been adopted by a new family can cause unnecessary confusion and loss of connection with their biological identity.59

  1. 5.44 ARMS (VIC) emphasised the importance of a name to a child’s identity:

… there is no reason to change a child’s name. This takes away a child’s identity …
It’s about identity and connection. Changing an adopted child’s name harks back to the ‘clean slate’ and ‘clean break’ theories. These have both been shown to be erroneous … We respect the right of others to parent a child but they have no right to change that child’s identity.60

  1. 5.45 The Australian Adoptee Rights Action Group considered that name changes are ‘to pretend the child was “born to” the adoptive parents’ and is ‘a remnant of [the use of] adoption to hide illegitimacy’.61
  2. 5.46 Some people suggested that changing a child’s name reflects a desire to claim ‘ownership of the child’.62 One submission stated:

The adoptive parents are not buying a product and then changing the brand name. They are being permitted to legally parent a child who is already named and this name should not be removed or altered. If the new parents wish to use their surname, this can be done by common usage, without altering the child’s truthful birth certificate.63

  1. 5.47 Some people said that a name is very important as it is something that the natural parents gave to their child.64 Bobby Richards told the Commission that he likes to use the name his natural mother gave him to honour and thank his mother. He said:

Robert is what my mother named me: that is very personal. That is me owning me. It’s who I am from the person who brought me into the world. It’s a way of saying thank you to her for the gift of life and acknowledging her and the pain she had to go through in giving me away.65

  1. 5.48 A number of people said that, generally, a child’s name should not be changed but in limited circumstances a change of name may be appropriate. The circumstances identified were if not doing so puts the child in danger,66 if the name has an offensive meaning,67 or if the child is very young and their birth parents did not give them a name.68
  2. 5.49 The importance of the child’s views in decisions about their name was highlighted.69 OzChild submitted that ‘sometimes children themselves want their names changed and their wishes need to be considered’.70 Others submitted that a name change should never be possible without a child’s consent.71 The age of the child was identified as relevant to a child’s ability to express their views on the name that they want.72
  3. 5.50 Many people considered that the age of the child was relevant to change of name decisions.73 A number of people considered that it is acceptable to change the name of a newborn child but not an older child. This was because of the view that for ‘older children … the child has already built his or her identity with that name. It is psychologically and emotionally important to maintain the child’s identity with that name.’74

 

Commission’s conclusion

  1. 5.51 The Commission considered the approach taken in other Australian jurisdictions. All states and territories allow for changes to both the surname and given names of a child when they are adopted, with varying levels of guidance or restrictions.75 Some jurisdictions require that a child over 12 consent to a change of name.76
  2. 5.52 The Australian Capital Territory specifies that the court may approve the following surnames: the adoptive parents’ surname, where they both have the same surname; the surname of the adoptive father; the maiden name or other surname of the adoptive mother; the surname or former surname of any previous parent of the adopted child; a surname formed by combining the adoptive parents’ surnames or any previous parent’s surnames.77
  3. 5.53 The Australian Capital Territory also provides a general presumption against changing a child’s given name. The court must retain the child’s given name unless there are ‘exceptional circumstances’.78 It may give the child additional given names.79 The Act provides the following example of ‘an exceptional circumstance’:

An exceptional circumstance would be if the given name is likely to make the child or young person vulnerable to ridicule or teasing in everyday life in Australian society.80

  1. 5.54 A recent amendment to the South Australian adoption legislation prohibits changes to the child’s first name in all cases unless it is ‘offensive or unsuitable’ or another child of the adoptive parents has the same first name.81
  2. 5.55 A child’s name is a key part of their identity and may provide important links to their culture. This is acknowledged in the right for the child to preserve their identity, including nationality, name and family relations in article 8 of the United Nations Convention on the Rights of the Child.82
  3. 5.56 A child’s name may be the only thing a natural parent is able to give their child. As such, it can be of great significance both to the child and the natural parents.
  4. 5.57 Changing a child’s given name may affect the likelihood of successful open adoption and contact. It may be difficult for a natural parent, siblings or other people of significance to the child to adjust to a child’s name being changed and may affect relationships if they feel that the child has a new identity.
  5. 5.58 Identity and openness in adoption were key concerns of people who consulted with the Commission. The Commission’s recommendations aim to address these matters.
  6. 5.59 The court should decide the names of the child (both given and surname) when making an adoption order. Adoptive parents should continue to have the right to apply for the child’s name to be changed as part of the application for the adoption order. To provide better for the continuation of the child’s identity, the circumstances in which a child’s name may be changed should be more limited.
  7. 5.60 The importance of a child’s name to their identity means that the child’s given names should only be changed if there are exceptional circumstances. The Adoption Act should provide some examples of exceptional circumstances, for example that a given name is offensive or is likely to make the child vulnerable to ridicule.
  8. 5.61 In deciding a child’s given name, the court should consider the best interests of the child. One of the matters that should guide best interests decision making is the preservation, as far as possible, of the child’s identity, including their given name (Recommendation 23(e). The Commission considers that it should be possible to give a child additional given names.
  9. 5.62 The Adoption Act should expressly provide for the court to decide on a surname other than one that is associated with the adoptive parents. Possible surnames should include surnames which provide for the continuation of the child’s identity.
  10. 5.63 The Adoption Act should specify that a surname should be one of the following: the adoptive parents’ surname, where they both have the same surname; the surname of the adoptive father; the maiden name or other surname of the adoptive mother; the surname or former surname of any previous parent of the adopted child; a surname formed by combining the adoptive parents’ surnames or any previous parents’ surnames.
  11. 5.64 Chapter 3 makes recommendations to increase the participation of the child in decisions about their adoption. A decision about a child’s name is a ‘significant matter’. If a child is able to form and express views on their name, they should be considered and given due weight in accordance with the age and maturity of the child.
  12. 5.65 The court’s role in determining an adopted person’s name is limited to the time that an adoption order is made. Rights to change the name of an adopted person after the making of an adoption order, in accordance with any other Act or law should be retained.83

Recommendations

  1. 21 The Adoption Act should specify that on the making of an adoption order a child’s given name should not be changed unless there are ‘exceptional circumstances’. It should be possible to add given names.
  2. 22 The Adoption Act should provide for the court to decide on a child’s surname on the making of an adoption order, which should be one of the following: the adoptive parents’ surname, where they both have the same surname; the surname of the adoptive father; the maiden name or other surname of the adoptive mother; the surname or former surname of any previous parent of the adopted child; a surname formed by combining the adoptive parents’ surnames or any previous parents’ surnames.

 

Best interests guidance

Current law

  1. 5.66 The Adoption Act does not provide explicit guidance about the matters that should be considered in determining the best interests of the child.84
  2. 5.67 In contrast, other Acts that provide for decision making about Victorian children give explicit guidance about how to decide what is in a child’s best interests. Both the CYF Act and the Family Law Act include guidance.85
  3. 5.68 Adoption legislation in other states and territories also includes guidance about how to determine the best interests of the child.86

Responses

  1. 5.69 There was very strong support for providing guidance in the Adoption Act about how to decide what is in a child’s best interests.87
  2. 5.70 A range of matters was proposed including:
  • that all options other than adoption should be considered and that adoption should be a last resort88
  • promotion of a child’s long-term stability89
  • supporting and maintaining the child’s connection to their culture90
  • the importance of a child’s name to their identity and in what circumstances, if any, changes should be made to a child’s given names (discussed above at [5.51])
  • protection of a child from harm, their safety and wellbeing91
  • that adoption is a decision for life, not just childhood, and that consideration should be given to how adoption will affect a child’s future life92
  • promotion of a child’s developmental needs, including consideration of needs associated with a disability93
  • the importance of considering natural parents’ wishes and their input into decisions about the best interests of the child94
  • the benefits for the child of meaningful relationships with adoptive parents95
  • the importance of the participation of the child in decision making and provision for their evolving capacity (discussed in Chapter 3)
  • preservation of sibling relationships (discussed in Chapter 4)
  • an adopted person’s right to know and have contact with their family or with other people of significance to them (discussed in Chapter 4).

 

Adoption as a last resort

  1. 5.71 As discussed in Chapter 2 at [2.55], a large number of people said that adoption should be a last resort and all other options should be thoroughly explored first. A number of people supported the complete ending of future adoptions.96
  2. 5.72 A significant number of people considered that the preference should be for the child to remain within the extended family or for another legal arrangement to be used which does not sever legal relationships with the family of origin. This type of legal arrangement could include parenting orders under the Family Law Act or permanent care orders under the CYF Act.
  3. 5.73 VANISH submitted:

The primary consideration in any potential adoption proceeding should be whether any other less drastic legal order could achieve a stable long-term family placement for the child/young person until they achieve adulthood. If the child/young person and their permanent care family wish to make their family arrangement endure after the child reaches 18 … adoption remains an option for them at that time – when the young person is … an adult and able to make an informed decision in relation to the lifelong ramifications of being legally adopted.97

  1. 5.74 Another submission stated:

Decision makers should have to justify why and when adoption is more preferable for a child compared to other care options … if a child cannot live with their natural parents, there is a course of action that needs to be followed to find another biological relative to care for that child. Stranger adoption should be so rare that it’s unheard of. The rights of a child to love and be loved by their natural family should be paramount.98

  1. 5.75 Thomas Graham, an adopted person, submitted that the focus should be on strengthening and improving the alternatives to adoption.99 He commented on the long-term impacts of adoption:

Adoption is built on deception. The notion that your first identity is flawed, your parents are flawed, and that these need to be wiped clean … legislators and pro-adoptionists often lose sight of the long-term impacts that bear heavily on the child who eventually grows into an adult. Little thought is given to the relational and identity needs of this person, long term. Children are not frozen in time, they become adults who have to deal with the consequences of those who made irreversible decisions, supposedly in their best interests. Adoption is permanent. It’s a life sentence.100

  1. 5.76 Thomas Graham also submitted on identity issues and trauma for adopted people:

Adoption orders force children to navigate through minefields of split identities and dual families—with one denied or pushed aside and another newly created and elevated in importance…

Once the adoption threshold is crossed the adopted person is handed a complex network of factors they have to battle through, often with hurtful and harmful effects. Separation. Loss. Guilt. Shame. Mistrust. Identity confusion. Intimacy withdrawal. Rejection and divided loyalty. Factors that when not adequately addressed manifest into negative beliefs and behaviour patterns leading to self harm, substance abuse, broken relationships and in the worst cases, suicide.101

  1. 5.77 Others echoed these concerns, suggesting that family or extended family should be the first preference.102

The child’s long-term stability

  1. 5.78 There was widespread agreement that best interests decision making should promote a child’s long-term stability.
  2. 5.79 However, there was a sharp divergence of views about how long-term stability is best achieved. Many people considered that adoption is not the best option to achieve long-term stability (discussed at [5.71]).
  3. 5.80 Others considered that adoption is a good option for long-term stability and is preferable to options such as parenting orders or permanent care orders.
  4. 5.81 Barnardos Australia submitted:

Barnardos experience is that ‘third party orders’ (such as Permanent Care Orders) are inferior to adoption in relation to ongoing security for children. This is because Permanent Care Orders stop at age eighteen and young people’s best interests are served by having lifelong connections beyond age eighteen and into adulthood. Furthermore, adoption is superior to ‘third party orders’ as these orders can be much more easily challenged than Adoption Orders. Barnardos experience is that threats to challenge third party orders in NSW can destabilise placements and lead to a breakdown of important relationships, even though these challenges are rarely successful.103

  1. 5.82 The Institute of Open Adoption Studies submitted:

The need for security in all its forms (e.g., food security, security of tenure, secure attachment) and the search for meaning, are universal human drivers, not limited to children who are not able to live with their biological families. It is precisely these children in the care system, however, who have often been subjected to the insecurities of temporary placements, temporary attachments, and the vagaries of political and professional ideology in decision making concerning permanency.104

Maintenance of identity through culture and name

  1. 5.83 Maintenance of an adopted person’s identity was a key issue raised with the Commission. This included the importance of a person’s name, contact with the family of origin, and maintenance of language and cultural connections.
  2. 5.84 The issue of changing a child’s name if they are adopted, including the importance of name to maintenance of an adopted person’s identity, was discussed above at [5.36]. Recommendations 21 and 22 propose limiting the circumstances in which a child’s names may be changed.
  3. 5.85 Chapter 4 made recommendations about the use of adoption plans to provide for contact with the child’s family of origin.
  4. 5.86 Many people emphasised the significance of culture to the formation of a person’s identity and the importance of maintaining a child’s connection to their culture.105
  5. 5.87 VANISH described the child’s connections to their natural family members, community and culture as ‘a birthright and foundation to their identity’.106
  6. 5.88 Participants at a roundtable with culturally and linguistically diverse representative agencies said that identity, culture and belonging are important factors in the assessment of a child’s best interests.107 They said that research shows that having a strong identity is a protective factor, even for those children who experience discrimination.108 Participants said that ‘connectivity back’ to culture is very important if an adoption does occur. If an adopted child has a connection back to their heritage they can make the decision whether to embrace it or not.109

Safety, wellbeing and protection from harm

  1. 5.89 Many people considered that the safety and wellbeing of the child and protection from harm should be a key focus of best interests decision making.110
  2. 5.90 One submission suggested that:

Important principles for consideration should include secure and stable placement of each child as soon as possible—the importance of a child being emotionally protected from harm and feeling ‘claimed’ in a permanent family is critical in the protection of a child’s best interest.111

  1. 5.91 Grandparents Victoria submitted that a primary consideration in best interests decision making should be protecting children from physical or psychological harm.112
  2. 5.92 Professor Meredith Temple-Smith told the Commission that the idea of ‘cumulative harm’ should be part of a best interests consideration. She described the concept as ‘the accumulation of small injuries or harms’ and indicated that it can arise in a variety of ways.113

Consideration of lifelong effects of adoption decision

  1. 5.93 Many consultations and submissions raised the need to consider the best interests both in childhood and later life. They stressed that adoption is a decision for life, not just childhood, and emphasised that consideration should be given to how adoption will affect a child’s future life.114
  2. 5.94 The Law Institute of Victoria submitted:

decision makers should be able to consider factors which are relevant not only to the child’s welfare in childhood, but whether an order or process under the Adoption Act is likely to be in their best interests throughout their life.115

  1. 5.95 The Centre for Excellence in Child and Family Welfare submitted that ‘what constitutes best interests changes over the life course. The needs of a young child may differ significantly from those of an adolescent.’116 It submitted that ‘consideration should be given to the best interests of the child throughout their lifetime’ and that ‘the Adoption Act should provide a framework for how a long-term perspective can be taken in regards to the best interests of the child’.117
  2. 5.96 A participant at a roundtable with groups and individuals representing children’s interests said that best interests decision making often focuses on the immediate consequences of the decision. They said that it would be good to see a ‘life-course approach’ reflected in the Adoption Act. This means decision makers should focus on the probable impact of a decision on the lifelong wellbeing of this child.118
  3. 5.97 ARMS (Vic) stressed that adoption is not a static concept. Adoption affects an adoptee when they are a child and at all stages of their life. It said that consideration needs to be given to whether a long-term decision like adoption is the best response to what might be a short-term problem.119

Promotion of developmental needs

  1. 5.98 A number of people said that the promotion of a child’s developmental needs is an important consideration in adoption decisions.120
  2. 5.99 Some participants at a roundtable with representatives from the legal sector said that the need to promote a child’s development (taking into account their age and stage of development) should always be considered. They said that this enables consideration of future needs and that these considerations work for older children who are adopted.121
  3. 5.100 A participant at a roundtable with approved agencies said that if the child has specific developmental needs, the agency will look for a family that can best provide for those needs. The participant said that decision making is problematic if the child’s needs and birth parents’ wishes collide. They said that the Adoption Act needs to be clearer that best interests are about the child’s developmental needs and the type of family that meets these needs.122
  4. 5.101 OzChild made a similar point. It submitted that the weighting of each factor should ‘be individually influenced based on the child’s needs and wishes. For example if the child is a baby or if the child has a significant disability.’ It submitted that the suitability and capacity of the proposed adoptive parents to meet the child’s emotional, developmental and social needs should be heavily weighted.123
  5. 5.102 A participant at a roundtable with the disability and mental health sector suggested that the ‘best interests’ concept is subjective, particularly when it comes to disability. They said that parents who do not have a proper understanding of disability will not understand what is in the best interests of a child with a disability.124
  6. 5.103 The Youth Disability Advocacy Service submitted that to counter subjectivity, additional guidance should be followed when considering placement options for children with disability. The guidance ‘should aim to put a range of pre- and post-placement supports in place to ensure the child’s rights are adequately upheld and that they are able to flourish in their new home environment to the fullest extent possible’.125 It recommended that such guidance be developed in close consultation with people with disability and disability advocates.

 

Age differences between adoptee and other children in family

  1. 5.104 The Adoption Act does not include any requirements about age differences between the child placed for adoption and other children in the family.
  2. 5.105 As a matter of policy, spacing of children is considered as part of the assessment process for determining whether someone is suitable to adopt.126 The Adoption and Permanent Care Procedures Manual stipulates that consideration be given to:

[t]he extent of ‘space’ in the family for another child to be placed … with regard to the ages and developmental needs of existing children. There should be at least two years between an existing child and a new child.127

  1. 5.106 Some people considered that there should be no requirements about age differences.128
  2. 5.107 Other people considered that there should be an age difference of at least two years between the adopted child and any other children in the house.129 Reasons given included avoiding competition between children for the adoptive parents’ attention130 and ensuring adoptive parents are able to focus fully on the adopted child or children.131
  3. 5.108 VANISH supported the inclusion of legislative requirements relating to spacing of children.132 It submitted that:

notions that adopted children can be successfully interspersed with existing children in the family; or that it is in a child’s best interests to have a same-age sibling, to be as close as possible in age to siblings, or to be adopted together with another child befriended in out-of-home care (‘bonded pair’), are popularist notions. In reality, such practices often present unfair challenges to the child and create difficulties with their integration into the family.133

  1. 5.109 Two approved agencies submitted that they supported current practice that a child placed for adoption is the youngest child by two years and that further children are not introduced to the family for a period of two years.134
  2. 5.110 The two approved agencies, as well as others, suggested a need for flexibility about spacing of children. They suggested that this should either be determined on a case-by-case basis or that there should be an ability to displace a general age gap requirement in ‘exceptional circumstances’.135An example given of ‘exceptional circumstances’ was placing siblings for adoption.136
  3. 5.111 Some submissions emphasised that the focus should be on the best interests of the child and that this is not ensured by a rigid standard.137 One submission stated:

there is a wait period before a couple can adopt again … I feel this should be reconsidered, e.g. if an adoptive child’s sibling is born and up for adoption it would be important to consider that child be placed with the family where the first sibling is already placed (providing best interest principles are considered and [the] first placement is going well).138

  1. 5.112 The Institute of Open Adoption Studies submitted:

There is a lack of sound evidence to guide decision[s] in relation to the ages of children in families considering adoption. In an editorial Bullock (2014) cites a study conducted by Roy Parker nearly 50 years ago which found that foster care placements were especially vulnerable to disruption if there were birth children of a similar age in the host family. Four years later, a study by Victor George contradicted this. There have been no further studies published in this area, yet Bullock points out this is a hypothesis that could be readily tested given the information available in modern child protection data sets.139

The child’s rights

  1. 5.113 Many people identified protection and promotion of the rights of the child as a key matter for inclusion in best interests guidance.140
  2. 5.114 At a roundtable with the legal sector, some participants said that one of the primary matters in best interests decision making in adoption should be ‘the need to protect the child’s rights’.141
  3. 5.115 A number of people suggested that best interests guidance should be based on or refer to the CRC.142
  4. 5.116 Berry Street submitted that the Adoption Act should ‘make a specific reference to relevant United Nations human rights instruments to which Australia is a signatory’, in particular the CRC. It noted that the CYF Act requires decision makers to take into account the rights of children but provides no reference or details on what constitutes a child’s rights. It suggested that ‘[a] specific reference to the UN Convention on the Rights of the Child […] would provide clarity regarding the rights of children to be considered by decision makers’.143

Elements of the CYF Act or Family Law Act

  1. 5.117 Some people suggested replicating in the Adoption Act the best interests guidance from either the Family Law Act or the CYF Act.144
  2. 5.118 Some participants at a roundtable with the legal sector suggested that the Adoption Act should include three elements of best interests decision making from the CYF Act.145 The three elements are: the need to protect the child from harm; the need to protect the child’s rights; and the need to promote the child’s development, taking into account the child’s age and stage of development.146

Bond between the natural mother and the child

  1. 5.119 The importance of the bond between the natural mother and infant was emphasised.147
  2. 5.120 Dr Catherine Lynch suggested a principle that ‘recognises and gives all due respect to the rights, interests, needs and desires of the infant to remain with the woman who gives birth to him or her’.148 She submitted that this principle should be incorporated into the concept of the best interests of the child.
  3. 5.121 Adoption Origins Victoria submitted:

Women are not informed about the suffering that premature maternal separation inflicts on newborn babies, damaging their emotional and psychological makeup, and causing long-term trauma. Nor are they informed about the mental health consequences to themselves of rupturing the post-partum relationship with their new-born baby and the long-term trauma of living with the knowledge of having abandoned their own baby to a system that disinherits their child and strips them of their true identity by forcing them to use a second falsified birth certificate … Medical studies back up … that the stress caused to the baby in removal impacts babies’ brain chemistry and their emotional and psychological wellbeing.149

Natural parents’ wishes and input

  1. 5.122 Many people thought that the wishes and views of the natural parents should be considered in making a decision about the best interests of the child.150
  2. 5.123 Independent Regional Mothers Combined submitted that:

It must be mandatory for a mother to be first and foremost seen as of paramount importance under any Adoption Act. She is the mother of the child and any decision regarding her child’s welfare must be enacted by her and her extended family. A child at risk from their parents must be seen as part of extended family and their input must also be paramount.151

  1. 5.124 A number of people stated that, while natural parents should be able to express their views, they should not be determinative.152 For example, the specific developmental needs of the child or the benefits of them being placed with a sibling may mean that it is not in their best interests to be placed in accordance with the wishes of their natural parents. In this case the child’s needs should outweigh a parent’s wishes.153
  2. 5.125 Chapter 12 outlines the benefits of allowing natural parents to express wishes about the adoptive parents. It concludes that allowing parents to express wishes increases the chances of successful open adoption. It recommends that natural parents should be able to express wishes about factors in the suitability criteria for adoptive parents. It also concludes that while natural parents should be able to express their views, these should not decide the outcome.

Commission’s conclusions

  1. 5.126 The best interests concept has been criticised as:
  • indeterminate and subject to the values and views of the decision maker154
  • paternalistic and paying insufficient attention to the rights of children as human beings with agency and views of their own155
  • susceptible to being used as a vehicle for political or ideological views.156
  1. 5.127 The current lack of guidance in the Adoption Act about what matters are important in best interests decisions adds to the potential for subjective and paternalistic decision making. Guidance about the matters that must be considered would help ensure decisions about the best interests of the child are made in the most objective manner possible.
  2. 5.128 The guidance on the best interests and rights of the child should reflect the United Nations Convention on the Rights of the Child. It should be compatible with other legislation that provides for the best interests of the child in Victoria.
  3. 5.129 The Commission does not consider that the best interests guidance in the Adoption Act should be identical to that provided in the CYF Act. The different context and legal consequences of decision making in adoption require that the guidance is compatible but not identical.
  4. 5.130 Decisions under the CYF Act focus on whether a child is in need of protection or what arrangements should be made for the care of a child who has been found to be in need of protection. This child protection focus means that the need to protect the child from harm is always considered. In contrast, adoption decisions are not focused on child protection.
  5. 5.131 The legal consequences of decisions under the CYF Act are also different. Orders under the CYF Act do not result in a permanent severance of the child’s legal relationship with their family of origin, whereas adoption does.
  6. 5.132 The Commission considered whether best interests guidance should be weighted to require that some matters are prioritised over others. It considers that the preferable approach is to provide unweighted guidance. This provides direction about what matters are important while allowing sufficient flexibility for the decision to be tailored to the individual circumstances of the child. Different factors weigh more heavily in different circumstances. The key is that the decision maker turns their mind to all relevant factors and then weighs them up based on the facts before them.
  7. 5.133 As outlined in Chapter 2 Recommendation 3(a), the guidance about best interests decision making should apply to all decision makers under the Adoption Act, not just the court. This includes the Secretary, principal officers of approved agencies and any other persons and bodies involved in the administration of the Act.
  8. 5.134 The matters proposed to guide decision makers in determining the best interests of the child, both in childhood and later life, synthesise the key issues dealt with throughout the report. Consideration was given to the guidance provided in other legislation about best interests decision making.
  9. 5.135 The proposed factors provide for a contemporary approach to decision making about the best interests of the child in adoption. They provide a focus on some matters that have been historically underemphasised including:
  • the role of the child in decision making about matters that affect them
  • the lifelong effects of adoption
  • the preservation of the child’s identity
  • the ongoing psychological connection of the child with their family of origin after adoption in spite of the legal severance of this relationship
  • the importance of sibling relationships
  • appropriate exploration of all alternatives to adoption.
  1. 5.136 The Commission considered providing for mandatory age gaps between children in the Adoption Act or Regulations.This approach is taken in Queensland.157 In Queensland, these requirements were previously matters ‘taken into account by the Department when selecting a couple to be the prospective adoptive parents for a child’.158 They were included in the 2009 Adoption Act as ‘indicators of a couple’s current ability to focus their attention primarily on an adopted child for at least the first 12 months of the placement’.159
  2. 5.137 A 2013 international literature review on the impact of fostering on foster carers’ children considered the impact of age on relationships between carers’ children and fostered children.160 While fostering does not equate with adoption, it seems likely that similar factors would apply in adoption. The review concluded:

it was evident that the age difference between foster carers’ children and the foster child often has an impact on their relationship. However, individual differences in experiences suggest that rigid application of age boundaries in the approval of carers may be unhelpful.161

  1. 5.138 Practice-based comments from service providers involved in adoption supported a minimum of two years age gap between children in a family where a child is adopted.162
  2. 5.139 The Commission considers that, while current practice relating to age gaps between children should continue, there is a lack of clear evidence to support including a fixed requirement about age gaps in the legislation. For this reason, the composition of the family and age gaps between children should not be specified in the Adoption Act. Instead, these considerations should be included as part of the best interests guidance as a factor for decision makers to consider.
  3. 5.140 The Commission for Children and Young People observed that providing guidance about best interests is in itself insufficient if decision makers, such as social workers, are not supported with appropriate training, education, and opportunities to develop their skills and experience.163 The Commission agrees that training and education should be provided as part of the introduction of any new adoption legislation. There should also be ongoing training and education opportunities about best interests decision making for those involved in adoption decision making and service provision.

 

Recommendation

  1. 23 The Adoption Act should provide principles which specify that in determining the best interests of the child the following matters should guide decisions and actions:
  2. a. any views expressed by the child, given due weight in accordance with the age and maturity of the child
  3. b. protection and promotion of the child’s rights
  4. c. the likely effect of the decision or action on the life course of the child
  5. d. any wishes expressed by either or both natural parent(s)
  6. e. the preservation, as far as possible, of the child’s identity, including their given name, language and cultural and religious ties
  7. f. the preservation of the relationship of the child with their natural parents and siblings (if any) and significant other people (including relatives) that the decision maker considers to be relevant
  8. g. 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
  9. h. the suitability and capacity of any proposed adoptive parent to meet the child’s needs, take on the responsibilities of parenthood and provide for the development of the child’s identity, including contact with their family of origin and significant other people
  10. i. the family composition of any proposed adoptive family, including age gaps between any children, and the effect it may have on the ability of the proposed adoptive parents to provide the necessary care to the adopted child or children
  11. j. 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.

 

Footnotes

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