7. Eligibility, suitability, contemporary attitudes and the law

 

Introduction

  1. 7.1 This chapter considers applicants for adoption and the requirements they must meet
    to be able to adopt a child.
  2. 7.2 To be able to adopt, an applicant must be:
  • eligible under the Adoption Act 1984 (Vic)
  • assessed as suitable to adopt a child in accordance with the Adoption Regulations 2008 (Vic).
  1. 7.3 Eligibility is the focus of the first part of this chapter, which considers how relationship status and living arrangements affect a person’s or couple’s eligibility to adopt a child.
    The terms of reference ask the Commission to review these requirements to ensure they are consistent with community attitudes and contemporary law relating to family.
  2. 7.4 The second part of the chapter discusses the limitations on adoptions by step-parents
    and relatives of a child. These ‘known-child adoptions’ are generally discouraged.
  3. 7.5 Assessment of suitability, which is carried out by the Secretary or a principal officer of an approved agency, is considered in the third part of the chapter. The Commission is asked to review this process to identify how this part of the Adoption Act and Adoption Regulations could operate better, including by ensuring that procedural requirements are set out clearly.
  4. 7.6 The final part of the chapter discusses a significant part of the adoption process about which the Adoption Act and Adoption Regulations are largely silent: the selection of adoptive parents for a child.

Applicants’ relationship status

  1. 7.7 This part of the chapter considers issues relating to relationship status under Victoria’s adoption law. Relationship status, in this context, refers to whether a person is in a relationship and the type and duration of the relationship.
  2. 7.8 The discussion below uses the terminology brought in by the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) (see Chapters 1 and 2 for more information).

 

Relationship status in the Adoption Act

  1. 7.9 A person’s ability to adopt a child in Victorian depends on the person’s relationship status. This is because, first, the Adoption Act differentiates between adoptions by two people jointly (couples) and adoptions by one person (sole applicants). It is premised on the desirability of adoption by couples.
  2. 7.10 Further, within the group of couples who are eligible to adopt, different requirements apply depending on the couple’s type of relationship.
  3. 7.11 There are also different types of sole applicant. The requirements that apply to each type of applicant vary according to the person’s relationship status.
  4. 7.12 The various differences are highlighted below and set out in Table 1 on page 91.

Adoption by two people (couples)

  1. 7.13 The Adoption Act allows four types of couple to adopt a child:1
  • married couples
  • couples in traditional Aboriginal marriages
  • couples in ‘registered domestic relationships’
  • couples in ‘domestic relationships’.
  1. 7.14 A traditional Aboriginal marriage is a marriage recognised by the Aboriginal community the couple belong to.2
  2. 7.15 A registered domestic relationship is a relationship registered under the Relationships Act 2008 (Vic).3 These are referred to below as ‘registered relationships’.
  3. 7.16 A domestic relationship is a relationship between two people who are not married or in a registered relationship but ‘who are living together as a couple on a genuine basis (irrespective or sex or gender)’.4
  4. 7.17 The same eligibility requirement applies to married couples and couples in traditional Aboriginal relationships and registered relationships. These couples are eligible to adopt if they have been in their relationship for at least two years.5 They may also be eligible if they have been in a combination of the relationship types (a domestic relationship and marriage, for example), for at least two years.6
  5. 7.18 This two-year requirement is designed to ensure that couples adopting children are in stable relationships. It exists to protect the interests of adopted children.7 All Australian jurisdictions have a similar requirement but the length of time varies between two years,8 three years9 and five years.10
  6. 7.19 Couples in domestic relationships must also meet the two-year requirement. But an additional requirement applies to these couples. They must show that they live together and have lived together as a couple in a domestic relationship for at least two years.11
  7. 7.20 This ‘co-habitation’ requirement arises from how ‘domestic relationship’ is defined. The same definition, or similar definitions, is commonly used in other Victorian legislation.12
  8. 7.21 In the adoption context, the definition means that the eligibility of couples in domestic relationships to adopt depends on their living arrangements. The same does not apply to the other types of couple. The Adoption Act does not expressly require that those couples live together.13
  9. 7.22 Adoption legislation in some other Australian jurisdictions includes a ‘co-habitation’ requirement, but in most cases where this occurs the requirement applies to married couples and unmarried couples equally.14
  10. 7.23 The Commission seeks the community’s views about this issue.

Question

  1. 23 To be able to adopt, couples in domestic relationships are required to prove that they live together and have lived together for two years. This requirement does not apply to other couples such as married couples.
  2. (a) Is a co-habitation requirement consistent with contemporary family life and the best interests of the child?
  3. (b) If yes, should a co-habitation requirement apply to all couples equally?

 

Adoption by one person

  1. 7.24 There are three types of sole applicant:
  • a person who is single (not in a relationship)15
  • one person in a couple applying to adopt alone (rather than jointly with the person’s partner)16
  • a person who is technically married or in a registered relationship, but separated.17
  1. 7.25 In each of these cases, the sole applicant is able to adopt only if there are ‘special circumstances in relation to the child’ that make the adoption ‘desirable’.18 This requirement is referred to below as the ‘special circumstances requirement’.
  2. 7.26 The Adoption Act does not define ‘special circumstances’ or the ‘special circumstances’ which would make an adoption by a sole applicant ‘desirable’. How it has applied in practice in the case of single people is discussed below (see the discussion beginning
    at [7.33]).
  3. 7.27 Additional requirements may apply where one person in a couple applies to adopt.
    In certain situations, the Adoption Act requires that the applicant’s partner agrees
    to the adoption.19 These are where:
  • The couple is married or in a registered relationship and living together.20
  • The couple is in a domestic relationship and has been living in that relationship
    for at least two years.21
  1. 7.28 In situations other than these—for example, where the couple is not living together,
    or the domestic relationship’s duration is less than two years—it seems the partner’s consent is not required.22
  2. 7.29 The special circumstances requirement also applies to a person who is technically married or in a registered relationship but separated from their former partner. Adoption is not permitted in these situations unless the person is ‘living separately and apart from’ the former partner.23

Summary of differences

  1. 7.30 Table 1 sets out the differences in the requirements that apply to people wanting to adopt based on their relationship status.

Table 1. Summary of differences in requirements based on relationship status

  1. Type of couple or person wanting to adopt

    Requirements

    Married couples, couples in traditional Aboriginal marriage and couples in registered relationships

     

    Can adopt if they have been in that type of relationship (or a combination of the specified relationships) for at least two years.

    No requirement that the couple live together.

    Couples in domestic relationships

    Must live together and have lived together in the domestic relationship for at least two years.

    Single people (not in a relationship)

    Must be special circumstances in relation to the child which make the adoption desirable.

    One person in a couple

    Must be special circumstances in relation to the child which make the adoption desirable.

    Partner’s consent is required if:

    - couple is married or in a registered relationship and living together

    - the couple is in a domestic relationship and has been living in that relationship for at least two years.

    Person technically married or in registered relationship but separated from the other person.

    Must be special circumstances in relation to the child which make the adoption desirable.

    Must be living separately and apart from the other person.

  2. 7.31 The Commission must consider whether these differences are consistent with contemporary attitudes and contemporary law relating to family. It must also consider whether they are consistent with the best interests of the child, as this is the paramount consideration in adoption law (see Chapter 5 for a detailed discussion about this principle).
  3. 7.32 The Commission seeks the community’s views about the limitation that applies to single people wanting to adopt. This issue is discussed below.

Ability of single people to adopt under the Adoption Act

  1. 7.33 Single people in Victoria are only allowed to adopt in limited circumstances: there must
    be ‘special circumstances in relation to the child’ which make the adoption ‘desirable’.24
  2. 7.34 When the Adoption Act was introduced, the responsible minister explained that special circumstances:25

might exist where there is already a strong relationship between the child and a particular adult or where a particular child copes better when it has only one adult to relate to. Each application by a single person to adopt will be assessed on its merits according to what is in the best interests of the child.

  1. 7.35 In practice, the special circumstances requirement has meant that single people are only able to adopt children with special needs.26 As discussed in Chapter 3, these children include children older than 12 months of age, children with disabilities and children from difficult backgrounds. This practice is not specified in the Adoption Act or the Adoption Regulations but appears to be an interpretation of the special circumstances requirement.
  2. 7.36 The law in some other Australian jurisdictions is similar to Victoria’s.27 However, in other jurisdictions, single people are subject to the same requirements as couples.28
  3. 7.37 The Commission has expressed a view about the Victorian law in a previous report. In 2007, it recommended that the special circumstances requirement be removed.29 The recommendation was not implemented. The current reference requires the Commission
    to examine this question again.
  4. 7.38 The discussion in this section briefly considers the following points:
  • how the concept of ‘family’ in the Adoption Act has evolved in some ways, but has not developed in the case of single people
  • the reasons behind the special circumstances requirement
  • whether the special circumstances requirement is consistent with contemporary family life and contemporary attitudes about family
  • the Commission’s 2007 recommendation, and a recent recommendation to change South Australia’s law relating to single people
  • how the special circumstances requirement compares with other Victorian laws relating to family.

 

The concept of family in the Adoption Act

  1. 7.39 Family structures and community attitudes about family have changed over the 30 years since the Adoption Act became law. Some of these changes have been reflected in the Adoption Act.
  2. 7.40 For example, the range of couples allowed to adopt has expanded from legally married men and women to include men and women in de facto relationships (in 1997) and, most recently (in 2015), same-sex couples and people who do not identify with a specific sex
    or gender. These developments responded to social change and expanded the concept
    of family contemplated by the Adoption Act.
  3. 7.41 The law relating to single people, however, has remained fixed since 1984, and continues to specify that single people should only be allowed to adopt where special circumstances exist in relation to the child. The Commission must consider whether this is consistent with contemporary attitudes and law, and puts the best interests of the child foremost.

Reasons underpinning the special circumstances requirement

  1. 7.42 The law relating to single people is based on the 1983 report of the Adoption Legislation Review Committee (discussed in Chapter 2) and modelled on the previous adoption legislation, the Adoption of Children Act 1964 (Vic).
  2. 7.43 Under that Act, adoption was limited to a ‘husband and wife’, other than in ‘exceptional circumstances’. A single person could not adopt unless the court was satisfied that ‘exceptional circumstances’ made it ‘desirable’ to allow the adoption.30 In practice, adoption agencies would only give consideration to a person who was ‘divorced, widowed [or] unmarried’ if:

circumstances of the child [made] adoption by a single person … the most appropriate plan available, and the circumstances and personal qualities and experience of the single person [would] be of positive benefit to the child. Often, such applications involve[d] situations where child and applicant already [had] an established relationship.31

  1. 7.44 The Adoption Legislation Review Committee considered it was in a child’s best interests to be placed with ‘two-parent families’ ‘where possible’.32 The Committee said that allowing a child ‘to experience a relationship with a mother and father’ would meet ‘the wishes of many natural parents’ and be ‘more beneficial for the child in terms of life experience and development’. It recommended that:

A child may be placed for adoption with a single parent where in the opinion of the Director-General or Principal Officer, circumstances exist, related to the child’s needs, which make it desirable to do so.33

  1. 7.45 The recommendation was implemented in the Adoption Act as the ‘special circumstances’ requirement.
  2. 7.46 There is a question whether this requirement and the ideas underpinning it continue
    to reflect contemporary family life and attitudes.

 

Contemporary family life and attitudes

  1. 7.47 Single parenthood is more common today than it was 30 years ago.34 It is now an ordinary part of contemporary family life for many Australians.
  2. 7.48 A recent review of South Australia’s adoption legislation considered the ‘best available evidence’ relating to the impact on children of being brought up in same-sex couple and single-person households.35 It concluded that children in those families can be expected to do ‘just as well’ as children ‘who grow up in different-sex couple households’.36
  3. 7.49 In 2007, this Commission stated that ‘single people are able to provide secure and loving environments for children’, in a report about assisted reproductive technology (ART) and adoption.37
  4. 7.50 Both the South Australian review and the Commission’s 2007 report reviewed adoption laws relating to single people and recommended that the laws be changed. Their recommendations are discussed briefly below.

Recent reviews of the law

2015 South Australian review
  1. 7.51 South Australia’s law is similar to Victoria’s. The court can allow adoption by a single person if satisfied that there are ‘special circumstances justifying [the adoption]’.38
  2. 7.52 The South Australian review in 2015 received a large number of submissions in favour of changing the law to allow single people to adopt. It also received submissions which argued for the contrary position.39
  3. 7.53 The review recommended that the special circumstances requirement be removed and that the South Australian law make no distinction between single people and couples.40
    It emphasised that this recommendation was not made to ‘satisfy family formation desires for … single person households’ but was based on ‘the rights, best interests, welfare and needs of a child’. The review said it is important that the assessment of single people ‘pay special attention’ to the ‘informal social support networks’ around them.41
Victorian Law Reform Commission review
  1. 7.54 In 2007 the Commission recommended that Victoria’s special circumstances requirement be removed and that single people be able to adopt ‘in accordance with the same criteria that apply to couples’.42 It made this recommendation for the following reasons:

The commission believes that single people are able to provide secure and loving environments for children. … We believe that the adoption legislation provides an adequate process for assessing the suitability of a single person to adopt a child, without the need to prove to the court that ‘special circumstances’ exist. The assessment process already examines the financial circumstances of the applicants, the current demands of the applicant’s employment and the extent of family, friendship and community networks.43

  1. 7.55 In the same report, the Commission recommended that single women have access to ART services.44 This recommendation was implemented in the Assisted Reproductive Treatment Act 2008 (Vic).45 This means that single women have the ability to start a family through ART services, but single people can only adopt a child in special circumstances. This appears to be an inconsistency in Victorian law.

Single people in the Children, Youth and Families Act 2005 (Vic)

  1. 7.56 The Adoption Act also appears to be inconsistent with the approach under with the Children, Youth and Families Act 2005 (Vic) (CYF Act).
  2. 7.57 Under the CYF Act, the Children’s Court can make permanent care orders for children in Victoria’s child protection system who cannot live with their parents. Permanent care orders give a person ‘parental responsibility for [a] child … to the exclusion of all other persons’ until the child turns 18.46 Parental responsibility ‘means all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children’.47
  3. 7.58 The Children’s Court can make permanent care orders in favour of single people as well as couples.48 The same criteria apply to both groups of people. These include:
  • The person is suitable having regard to matters prescribed in the Children, Youth and Families Regulations 2007 (Vic) and any wishes expressed by the child’s parent about those matters.49
  • The person is willing and able to assume responsibility for the permanent care of the child by having parental responsibility for the child.50
  • The best interests of the child will be promoted by making the order.51
  1. 7.59 When these laws are compared with the Adoption Act, there appears to be an inconsistency. Whereas a single person can have full parental responsibility for a child under the CYF Act, a single person can only adopt a child in special circumstances under the Adoption Act.

Principle of non-discrimination in Victorian law

  1. 7.60 The different treatment of single people and couples in the Adoption Act seems at odds with the contemporary idea that people should not be treated differently because of their relationship status. This idea is reflected in Victorian law in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and Equal Opportunity Act 2010 (Vic). The Charter contains a ‘right to equal and effective protection against discrimination’52 and the
    Equal Opportunity Act prohibits discrimination based on marital status in certain fields
    of activity.53
  2. 7.61 Legal protection from discrimination is not absolute, however. The law can place reasonable limits on Charter rights54 and permit discrimination in certain situations.55
  3. 7.62 Discrimination can be justified and necessary, for example, to ensure children are protected. Eligibility and suitability criteria are necessary in adoption law for this reason. The best interests of the child remain the paramount consideration, above equal rights
    for people who want to adopt.56
  4. 7.63 The requirements in the Adoption Act are intended to ensure that children’s best interests are protected. The question the Commission must consider, and seeks the community’s views about, is whether these requirements remain appropriate and necessary, in light of contemporary understanding and law relating to family and the best interests of the child.
  5. 7.64 It is not clear that the best interests principle requires that the restriction on adoption by single people remain in place. The Commission notes its previous recommendation that the special circumstances requirement be removed and that single people be able to adopt ‘in accordance with the same criteria that apply to couples’.57
  6. 7.65 The Department of Health and Human Services’ (DHHS) Standards in Adoption (referred to in Chapter 3) state that ‘it is in the interests of children to have the maximum range
    of prospective adoptive parents available’.58
  7. 7.66 The Commission seeks the community’s views on this issue.

Question

  1. 24 Single people can adopt a child only if there are ‘special circumstances
    in relation to the child’ which make the adoption ‘desirable’.
  2. (a) Is this requirement consistent with the best interests of the child?
  3. (b) Should this requirement be amended? If yes, what criteria should apply to adoptions by single people?

 

Harmonious operation with the Equal Opportunity Act

  1. 7.67 A final question concerning relationship status relates to the interaction between the recent amendments to the Adoption Act which enable same-sex couples and people
    who do not identify with a specific sex or gender to adopt,59 and an exemption in the Equal Opportunity Act that applies to ‘religious bodies’.60
  2. 7.68 When the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) was introduced, it was reported that one approved agency was ‘opposed to allowing same-sex adoption’.61
  3. 7.69 The exemption in the Equal Opportunity Act allows a religious body to discriminate against a person based on the person’s ‘marital status’, ‘sexual orientation’ or ‘gender identity’ (for example), where the body acts in accordance with the ‘doctrines, beliefs
    or principles’ of the religion.62
  4. 7.70 The Adoption Amendment (Adoption by Same-Sex Couples) Act intended to amend this exemption, to ensure that a religious body providing adoption services as an approved agency cannot refuse to provide services to same-sex couples and others.63 However,
    this proposed amendment was not enacted.
  5. 7.71 The Commission is not reviewing Parliament’s decision but is required to consider its consequences as it relates to the Commission’s terms of reference. These ask the Commission to consider whether the Adoption Act operates harmoniously with other relevant Victorian legislation. The Commission is considering whether the amendments allowing adoption by same-sex couples and others, on the one hand, and the ‘religious bodies’ exemption in the Equal Opportunity Act, on the other, operate harmoniously.
  6. 7.72 The Commission notes that the recent review of the Charter of Human Rights and Responsibilities recommended that the Government consider changing a similar exception in the Charter.64 The Government supports this recommendation.65

Question

  1. 25 A religious body that provides adoption services may refuse to provide services to same-sex couples and people who do not identify with a specific sex or gender, if the body acts in accordance with its religious doctrines, beliefs
    or principles. Is this consistent with amendments to the Adoption Act that enable same-sex couples, and people who do not identify with a specific sex
    or gender, to adopt?

 

Step-parents and relatives (‘known-child adoptions’)

  1. 7.73 This section discusses the limitations that apply to adoption by step-parents and relatives of a child. As discussed in Chapter 3, adoptions by step-parents and relatives are called ‘known-child adoptions’. That term is used below to refer to both groups collectively.
  2. 7.74 The term ‘step-parent’ is used here to refer both to spouses and domestic partners of a child’s parent or adoptive parent (domestic partners are people in a registered relationship or domestic relationship, defined above at [7.15]–[7.16]).66 Both groups of people may adopt their partner’s child under the Adoption Act,67 where the relationship is at least two years in duration.68 They apply to adopt as sole applicants.69
  3. 7.75 The term ‘relative’ is defined in the Adoption Act.70 It means:

A grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of any person.

  1. 7.76 Relatives may apply to adopt as sole applicants or jointly with their spouses or domestic partners. The spouse or domestic partner may apply as a sole applicant, where the relationship is at least two years in duration.71 Where a spouse or domestic partner applies as a sole applicant, the provisions relating to relatives also apply to the spouse or domestic partner.72
  2. 7.77 At the time the Adoption Act was introduced, approximately half of adoptions in Victoria were by step-parents.73 Today, known-child adoptions are not common (see Chapter 3) and the Adoption Act limits when they can occur.74 This is because known-child adoptions are generally discouraged.75
  3. 7.78 The following sections discuss why there is concern about known-child adoptions and
    the legal requirements that apply to these adoptions.

The concerns about known-child adoptions

  1. 7.79 Known-child adoptions are generally discouraged because adoption alters the legal relationship between the child and the child’s parents and family members (see Chapter 3 for information about the legal effect of adoption).
  2. 7.80 In the case of adoption by a step-parent, the adoption terminates one parent’s legal relationship with the child.76 Adoption by a step-father, for example, severs the father’s legal relationship with the child, along with the legal connection with his family.77 This may decrease the chances of the child having ongoing contact with that side of the child’s family.78
  3. 7.81 When a relative adopts a child, this can distort family relationships. For example, when a grandmother adopts a child, in law she becomes the child’s mother and the mother becomes the child’s sister.79 The Adoption Legislation Review Committee stated that: ‘This distortion of biological relationships … caused by the change in legal relationships, is very confusing for children.’80 The Committee observed that some relative adoptions were attempts to hide ‘an ex-nuptial birth’ or shelter a child from ‘the consequences of [parents’] death and divorce’.81
  4. 7.82 The Committee considered that known-child adoptions were generally not in the best interests of children.82 At that time, adoption was being used increasingly by step-parents.83 The Committee objected to step-parent adoption as a ‘widespread practice’84 and considered relative adoption should only be permitted in special circumstances.85
  5. 7.83 For these reasons, there is a presumption in the Adoption Act against allowing adoptions by step-parents and relatives. Parenting orders under the Family Law Act 1975 (Cth) (discussed in Chapter 3), which do not have the same legal effect as adoption, are preferred in these situations. Victoria’s adoption policy is that ‘in all but a few cases’, parenting orders better meet ‘the welfare and interests of a child raised by a relative
    or stepparent’ than adoption orders.86

Legal requirements

  1. 7.84 The Adoption Act only permits known-child adoptions where:87
  • a parenting order under the Family Law Act ‘would not make adequate provision
    for the welfare and interests of the child’
  • exceptional circumstances exist which warrant making an adoption order, and
  • an adoption order would make better provision for the welfare and interests of the child than a parenting order.
  1. 7.85 The Adoption Act gives no guidance about when these requirements would be satisfied. The Adoption and Permanent Care Procedures Manual88 (discussed in Chapter 3) provides some guidance as to when a parenting order would be inadequate, an adoption order would be preferable and exceptional circumstances may exist.89
  2. 7.86 It states that the permanency of adoption might be preferred where greater ‘legal security’ is needed or it would give a child ‘a greater sense of belonging within the family’.90
  3. 7.87 Exceptional circumstances might exist where a parent has died or been ‘totally absent from the child’s life’, or where the parents have a ‘history of violence’ or a child was ‘conceived by rape’.91 Generally, a combination of circumstances is required for exceptional circumstances to exist.92
  4. 7.88 The County Court generally discourages adoption by step-parents where the child’s parents were ‘previously married’ or ‘had a lengthy relationship’.93
  5. 7.89 The Family Law Act requires that step-parents obtain permission from the Family Court
    to apply to the County Court for the adoption order.94
  6. 7.90 The approach in Victoria is consistent with other Australian jurisdictions.95 Some jurisdictions require that an adoption order be ‘preferable’, or ‘clearly preferable’,
    to alternative orders.96

Is the law appropriate?

  1. 7.91 In its 2007 report on ART and adoption (discussed above at [7.54]–[7.55]), the Commission expressed the view that it:

agrees that the current policy, which favours Family Court parenting orders over
step-parent and relative adoptions, is appropriate where the child has a second parent and extended family.97

  1. 7.92 The Commission seeks the community’s views on whether the law relating to known-child adoptions continues to be appropriate.

 

Question

  1. 26 Step-parents and relatives of a child can only adopt a child in their care in limited circumstances. Parenting orders under the Family Law Act are the preferred option in these situations. Is this appropriate? If not, what changes are needed? 

Assessment of applicants

  1. 7.93 This section is about the assessment of the suitability of people who want to adopt.
  2. 7.94 All applicants must be assessed as suitable.98 The assessment is made against a set of suitability criteria called ‘prescribed requirements’ contained in the Adoption Regulations.99 DHHS and approved agencies carry out this ‘screening process’.
  3. 7.95 The terms of reference ask the Commission to review this assessment process to:
  • identify whether changes should be made to improve the operation of the Adoption Act and Adoption Regulations
  • ensure that procedural requirements are articulated clearly in the Adoption Act and Adoption Regulations.
  1. 7.96 These procedural requirements encompass:
  • the suitability criteria in the Adoption Regulations which applicants must satisfy
  • other policy requirements that DHHS and approved agencies take into account
  • the steps involved in the assessment process.
  1. 7.97 The Commission is interested in the community’s views about:
  • whether the suitability criteria are appropriate and clearly expressed
  • whether all requirements that applicants must meet are clear
  • whether the assessment process is clear
  • whether any improvements could be made to the assessment process.

The Adoption Act and the assessment of applicants

  1. 7.98 Although the assessment of applicants is a central part of the adoption process, there is little detail about it in the Adoption Act and the Adoption Regulations. Most of the detail is contained in DHHS policy documents such as the Adoption Manual and an Adoption and Permanent Care Learning Guide (the Learning Guide) which is a training resource for staff.100
  2. 7.99 The Adoption Act says:
  • the County Court must be satisfied that applicants meet ‘prescribed requirements relating to approval of applicants’101
  • the Court must also be satisfied that applicants, other than applicants who are related to a child, have approval as ‘fit and proper persons to adopt a child’102
  • certain people may apply to the Secretary or a principal officer for this approval103
  • the application for approval must comply with the Adoption Regulations104
  • the Secretary or a principal officer may give approval if the applicants satisfy
    the ‘prescribed requirements relating to approval of applicants’.105
  1. 7.100 The ‘prescribed requirements’ are the suitability criteria contained in the Adoption Regulations. They are set out in full below at [7.117].
  2. 7.101 The Adoption Regulations state that the application for approval as a ‘fit and proper person’ must be in writing and must include certain information set out in schedules
    to the Adoption Regulations.106
  3. 7.102 The Supreme Court (Adoption) Rules 2015 (Vic) require the Secretary or principal officer arranging the adoption to give the court a report that addresses whether the applicant satisfies the suitability criteria.107
  4. 7.103 No other detail about the assessment process is given in the Adoption Act or Adoption Regulations. Legislation and regulations in other Australian jurisdictions set out their assessment processes in more detail, as discussed below.

Clarity and circularity

  1. 7.104 As well as saying little about the assessment process, the relevant provisions
    in the Adoption Act in some ways appear to operate in a circular fashion.
  2. 7.105 For example, as indicated above, the Adoption Act refers to two types of assessment:
  • a general assessment of suitability that applies to all applicants
  • ‘a fit and proper person approval’ requirement that applies to all applicants other
    than relatives.
  1. 7.106 Both assessments are based on the same suitability criteria. This means that although relatives do not need ‘fit and proper person’ approval, they must satisfy the suitability criteria on which the approval is based.
  2. 7.107 In addition, even though all applicants except relatives are required to have ‘fit and proper person’ approval, the Adoption Act states that only a certain group of applicants ‘may apply’ to the Secretary or a principal officer for this approval.108 The group of applicants who ‘may apply’ are couples who are eligible to adopt.109 Other types of applicant, such as single people, other sole applicants and step-parents, are not expressly excluded from applying but they are not included in the group of people who ‘may apply’.110
  3. 7.108 This appears to have the effect that single people, other sole applicants and step-parents are unable to obtain the approval needed to be able to adopt. The operation of this part of the Adoption Act is unclear. The legislation in Western Australia, by contrast, states that:
  • a person who wishes to adopt a child ‘is to apply … to be assessed for suitability
    for adoptive parenthood’
  • the application can be ‘made by one person, or by 2 persons jointly’
  • this does not apply to a step-parent, relative or carer of a child who wishes to adopt the child.111
  1. 7.109 In Victoria applicants who obtain ‘fit and proper person’ approval are placed on the register of people who may be selected to adopt a child.112 The Commission understands this register is for infant adoption, which is only available to couples.
  2. 7.110 Other applicants, such as single people and step-parents, must also satisfy the suitability criteria that ‘fit and proper person’ approval is based on, because (as mentioned above)
    all applicants are required to satisfy these criteria to be able to adopt.113
  3. 7.111 This means that, even though they are not included in the group that ‘may apply’ for ‘fit and proper person’ approval, single people and step-parents must satisfy the same suitability criteria that couples must satisfy to be approved as ‘fit and proper persons’.
    The Adoption Act also requires that the Secretary or principal officer assess whether single people and step-parents meet the criteria and give their assessment to the Court.114

Summary

  1. 7.112 The provisions relating to the assessment of applicants can be summarised as follows:
  • All applicants for adoption, except relatives, are required to have ‘fit and proper person’ approval.115
  • The only applicants who the Adoption Act states ‘may apply’ for the approval
    are couples who are eligible to adopt.116
  • All applicants for adoption must meet the suitability criteria on which the
    ‘fit and proper person’ approval is based.117
  1. 7.113 This situation is depicted in Table 2 below.

Table 2. Summary of provisions relating to the assessment of applicants

Type of applicant

Is ‘fit and proper person’ approval required?

May the person apply for approval?

Must the person meet the suitability criteria?

Couples who are eligible to adopt

 

Yes

Yes

Yes

Single people and other sole applicants

Yes

No

Yes

Relatives of a child

No

No

Yes

Step-parents

Yes

No

Yes

 

 

  1. 7.114 The following sections focus on the three aspects of the assessment of applicants:
  • the suitability criteria that apply to all applicants
  • additional policy requirements that are applied in practice when couples seek to adopt infants
  • the procedural steps in the assessment process.

Suitability criteria

  1. 7.115 All applicants’ suitability to adopt is assessed against the suitability criteria in the Adoption Regulations.
  2. 7.116 The Commission seeks views on whether the suitability criteria are appropriate and whether they are clearly expressed.

What are the suitability criteria?

  1. 7.117 The criteria, in full, are:118
  • The health of the applicants, including emotional, physical and mental health,
    is suitable.
  • The age and maturity of the applicants are suitable.
  • The applicants have suitable skills and life experience.
  • The applicants’ financial circumstances are suitable.
  • The applicants have the capacity to provide a stable, secure and beneficial emotional and physical environment during a child’s upbringing until the child reaches social
    and emotional independence.
  • The applicants have the capacity to provide appropriate support to the maintenance of a child’s cultural identity and religious faith (if any).
  • The applicants have a suitable appreciation of the importance of:
  • contact with a child’s birth parent and family
  • exchange of information about the child with the child’s birth parent and family.
  • The general stability of character of the applicants is suitable and the criminal history (if any) of the applicants does not make the applicants unsuitable.
  • The stability and quality of the applicants’ relationship with each other, and between them and the other household and family members, is suitable.
  • The criminal history (if any) of the household members does not make the applicants unsuitable.
  • If the applicants have had the care of a child before applying for approval as fit
    and proper persons to adopt a child, the applicants have shown an ability to provide
    a stable, secure and beneficial emotional and physical environment for the child.

Are the suitability criteria appropriate?

  1. 7.118 This broad range of criteria is intended to determine applicants’ ability to bring up
    an adopted child in a positive and stable family environment. This includes applicants’ physical, emotional, social and financial ability, the strength of their relationship and support systems, and their willingness to be open about the child’s origins and to maintain contact with, or give information to, the child’s parents.119
  2. 7.119 The criteria are similar to those that apply in New South Wales.120 The criteria in other jurisdictions are generally similar, though expressed differently and in varying levels of detail.121 Some jurisdictions have fewer criteria than Victoria, while others include factors not contained in Victoria’s Adoption Regulations. Some these are mentioned at [7.124]–[7.126].

Are the suitability criteria clear and transparent?

  1. 7.120 As seen above (at [7.117]), the criteria are stated in general terms. The Adoption Regulations do not specify, for example, what ‘suitable health’ means or what age range is suitable.122 These questions are determined by DHHS.
  2. 7.121 Some information about what the criteria mean is available in DHHS materials. Some are publicly available: for example, the DHHS website states applicants ‘should be fit and healthy enough to care for a child safely through to adulthood’ and this means they need to be ‘within the spread of ages at which most people become parents’.123 More detailed information is provided to people applying for approval to adopt, in the application paperwork.
  3. 7.122 Because the criteria are stated broadly, assessors have discretion when evaluating whether the criteria are satisfied. Factors that guide the exercise of the assessor’s discretion are contained in policy documents, such as the Adoption Manual, rather than the Adoption Regulations. For example, although a person’s Body Mass Index (healthy weight) is a relevant factor in assessing whether a person’s health is suitable,124 this is not mentioned in the Adoption Regulations.
  4. 7.123 The Commission acknowledges that it is not always possible or desirable to specify all relevant detail in legislation and regulations. It is also necessary that decision makers retain a degree of flexibility.125 However, flexibility must be balanced against the need
    for transparency in the decision-making process.

Question

  1. 27 Are the suitability criteria in the Adoption Regulations appropriate?
    Should any criteria be added, removed or changed?

 

Additional policy requirements

  1. 7.124 Additional criteria not mentioned in the Adoption Regulations are applied in practice
    as part of the screening process. These requirements are set out in policy documents
    such as the Adoption Manual and the application paperwork.

  2. 7.125 Examples include requirements relating to citizenship126 and acceptance of infertility issues.127 Applicants are also expected to take 12 months off work if a child is placed
    with them, to develop bonding and attachment.128
  3. 7.126 In practice, the additional requirements may determine whether a person is able to adopt, but they are not set out in the Adoption Act or Adoption Regulations. Similar requirements in other jurisdictions are set out in legislation or regulations.129
  4. 7.127 The Commission is interested in whether the factors guiding decisions about suitability
    to adopt should be made more transparent.

Question

  1. 28 Should the requirements applicants must satisfy for approval to adopt be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make this clearer?

 

The assessment process

  1. 7.128 The Adoption Act does not set out the procedural steps involved in the assessment process. It states only that:
  • An application may be made to the Secretary or a principal officer for approval
    as a ‘fit and proper person to adopt a child’.130
  • The application must comply with the Adoption Regulations.131
  • The Secretary or principal officer may approve applicants as fit and proper persons
    if they satisfy the suitability criteria.132
  1. 7.129 The Adoption Regulations state that the application must be in writing and contain certain information (for example, the applicant’s personal details, education and qualifications and financial circumstances).133
  2. 7.130 DHHS has developed the steps in the assessment process. They are set out in policy documents such as the Adoption Manual and the Learning Guide. The process that applies to assessment of couples seeking to adopt an infant is set out in detail.134
    The steps in that process are outlined below.

Assessment—infant adoption

  1. 7.131 There are many steps in the assessment process.
  2. 7.132 Before making an application for ‘fit and proper person’ approval, couples must attend a two-hour group information session and a subsequent two-day group education program.135
  3. 7.133 The assessment process then involves the following steps:136
  • The couple submits the application for assessment. This involves a large amount
    of paperwork and medical and criminal history checks.
  • The assessor interviews the couples a number of times and considers the information in the application.
  • The assessor writes a report, which makes a recommendation about the couple’s suitability. The report is provided to an ‘applicant assessment committee’.
  • The committee considers the report and any other relevant information.
  • The committee decides whether to give approval, decline approval or defer the decision.
  1. 7.134 None of this procedural detail is contained in the Adoption Act or Adoption Regulations. This differs from legislation and regulations in some other jurisdictions. The Queensland legislation and Tasmanian regulations set out the steps in the assessment process.137 The New South Wales regulations set out what is involved in the assessment process, including education and training,138 documents that must be included in the application,139 checks that are carried out140 and what decision makers are required to do.141 Western Australia’s legislation makes it clear that an ‘adoption applications committee’ decides applications based on assessment reports prepared by appointed people.142
  2. 7.135 The Commission is interested in the community’s views about, and experiences of, the assessment process. In particular, it seeks views on whether the assessment process should be set out more clearly in the adoption legislation.

Questions

  1. 29 Should the steps in the assessment process be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make the assessment process clearer?
  2. 30 Could any other improvements be made to the assessment process? If yes, what improvements could be made?

 

 

Selection of adoptive parents

  1. 7.136 In Victorian adoption practice, the process of selecting the adoptive parents is called ‘linking’ (this term is not used in the Adoption Act or Adoption Regulations). Linking involves matching a child with a family that is best able to meet the child’s needs and, to the extent possible, the wishes of the child’s birth parent(s).143 It has ‘far-reaching consequences’ for an adopted child: it ‘determines the life opportunities and experiences the child will have’.144
  2. 7.137 The Commission is interested in the community’s views on whether:
  • the linking process is set out clearly in the Adoption Act and Adoption Regulations
  • the matters a parent can express wishes about are appropriate.

Is the linking process clear in the Adoption Act and Regulations?

  1. 7.138 Although it is a significant part of the adoption process, the linking decision is not covered in the Adoption Act and Adoption Regulations. The process is described in DHHS policy documents such as the Adoption Manual and Learning Guide.
  2. 7.139 The Adoption Act gives no detail about how adoptive parents are selected, who makes the decision and when it is made.145 The Act provides power to make regulations about ‘factors to be considered in the placement of a child for the purposes of adoption’ but this has not been done.146
  3. 7.140 Again, the absence of detail in the Adoption Act about the linking process is in contrast
    to adoption legislation in some other jurisdictions, which outline how adoptive parents are selected.147

How the process works

  1. 7.141 The linking process is carried out by adoption teams within DHHS and approved agencies. Practices vary across agencies.148
  2. 7.142 Generally, suitable adoptive parents are selected from the register of approved people. Adoption teams select adoptive parents who are best able to meet a child’s needs and the birth parents’ preferences, if they are known.149
  3. 7.143 Under the Adoption Act, parents can express preferences about:150
  • the religion, race and ethnic background of the adoptive parents
  • contact they would like to have with, or information they would like to receive about, the child.
  1. 7.144 In practice, parents’ expressed preferences extend to a broader range of matters, including ‘location, education level, opportunities, and relationship with their relinquishment counsellor’.151 These wishes are taken into account when selecting adoptive parents.152
  2. 7.145 Birth parents have the opportunity to be involved in the process of selecting the adoptive parents, although this is not stated in the Adoption Act. The adoption teams encourage them to be ‘actively’ involved in selecting the adoptive parents.153 This is discussed with the parents at the time of giving consent to the adoption (see Chapter 5 for information about the consent process).154
  3. 7.146 If the parents choose to be involved, they are given de-identified information about two or three suitable families chosen by the adoption team on the basis of the parents’ expressed preferences.155 The parents select their preferred family.156 The Secretary or principal officer must approve the decision, because they are the child’s legal guardian under the Adoption Act (see Chapter 3).157 Generally the Secretary or principal officer accepts the parents’ decision.
  4. 7.147 It appears that parents could veto a proposed selection, even if only one suitable family was available. The Adoption Manual states that it is ‘unlikely’ the placement would proceed if the parents were strongly opposed to it:158

This approach is based on the assumption that it is important for birth parents to participate in planning for their child’s future wherever possible. It is envisaged that birth parents are likely to select a family with whom they feel some compatibility exists, and that this will assist the parties in feeling comfortable during future contacts.

Birth parents’ role in the selection process

  1. 7.148 The extent of birth parents’ role in the selection of adoptive parents is not clearly expressed in the Adoption Act or the Adoption Regulations. This differs from the Western Australian legislation, which states that birth parents have the opportunity to ‘study’ information about and ‘select’ prospective adoptive parents.159 The New South Wales Act provides that information about the proposed adoptive parents is given to the birth parents.160
  2. 7.149 The role of birth parents is referred to indirectly in the Adoption Act. It states that, before making an adoption order, the court must be satisfied that the Secretary ‘has given consideration to any wishes expressed by a parent of the child’ regarding:
  • the adoptive parents’ religion, race and ethnic background161
  • having contact with, or receiving information, about the child.162
  1. 7.150 The Adoption Regulations require that the Secretary or principal officer give parents
    the opportunity to express their wishes about these matters at the time of giving consent to the adoption.163
  2. 7.151 As seen above, in practice birth parents have a greater role in the selection of adoptive parents than is specified in the Adoption Act and Adoption Regulations. It is not clear whether the practice reflects the intention of the Adoption Act and Adoption Regulations.
  3. 7.152 The Commission is interested in the community’s views about whether the selection process, including the role of birth parents, should be set out more clearly in the adoption legislation, as it is in some other jurisdictions.

Question

  1. 31 Should the process by which adoptive parents are selected be set out more clearly in the Adoption Act and/or Adoption Regulations? If yes, what changes are required to make the selection process clearer?

 

Are the matters birth parents can express wishes about appropriate?

  1. 7.153 A further question is which matters are appropriate for birth parents to express preferences about.
  2. 7.154 Currently a parent can express preferences about:
  • the religion, race and ethnic background of adoptive parents
  • contact with, and access to information about, the child.164
  1. 7.155 Expressing wishes about contact with, or access to information about, the child is consistent with open adoption practices (see Chapter 2).
  2. 7.156 From one point of view, the other matters might be considered inappropriate on the basis that expressing wishes about a person’s religion, race or ethnic background is counter to non-discrimination principles. (Non-discrimination principles are discussed above at [7.60].)
  3. 7.157 On the other hand, respecting a parent’s wishes about the race or cultural background
    of the adoptive parents may help to maintain a child’s identity and heritage. The
    Adoption Standards state that maintaining a child’s connection to their cultural background is important,165 and laws in other jurisdictions contain provisions aimed
    at achieving this.166 It is also supported by article 8 of the United Nations Convention
    on the Rights of the Child
    .167
  4. 7.158 The range of matters that parents can express wishes about varies across jurisdictions. They include:
  • ‘preferred background, beliefs or domestic relationship’ of the adoptive parents
    (New South Wales)168
  • ‘child’s upbringing and the preferred attributes of the adoptive family’
    (Western Australia)169
  • ‘religion, marital status, sexual orientation, race, or ethnic background of the prospective adoptive parents’ (Tasmania)170
  • ‘social, religious and financial characteristics of the adoptive family’ (ACT)171
  • ‘child’s religious upbringing’, ‘characteristics of the child’s adoptive parents and adoptive family’ and ‘the degree of openness in the adoption’ (Queensland).172
  1. 7.159 These matters are broader than those parents can express wishes about under the Adoption Act. But, as seen above, in practice parents’ wishes are not limited to the matters stated in the Adoption Act. It may be appropriate to reflect these matters
    in the adoption legislation.
  2. 7.160 That approach would be consistent with decisions about permanent care placements under the CYF Act.173 The Children’s Court can make a permanent care order if the proposed carer(s) are suitable, having regard to:
  • prescribed matters set out in the Children, Youth and Families Regulations 2007 (Vic)
  • ‘any wishes expressed by the parent’ about those matters.174
  1. 7.161 This allows parents to express wishes about the full suitability criteria that apply under the CYF Act. The criteria are more limited than the suitability criteria in the Adoption Regulations, but they include characteristics such as a person’s health, ‘skills and experience’ and ‘general character’.175 They also include matters that are similar to those in the Adoption Act.176
  2. 7.162 The 2015 report by Eamonn Moran PSM QC, which recommended the amendments to the Adoption Act relating to same-sex couples and people who do not identify with a specific sex or gender, suggested that consideration be given to whether the approach under the CYF Act might be appropriate under the Adoption Act.177
  3. 7.163 The Commission is not able to consider whether birth parents should be able to express wishes about the relationship status, sex or gender of adoptive parents. The Moran report recommended against allowing this, as it could be inconsistent with the amendments which enable same-sex couples and people who do not identify with a specific sex or gender to adopt.178 This recommendation was followed. The Commission considers this matter to be excluded from the present review.

Question

  1. 32 Is it appropriate that birth parents are able to express wishes about the religion, race and ethnic background of adoptive parents? What matters should parents be able to express wishes about? Should other matters be included in the Adoption Act?

 

 

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