9. Modernisation and operation of the Adoption Act

 

Introduction

  1. 9.1 The terms of reference ask the Commission to provide recommendations to modernise and improve the operation of the Adoption Act 1984 (Vic) and Adoption Regulations 2008 (Vic).
  2. 9.2 The previous chapters have considered a variety of issues and posed questions seeking community responses. These issues include consideration of the best interests principle and special provisions for Aboriginal and Torres Strait Islander children (Chapters 5 and 6), community attitudes and contemporary law about the family, including whether parts of the adoption process could be set out more clearly in the Adoption Act or Adoption Regulations (Chapter 7), and the information and privacy provisions (Chapter 8).
  3. 9.3 This chapter considers two topics: modernisation of the Act, and the issue of post-adoption support. The Commission is seeking community views on how to ensure that the procedural and operational requirements in the Adoption Act are suited
    to contemporary society and consistent with other law.

Modernisation

  1. 9.4 The Adoption Act became law in 1984. Since that time there have been numerous and significant amendments to it. They have reduced the readability of the Adoption Act, which is now difficult to understand and navigate.
  2. 9.5 The Commission’s role is not to draft legislation, which is the role of the Office of the Chief Parliamentary Counsel.
  3. 9.6 The Commission notes that if a new Adoption Act were drafted for Victoria, it would be structured and modernised by the Office of the Chief Parliamentary Counsel in accordance with contemporary drafting practice. Many of the inconsistencies and structural issues in the Adoption Act would be resolved in this process. The navigability and readability of the Act would be improved.
  4. 9.7 The Commission’s adoption report may make recommendations to help modernise
    the Adoption Act, including recommendations that may arise from considerations
    in preceding chapters. The next sections discuss possible improvements, including:
  • the inclusion of a principles section
  • whether the terminology could be updated
  • whether procedural requirements in the Adoption Act provide appropriate safeguards without being unduly burdensome.

Principles to guide the adoption system

  1. 9.8 Chapter 5 considered whether it might be appropriate to provide more guidance to decision makers in determining a child’s best interests. One of the possibilities explored was the inclusion of a principles section in the Adoption Act which sets out the matters
    to be considered in determining the best interests of the child.
  2. 9.9 The Commission is also interested in the community’s views on whether the clarity and certainty of the Adoption Act might be improved through the inclusion of an ‘object’ section and (or alternatively) an overarching principles section to guide all decisions.
  3. 9.10 The adoption legislation in some Australian jurisdictions includes an object, to clarify the purpose of the Act, and principles to guide the exercise of power under the Act. This section discusses the approach taken in New South Wales and Queensland, which are the two most recent pieces of adoption legislation in Australia. These other laws might provide ideas that could usefully be applied in Victoria.

<strong_em>Adoption Act 2000 (NSW)

  1. 9.11 The Adoption Act 2000 (NSW) provides that the objects of the Act are:
  • to emphasise that the best interests of the child concerned, both in childhood
    and later life, must be the paramount consideration in adoption law and practice
  • to make it clear that adoption is to be regarded as a service for the child concerned
  • to ensure that adoption law and practice assist a child to know and have access
    to his or her birth family and cultural heritage
  • to recognise the changing nature of practices of adoption
  • to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas
  • to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements
  • to encourage openness in adoption
  • to allow access to certain information relating to adoptions
  • to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.1
  1. 9.12 The Adoption Act 2000 (NSW) provides a set of principles for people making decisions about the adoption of a child.2 It requires a decision maker to have regard to the principles ‘as far as is practicable or appropriate’.3
  2. 9.13 The principles are:
  • The best interests of the child, both in childhood and in later life, must be the paramount consideration.
  • Adoption is to be regarded as a service for the child.
  • No adult has a right to adopt the child.
  • If the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances.
  • The child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.
  • Undue delay in making a decision in relation to the adoption of a child is likely
    to prejudice the child’s welfare.
  • If the child is Aboriginal, the Aboriginal child placement principles are to be applied.
  • If the child is a Torres Strait Islander, the Torres Strait Islander child placement principles are to be applied.4

<strong_em>Adoption Act 2009 (Qld)

  1. 9.14 The Adoption Act 2009 (Qld) includes a ‘main object section’. It describes the main object of the Act as:

to provide for the adoption of children in Queensland, and for access to information about parties to adoptions in Queensland, in a way that—

(a) promotes the wellbeing and best interests of adopted persons throughout their lives; and

(b) supports efficient and accountable practice in the delivery of adoption services; and

(c) complies with Australia’s obligations under the Hague convention.5

  1. 9.15 In addition to a main object section the Queensland legislation includes ‘guiding principles’. It provides that ‘this Act is to be administered under the principle that the wellbeing and best interests of an adopted child, both through childhood and the rest
    of his or her life, are paramount’.6
  2. 9.16 It requires that the Act be administered under a range of listed principles. These principles are subject to the requirement that the wellbeing and best interests of an adopted child, both through childhood and the rest of his or her life, be paramount. The list of principles is extensive. It includes:
  • an explanation of the purpose of adoption, as being to provide for a child’s long-term care, wellbeing and development by creating a permanent parent–child relationship between the child and the adoptive parents
  • a principle providing guidance about when adoption is an appropriate long-term
    care option
  • a principle that parties to an adoption or proposed adoption should be given the information reasonably needed to participate effectively in adoption processes
  • a principle that the child should be kept informed of matters affecting him or her
    in a way and to an extent appropriate, having regard to the child’s age and ability
    to understand
  • a principle that the adoption process should include consideration of the views of the parents and the child (if the child is able to form and express views about the adoption, having regard to the child’s age and ability to understand)
  • a principle that an adopted child should have access to information about his or her ethnic or cultural heritage, opportunities to develop and maintain a connection with their ethnicity or culture, and opportunities to maintain contact with his or her community or language group
  • principles about how the adopted child should be cared for, including that the care should promote openness and honesty about the child’s adoption and the development of the child’s emotional, mental, physical and social wellbeing
  • a principle that although the adoption order changes legal relationships it may be in
    a child’s best interests to have some form of contact with his or her family of origin.7

Questions

  1. 44 Should the Adoption Act include a section identifying the main object
    of the Act? If yes, how should the main object be described?
  2. 45 Should the Adoption Act include general principles to guide the exercise
    of power? If yes, what should these principles be?

 

Terminology

  1. 9.17 The terms of reference ask the Commission to ensure that the Adoption Act uses clear, contemporary language. The Commission has identified terminology that may require updating because it is inconsistent with other legislation, out of step with contemporary usage, or inadequately defined.
  2. 9.18 The Commission is seeking the community’s views on what terminology in the Adoption Act needs updating.

Terminology that is inconsistent with other legislation

  1. 9.19 The Adoption Act uses the terms ‘guardianship’ and ‘custody’.8 The concepts of guardianship and custody have been removed from both the Children, Youth and Families Act 2005 (Vic) (CYF Act) as part of amendments made in 2014 and the Family Law Act 1975 (Cth) as part of amendments made in 1995.9 These terms were replaced with ‘parental responsibility’. This change in terminology was intended to displace the idea that parents have rights over children and instead focus attention on the responsibilities that parents have towards their children.10
  2. 9.20 The term ‘access’ is used in the Adoption Act to describe arrangements for various
    people with whom the child is not living to have contact with the child.11 Amendments to the CYF Act in 2013 replaced the term access with ‘contact’ because access was considered to be ‘outdated’.12 The Family Law Act refers to people with whom the
    child communicates.13
  3. 9.21 In a small number of cases, specific terminology in the Adoption Act is used because it refers to a term used in another piece of legislation. An example of this is the various references in the Adoption Act to a ‘guardian’ for a non-citizen child under the Immigration (Guardianship of Children) Act 1946 (Cth).14The Commission is of the preliminary view that such terminology should not change because it would then become inconsistent with other legislation.
  4. 9.22 In other parts of the Adoption Act, the terminology is inconsistent with other legislation and it may be appropriate to update it to ensure consistency and clarity. An example of this is the references to ‘the making of an order in relationship to the guardianship and custody of a child under the Family Law Act’.15As discussed above, the Family Law Act now uses the concept of parental responsibility rather than guardianship.

Outdated terminology

  1. 9.23 The Adoption Act became law in 1984. Some of the language is difficult to understand because it is technical. Other terminology is outdated and inconsistent with contemporary language usage.
  2. 9.24 The Commission has identified the following language that it considers may be out
    of date or unduly technical:
  • ‘relationship of the whole blood or half-blood’16
  • ‘relationship by affinity’17
  • ‘putative father’18
  1. 9.25 The Adoption Act uses the terms ‘adopted child’ or ‘adopted person’, ‘adoptive parent(s)’ and ‘natural parent(s)’ to differentiate between the parties to an adoption, where differentiation is required for clarity. As acknowledged in Chapter 1, the Commission is aware that many people involved in adoption do not consider this language appropriate. Alternative terminology used in adoption legislation in other states and territories includes ‘birth parents’19 and ‘biological parents’.20 The Commission notes that at times it is necessary to distinguish between the various parties to an adoption in order to delineate and protect rights and duties. It is seeking the community’s views on the best terminology to use.
  2. 9.26 Amendments to the Adoption Act mean that same-sex couples and people who do not identify with a specific sex or gender will be eligible to adopt in Victoria from 1 September 2016 at the latest.21 At the time the amendments were made, there were no corresponding changes to the consent provisions. The existing consent provisions do not anticipate a situation where the relevant parents to provide consent to an adoption are, for example, two fathers or two mothers.22 It appears that this situation could already arise in fact.
  3. 9.27 The term ‘Aborigine’ is used in the Adoption Act and is defined as:

a person who is descended from an Aborigine or Torres Strait Islander, identifies as an Aborigine or Torres Strait Islander, and is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.23

  1. 9.28 The Commission acknowledges that the term ‘Aborigine’ is often considered inappropriate and may cause offence.24 It also notes that the term ‘Aboriginal person’
    or ‘Aborigine’ does not include Torres Strait Islander people, although it has been defined to do so in the Adoption Act.25 The Commission recognises that Torres Strait Islanders are a separate people in origin, history and way of life.

 

Question

  1. 46 Is there terminology in the Adoption Act that should be changed because
    it is unclear, outdated or inconsistent with other law? If yes, what are the issues and what changes would be appropriate?

 

Outdated procedural requirements

  1. 9.29 Some of the procedural requirements in the Adoption Act may be out of step with contemporary technology, unduly time-consuming or arduous.
  2. 9.30 Some of the requirements relating to how the Registrar of Births, Deaths and Marriages keeps adoption records may be out of date. Contemporary record keeping is electronic rather than paper-based and therefore searchable in a different way. The Commission understands that some of the requirements to keep indexes of records may be obsolete.26
  3. 9.31 Another example raised with the Commission is some of the requirements to publish notices in the Government Gazette, where these gazettals may not necessarily provide additional safeguards and oversight to ensure quality service provision. For example, the Secretary must publish notice in the Gazette when a welfare organisation applies for approval as an adoption agency or for renewal of its existing approval.27 There is also
    a requirement that the approval or renewal of approval be published in the Gazette.28
    There are various other gazettal requirements in the Adoption Act, including
    a requirement to publish the names of approved counsellors.29
  4. 9.32 It is likely that the requirement to publish the approvals or renewal of approvals of adoption agencies is meant to ensure there is a public record of which agencies were approved at a particular time. Such gazettals may prove useful in situations where, for example, a complaint is made about a counsellor or approved agency at some time in the future. The Gazette record would help to establish if that counsellor or agency had been approved to undertake their duties in relation to the Adoption Act at the time of the alleged conduct. There may be other ways to ensure an appropriate public ‘point of time’ record.
  5. 9.33 It is likely that the requirement to publish applications for approval in the Gazette is intended to publicise the application and so provide people with an opportunity to raise any concerns with the Department of Health and Human Services (DHHS). However, it seems unlikely that the gazettal of such applications would actually have this effect because the Gazette is not widely accessed by members of the public.
  6. 9.34 If one of the aims of publication in the Gazette is to inform the public and enable them
    to raise concerns, gazettal alone may be insufficient or ineffective.

 

Question

  1. 47 Are there requirements in the Adoption Act or Adoption Regulations that are out of step with contemporary technology or unduly burdensome without providing effective additional safeguards? If yes, what are they and what would provide appropriate alternatives?

 

Post-adoption support

  1. 9.35 This section considers whether the operation of the Adoption Act and outcomes for all those involved in an adoption might be improved by increasing legislative requirements
    to provide post-adoption support.

Current provision for post-adoption support

  1. 9.36 This is limited provision in the Adoption Act or Adoption Regulations for support services once a child has been adopted. In this chapter these services are called ‘post-adoption support services’.
  2. 9.37 The main form of post-adoption support provided for in the Adoption Act is provisions for relatives and parties to an adoption to access information about an adoption and to receive counselling as part of that process. This is discussed in Chapter 8.
  3. 9.38 There are some other circumstances in which the Adoption Act or Adoption Regulations provide specifically for other forms of post-adoption support. These are:
  • support by an Aboriginal agency to facilitate contact between an Aboriginal or Torres Strait Islander child and relatives or members of the Aboriginal and Torres Strait Islander community30 (the Commission understands that this does not currently occur in practice)
  • an ability for the Secretary to make grants or provide financial or other assistance to the adoptive parent(s) of children with a physical, sensory, intellectual or emotional disability, children of a family group who have been adopted by the same adoptive parent or parents, or children who the Secretary considers have unusual or difficult circumstances31
  • an ability to place conditions on an adoption order providing for the Secretary or principal officer of an approved agency to act as a ‘mailbox’, passing on information about the child from the adoptive parents to the birth parents.32
  1. 9.39 The fact that there is limited legislative provision or requirement for post-adoption support services does not mean that none are provided. The Commission understands that although the DHHS and approved agencies do not automatically provide post-adoption support, they will do so if requested.
  2. 9.40 Additionally, post-adoption support may be provided by other non-governmental agencies which are not involved in arranging adoptions. For example, a range of groups provide advocacy and support services for the Stolen Generations and people affected by forced adoptions.
  3. 9.41 Support is provided by agencies such as the Victorian Adoption Network for Information and Self Help (VANISH), which provides counselling services and assistance to people with their search for relatives from whom they have been separated by adoption.
  4. 9.42 Permanent Care and Adoptive Families provides services and opportunities for families involved in permanent care or adoption to share their experiences and seek information and support. These include telephone support, support groups and journal clubs for adoptive parents and permanent carers, and playgroups. Training opportunities are provided for permanent carers and adoptive parents.
  5. 9.43 However, in general, the legislation does not provide an obligation to provide post-adoption support services for people involved in adoptions.

Reasons for limited legal requirements for post-adoption support

  1. 9.44 Historically, there has been limited provision for post-adoption support because the legal effect of an adoption is to sever a child’s legal relationships with their parents and to provide that the adoptive parents are treated in law as parents of the child as if the child had been born to them.33
  2. 9.45 Generally, the state does not intervene in family life, which is viewed as a private matter. The main situations in which the state does become involved with families are when there is a child protection concern or when parents separate and the parties are unable
    to resolve disputes for themselves.
  3. 9.46 Traditionally, once an adoption order was made by the court, the state viewed its role as being to withdraw. This meant that ‘the focus for service provision was on the pre-adoption stage; once an order was made then no further professional intrusion was generally either available or wanted’.34
  4. 9.47 Part of the goal of closed adoption practice was to ‘protect child and adoptive parents respectively from what were then regarded as the stigmas of illegitimacy and infertility’.35 This goal would have been undermined by state involvement post-adoption.
  5. 9.48 The ‘clean break’ theory underpinning closed adoptions held that by cutting off all connections to the adopted child’s origins, the adoptive environment would shape the child. ‘The adopted child transplanted into an adoptive family, should grow up “as if” born to them.’36 This meant that there was no need to support contact arrangements between the child and their family of origin because it was intended that there would
    be no contact once the child had been adopted.

Changing views on post-adoption support services

  1. 9.49 The view that the state should not be involved post-adoption has changed over time. There is now a realisation that the interests of the adopted person need to be supported and safeguarded throughout their life.37 It is recognised that adoption is a lifelong process, an ongoing, evolving experience and not a one-time occurrence.38
  2. 9.50 The 1984 Adoption Act introduced open adoptions. The shift from closed to open adoptions means that one of the traditional reasons for the state to withdraw post-adoption no longer applies. The shift in practice from closed to open adoption acknowledges the harm caused by secrecy.
  3. 9.51 It is now accepted that in many cases it is in the child’s best interests to have ongoing contact with his or her family of origin as part of an open adoption.39 Contact can
    be difficult for all parties involved and it may be more likely to be successful if support
    is provided.40
  4. 9.52 Research has identified a range of issues that may arise for the parties to an adoption after an adoption has been legally finalised and which may require support. It is now acknowledged that, while some of the challenges and stressors that families face are
    the same no matter how the family is formed, some are unique to adoption.41 Some
    of these challenges may arise soon after the adoption and others may occur years later. They include:
  • The child and their parents may experience grief and loss at various stages.42
  • The child may struggle with their identity.43
  • There may be challenges with attachment and bonding for the child and adoptive parents.44
  • The adoptive parents may experience post-adoption depression, which is similar
    to postpartum depression.45
  • There may be a need for additional health, educational or psychological interventions, with associated financial burdens.46
  • There may be challenges associated with maintaining contact arrangements
    with members of the family of origin, in particular direct contact. These may be practical issues such as arranging when and where to meet, or emotional, relating to how the various people involved react to direct contact or the lack of it if the arrangements fail.47
  1. 9.53 Internationally, there has been a growing recognition that ‘adoption disruption’ may be reduced by providing appropriate post-adoption support.48 The term ‘adoption disruption’ is used here to describe the following situations:
  • An adoption placement is terminated before legal finalisation.
  • An adoption order is made but the child leaves the home of the adoptive family early (before the age of 18).
  • An adoption order is discharged by the court. This may occur if the adoption order or a consent was obtained by fraud, duress or other improper means, or if ‘special circumstances exist why the adoption order should be discharged’.49
  1. 9.54 Adoption disruption is highly traumatic for all involved. It has both emotional and financial costs.50
  2. 9.55 Support may be needed at various stages throughout the adoption process and the idea that the state should withdraw completely is unlikely to produce the best outcomes for the child or their families.
  3. 9.56 Possible post-adoption support services may take a variety of forms, including information, advice, facilitated support groups, counselling services, mediation, financial assistance, or medical, educational or psychological services. While there is little research on post-adoption support in Australia, a Queensland survey of adoptive parents highlighted the need for post-adoption support training to meet the actual needs
    of adoptive families, which change over time, rather than their perceived needs.51
  4. 9.57 In Victoria, during the adoption placement (prior to an adoption order) the child is still under the guardianship of the Secretary or principal officer of an approved agency.52 During this time the adoptive parents and the child would still be supported by DHHS
    or the approved agency through home visits.
  5. 9.58 Once an adoption order is made, legal responsibility for the child shifts to the adoptive parents. While post-adoption support may be provided in some circumstances, there
    is very little legal requirement for any person or authority to provide this.

Questions

  1. 48 Should there be increased requirements in the Adoption Act to provide post-adoption support? If yes:
  2. (a) Who should be responsible for providing this support?
  3. (b) What type of post-adoption support should be provided, and in what circumstances?
  4. (c) Who should be eligible for it?

 

 

 

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