8 Consent

Introduction

  1. 8.1 This chapter reviews and makes recommendations to improve the consent process in adoption.
  2. 8.2 The starting point of the Adoption Act is that consent for an adoption is required from the child’s mother and father, or in the case of a non-citizen child, the person who is the guardian of that child under the Immigration (Guardianship of Children) Act 1946 (Cth).1 In some circumstances it is possible for the court to dispense with consent.2
  3. 8.3 The general requirement for consent protects the rights of the natural parents. It also protects a child’s right to know and be cared for by their parents,3 not to be arbitrarily separated from their parents and to be raised by them.4
  4. 8.4 The Commission considers that ensuring processes and procedures surrounding consent are robust is crucial to ensuring that consent is free and informed.
  5. 8.5 The Victorian history of forced adoptions and the Stolen Generations demands that every possible effort be made to provide safeguards in the consent process. To ensure that consent is both free and informed, it is essential to explore all care options with parents considering adoption. It is also important to provide them with relevant information about all aspects of adoption, including the possible psychological effects.
  6. 8.6 This chapter provides recommendations for improving the consent process. These include recommendations to:
  • strengthen the counselling process and avoid conflicts of interest
  • extend the total timeframe for revoking consent
  • increase the information that must be provided to a person considering consenting to the adoption of their child
  • ensure court official witnesses have appropriate training on their role
  • ensure that parents under 18 years of age have capacity to provide consent, and
  • increase opportunities for a father to be involved in adoption decision making.
  1. 8.7 The chapter also includes recommendations to ensure that consent is only dispensed with in exceptional circumstances.
  2. 8.8 The chapter uses the term ‘options counselling’ to describe the counselling that must be provided to a parent considering adoption for their child. This term is not used in the Adoption Act. The term ‘options counselling’ highlights that counselling should explore a range of issues, including all options for care of the child.5

Forced adoption and the apologies

  1. 8.9 In the past, some adoptions occurred without effective consent, against the will of parents. These are known as ‘forced adoptions’.
  2. 8.10 In 2012, the Senate Community Affairs References Committee completed a report, Commonwealth Contribution to Former Forced Adoption Policies and Practices. It defined ‘forced adoption’ as an ‘adoption where a child’s natural parent, or parents, were compelled to relinquish a child for adoption’.6 This included situations where no consent was given, where alternatives to adoption were not explained, where consent was given under duress, and where consent was revoked.7
  3. 8.11 On 25 October 2012, the Parliament of Victoria issued a formal apology to those affected by past forced adoption practices in Victoria.8 The apology acknowledged that ‘many thousands of Victorian babies were taken from their mothers, without informed consent, and that this loss caused immense grief’.9 It also acknowledged ‘the devastating and ongoing impacts of these practices of the past’ and offered an unreserved apology to all those harmed.10 The apology included a commitment to ‘never forget what happened and to never repeat these practices’.11
  4. 8.12 On 21 March 2013, the Prime Minister, Julia Gillard, apologised on behalf of the Australian Government to people affected by forced adoption.12 The apology included commitments ‘to make sure these practices are never repeated’ and to ‘remember the lessons of family separation’. It also stated that the nation’s focus will be ‘on protecting the fundamental rights of children and on the importance of the child’s right to know and be cared for by his or her parents’.13
  5. 8.13 There are ongoing concerns from some community members that consent to adoptions may be forced or coerced. Forced adoptions occurred in Victoria under previous adoption legislation, despite those laws containing consent provisions.14 For Victorians affected by forced adoption, the commitments made in the apologies to avoid repeating the mistakes of the past are critical.

Fathers and consent

Current law

  1. 8.14 If the child’s parents are or were married at any time between conception and the birth of the child, the people whose consent is required for an adoption are the mother and her husband, or former husband.15
  2. 8.15 If the child’s parents were not married to each other at any time between conception and the birth of the child, the Adoption Act sets out a range of situations in which a man is presumed to be the father.16 Consent is required from a man who is presumed to be the child’s father.17
  3. 8.16 The court may dispense with a parent’s consent if satisfied that the person cannot be found after reasonable inquiry.18 The Adoption Act details the steps that must be taken to establish that reasonable inquiry has been made.19
  4. 8.17 The Adoption Act does not oblige anyone to identify the father. There are some obligations to contact a man reasonably believed to be the father of the child.20
  5. 8.18 The Secretary or principal officer of the approved agency arranging the adoption must contact a man they believe on reasonable grounds may be the father. This must happen within two business days of the mother giving her consent to the adoption.21 The obligation to contact the man believed to be the father only applies if his name or address is known.22
  6. 8.19 The man must be advised of the belief that he may be the child’s father. He must also be advised that his consent will not be required unless he commences proceedings to obtain a declaration of paternity. He must commence these proceedings before the end of the period in which the mother can revoke consent.23
  7. 8.20 The court may dispense with the requirement to contact the man believed to be the father. The Secretary or principal officer must apply for this dispensation within two business days of the mother giving consent.24
  8. 8.21 The Adoption Act does not specify the grounds on which the court may dispense with the requirement to contact the man believed to be the father. It seems likely that this provision is intended to cover situations where the court considers it appropriate that the mother should have sole decision-making responsibility. This might include situations of rape or incest, or situations where there would be an unacceptable risk of harm to the mother or child if the father were informed.

Responses

  1. 8.22 A significant number of people considered that greater efforts need to be made to identify and contact the father of the child to obtain his consent to an adoption.25
  2. 8.23 The main reasons for requiring increased effort to identify and contact the father were:
  • better care options than adoption may be available through the father or his family26
  • the importance to the development of a child’s identity of knowledge of their father and his family27
  • grief issues for an adopted person who is unable to trace their father28
  • loss to the father if he is excluded from the decision-making process29
  • lost opportunity for an adopted person to establish a relationship with their father or members of his family.30
  1. 8.24 Information about the paternal side of the family, including information about the genetic and cultural history, is unavailable if the father is not identified. Dan Barron, a permanent care father, submitted:

At worst the current provisions in the Victorian Act may work to let men off the hook in terms of their responsibilities, meaning they may not be required to be recognised as fathers, and this is very unfair on the children so affected. Even if a father has no intention of being involved in the care of an infant, he has at the least an obligation to allow that child knowledge about their biological heritage.31

  1. 8.25 Dan Barron also noted that parenting roles have shifted significantly since 1984 when the Adoption Act became law in Victoria:

it is acknowledged that fathers are equally able to bring up babies and children, and it is very important that fathers are made aware that they have a right to look after the child if they are able to do so.32

  1. 8.26 ARMS (Vic) submitted that there is inequality between the way mothers and fathers are treated:

We allocate a status to the mother which is clearly different from the status of the father. The father should be involved from the moment the mother decides she wants to give up her baby … there are plenty of fathers (in past adoptions) who would have had a different response or weren’t allowed to be involved.33

  1. 8.27 Another submission stated:

Once the father is identified, he should be given significant time to ascertain his parental rights, support to consider parenting his child—and all the options that the natural mother has been given ... It is assumed he doesn’t want his child. If he does, he now has time limits and limited information about how to go about this. Totally unfair. This needs to be addressed in the legislation, with considerable time given to the natural father to assert his parental rights.34

  1. 8.28 Others said if the father is contacted, he or his family may be able to provide appropriate care for the child.35 Grandparents Victoria submitted that:

it is not in the best interests of the child to be placed with an adoptive family before all biological avenues are explored, nor is it in their best interests to discover years after the adoption that a biological relative would have been prepared to raise them if they had been given the opportunity.36

  1. 8.29 VANISH submitted that: ‘From the adopted person’s perspective, it is a violation of their birthright to not be provided with the identity of their biological/genetic father and for his details to not be included on their birth certificate.’37 It also submitted:

 

Many fathers have … experienced profound loss following exclusion from the birth and adoption of their child …These disappointments and losses are compounded if such a scenario eventuated because those authorised to arrange the adoption did not take reasonable steps to accurately identify the adopted person’s father, irrespective of the nature of the relationship between the father and mother at the time.38

  1. 8.30 The Commission heard from some adopted people who have had difficulties or been unable to trace their father because he is not named on the birth certificate.39
  2. 8.31 One submission explained the deep sense of grief the person has about not being able to trace their natural father: ‘This search has consumed much of my life; both physically and mentally. I may never know who he is and this is very distressing.’40
  3. 8.32 The submission underlined the dearth of information that may be available to an adopted person about the identity of their father, and the impact of this:

And, if you know who this man is, please let me know;

Height: Tall

Age: 25 (in 1960)

Complexion: Fair

Occupation: Public Servant

Residence: Queensland (most likely Brisbane)

This is my biological father. I have no other information and I am still researching his identity, as I will until the moment I draw my last breath.

  1. 8.33 Patricia Harper submitted that before the 1984 Adoption Act:

steps to identify and obtain the adoption consent of fathers were frequently actively discouraged … when an adopted person later obtained a copy of their original birth certificate, the place where their father’s name should have been was simply a blank space … the adopted person was unable to identify their father unless they were also able to … make contact with, their birth mother—and ask if she would agree to telling them the name of their father—which some birth mothers were not willing to do.41

  1. 8.34 Some submissions suggested steps that should be taken to contact the father. These included advertisements in newspapers, searching police records, searching drivers licence records, requests to Centrelink, sending requests in writing to the father’s last known address, using a registry similar to one the Supreme Court uses to publish probate notices, and using social media.42
  2. 8.35 Participants at two roundtables said that seeking to identify the father through indirect means, such as contacting the mother’s family, may place the mother or child at risk.43
  3. 8.36 Child & Family Services Ballarat submitted that it would not support breaching a mother’s privacy to seek information about the father. The counsellor would discuss with the mother why it is important to disclose information about the father.44
  4. 8.37 Connections UnitingCare submitted that a mother ‘should be provided with information about the likely consequences of this decision, including future legal challenges by the father’.45
  5. 8.38 Approved agencies told the Commission that it would be helpful if the Adoption Act provided clear guidance about when a father need not be contacted.46
  6. 8.39 A significant number of people said it should not be necessary to contact the father for consent where there has been rape, incest, family violence, or where there is a significant or unacceptable risk of harm to the mother or child if the father is contacted.47
  7. 8.40 A small number of people said that there were no circumstances where no attempt should be made to contact the father to seek his consent to an adoption.48

Commission’s conclusions

  1. 8.41 There are important benefits to the adopted person of identifying and contacting their father. These include the possibility that better care options than adoption may be available through the father or his family, assistance with an adopted person’s identity development, and increased access to genetic and cultural history for the adopted person.
  2. 8.42 An adopted person may experience significant grief and loss and a sense of a ‘missing piece’ if they have no knowledge of their father and his family.
  3. 8.43 There may also be significant grief and loss issues for a father and his family if the father is excluded from the adoption decision making process and later discovers the existence of the child.
  4. 8.44 The Commission’s recommendations aim to balance the importance of identifying the father with the need to ensure that the mother and child are safe and that the requirements are workable.
  5. 8.45 The Commission considered a legislative requirement that the mother identify the father of the child. It also considered a requirement to contact third parties such as the mother’s family, friends, or community to try to ascertain the identity or location of the father.
  6. 8.46 The Commission concluded that coercive approaches are neither workable nor desirable. A mother considering adoption is voluntarily exploring adoption as an option to provide for her child. Introducing coercion has the following problems:
  • The mother may not approach an adoption service if she fears that she will be compelled to reveal the identity of the father. A failure for the mother to explore options for care of her child may compromise the safety of both mother and child.
  • Breaching a mother’s confidentiality to approach third parties may place the safety of both mother and child at risk.
  • The counselling process would be compromised. It would place the counsellor in an ethically questionable position if they were required to push the mother to reveal who the father is above other aspects of the counselling process.
  • The mother may not know the father’s identity, so it may not be possible for her to disclose his identity.
  • It is hard to verify a mother’s assertion that she does not know the father’s identity.
  1. 8.47 The significance of the father should be recognised legislatively by placing a positive duty on the Secretary to take reasonable steps to identify the father. In practice, this should require that the legislation specifies that counselling with the mother must thoroughly explore the importance to the child of identifying the father.49
  2. 8.48 The Adoption Act requires the completion of a certificate of compliance, which certifies that the required counselling and written information has been given to a person proposing to give consent.50 This must be seen and read by the court witness to consent.51 The certificate of compliance should include a statement that the counsellor gave the mother information about the importance of identifying the father and the dates on which this was discussed.
  3. 8.49 Additionally, if the father is not identified, the written report provided to the court concerning the proposed adoption (currently under section 15 of the Adoption Act) should include details about the efforts made to identify him.
  4. 8.50 Currently, the court can decide to dispense with the need to notify a man believed to be the father. The Secretary or principal officer must apply within two business days of the mother giving consent. The grounds for the application and decision are not specified.52
  5. 8.51 Court scrutiny provides an additional safeguard to ensure that a decision not to contact a possible father is only made in exceptional circumstances.
  6. 8.52 On balance, the Commission considers that the Secretary is the better choice as decision maker. Providing for the Secretary to make the decision reduces the risk of a child remaining in temporary and potentially multiple placements for a protracted period of time while consent is finalised.
  7. 8.53 The Commission recommends extending the period for revocation of consent (Recommendation 38). This is important to ensure that a parent giving consent has adequate time to come to terms with the decision and consider alternatives. Because the Commission proposes extending the timeframes for revoking consent, it is particularly important that any unnecessary delays are avoided.
  8. 8.54 The Adoption Act can require the Secretary to apply to the court for a decision within a set timeframe. It cannot control when the court makes its decision. If there are delays and the court ultimately decides that the father should be notified, he would need to be given an appropriate period to commence paternity proceedings. This has the potential to significantly delay a decision about the child’s future.
  9. 8.55 In contrast, the Adoption Act can require the Secretary to make the decision within a set time period, which reduces delay.
  10. 8.56 The current power in section 49(1)(b)(ii) for the court to dispense with the requirement to notify the man believed to be the father should be removed. It should be replaced with a power for the Secretary to dispense with the requirement to notify a man believed to be the father. The Adoption Act should specify an appropriate timeframe for this to occur. The other elements of section 49 should be retained, modified as necessary in accordance with other recommendations made by the Commission.
  11. 8.57 The significance of the decision means that responsibility should sit with the Secretary. The Act should specify that it is a duty which cannot be delegated.
  12. 8.58 To reduce subjectivity of decision making, the Commission proposes the grounds for making a decision.
  13. 8.59 The Secretary should be able to dispense with the requirement to contact the man believed to be the father in the following limited circumstances:
  • the child’s conception was a result of an offence
  • the man is a lineal relative of the mother (a lineal relative is a blood relative in the direct line of descent)
  • there would be an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption.
  1. 8.60 The Commission acknowledges that dispensing with the need to notify the possible father means that the family of the possible father is also excluded. This is a loss to both the family and the child.
  2. 8.61 The Commission considers that it would be not in the child’s best interests to contact the possible father in the circumstances described above. It would increase the chances of the mother disappearing. If arrangements were made for the child to be cared for by the father’s family, it seems likely that the child would not have contact with their mother. It also risks traumatising the mother.
  3. 8.62 The court should have the power to dispense with the consent of the father, where the father is known, on the same grounds as those which enable the Secretary to dispense with the need to notify a man believed to be the father.
  4. 8.63 The Commission acknowledges concerns raised by approved agencies about difficulties in complying with privacy legislation when trying to locate a father. The use of independent counsellors would be likely to exacerbate any existing problems. For this reason, duties relating to locating the father should sit with the Secretary rather than counsellors or the principal officer.

Recommendations

  1. 31 The Adoption Act should require that, where the father has not been identified, the Secretary must take reasonable steps, as specified in the Regulations, to establish the identity of the father. The Regulations should specify that:
  2. a. the mother should receive counselling that encourages her to disclose as much information as possible to give to the child
  3. b. if the mother is unwilling or unable to disclose details identifying the father, the certificate of compliance (currently provided for in regulation 26) should include a statement specifying that the counsellor gave the mother information relating to the following matters and the dates on which they were discussed:
  4. i. the importance to the child of knowing that both parents have had the opportunity to participate in planning the adoptive placement
  5. ii. the long-term rights and interests of the child in having knowledge of their origins, including the relevance of genetic and medical information and importance of this knowledge for the development of the child’s identity
  6. iii. the importance of the child’s future rights as separate from the mother’s own immediate needs and rights.
  7. 32 The Adoption Act should require that if the father is not identified the written report provided to the court concerning the proposed adoption (currently under section 15 of the Adoption Act) includes details about the efforts made to identify the father.

 

 

  1. 33 The Secretary should have a non-delegable power to dispense with the requirement to notify a man believed on reasonable grounds to be the father if:
  2. a. the child’s conception was the result of an offence committed by the person
  3. b. the person is a lineal relative of the mother
  4. c. there would be an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption.

Counselling

Current law

  1. 8.64 For consent to be effective it must be in a prescribed form signed by the person giving consent.53 A consent form includes specific information to ensure that information provided about the effect of an adoption order is consistent and that the person providing consent understands the effect of an adoption order.
  2. 8.65 In most cases, the form includes a statement that when the court makes an adoption order, the person giving consent will lose their rights as a parent of the child, those rights will be transferred to the person or persons who adopt the child, and the child will be treated in law as the child of the person or persons who adopt the child.54
  3. 8.66 If consent is given in Victoria, the person giving consent must have received counselling from an ‘approved counsellor’.55
  4. 8.67 The Secretary can approve a person as a counsellor by publishing a notice in the Government Gazette.56
  5. 8.68 A counsellor must be an officer or employee of DHHS, or employed by an approved agency, or a person who, in the opinion of the Secretary, has the qualifications and experience appropriate for a counsellor for the purposes of the Adoption Act.57
  6. 8.69 The Adoption Act and Regulations do not provide guidance as to the qualifications or experience required for a person to be an approved counsellor.
  7. 8.70 The Secretary or principal officer is required to sign a certificate of compliance. This certifies that before the person gives consent, the required counselling has occurred, including that the required information has been given.58 The court official witness must have seen and read the certificate of compliance.
  8. 8.71 If consent is given outside Victoria, the counselling requirements do not apply.59 However, in all cases, the person giving consent must have received information about the effect of the adoption order, and the procedures for revoking consent and for extending the period for revoking consent.60

Responses

  1. 8.72 Two key concerns were expressed about approved counsellors in adoption. These were:
  • an actual or perceived conflict of interest because DHHS or approved agencies perform multiple roles in the adoption process—assessing applicants for adoption, providing options counselling for parents who are considering placing their child for adoption and acting as one of the witnesses for consent, linking children and applicants, and providing placement support to the child and adoptive parents61
  • a lack of clarity and regulation about who can provide counselling and the risk that counsellors may not be suitably qualified or specialised.62
  1. 8.73 A number of people told the Commission that there is a conflict of interest if DHHS or approved agencies provide counselling as well as placing children for adoption.63
  2. 8.74 Participants at a consultation with the Australian Association of Social Workers told the Commission that there are independence and transparency issues. If the counselling and linking roles are not kept separate, the worker is placed in a very difficult position professionally.64
  3. 8.75 Others also proposed the need for more oversight or independence through the consent process. Adoption Origins Victoria said that an independent body (for example, an ‘ethics committee’) should oversee the consent process, including the counselling. It said that DHHS and approved agencies should not have the counselling role because representing both the natural parents and the adoptive parents is a conflict of interest.65
  4. 8.76 Dr Briony Horsfall submitted that an independent statutory body similar to the Victorian Assisted Reproductive Treatment Authority should provide the majority of adoption services, including counselling.66
  5. 8.77 Some people told the Commission counselling should be provided by an independent counsellor to ensure there is no conflict of interest.67
  6. 8.78 Professor the Hon. Nahim Mushin told the Commission that there is a conflict of interest in the role DHHS plays. He proposed that the court should have a greater role and that the only role that DHHS should have in consent is to assist the court.68
  7. 8.79 Participants at a roundtable with approved agencies told the Commission that, generally, a counsellor would have a bachelor’s degree in social work, psychology or behavioural science and would have completed options counselling training.69
  8. 8.80 The Australian Association of Social Workers submitted that:

The absence of a definition within the Act about educational requirements and experience raises significant concerns about the quality of support that is being provided and the ability to regulate it. ‘Counselling’ is a poorly regulated field and a commonly used term to describe a whole range of approaches. Given the complexity involved in supporting individuals and families through the adoption process, the Act has to ensure that those providing counselling have the necessary qualifications and experience.70

  1. 8.81 Adoption Origins Victoria submitted that:

counsellors need to be appointed who have a clear knowledge of the likely trauma of adoption for children and for the parents. Currently, Adoption Origins Victoria is concerned at the qualifications of the Counsellors and the lack of requirement for substantive and robust advice about the impact of adoption.71

  1. 8.82 CREATE Foundation submitted that where young people who have been in out-of-home care consider the adoption of their child, ‘matters of consent are complex and require specialised support’. It submitted that ‘Trauma-informed practice is necessary to enable informed consent’.72
  2. 8.83 Participants at a roundtable with culturally and linguistically diverse representative agencies emphasised the need for the use of interpreters. They identified a risk that if a person giving consent comes from a culture where adoption does not exist, the person may not fully understand the permanent nature of adoption.73
  3. 8.84 The Youth Disability Advocacy Service raised concerns about the complex and legalistic nature of the consent process. It submitted:

there is no guarantee that … counsellors will have any expertise in disability. This is particularly concerning in light of the fact that the Act currently includes provisions for dispensation of consent, including in circumstances where: the person’s mental or physical condition makes them incapable of properly considering the consent, and the person has a mental or physical disability preventing the needs of the child from being met.74

Commission’s conclusions

  1. 8.85 In light of the history of forced adoption in Victoria, it is crucial that the consent process is as robust as possible, with stringent legal and procedural requirements.
  2. 8.86 It is important to maximise safeguards to ensure that there is no potential for a conflict of interest.
  3. 8.87 There is a risk of a perceived or actual conflict of interest for approved counsellors under the Adoption Act because of the multiple roles played by DHHS and approved agencies. The same agency provides counselling to a person considering adoption, assesses prospective adoptive parents, places children for adoption and supervises the placement. This creates a perception that pressure may be placed on a parent to consent to the adoption of their child.
  4. 8.88 Options counselling should be provided by counsellors who are independent of DHHS
    and approved agencies. This establishes a clear separation between the options counselling process, one possible outcome of which may be for a parent to provide consent to the adoption of their child, and the processes for assessing prospective adoptive parents and linking them with a child. It will ensure that there is no actual or perceived conflict of interest.
  5. 8.89 If a parent approaches an approved agency or DHHS about adoption of their child, the relevant Secretary or principal officer should refer them to an approved counsellor. Under the Commission’s recommendation all approved counsellors would be independent of DHHS and approved agencies.
  6. 8.90 There is also a need to provide greater clarity and regulation as to who can provide counselling.
  7. 8.91 There are two key components to this. The first is that the counsellor has appropriate qualifications. The second is that the counsellor has sufficient knowledge, skill and specialisation in options counselling.
  8. 8.92 The approach taken in New South Wales provides a useful model. New South Wales requires that the counsellor must have specified qualifications,75 including a university qualification in the social sciences, which took the equivalent of at least three years full-time study.76
  9. 8.93 There should be a legislative requirement that an approved counsellor hold a relevant university degree and is a member of a relevant professional body.
  10. 8.94 Approved counsellors should undertake appropriate and specialised training in providing counselling in adoption. They should also carry out additional training as required by the Secretary from time to time.
  11. 8.95 The process to approve a counsellor should include approving them to act as a witness to consent.77 Their training will need to ensure they thoroughly understand the consent process.
  12. 8.96 If a person proposes to give consent, the approved counsellor should complete a certificate of compliance, certifying that counselling has occurred and the required information has been given. This can be an adapted version of the certificate of compliance currently completed by the Secretary or principal officer.78 As occurs now, it should be presented to the court official witness, so that they can be satisfied that the required counselling and information has been given. The certificate of compliance should then be provided to the principal officer or Secretary who is making the arrangements for adoption.
  13. 8.97 The Commission’s recommendation aims to ensure that there is sufficient transparency and rigour to the requirements to be an approved counsellor. The Secretary is best placed to decide the detail of what degrees and professional memberships are appropriate. The Secretary should also decide what adoption specific training is required.
  14. 8.98 A number of additional requirements would need to be considered in providing for a person to be approved as a counsellor and for approval to be rescinded. In the case of rescinding of approval, these might include a relevant criminal record, disciplinary action for breach of professional standards, or improper or unethical conduct. In the case of rescinding approval, it might also include matters such as a loss of mental capacity.
  15. 8.99 The Commission has made recommendations aimed at maximising the chances of identifying and locating the father. These are important both to enabling a father to be involved in adoption decision making, including having an opportunity to parent his child, and to ensuring that an adopted person can access information about their father. The success of these recommendations depends on any information about the actual or possible identity of the father being passed on to the Secretary by the approved counsellor.
  16. 8.100 To protect the integrity of the counselling process, the counsellor would need to tell a mother receiving counselling that any information about an actual or possible father will be passed on to the Secretary. This would need to occur at the outset of counselling.

Recommendation

  1. 34 The Adoption Act should replace the current requirements in section 5(2) of the Adoption Act for approved counsellors as follows:
  2. a. Counsellors must be independent of the Department of Health and Human Services and approved agencies.
  3. b. Counsellors must hold a relevant university degree that is prescribed in the Adoption Regulations.
  4. c. Counsellors must be a member of a relevant professional body that is prescribed in the Adoption Regulations. 

Written information provided by counsellor

Current law

  1. 8.101 A person giving consent must have received written information from the person who gave them counselling. Information must be provided about the effect of an adoption order, the alternatives to adoption, the names and addresses of organisations that provide family support services, the rules relating to consent and the rules once consent cannot be revoked but before an adoption order has been made, and information about different arrangements that may be made to care for the child.79
  2. 8.102 The person giving consent must also be given notice in writing that the person may, at any time, make application subject to and in accordance with the Births, Deaths and Marriages Registration Act 1996 (Vic) for a certified copy of, or extract from, the entry relating to the child in the Register of Births.80

Responses

  1. 8.103 Some people raised concerns that the level of information provided as part of the counselling and consent process is inadequate.
  2. 8.104 Adoption Origins Victoria submitted that ‘surrendering one’s own child has far more devastating consequences than is first realized … the parent/s … should be fully informed of the ramifications … not only for them but also for the adopted person’.81 It suggested a range of additional information including:
  • the likely negative lifelong psychological effects of the adoption
  • a warning that adopted persons are overrepresented in suicide, addiction, substance abuse and mental health statistics.
  • advice to parents that that their child will probably want to reconnect at a later stage and that they should be prepared for that outcome
  • that private arrangements for contact are not enforceable and that court-sanctioned contact is the only formal way to protect the child’s right to have contact with his or her parent(s) and extended family.82
  1. 8.105 The Australian Adoptee Action Rights Group told the Commission that it should be mandatory to provide a detailed and comprehensive paragraph about the impacts on children removed at birth.83 It submitted:

Mothers are not informed that after birth their brains actually change, their views on everything change. They are not informed on the short and long term impacts of removal on their child: that babies suffer when not placed on the breast of the mother after birth, that babies suffer when removed … The psychological and emotional impacts long-term are not told: that premature maternal separation causes pre-verbal trauma that marks people with a sense of loss of self and disconnection from others, feelings of abandonment, worthlessness and grief, can manifest in adulthood as anxiety, depression, rage, mental illness and suicidal ideation.84

  1. 8.106 VANISH submitted that both parents should be informed about the rights of other parties to access the information about the adoption in future.85
  2. 8.107 The Youth Disability Advocacy Service expressed concern that the consent process is complex and legalistic. It submitted that this risks placing young parents with cognitive impairment, as well as young parents with disability from non-English speaking backgrounds, at severe disadvantage. It recommended that information about the consent process should be explained verbally in plain language, provided in Easy English, and made available on request in alternative formats such as large print, braille and audio.86
  3. 8.108 The Youth Disability Advocacy Service also proposed that the Adoption Act should ensure that parents are informed about their right to an independent advocate.87

Commission’s conclusions

  1. 8.109 The aim of providing information is to safeguard free and informed consent. Two prominent themes that arose during the Commission’s consultation process were the lifelong effects and trauma associated with adoption. The written information which must be given to a person considering consenting to adoption does not currently adequately address these matters.
  2. 8.110 Adoption legislation in Queensland requires additional written information to that provided in Victoria. The additional information includes financial supports available, whether or not adoption proceeds, and the psychological effects of adoption.88
  3. 8.111 To ensure that a person considering consent to adoption is adequately informed about all aspects of adoption, additional written information should be provided.
  4. 8.112 The additional information should relate to: financial and other support that may be available to the parent whether or not an adoption of the child proceeds; possible short- and long-term psychological effects for the parent of consenting to the adoption; possible short- and long-term psychological effects for the child of being adopted; and the rights and responsibilities of the parties to an adoption, including those relating to adoption plans.

 

Recommendation

  1. 35 The Adoption Regulations should require that in addition to the current mandatory written information that is provided by the counsellor (under regulation 17), written information should also be provided about:
  2. a. support (financial and otherwise) that may be available to the parent whether or not an adoption of the child proceeds
  3. b. possible psychological effects for the parent, both short and long-term, of consenting to the adoption
  4. c. possible psychological effects for the child, both short and long-term, of being adopted
  5. d. the rights and responsibilities of the parties to an adoption, including those relating to adoption plans. 

Legal advice

Current law

  1. 8.113 There are no requirements in the Adoption Act that someone considering consent to adoption receive legal advice.

Responses

  1. 8.114 Some people considered that there is a need for advice from an independent legal practitioner for a person providing consent to adoption.89
  2. 8.115 ARMS (Vic) submitted that all parties need to have independent legal representation and that the mother should have legal representation before giving consent right through to the legalisation of the adoption.90
  3. 8.116 VANISH submitted that the Adoption Act should provide for independent legal representation for the natural parents.91
  4. 8.117 Professor the Honourable Nahum Mushin said that there should be legal representation for minors (litigation guardianship if required), legal advice must be available, and the court must be satisfied it is proper consent. The issue of consent then becomes a matter of fact.92

Commission’s conclusion

  1. 8.118 No jurisdiction in Australia has a general requirement that a person providing consent must have legal advice from a legal practitioner.93
  2. 8.119 The Commission does not consider that there should be a general requirement that a person providing consent to an adoption must have legal advice.
  3. 8.120 The key concerns people raised about the consent process included: conflicts of interest; timeframes for giving and revoking consent; that alternative options to adoption are not explored sufficiently; that insufficient information about the long-term psychological effects of adoption, including grief and trauma, is provided; and that a person’s language, cultural background or capacity may mean that they do not fully understand the legal effect of adoption.
  4. 8.121 None of these concerns would be addressed through a requirement that a person providing consent must have legal advice.
  5. 8.122 Lawyers do not have skill or knowledge in exploring alternatives to adoption, nor in the long-term psychological effects of adoption. Concerns that a person does not comprehend the legal effect of an adoption because of language, cultural background or capacity are also not resolved through a requirement for legal advice. Although some lawyers may be skilled and experienced at working with clients from culturally and linguistically diverse backgrounds, many are not. Nor do lawyers have any specialised skills in assessing capacity.
  6. 8.123 The consequences of consenting to a child’s adoption are extremely significant, but the legal effects are not so complex that legal advice is needed in each case.
  7. 8.124 There are already a variety of checks and balances in the Adoption Act to ensure that the person understands the legal effects of the adoption. These include:
  • counselling requirements94
  • requirements that written information is given about the effect of an adoption order, the alternatives to adoption and the names and addresses of family support services (generally not less than seven days before consent is given)95
  • requirements that the witnesses are satisfied that the person giving consent understands: the effect of an adoption order; the procedures for revoking consent to the adoption; and the procedure for extending the period for revoking consent to the adoption96
  • offence provisions for a person who makes a false statement for the purposes of or in connection with a proposed adoption or any other matter under the Act,97 and for a person who does not follow the rules for witnessing a consent document.98
  1. 8.125 In Queensland the chief executive of the department ‘must ensure each of the child’s parents is told that the parent may wish to seek legal advice and is given the details of at least 1 entity that generally provides free legal services’.99 This strikes a suitable balance. It ensures that a person considering consent to adoption is aware of the option of legal advice without unduly affecting their autonomy by requiring that they receive legal advice as well as counselling.
  2. 8.126 The duty should be set at a slightly higher level to ensure that people do not fail to seek legal advice because they lack confidence to contact a legal service. The person should be asked if they would like assistance contacting a legal service. If the person does want assistance, the Secretary or principal officer should facilitate legal assistance by ensuring that a relevant legal service is contacted and the person is introduced to the service.

 

Recommendation

  1. 36 The Adoption Act should require the Secretary or principal officer to ensure that:
  2. a. each person considering giving consent to an adoption is told that it may be advisable to seek legal advice; is given the details of at least one entity that generally provides free legal services; and is offered assistance in contacting a legal service
  3. b. if the person does want assistance, a relevant legal service is contacted and the person is introduced to the service with an explanation of why they are seeking legal advice.

 

Training for witnessing consent

Current law

  1. 8.127 The consent form must be signed in the presence of two eligible witnesses.100
  2. 8.128 If consent is given in Australia, there are two classes of eligible witness. One witness must be drawn from each class.101
  3. 8.129 The first category of witness is a person approved by the Secretary or principal officer of an approved agency. Generally this witness would be the approved counsellor who provided counselling before the consent was given.102
  4. 8.130 The second category of witness is court officials.103
  5. 8.131 The witnesses must sign a prescribed statement. A witness must not sign the statement unless they believe that the person giving the consent understands:
  • the effect of an adoption order
  • the procedures for revoking consent
  • the procedure for extending the period for revoking consent.104

Responses

  1. 8.132 Approved agencies highlighted the importance of the role of the court official in witnessing consent. They said that the court registrar has an important role in providing oversight of the consent process but that their approach and level of knowledge is not always consistent.105
  2. 8.133 Child & Family Services Ballarat submitted that it would be useful for court staff to get specific training so that they understand their obligations in witnessing consent to adoption and to ensure that consents are fully informed. It noted that court staff should be the oversight for this process, not a rubber stamp.106

 

Commission’s conclusion

  1. 8.134 The witnessing requirements in the Adoption Act are a crucial element in ensuring oversight of the consent process. It is important that witnesses have a thorough understanding of what is required and what adoption involves.
  2. 8.135 The approved counsellor should undertake training to ensure they thoroughly understand the consent process and their role in it.
  3. 8.136 The Commission considers that training should also be provided to court staff who will be witnessing adoption consents.
  4. 8.137 The court official performing the witnessing of consent provides independent oversight of the consent process. In particular, training should focus on ensuring that court staff understand that they must not sign the witness statement unless they believe that the person understands the effect of an adoption order and the procedures for revoking consent to the adoption.
  5. 8.138 To test this understanding of the person signing consent, the court staff member should ask appropriate questions. Training should assist them to do this.

Recommendation

  1. 37 Court officials who witness adoption consents should receive training that:
  2. a. emphasises the importance of the independent oversight that they provide
  3. b. emphasises that they must not sign the witness statement unless they believe that the person understands the effect of an adoption order and the procedures for revoking consent to the adoption
  4. c. provides guidance about the types of question that should be asked to assess that the person providing consent understands these matters.

 

Timeframes to give and revoke consent

Current law

  1. 8.139 Generally, consent may not be given within 14 days after the birth of the child. Where it is in the best interests of the child, the court can order that consent may be given earlier.107
  2. 8.140 Consent to the adoption of a child may be revoked within 28 days from the date on which consent was signed.108
  3. 8.141 The timeframe for revoking consent may be extended by a maximum of 14 days.109

Responses

  1. 8.142 Some people raised concerns about the minimum timeframe for consent to be given.110 Concerns were also raised about the period to revoke consent. Key concerns were:
  • A mother who has just given birth may not be physically or emotionally ready to make a decision of this magnitude within 14 days for consent or 30 days for revoking consent.111
  • The timeframes do not allow adequate time to provide counselling about options, pros and cons, and enable contact with the child during that time.112
  • Consent is a process of consideration—there must be adequate time for the mother to consider the decision and understand the impact of separation from her child.113
  • A timeframe this short may limit efforts to explore options for other family to care for the child.114
  1. 8.143 VANISH submitted that:

while the Act mandates a minimum time frame of 14 days after birth before consent can be given, in practice there is usually a much longer period required to ensure parents receive information … The Act should reflect this, and it should also extend the minimum time after birth before consent can be given to at least 30 days, with the capacity to extend this for a further 30 days.115

  1. 8.144 Child & Family Services Ballarat submitted:

For some parents, for instance those who have had pre-birth counselling, they are able to make this decision in a shorter timeframe, and prefer matters to be resolved quickly. The current consent provisions allow for both situations–delaying consent to provide maximum opportunity to weigh up issues or consent being provided within a short period when required.116

  1. 8.145 Another submission stated that the consent provisions ‘strike an appropriate balance between empowering birth parents to consider their options and make a considered, informed decision with time to “cool off” and also reaching finality so that permanent arrangements can be made for the child’.117
  2. 8.146 Approved agencies told the Commission that the timeframe for counselling and taking consent can be very variable. They said that if the minimum period for giving consent is extended to longer than 14 days after the birth of the child, some parents would disappear.118
  3. 8.147 Women’s Forum Australia submitted that the timeframes for giving consent are too long. It proposed that it should be possible for ‘adoption orders to be commenced (and if reasonable in the given case, finalised) while the baby is still in utero, provided that the birth parent has the ability to withdraw consent for a reasonable period (say, 30 days) after the birth’.119
  4. 8.148 Approved agencies told the Commission that extending the period to revoke consent could affect placement stability. They said it is often four to five months after consent before the child is placed for adoption. During this time the child is in temporary pre-adoption placements. Extending the period in which consent can be revoked could push the timeframe of temporary placement out further.120
  5. 8.149 A number of people expressed concern about the timeframe for revocation of consent. They considered there is insufficient time to work through the range of issues.121
  6. 8.150 Fae Cuff submitted that:

30 days isn’t long enough for a decision of such importance to be made. Your body and mind are going through changes that any mother will tell you will last for some time. Add to this the pressure of handing a child over for adoption! Perhaps add the loss of a relationship with baby’s father, accommodation worries, financial problems, being disconnected from family and friends. Having to make a final decision with all of those pressures is not very different now than it was in my time. Why can’t the baby be placed in short term care for a few months until mother is deemed well enough mentally and physically (perhaps by a GP/psychologist) to make a final decision.122

  1. 8.151 A range of timeframes for revocation of consent were proposed including at least two months,123 six months,124 12 months,125 and up to the time of making the adoption order.126
  2. 8.152 The Youth Disability Advocacy Service raised particular concerns about the revocation timeframes in relation to young parents with disability. It proposed greater flexibility around these timeframes in order to safeguard against unwilling or coerced adoption.127
  3. 8.153 Adoption Origins Victoria submitted that the period for revocation needs to be significantly longer, suggesting a minimum of six months, but preferably until the day an adoption order is made. It submitted that the family of origin, including the child, ‘needs the complete protection of their community to ensure that their family, wherever possible, is kept intact’.128
  4. 8.154 A participant at a roundtable with groups and individuals representing children’s interests said research about attachment should not be interpreted too narrowly because it is always evolving. The participant said that it is best for infants and young children if they have a primary carer, but if they have consistency of care and are attached to a network of carers, this can also be effective for their development.129
  5. 8.155 Another submission made similar points suggesting a 12-month period to revoke consent ‘so that the natural parent and family can genuinely explore their parenting options’. The submission stated:

A child under 12 months of age can still successfully transfer back to their natural family without ongoing trauma … we know this through research … Up to 12 months is also a more realistic amount of time for someone to fully explore the options around keeping the child. An extension of consent for 14 days would not be required if the revocation period was changed to 12 months. Relinquishment should be a considered decision that is not made under significant time pressure. Give these processes the time they deserve, for the best interests of the child involved—and their parents.130

Commission’s conclusions

  1. 8.156 The Commission considers that the current total timeframe for consent and revocation of consent from when a child is born is too short. This timeframe for consent and revocation should be viewed as a whole, rather than as two separate events. Consent is not final until any revocation period finishes. A child will not be placed for adoption until after the period for revocation of consent expires.
  2. 8.157 The minimum timeframes for providing consent after a child’s birth differ between Australian states and territories. The general requirement in Victoria that consent not be

    given within 14 days after the child’s birth, which may be shortened by the court, falls at the short end of the range.

  3. 8.158 The shortest default timeframe for providing consent is in Tasmania. It provides for consent seven days after the birth.131 South Australia provides that generally consent may not be given by a mother less than 14 days after birth, but in some cases may be given five days after birth.132
  4. 8.159 The other states and territories provide that, generally, the minimum timeframe for giving consent is a month.133 Some allow this timeframe to be shortened.
  5. 8.160 All Australian states and territories allow a revocation period of approximately one month, with some allowing extensions of the revocation period.134 The longest total period for a parent to revoke consent is 42 days (where a 14-day extension on the initial 28-day revocation period applies), which is the approach taken in Victoria and the Australian Capital Territory.135
  6. 8.161 The Commission considers that the minimum total timeframe for consent to become effective and irrevocable should be 90 days from the birth of a child. A shorter total timeframe from birth carries too great a risk that the person giving consent did not have adequate time to come to terms with the decision and consider alternatives.
  7. 8.162 The legislation needs to ensure that there is no risk that finalisation of consent is rushed.
  8. 8.163 It is not in the child’s best interests for the consent process to be open to question. Equally, it is not in a child’s best interests to experience multiple placements or for permanency to be delayed, as this may pose risks to attachment. The proposed minimum of 90 days from the child’s birth for finalisation of consent balances these matters.
  9. 8.164 The Commission considered whether the minimum consent period should be extended so that consent may not be given within 28 days after the child’s birth. However, it accepts that some parents may wish to give consent within a short timeframe and this should be permitted. This provides for situations where there has been options counselling before the birth and the parent or parents wish to give consent in a shorter timeframe.
  10. 8.165 The Commission considers that the preferable approach is for the timeframe for revoking consent to be extended so that the total consent and revocation period is never less than 90 days from the birth of the child.
  11. 8.166 The revocation period should always be a minimum of 60 days. If consent is given to the adoption of the child within 30 days after birth, the total time for revocation of consent should be extended to provide that consent is not finalised earlier than 90 days after birth.
  12. 8.167 A mother is going through physical and emotional changes after birth. She may be disconnected from family and friends, may lack support, and may be experiencing financial and accommodation issues. In situations where she consents within the 14-day period, the current revocation period of 28 days is a very short time for her to consider other options and revoke consent if she wishes. Seeking an extension of 14 days to the revocation period places a burden on the mother to sign another witnessed form.
  13. 8.168 In some situations, a mother may not have known she was pregnant or may have been in denial about it. In this situation, 90 days is a relatively short time to come to terms with having given birth and think through the options. Equally, a father may not have known that the mother was pregnant and if he gives consent quickly, he may subsequently reconsider this.
  14. 8.169 The current revocation period gives a very limited amount of time for a man believed to be the father of the child to commence proceedings to obtain a declaration of paternity. The Adoption Act requires a man who is notified that he may be the child’s father to commence proceedings before the end of the revocation period for the mother’s consent (which is the 28-day period).136 The man’s consent will not be required unless he commences declaration of paternity proceedings.

Recommendation

  1. 38 The Adoption Act should extend the timeframe in section 41(1) for revoking consent to provide that the period during which consent may be revoked is 90 days after the birth of the child, or 60 days from the day consent was given, whichever is the later.

 

Minors consenting to adoption

Current law

  1. 8.170 The Adoption Act does not provide a minimum age for consent or any guidance about when, if at all, it is appropriate for a person under 18 years of age to provide consent.
  2. 8.171 The Age of Majority Act 1977 (Vic) provides that once a person is 18 years of age they attain ‘full age and full capacity’.137

Responses

  1. 8.172 Approved agencies identified the following issues with a parent under 18 providing consent:
  • The Act does not impose any requirements to assess whether young parents are competent to consent.
  • The parents of young mothers feel that they should be involved in decision making but the Act does not provide for this and the young parent considering adoption may not want it.
  • There is no guidance about the process that should be used to assess whether a young parent is competent to give consent to the adoption of their child.
  • There is no guidance about what should happen if a young parent is not competent to give consent.138
  1. 8.173 If there is doubt about a young person’s capacity to consent to the adoption of their child, some approved agencies would get a psychiatrist to undertake a Gillick competency test.139 (The Gillick test is discussed in Chapter 3 at [3.30].)
  2. 8.174 Connections UnitingCare provided the following case study to illustrate the complexities involved if young parents are proposing to give consent to adoption:

PR is a child born to parents under the age of 13 years. Connections were contacted to provide relinquishment counselling as the parents wanted to explore adoption for the child. A psychological assessment of the parents was sought and it was identified that the older parent was capable of giving informed consent, but that the younger parent would prefer his guardian to make the decision on his behalf. The psychologist engaged for the purpose said he could not make a firm ruling on the younger parent’s capacity, which resulted in uncertainty about whether both parents were required to consent to the adoption.140

  1. 8.175 Connections UnitingCare submitted that this raised the following questions:
  • At what age can a young person make a decision for adoption in relation to their child?
  • What assessment of competency is required and what degree of proof is required?
  • Should an options counsellor be able to assess competency?
  • If the child is not competent, are there any circumstances in which the child’s guardian should provide consent on their behalf, or should their consent be dispensed with?141
  1. 8.176 The submission suggested that guidelines about the process for determining competency should be included in the Act for consistency, including an acceptable age (considering the child’s stage of development) where consent can be provided.142
  2. 8.177 A suggestion made to the Commission was that if a person providing consent to an adoption is under 18 years of age, they should have their own legal representative.143 Adoption Origins Victoria submitted:

A sixteen year old has not reached the cognitive or emotional maturity necessary to make decisions in the best interests of her child or herself. At the very least … an independent legal representative ought to be appointed for any mother or father under eighteen years who are considering putting their child up for adoption.144

Commission’s conclusions

  1. 8.178 The Commission considers that the Adoption Act should provide additional protection and guidance for consent by a person under 18. The central issue is whether the young parent has capacity to provide consent.
  2. 8.179 Legislation in other Australian jurisdictions takes a variety of approaches to consent to an adoption where the person providing consent is under 18.
  3. 8.180 Queensland requires that if a parent of the child is not an adult, the chief executive of the department must have a ‘qualified person’ assess whether the parent has capacity to give the consent.145 The person who conducts the capacity assessment must not be the same person who provides counselling to the parent.146 A ‘qualified person’ is defined as ‘a person who, if called as a witness in a proceeding, would be qualified to give expert evidence on the issue of whether a parent has capacity to give consent to an adoption of the child’.147
  4. 8.181 New South Wales requires that if the person consenting is under 18, the counsellor
    must give a written report on their capacity to understand the effect of signing consent to the adoption.148
  5. 8.182 The South Australian Adoption (Review) Amendment Act 2016 introduces a new requirement for a parent under 16 years of age consenting to the adoption of their child. Their consent must be endorsed by at least two psychologists. Each psychologist must believe that the person consenting has a sufficient understanding of the consequences of adoption to be able to make a responsible decision in relation to
    the consent.149
  6. 8.183 The Commission considers that the Adoption Act should provide additional safeguards where a person under 18 years of age is considering giving consent to the adoption of their child.
  7. 8.184 If a person under 18 is considering giving consent to the adoption of their child, an independent capacity assessment should be undertaken.
  8. 8.185 As discussed in Chapter 5 in relation to Gillick competence, a young person’s capacity to make decisions is not determined by their age alone. The requirement that a capacity assessment be made if a parent considering giving consent is under 18 provides certainty about when capacity must be assessed. Capacity must be determined on a case-by-case basis rather than based on age.
  9. 8.186 The Commission considers that the Queensland approach to capacity assessment for provision of consent by a person under 18 is appropriate. The Adoption Act should include requirements for capacity assessment based on this model.

Recommendation

  1. 39 The Adoption Act should require that, if a parent under 18 years of age is considering giving consent to the adoption of their child, the Secretary must have a ‘qualified person’ assess, and provide a report on, the parent’s capacity to provide consent.
  2. a. A ‘qualified person’ should be defined as ‘a person who, if called as a witness in a proceeding, would be qualified to give expert evidence on the issue of whether a parent has capacity to give consent to an adoption of the child’.
  3. b. The ‘qualified person’ must not be the same person who is providing or will provide counselling to the parent.

 

 

Dispensing with consent

Current law

  1. 8.187 The Adoption Act enables the court to dispense with a person’s consent to an adoption in certain circumstances.150
  2. 8.188 These are:
  • The person cannot be found, after reasonable inquiry.151
  • The person’s physical or mental condition means they are not capable of properly considering the question of whether they should give consent, and this situation is unlikely to change (this requires a certificate signed by a minimum of two registered medical practitioners).152
  • The person has abandoned, deserted, persistently neglected or ill-treated the child.153
  • The person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person.154
  • The person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child.155
  • The person has such a physical or mental disability, or is otherwise so impaired, that the person would be unable to meet the needs of the child.156
  • The child is unlikely to be accepted into, or to accept, a family relationship with the person.157
  • There are any other special circumstances by reason of which, in the interests of the welfare of the child, the consent may properly be dispensed with.158

Children, Youth and Families Act 2005 (Vic)

  1. 8.189 The CYF Act sets out a range of circumstances in which a child is in need of protection.
  2. 8.190 Many of the grounds for finding a child is in need of protection under the CYF Act overlap with the grounds for dispensing with a person’s consent under the Adoption Act. The CYF Act provides that a child is in need of protection if:
  • the child has been abandoned by their parents, the parents cannot be found after reasonable inquiries, and no other suitable person can be found who is willing and able to care for the child
  • the child’s parents are dead or incapacitated and there is no other suitable person willing and able to care for the child
  • the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type
  • the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type
  • the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type
  • the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.159

Responses

  1. 8.191 One response considered that the existing grounds for dispensing with consent to adoption appear appropriate.160
  2. 8.192 Barnardos Australia submitted that the Adoption Act should include additional grounds for dispensing with consent, equivalent to those available in relation to authorised carer adoptions in New South Wales.161 The New South Wales Act allows the court to dispense with the consent of a person to a child’s adoption (other than the child) if an authorised carer applies to adopt the child.162
  3. 8.193 Women’s Forum Australia submitted that ‘parental consent to adoption in cases where it has been substantiated that children are at risk of harm can significantly delay the adoption process, often for years, to the detriment of the children involved’. It submitted that dispensation with consent should be used ‘if it is established that a child cannot be safely returned to his or her birth family within a reasonable and child-centred time frame (say, six months)’.163
  4. 8.194 Professor the Hon. Nahum Mushin told the Commission that, in his view, the test for dispensing with consent should be: ‘Is it in the best interests of the child?’ He stated that the court’s discretion should not be fettered.164
  5. 8.195 There was a very strong response by the majority of people who considered this question that the grounds for dispensing with consent are not appropriate. Many people supported limitation or narrowing of the grounds for dispensing with consent165 or total removal of the court’s ability to dispense with consent.166
  6. 8.196 The following concerns were expressed about the grounds for dispensation:
  • they are framed too broadly or are too vague or unclear167
  • the list is too extensive and does not reflect contemporary thresholds for statutory intervention in the life of a family and child168
  • they are not in line with contemporary thinking, reflecting, for example, a dated understanding of disability169
  • the interaction with the CYF Act is problematic, and dispensation with consent should not be used to increase adoption of children in the child protection system.170
  1. 8.197 Participants at a roundtable with groups and individuals representing children’s interests said that there are too many dispensation grounds and that they are too open ended.171
  2. 8.198 The Law Institute of Victoria supported the removal of the ground that ‘the person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child’.172
  3. 8.199 A legal practitioner with experience in making applications for dispensation of consent said that the grounds are dated, too open to interpretation and too broad. They said the interpretation of the different grounds of dispensation can vary greatly in practice.173
  4. 8.200 Dr Briony Horsfall submitted that ‘the current list of circumstances under which consent may be dispensed with are too broad and do not reflect contemporary thresholds for statutory intervention in the life of a family and child’.174
  5. 8.201 Dr Horsfall submitted that consideration should be given to requiring ‘family finding’ as part of a dispensation with consent process. She submitted that family finding should ensure that adult extended family members (and siblings under 18) have been identified and provided with timely information and meaningful opportunity for involvement when a child is being placed for adoption.175
  6. 8.202 VANISH submitted that dispensation with the consent of a child’s parent should only be possible if they cannot be located and no extended members of the child’s natural family are known. This should require reasonable efforts over a reasonable period of time. It submitted that:

There are other legally permanent placement options available in the event that a natural parent does not consent to their child being adopted, and thus planning for a child’s permanency need not be adversely impacted. We note that applications for dispensation of consent are very rare in Victoria, and only occur in unusual and special circumstances.176

  1. 8.203 The Office of the Public Advocate also submitted that dispensation with consent should only be available if the person cannot be found. It submitted that all other current grounds should be removed because these situations are dealt with under the CYF Act.177 It raised particular concerns with the ground that ‘the person has such a physical or mental disability, or is otherwise so impaired that the person would be unable to meet the needs of the child’:

In contemporary Victoria, such children are already protected through the provisions of the CYFA. Under the CYFA, Child Protection is required to provide supports to enable the parents to raise their own children before protective orders are made that remove their children permanently. OPA does not support an avenue for the removal of children from parents with disabilities without these supports being provided. Credible research has demonstrated that most parents with disabilities are able to successfully raise their children if provided with appropriate support to do so.178

  1. 8.204 A participant at a roundtable with the disability and mental health sector stated that this ground reflects ‘the most out of date understanding of disability there is’. The participant said that research clearly shows that if people with disabilities are provided with the proper support then most are able to parent their child.179
  2. 8.205 A number of responses expressed concern about the interaction between the CYF Act and the provisions to dispense with consent under the Adoption Act.180
  3. 8.206 Concerns relate to the amendments to the CYF Act that came into effect on 1 March 2016 which introduced a ‘permanency objective’ that places adoption above permanent care, and also introduced reduced timeframes to achieve family reunification.181
  4. 8.207 In contrast to the other permanency objectives in the CYF Act, if adoption is the permanency objective in a child’s case plan, the legal requirements and processes to be followed are provided by the Adoption Act and Adoption Regulations. An adoption cannot occur unless the relevant consents have been given, or the court has dispensed with consent.
  5. 8.208 The Law Institute of Victoria submitted that some members are concerned that unless the provisions for dispensation with consent in the Adoption Act are strengthened, so that it is only used in the most extreme of circumstances, it will:

be used to increase the number of children adopted from within the Victorian child protection system whose parents are unable to address the issues affecting their parenting within the restrictive cumulative time period created by Children Youth & Families (Permanent Care & Other matters) Amendment Act 2014 (Vic) which came into effect on 1 March, 2016.182

  1. 8.209 Some of the Law Institute of Victoria’s members argued for significant amendment to the dispensation with consent provisions in the Adoption Act ‘as it otherwise creates an unnecessarily low evidential threshold to justify dispensation of the requirement of consent of a parent’. These members of the Law Institute of Victoria thought it would be concerning if the following grounds for dispensation under the Adoption Act were used in the context of child protection:183
  • The person has abandoned, deserted, persistently neglected or ill-treated the child.184
  • The person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person.185
  • The person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child.186
  • The person has such a physical or mental disability, or is otherwise so impaired, that the person would be unable to meet the needs of the child.187
  • For any reason the child is unlikely to be accepted into, or to accept, a family relationship with the person.188
  • There are any other special circumstances by reason of which, in the interests of the welfare of the child, the consent may properly be dispensed with.189
  1. 8.210 ARMS (Vic) suggested that ‘the question is really: if consent needs to be dispensed
    with, why adoption rather than any other care option?’ It considered that dispensation with consent:

 

opens the door to a new wave of forced adoptions. Troubled families must resolve
their problems within 12 months or their in care children will be placed for adoption. There are often insufficient services (rehab, housing, anger management, etc.) available within the short time frame mandated.190

  1. 8.211 Adoption Origins Victoria submitted that the grounds for dispensation with consent :

provide extremely low evidential thresholds to permit dispensation and that too easily, many more children, particularly from the child protection system, could be put up for adoption and the requirement for consent of their parents dispensed by the Court.191

  1. 8.212 Child & Family Services Ballarat told the Commission that it has been contacted by permanent care parents who wish to know if they can adopt the child, including whether they can dispense with a parent’s consent. It told the Commission that DHHS has advised Child & Family Services Ballarat that, in practice, the general principle would be that if parents do not want to consent, then a permanent care order should be pursued, as the intention is not to seek to dispense with natural parents’ consent.192
  2. 8.213 Child & Family Services Ballarat recommended that the Adoption Act should provide greater clarity. It proposed that the court not make an order for the adoption of a child unless:
  • it is satisfied that the permanent care order or Family Court order does not make adequate provision for the welfare and interests of the child
  • that there are special or exceptional circumstances that would warrant the making of an adoption order
  • it would make better provision for the welfare and interests of the child.193
  1. 8.214 Connections UnitingCare submitted:

There is … increasingly a need to ensure that dispensation of consent is exercised only within its intended purpose under the Adoption Act. Permanency reforms to the Children, Youth and Families Act (2005) has resulted in adoption being considered prior to permanent care. There is therefore a need for greater clarification about circumstances in which dispensation of consent can be applied for, as the dispensation clauses currently contained within the Adoption Act could realistically be applied to all situations where children have been placed in out of home care due to substantiated concerns of abuse and/or neglect.

  1. 8.215 Connections UnitingCare suggested that the following grounds for dispensing with consent under the Adoption Act might all be made out in situations where children have been placed in out-of-home care due to substantiated concerns of abuse and/or neglect.194
  • The person has abandoned, deserted, persistently neglected or ill-treated the child.195
  • The person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person.196
  • The person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child.197
  • The person has such a physical or mental disability, or is otherwise so impaired, that the person would be unable to meet the needs of the child.198
  1. 8.216 Connections UnitingCare submitted that adoption should not be the first option for children removed from their parents’ care. It noted that legally, adoption terminates all birth family relationships, and that many children in permanent care have relationships with grandparents and extended family members that endure while in their permanent placement. It submitted that adoption of children who have been removed from their parents’ care should generally only occur with the consent of the parent/s.199

Commission’s conclusion

  1. 8.217 Consent is the cornerstone of the adoption process and a crucial element in ensuring that the rights of parents are protected and that an adoption is in the best interests of the child.
  2. 8.218 The Commission considers that the current grounds for dispensation with consent are too broad. Many allow for dispensation with consent in situations more appropriately covered by the use of orders under the CYF Act.
  3. 8.219 Significant concerns were raised with the Commission about the interaction between the CYF Act and the provisions to dispense with consent under the Adoption Act. Specifically, there were concerns about the amendments to the CYF Act that came into effect on 1 March 2016. They introduced a ‘permanency objective’, which placed adoption above permanent care, and also introduced reduced time frames to achieve family reunification. These amendments appear to increase the likelihood that applications may be made seeking for consent to be dispensed with to allow an adoption order to be made.
  4. 8.220 The Adoption Act (s 43(1)(c)–(g)) provides for consent to be dispensed with on the basis of ‘child protection’ grounds. The Commission considers that the child protection system is established to make decisions in relation to children at risk of harm. These considerations are not appropriate in the adoption framework, because adoption is premised on consent.
  5. 8.221 The CYF Act provides an alternative to adoption where a child cannot live with their parent but the parent does not consent to their adoption. Permanent care orders give ‘parental responsibility’ to the carer until the young person is 18, but provide for preservation of the child’s relationship with their natural family.200
  6. 8.222 The Commission considers that the grounds for dispensation with consent in the Adoption Act should be narrowed to exclude its use for child protection matters for these reasons:
  • Adoption is an extreme and highly interventionist order—it permanently severs the legal ties between a child and their natural family, results in the cancellation of the child’s birth certificate and the issuing of a new birth certificate, creating a ‘new identity’ for the child.
  • Adoption negatively affects the likelihood of social relationships between the child and their family of origin being preserved, even when contact arrangements are in place at the time of the adoption.
  • Many of the ‘child protection’ dispensation grounds align with the grounds for finding a child in need of protection under section 162; this means that if a child is found in need of protection under the CYF Act, it seems likely that it would be possible to make out a ground for dispensation with consent under the Adoption Act.
  • Victoria has provided a specific alternative to adoption for children in the child protection system—permanent care orders—to achieve stability and permanency.
  • Consent of the natural parents is not required for adoption once a person turns 18, so the person can seek adoption by their permanent care parents at this stage if they wish.
  1. 8.223 The current grounds for dispensation with consent provided for in section 43(1)(c)–(g) of the Adoption Act should be removed. Additionally, the general ground providing for dispensation with consent in exceptional circumstances where it is in the best interests of the child should clarify that this is not intended to include the grounds currently covered by section 43(1)(c)–(g).
  2. 8.224 There are some limited circumstances in which dispensation with consent should be allowed where it is in the best interests of the child. These grounds should cover situations where a parent cannot consent because they cannot be found or because they lack capacity and are unlikely to regain it.
  3. 8.225 The grounds for dispensing with consent should also cover three situations not currently expressly provided for. These are situations where the child was conceived as the result of an offence committed by the person, where the person is the father and he is a lineal relative of the mother, and where seeking consent would present an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption.
  4. 8.226 There should also be provision for any other exceptional circumstances where consent should be dispensed with in the best interests of the child. A general ‘catchall’ dispensation ground already exists in the Adoption Act. Consent should only be dispensed with in exceptional circumstances. For this reason, the threshold for dispensation in this provision should be lifted from ‘special circumstances’ to ‘exceptional circumstances’. This ‘catch all’ ground should expressly exclude situations that are more appropriately covered by the CYF Act.

Recommendation

  1. 40 In place of sections 43(1)–(3) the Adoption Act should provide that the court should have the power to dispense with the consent of a person to adoption (other than a guardian under current section 33(6)) if satisfied:
  2. a. The person cannot, after reasonable inquiry, be found. The Act should specify the steps required to demonstrate reasonable inquiry.
  3. b. The person committed an offence which resulted in the child’s conception.
  4. c. There would be an unacceptable risk of harm to the child or mother if the person were made aware of the child’s birth or proposed adoption.
  5. d. The person is the father and he is a lineal relative of the mother.
  6. e. There is evidence that the person is, and is unlikely to cease to be, in such a physical or mental condition as not to be capable of giving consent. The evidence required for this should be a certificate signed by no fewer than two medical practitioners registered under the Health Practitioner Regulation National Law.
  7. f. There are any other exceptional circumstances by reason of which,
    in the best interests of the child, the consent may properly be
    dispensed with. This ground for dispensation with consent should be drafted to clarify that exceptional circumstances do not include any of the grounds currently contained in section 43(1)(c)–(g) of the Adoption Act 1984 (Vic).

 

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