Review of the Adoption Act: Recommendations

 

A new Adoption Act: principles and modernisation

1. The Adoption Act 1984 (Vic) should be repealed and replaced with a new Adoption Act that:

a. incorporates the legislative reforms recommended in this report

b. retains the content of provisions that have not been addressed in this report, and

c. is structured and expressed in accordance with contemporary drafting practice.

2. The Adoption Act should specify that the object of the Act is to provide for adoption in a way that:

a. ensures that the best interests of the child concerned, both in childhood and in later life, are the paramount consideration in adoption law and practice

b. ensures that adoption is regarded as a service for the child concerned which is centred on the needs of the child rather than those of an adult seeking to care for a child

c. ensures that appropriate adoption support is available to eligible people at all stages of an adoption and after adoption

d. promotes openness in adoption and assists a child to know and have access to their family of origin and cultural heritage

e. ensures that people involved in or affected by an adoption can have access to information about the adoption

f. complies with Australia’s obligations under treaties and other international agreements, in particular the obligations arising under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Convention on the Rights of the Child.

3. The Adoption Act should include a suite of overarching principles which include general principles (described in Recommendation 4), the best interests principles (described in Recommendation 23), and the decision-making principles for Aboriginal and Torres Strait Islander children (described in Recommendation 29). The Adoption Act should specify that:

a. Decision makers and others providing services under the Adoption Act including the court, the Secretary, principal officers of approved agencies and any other persons and bodies involved in the administration of the Act are to have regard to the principles set out in the Act (where relevant) in making any decision or taking any action under the Act.

b. The principles give guidance in the administration of the Act and do not create, or confer on any person, any right or entitlement enforceable at law.

4. The general principles should specify that:

a. The best interests of the child concerned, both in childhood and in later life, must be the paramount consideration.

b. Adoption is a service for the child concerned and no adult has a right to adopt a child.

c. Consent to adoption must be fully informed and free from duress, pressure or coercion.

d. A child who is capable of forming their own views on a matter concerning their adoption must be given the opportunity to express them freely and these views are to be given due weight in accordance with the age and maturity of the child.

e. Anyone involved in the adoption process should be given the information that they reasonably need to participate effectively, in a manner and form that enables them to understand the relevant process.

f. A person or body exercising a function or power under this Act in relation to an Aboriginal or Torres Strait Islander child must observe the decision-making principles for Aboriginal and Torres Strait Islander children.

5. Where possible, the Adoption Act should use the term ‘mother’ to describe the person who gave birth to the child. If it is necessary to draw a distinction for clarity, the terms ‘natural mother’ and ‘adoptive mother’ should be used. Similar distinctions should be drawn where necessary between ‘natural father’ and ‘adoptive father’, and ‘natural parents’ and ‘adoptive parents’.

6. The Adoption Act should avoid language that obscures the facts of the adoption or fails to recognise that the natural parents do not change, even though their legal status does. In particular, the explanation of the effect of an adoption order should:

a. avoid the use of the phrase ‘as if the child had been born to’

b. focus on the permanent transfer of parental rights and responsibilities to the adoptive parents

c. specify that the child permanently ceases to be entitled to any legal benefits that flow from the relationship with their natural parents and instead becomes entitled to any legal benefits that flow from the relationship with their adoptive parents.

7. The Adoption Act should modernise or clarify other language and concepts including in the following ways:

a. Use the term ‘parental responsibility’ instead of ‘guardians’, ‘guardianship’ and ‘custody’, except when referring to guardianship under the Immigration (Guardianship of Children) Act 1946 (Cth).

b. Clearly provide that the fact that someone other than the natural parents has parental responsibility for the child, including sole or exclusive parental responsibility, does not affect the requirement for the consent of the natural parents to the adoption.

c. Use the term ‘contact’ instead of ‘access’ to describe arrangements for contact with the child.

d. Ensure that the consent provisions provide for consent to adoptions by two parents who are of the same sex or gender as well as by a parent or parents who do not identify with a specific sex or gender.

e. When referring to either an Aboriginal or Torres Strait Islander person, use the terms ‘Aboriginal or Torres Strait Islander person’ and ‘Aboriginal or Torres Strait Islander child’ rather than the shorthand ‘Aboriginal person’ or ‘Aboriginal child’.

f. Define the terms ‘parental responsibility’, ‘contact’, ‘Aboriginal or Torres Strait Islander person’ and ‘Aboriginal and Torres Strait Islander child’ consistently with the definitions in the Children, Youth and Families Act 2005 (Vic).

Participation of the child in adoption decision making

8. The Adoption Act should specify that the views of the child must be sought on any decision that has a significant impact on the child’s life and that:

a. the child must have the opportunity to express their views freely

b. the decision maker must give these views due weight in accordance with the age and maturity of the child

c. the child is not required to express their views.

9. A decision that has a significant impact on the child’s life should be defined as including but not limited to:

a. the development of the adoption plan concerning the child

b. the placement of the child for adoption

c. the application for an order for the adoption of the child

d. a decision about the child’s name.

10. To ensure that the child is able to form and express their views on a decision, the Adoption Act should specify that the child must be provided with:

a. relevant and adequate information concerning the decision

b. any assistance that is necessary for the child to understand the information and to express their views

c. information about the child’s rights

d. information about the outcome of the decision and an explanation of the reasons for the decision.

11. The requirements in section 14 of the Adoption Act that a child must receive counselling before an adoption order is made should be retained with the following modifications:

a. The ‘child’s views’ should be sought rather than their ‘wishes’.

b. The words ‘at least 28 days before the day on which the adoption order is to be made’ should be replaced with ‘at least 28 days before the day of the hearing for the adoption order’.

c. The words ‘age and understanding’ should be replaced with ‘age and maturity’.

Contact and adoption plans

12. The Adoption Act should specify that the written report provided to the court on behalf of the Secretary or principal officer to enable it to consider an application for an adoption order must include information about:

a. whether other siblings have been placed for adoption

b. what consideration was given to placing a child with their siblings

c. how sibling relationships will be preserved through contact arrangement or the reasons why this is not appropriate.

13. The Adoption Act should specify that one of the matters the court must be satisfied about before making an adoption order is that due consideration has been given to the preservation of sibling relationships and appropriate provision has been made for this.

14. A written adoption plan should be made for each child who is to be placed for adoption. An adoption plan should be approved and registered by the court. A registered adoption plan should become part of the adoption order and enforceable as an order of the court. This should replace the ability for the court to place contact and information conditions on an adoption order under section 59A.

15. Adoption plans should be negotiated:

a. after the necessary consents for a child to be adopted have been given or dispensed with and the period for consent to be revoked has passed

b. prior to the placement of the child for adoption.

16. The Adoption Act should set out the rights and responsibilities that are to be considered and weighed in the negotiation of an adoption plan. The provision should be modelled on schedule 2 of the Adoption Act 1994 (WA).

17. The Adoption Act should provide the following detail about who is to be involved in the negotiation and agreement of an adoption plan:

a. An adoption plan should be negotiated between the natural parents, the adoptive parents, the Secretary or principal officer, and the child and/or their legal representative. Due regard should be given to the age and maturity of the child.

b. A parent whose consent has been dispensed with by the court may be involved in negotiating and agreeing on an adoption plan, unless the court orders that they may not be so involved.

c. The Secretary or principal officer should notify the parents and siblings of the natural parent or, if they cannot reasonably be located, an aunt or uncle of the natural parent who is 18 years and over, that the necessary consents have been given to place a child for adoption and give them the opportunity to be a party to the adoption plan when:

i. the natural parent is unable or does not wish to be involved in adoption planning and does not object to the relative being involved

ii. the natural parent’s consent to the adoption is not required because they are deceased

iii. the natural parent died after consenting to the adoption

iv. the requirement for the natural parent’s consent to the adoption has been dispensed with because they cannot be found or contacted.

18. The Adoption Act should define the parties to an adoption plan as the people who sign it.

19. Adoption plans should be able to provide for any other matters relating to the child but the Adoption Act should require that they include the following details:

a. contact arrangements with natural parents, siblings and grandparents, and any requirement that there not be contact

b. information exchange, and any requirement that information not be exchanged

c. how the child is to be assisted to develop a healthy and positive cultural identity

d. any financial and other assistance approved by the Secretary for the proposed adoptive parent(s)

e. the period of time over which the plan is to have effect.

Best interests of the child

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

21. The Adoption Act should specify that on the making of an adoption order a child’s given name should not be changed unless there are ‘exceptional circumstances’. It should be possible to add given names.

22. The Adoption Act should provide for the court to decide on a child’s surname on the making of an adoption order, which should be one of the following: the adoptive parents’ surname, where they both have the same surname; the surname of the adoptive father; the maiden name or other surname of the adoptive mother; the surname or former surname of any previous parent of the adopted child; a surname formed by combining the adoptive parents’ surnames or any previous parents’ surnames.

23. The Adoption Act should provide principles which specify that in determining the best interests of the child the following matters should guide decisions and actions:

a. any views expressed by the child, given due weight in accordance with the age and maturity of the child

b. protection and promotion of the child’s rights

c. the likely effect of the decision or action on the life course of the child

d. any wishes expressed by either or both natural parent(s)

e. the preservation, as far as possible, of the child’s identity, including their given name, language and cultural and religious ties

f. the preservation of the relationship of the child with their natural parents and siblings (if any) and significant other people (including relatives) that the decision maker considers to be relevant

g. that it would ordinarily be in a child’s best interests to be placed with the same family as any sibling of the child who is also to be adopted or has previously been adopted

h. the suitability and capacity of any proposed adoptive parent to meet the child’s needs, take on the responsibilities of parenthood and provide for the development of the child’s identity, including contact with their family of origin and significant other people

i. the family composition of any proposed adoptive family, including age gaps between any children, and the effect it may have on the ability of the proposed adoptive parents to provide the necessary care to the adopted child or children

j. the alternatives to an adoption order, and the likely short-term and long-term effects on the child of changes in their circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

Birth certificates of adopted people

24. Subject to security and cost implications, integrated birth certificates should be introduced in Victoria. These should:

a. be available:

i. for future adoptions and all previous adoptions

ii. in addition to the amended birth certificate that is currently provided

iii. on application to the Registrar of Births, Deaths and Marriages

b. clearly show the person’s legal identity

c. have the same legal status as the amended birth certificate.

25. Where an adopted child is under 18 years of age, their integrated birth certificate should be available, on application, to:

a. their adoptive parents, on the child’s behalf

b. to the child:

i. with their adoptive parents’ consent or

ii. after receiving counselling from a counsellor who assesses the child as mature enough to understand the consequences of receiving information about the identity of their natural parents.

Aboriginal and Torres Strait Islander children

26. The Adoption Act should require the Secretary or principal officer to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child.

27. The Adoption Act should require that if a child is identified as an Aboriginal or Torres Strait Islander child, an Aboriginal agency be involved in all aspects of the adoption process. The requirements for status as an Aboriginal agency under the Adoption Act should be defined consistently with section 6 of the Children, Youth and Families Act 2005 (Vic).

28. The Adoption Act should include a section stating that statutory adoption is not part of Aboriginal or Torres Strait Islander culture. It should provide that the court will not make an order for the adoption of an Aboriginal or Torres Strait Islander child unless satisfied that statutory adoption is clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

29. The Adoption Act should include an Aboriginal and Torres Strait Islander Child Placement Principle and decision-making principles. The wording should be consistent with sections 12, 13 and 14 of the Children, Youth and Families Act 2005 (Vic). The Aboriginal and Torres Strait Islander Child Placement Principle should include a requirement that a cultural support plan is prepared for any Aboriginal or Torres Strait Islander child placed for adoption.

30. The Adoption Act should specify that an Aboriginal or Torres Strait Islander child cannot be placed for adoption and the court cannot make an adoption order unless:

a. the Secretary or principal officer has received a report from the Aboriginal agency recommending that the child be placed for adoption

b. a cultural support plan has been prepared for the child.

Consent

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:

a. the mother should receive counselling that encourages her to disclose as much information as possible to give to the child

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:

i. the importance to the child of knowing that both parents have had the opportunity to participate in planning the adoptive placement

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

iii. the importance of the child’s future rights as separate from the mother’s own immediate needs and rights.

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.

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:

a. the child’s conception was the result of an offence committed by the person

b. the person is a lineal relative of the mother

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.

34. The Adoption Act should replace the current requirements in section 5(2) of the Adoption Act for approved counsellors as follows:

a. Counsellors must be independent of the Department of Health and Human Services and approved agencies.

b. Counsellors must hold a relevant university degree that is prescribed in the Adoption Regulations.

c. Counsellors must be a member of a relevant professional body that is prescribed in the Adoption Regulations.

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:

a. support (financial and otherwise) that may be available to the parent whether or not an adoption of the child proceeds

b. possible psychological effects for the parent, both short and long-term, of consenting to the adoption

c. possible psychological effects for the child, both short and long-term, of being adopted

d. the rights and responsibilities of the parties to an adoption, including those relating to adoption plans.

36. The Adoption Act should require the Secretary or principal officer to ensure that:

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

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.

37. Court officials who witness adoption consents should receive training that:

a. emphasises the importance of the independent oversight that they provide

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

c. provides guidance about the types of questions that should be asked to assess that the person providing consent understands these matters.

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.

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.

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’.

b. The ‘qualified person’ must not be the same person who is providing or will provide counselling to the parent.

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:

a. The person cannot, after reasonable inquiry, be found. The Act should specify the steps required to demonstrate reasonable inquiry.

b. The person committed an offence which resulted in the child’s conception.

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.

d. The person is the father and he is a lineal relative of the mother.

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.

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).

Eligibility to adopt

41. The eligibility criteria under the Adoption Act should not require or imply that couples in a domestic relationship live together.

42. The eligibility criteria under the Adoption Act should permit single people to adopt on the same basis as couples.

43. The Adoption Act should require the Secretary to manage the assessment of applications to adopt a child in a way that:

a. anticipates the number of children likely to be adopted and their particular needs

b. ensures that there is a wide range of prospective adoptive parents to select from, reflective of the wide range of people eligible to adopt (couples, same-sex couples and single people)

c. provides for ongoing monitoring and review of how the applications are processed to ensure that there are enough suitable prospective adoptive parents to meet the needs of children

d. ensures that the assessment process is both published and transparent to all persons wanting to adopt a child.

44. Where a step-parent wishes to adopt a child, the Adoption Act should:

a. reflect that leave from the Family Court of Australia must be granted before an application to adopt may be filed

b. permit the Secretary to charge a fee for the administrative cost of arranging a step-parent adoption.

45. The Adoption Act should permit the adoption of a child from permanent care only where the child has been living in the applicant’s care under a Children, Youth and Families Act 2005 (Vic) permanent care order for at least two years.

46. The Adoption Act should enable a permanent carer to be eligible to adopt if the court is satisfied that:

a. Leave to apply has been granted by the President of the Children’s Court of Victoria or her nominee.

b. The natural parents, or appropriate persons, have provided specific consent to the adoption or the court has dispensed with consent in the circumstances recommended in Recommendation 40.

c. The terms of an adoption plan have been agreed on the same basis as any other application for adoption.

d. While caring for the child under a permanent care order, the person has demonstrated a willingness and capacity to meet the child’s needs and preserve the child’s identity and connection to their culture of origin and the child’s relationship with their natural family, including wider family members.

e. The continuation of the permanent care order under the Children, Youth and Families Act 2005 (Vic) or the making of an order under the Family Law Act 1975 (Cth), would not make adequate provision for the best interests of the child and an adoption order would make better provision for the best interests of the child.

f. Exceptional circumstances exist which warrant the making of an adoption order.

47. The Adoption Act should not permit a permanent carer to adopt unless leave to apply has been granted by the President of the Children’s Court of Victoria or her nominee. In determining an application for leave, the President of the Children’s Court must be satisfied that:

a. the making of an adoption order would be in the best interests of the child; and

b. an adoption order would be clearly preferable to the continuation of the permanent care order under the Children, Youth and Families Act 2005 (Vic).

If leave of the Court is granted, a permanent care order should cease to have effect upon the making of an adoption order.

Assessment of applicants for adoption

48. A single ‘suitability’ assessment should replace the ‘fit and proper person’ approval requirement in sections 13 and 15 of the current Adoption Act. It should apply to all applicants other than permanent care parents who apply to adopt a child in their permanent care.

49. The Adoption Act should provide an overall ‘suitability test’ against which applicants are assessed. The prescribed requirements currently set out in regulation 35 of the Adoption Regulations should be the relevant considerations decision makers must take into account in assessing an applicant’s or applicants’ suitability to adopt a child.

50. Assessments of an applicant’s or applicants’ suitability to adopt a child should be carried out in accordance with guidelines issued by the Secretary. The guidelines should:

a. set out relevant matters decision makers should consider

b. be published on the Department of Health and Human Services website

c. be reviewed by the Secretary every three years.

51. All policies, procedural requirements and processes that determine or affect whether a person is able to adopt should be included in the Adoption Act or Adoption Regulations. These include requirements relating to citizenship, fertility treatment and full-time care of a child.

52. Clear written information about assessment requirements and procedures should be published on the Department of Health and Human Services website and otherwise be readily available to applicants and any person who expresses interest in adopting a child. This should include information about eligibility for assessment, the suitability test and criteria and the assessment process.

53. The Secretary should implement measures to develop consistency across agencies in the assessment process.

54. The Secretary should introduce a feedback mechanism to enable applicants to provide anonymous feedback about their experience of the assessment process.

Selection of adoptive parents

55. The Adoption Act should provide that parents may express wishes about the factors in the prescribed requirements set out in regulation 35 of the Adoption Regulations. These should replace the factors currently specified in section 15(1)(b) of the Adoption Act.

56. The Equal Opportunity Act 2010 (Vic) should not apply to:

a. assessment of applicants reasonably based on the prescribed requirements contained in regulation 35 of the Adoption Regulations

b. identification of prospective adoptive parents in the best interests of a child, who reflect wishes expressed by the child’s parents

c. where a child’s parents do not express wishes about the preferred characteristics of the adoptive parents—identification of prospective adoptive parents in the best interests of a child.

57. The Adoption Act should set out the main elements of the linking process, including any different procedures for the placement of children with special needs.

58. The Adoption Act should enable the Secretary to approve agencies to carry out discrete, rather than all, adoption services.

59. The Adoption Act should establish a central statewide register of approved applicants which the Secretary and principal officers must consult when selecting prospective adoptive parents for a child who needs a family (except where this would be impracticable when placing a child with special needs).

Adoption services and the Equal Opportunity Act

60. The religious exceptions under the Equal Opportunity Act 2010 (Vic) should not apply to approved adoption agencies providing adoption services under the Adoption Act.

The role of the court in the adoption process

61. The Adoption Act should require the court to hold a preliminary hearing to determine any application to dispense with consent, prior to the placement of a child with prospective adoptive parents. A hearing should be held regardless of whether an application is contested.

62. The Adoption Act should define the parties to an adoption hearing in relation to a child:

a. Parties to a preliminary hearing should include the child, the natural parents, the Secretary or principal officer, and any other person the court thinks fit.

b. Parties to any other adoption hearing should include the child, the natural parents, the prospective adoptive parents, the Secretary or principal officer, any party to an adoption plan, and any other person the court thinks fit.

63. At an adoption hearing, the Adoption Act should require the court to:

a. decide any disputed matter in the best interests of the child if an adoption plan, or some aspect of an adoption plan, cannot be agreed upon

b. approve an adoption plan before an adoption order is made. The court should be satisfied that the parties to the adoption plan understand its provisions and have freely entered into it, and that the provisions of the plan are in the child’s best interests.

c. vary, remove or add terms about contact to the adoption plan where it considers it is in the best interests of the child to do so

d. register an approved adoption plan, which has the effect of making it part of the adoption order and enforceable as an order of the court.

64. The Adoption Act and Supreme Court (Adoption) Rules 2015 (Vic) should not contain a presumption of confidentiality in adoption proceedings. Hearings under the Adoption Act should be heard in open court. The court should exercise its discretion in the usual way to determine that certain information is confidential, if disclosure of that information poses a risk to the child, the natural parents or the adoptive parents.

65. The Adoption Act should require that judicial reasons be given in all adoption proceedings. Judicial reasons should be publicly available, unless an order has been made under
section 17 of the Open Courts Act 2013 (Vic), and should be anonymised to ensure confidentiality of any matters likely to enable the child, the adoptive parents, or natural parents, to be identified.

66. The Adoption Act should require the court to appoint an independent children’s lawyer in all adoption proceedings, regardless of whether the proceedings are contested. The Act should:

a. provide for an independent children’s lawyer to be appointed:

i. after the necessary consents for a child to be adopted have been given and the period for consent to be revoked has passed

ii. upon application to dispense with a parent’s consent

b. permit the independent children’s lawyer to represent the child in the development of an adoption plan

c. require the independent children’s lawyer to act in accordance with the direct representation model for children over the age of 10 years. If a child is under the age of 10 or is aged 10 or over and not mature enough to give instructions, the best interests model of representation should be used.

67. The Adoption Act should provide for the court to direct the Secretary or principal officer to appoint a person to support a child in proceedings, if it is in the child’s best interests. This person should not be an employee of the Department or an approved adoption agency.

68. The Adoption Act should permit an adopted child, a natural parent (including a natural parent whose consent was dispensed with and is not a party to an adoption plan), an adoptive parent, any party to an adoption plan, or any other person the court thinks fit, to apply to the court for variation or revocation of the terms or conditions of an adoption plan or conditions under an adoption order made under the Adoption Act. In considering an application, the court should:

a. require certification from the mediation service developed by the Secretary, to the effect that mediation has been attempted or is not suitable, before considering an application

b. be satisfied that the wishes of the child have been ascertained and given due consideration, as far as practicable

c. be satisfied that any decision made is in the best interests of the child

d. be able to grant a person a right of contact or greater rights of contact with an adopted child, if it is in the best interests of the child.

69. The Adoption Act should:

a. define the parties to an application to discharge an adoption order:

i. in relation to an adopted person over 18, to include the adopted person, the natural parents, the adoptive parents, and any other person the court determines has a sufficient interest in the matter

ii. in relation to an adopted child, to include the adopted child, the natural parents, the adoptive parents, the Secretary or principal officer, any party to an adoption plan, and any other person the court determines has a sufficient interest in the matter.

b. require that the parties are advised of the legal effect of discharging an adoption order, when they are notified of proceedings.

70. The Adoption Act should provide that an application to discharge an adoption order filed by an adopted person over the age of 18 should only require the court to be satisfied that the discharge of the order is appropriate and desirable in all the circumstances.

Adoption support

71. The Adoption Act and Adoption Regulations should extend the power of the Secretary to provide grants of financial assistance to adopted children and adults, natural parents, adoptive parents, parties to an adoption plan, natural relatives and natural children of adopted people.

a. Eligible people should be able to apply for financial assistance either prior to, or at any time after, the making of an adoption order.

b. Any decision of the Secretary should be in writing with detailed reasons and subject to internal review.

c. The Adoption Act should allow a person whose interests are affected by a decision of the Secretary to apply to the Victorian Civil and Administrative Tribunal for review.

72. The Adoption Act should require the Secretary to establish and maintain adoption and post-adoption support services. These services should be accessible to adopted children and adults, natural parents, adoptive parents, parties to an adoption plan, natural relatives and natural children of adopted people. The Secretary should:

a. establish and maintain, as relevant, adoption services, including:

i. adoption support services provided by approved adoption agencies and other appropriate organisations

ii. specialised adoption support services (including specialist counselling, psychological services, psychiatric services)

b. develop a specialist mediation service to assist families in negotiating conflict in relation to any adoption arrangements

c. maintain, and report annually, comprehensive, reliable, consistent, statewide data on the operation and delivery of adoption services, including support and mediation services.

Access to adoption information

73. The access to information scheme set out in Part VI of the Adoption Act should be replaced with a new scheme, designed by the Secretary in consultation with the Privacy and Data Protection Commissioner, the Health Services Commissioner and the Ombudsman, that incorporates contemporary standards of transparency, accountability and fairness in the management of personal information by Victorian government agencies.

74. The new access to information scheme should provide for the Secretary to be solely responsible for the powers and functions that are currently shared among multiple ‘relevant agencies’.

75. The definition of the information to which access may be granted under the new access to information scheme should provide a simple yet comprehensive description that does not pre-empt decisions about how to respond to a request for access to it.

76. The new access to information scheme should enable people who are eligible to apply for information under the Adoption Act to authorise another person to apply on their behalf in specified circumstances.

77. The Adoption Act should require the Secretary to develop and publish guidelines on providing access to information under the new access to information scheme.

78. The new access to information scheme should describe more clearly the information that may be released under the Adoption Act, and the circumstances in which it may be released.

79. When providing access to information under the Adoption Act which does not require the consent of the person to whom the information relates, the Secretary should be required to:

a. make all reasonable efforts to give notice of the intended disclosure to the person to whom the information relates and

b. where practicable, give the person a reasonable opportunity before the information is disclosed to correct or add comments to any of the information that is inaccurate, incomplete, out of date or would give a misleading impression.

80. The new access to information scheme should enable an adopted child under 18 years of age to receive, on application:

a. non-identifying information about their natural parents without needing the agreement of their adoptive parents

b. information disclosing the identity of their natural parents, either:

i. with their adoptive parents’ agreement, or

ii. after receiving counselling from a counsellor who assesses the child as sufficiently mature to understand the consequences of the disclosure.

81. The Adoption Act should provide that, after an adoption order is made, a copy of the child’s original birth certificate is issued to the adoptive parents.

82. The new access to information scheme should enable:

a. adopted children to obtain the child’s original birth certificate and other information which identifies or may identify the natural parents without the natural parents’ consent

b. adoptive parents to obtain the child’s original birth certificate (consistently with the BDM access policy) and other information which identifies or may identify the natural parents without the natural parents’ consent

c. natural parents to obtain information which identifies or may identify the adopted child and adoptive parents without the adoptive parents’ consent. Before disclosing the information to the natural parent, the Secretary should seek the child’s views and communicate them to the natural parent.

83. The new access to information scheme should provide natural relatives with easier access to information that discloses the identity of an adopted person who is 18 or older, including by removing the current requirement that a relevant authority must be satisfied that circumstances exist which make disclosure of the information desirable.

84. The new access to information scheme should provide a means by which the Secretary may facilitate exchange of non-identifying medical information between adopted people and their natural parents and natural relatives.

85. The new access to information scheme should enable the Secretary to give to an adopted person, on request, information contained in the records relating to the adoption concerning the identity of a man who may be the person’s natural father but does not meet the definition of ‘natural parent’ currently set out in section 82 of the Adoption Act. The Secretary should be required to give the person a notice stating that the identity of the person’s natural father is not confirmed and, if appropriate in the circumstances, the reasons why the information is not confirmed.

86. The current requirement for an applicant for access to information to be interviewed by an approved counsellor in section 87 of the Adoption Act should be replaced with an obligation on the Secretary to:

a. offer applicants counselling before providing them with access to information

b. advise an applicant if the information could reasonably be expected to be distressing to the applicant.

87. Decisions of the Secretary under the new access to information scheme relating to the disclosure of information should be subject to internal review within the Department of Health and Human Services and external review by the Victorian Civil and Administrative Tribunal.

88. The provisions in the new access to information scheme concerning the Adoption Information Register should:

a. specify the purpose of the register

b. provide accurate and complete details of its operation

c. require the Secretary to convey to a person who has requested access to information about a person whose details are on the register, the registered person’s wishes about the disclosure of information and being contacted.

Main menu

Back to top