Adoption in the Australian Capital Territory

Introduction

Adoption provides a new, permanent family to a child who for various reasons cannot live with their birth parents. Adoption legally transfers all rights and responsibilities for a child from their birth family (or legal guardians) to the person(s) adopting the child.

Adoption has the reputation of being confusing, expensive and emotionally fraught. This chapter will explain the different types of adoption, who can adopt and the processes of adoption. This chapter will also provide a list of organisations that can provide more information and assistance for those travelling down the adoption highway. The ultimate principle guiding the law of adoption is that any decision made must be in the best interests of the child.

The rules governing adoption can vary from state to state and territory to territory. This chapter only references the adoption processes of the ACT.

Types of adoption

In the Australian Capital Territory, there are three types of adoption:

1. Local Adoption (where you have had no previous relationship with the child to be adopted, and the birth parents decided on adoption when their child was born);
2. Inter-Country Adoption (where you adopt a child who is in foster or kinship care); and
3. Step-Parent Adoption (where you adopt the child of your partner).

Both local and inter-country adoption are regulated by the Adoption Act 1993 (ACT). While that same Act does also regulate Step-Parent adoptions, the Family Law Act 1975 also affects this type of adoption. These different types of adoptions are explained below.

Who can adopt

1. The adoption applicants (whether a sole or joint adoption application is put in) must be ordinary residents of the ACT. Unless it is an application by person/s from a Hague Convention Country (see 'Inter-Country Adoption’ below); AND

2. The person/s are listed on the suitable register; AND

3. If the application is made by two people jointly :

• Those people must have lived together in a relationship for at least three years (irrespective of whether they are married or in a civil union); AND
• The Court is satisfied that the copy have demonstrated stability and commitment to their relationship.

4. If the application is made by one person only :

• If the person is a step-parent of the child/young person, the Federal Circuit and Family Court of Australia (Division 2) must give the step-parent leave to make an application for adoption. This means that the Court allows the step-parent to make the application. In deciding whether to grant leave or not, the Court must consider whether it would be in the child’s best interests to do so; OR
• The person is not in a domestic partnership; OR
• If the person is a relative of the child, the Court must be satisfied that
  • It is beneficial for the child/young person if their family relationships are redefined by the adoption; AND
  • It is not preferable for the Court to make a guardianship or custody order regarding the child/young person.

What is the Register of Suitable People?

The register of suitable people is a list of people that the Child and Youth Protection Agency (CYPS), an agency under the ACT Government Directorate, have deemed to be suitable people to adopt or have children place with them in the ACT.

This register is created by Section 19 of the Adoption Act 1993 and all records (including approved or denied applications) are maintained by CYPS.

Anybody can apply to be a suitable person and to be placed on the register. CYPS will assess suitability by looking at the following the criteria in section 39F of the Adoption Act 1993. Such criteria includes but is not limited to:

• Whether the applicant is of a good reputation and can fulfil their parental responsibilities (i.e. by taking care of a child’s physical and emotional wellbeing);
• The applicant’s age, education and attitude to adoption;
• The applicant’s own mental, physical and emotional health (and any affect that their state would impact on or affect the child);
• If the applicant lives in the ACT; AND
• Any other factor that may be relevant to determining suitability.

If a person has already been assessed to be a suitable person, they can be removed from that register if CYPS is satisfied on reasonable grounds that the applicant is no longer a suitable person because they no longer fulfil the criteria for suitability.

Who can be adopted

In the ACT, a person can be adopted if they are a resident of the ACT and are under 18 years of age when the application to adopt is filed.

Section 10 of the Adoption Act 1993 permits a person over 18 to be the subject of an adoption application and order if:

• The applicant/s have been in a care-giving relationship with the person (the applicant/s must have been responsible for the ongoing care of the child, including their general wellbeing, welfare and education); AND
• The person has received physical, emotional, intellectual and educational support from the applicant/s; AND
• The person, or at least one applicant, is ordinarily a resident in the ACT; AND

Where a person over 18 years old is the subject of an adoption application, the requirements for that adoption will be different to that of a child adoption. For example, consent for adoption is not required for a child over 18 in the same manner as a child under 18. Adoption for persons over 18 is coordinated through private legal professionals, not CYPS.

Local adoption

In some cases, a child is placed for adoption by the birth parents who have decided they cannot look after the child (local adoption). In other cases, a child can be adopted after they have been removed from their biological families by CYPS and placed in out of home care (out of home care adoption).

In both cases, CYPS is very involved in the adoption process. If a child is in out-of-home care, CYPS will make every effort to reunite the child with a biological parent or family member before considering adoption by a non-parent/family member.

During the adoption process, CYPS may require both the birth parent/s and adoptive applicant/s to attend meetings and assessments.

During the process, the parent’s or guardian/s of the child are required to give their consent to the adoption. This must be done in writing unless there is a reason why a parent/guardian cannot give consent (For example, if the parent lacks the ability to give consent because they suffer from a medical or physical condition).

Additionally, the ACT Supreme Court will not make an adoption order if the biological mother has provided her consent either before the child was born or within 28 days of the child’s birth. It will not make an adoption order if the consent was obtained by fraud, duress or the person does not understand the nature of what they are signing.

A person can revoke their consent by filing a Notice of Revocation in the ACT Supreme Court within 28 days of providing their consent. If consent is not given or revoked, an application to dispense that person’s consent, which would remove the requirement of obtaining their consent, can be made to the ACT Supreme Court.

If you think there is an issue with consent for adoption, you should seek legal advice.

If an adoption order is made by the ACT Supreme Court, the adoptive parents immediately become the legal parents of the child/children with all legal rights as though they were the birth parents.

In the ACT, the Adoption Act 1993 does permit open adoptions to allow the adopted child to maintain contact with their birth family in suitable circumstances. CYPS is also required to keep information about the child and their biological parents. If the parties have a closed adoption, then information about the adoptive child and their biological family can be accessed once the child turns 18. This access to information is not automatic and either the biological parent or the child (or someone on behalf of the child) can request that the information is not provided.

If you are concerned about the access to information, you should seek legal advice.

For more information on the local adoption process see: https://www.communityservices.act.gov.au/ocyfs/children/adoptions/adopting-a-child-from-the-act.

Step-Parent Adoption

In the ACT, step-parent adoption applications are typically decided by the ACT Supreme Court. However, the Adoption Act 1993 and Family Law Act 1995 requires that a step-parent first make an application to the Federal Circuit and Family Court (FCFC) to ask for leave (permission) to adopt their step child. In making (or refusing) that application, the FCFC must look at:

• Whether the adoption is in the best interests of the child;
• What effect the adoption will have on any order for Parental Responsibility;
• What effect the adoption will have on any parenting order;
• Whether the child has been a product of an artificial insemination procedure (and what the mother’s family situation was at the time of the procedure);

If you are thinking of applying for a step-parent adoption, you may wish to seek legal advice.

For more information on the step-parent adoption process see: https://www.communityservices.act.gov.au/ocyfs/children/adoptions/adopting-a-step-child.

Inter-Country Adoption

In the ACT, applying to adopt a child from an overseas country involves further steps in the process and slightly different requirements.

While the Adoption Act 1993 prescribes requirements for overseas adoptions, the The United Nations Convention on the Rights of the Child and The Hague Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoption also prescribe rules and requirements to be followed.

These conventions prescribe the creation of a Central Authority in each Australian State and Territory that are responsible for assessing the suitability of the Australian adoptive parents. In the ACT the central authority is CYPS.

If the parents are assessed as suitable, the application is then provided to the reciprocal authority in the overseas country. The overseas country can often have different suitability criteria than Australia. While a person might be assessed as suitable in Australia, it does not mean that they will automatically be assessed as suitable in the overseas country.

If overseas parents want to adopt a child from the ACT, CYPS will prepare a report about the child that will detail information about the child and their history, whether consents have been obtained from all relevant people, information about the proposed overseas adoptive parents, any considerations given to retaining care of the child in Australia and whether CYPS is satisfied that the child should be adopted outside of Australia. That report will then be given the reciprocal central authority in the relevant country.

As part of the United Nations conventions, there are currently 13 countries that have partnered with Australia regarding adoptions. As of March 2022 they are:

Bulgaria Chile China Colombia Hong Kong Latvia India Philippines

Poland South Africa South Korea Sri Lanka Taiwan Thailand

In very rare circumstances only will adoptions from non-partner countries be successful. The ACT will not accept adoptions made by private agreements or that have not been facilitated by the central authority of each country. For more information on Australia’s inter-country adoption programs see: https://www.intercountryadoption.gov.au/countries-and-considerations/countries/.

If you are thinking about inter-country adoption, you should seek legal advice.

Where to get help

Legal Aid ACT

Legal Aid may be able to provide limited assistance or direction towards other practitioners specialising in this area. Please contact Legal Aid ACT for further information.

Tel: 1300 654 314
Website: http://www.legalaidact.org.au/

The Law Society of the ACT

Many private lawyers can provide assistance with family law issues, including adoptions. The ACT Law Society can provide contact details of lawyers who specialise in this field.
Tel: (02) 6274 0300

Email: mail@actlawsociety.asn.au

Level 4, 1 Farrell Place, Canberra City ACT

Intercountry Adoption Australia

This Federal Government agency has information on and about inter country adoptions.

Tel: 1800 197 760

Website: https://www.intercountryadoption.gov.au/

Contact form: https://www.intercountryadoption.gov.au/about/contact-us/

Mail: GPO Box 9820 Canberra ACT 2601

Child and Youth Protection Service

This territory agency is responsible for all adoptions in the ACT.

Tel: 13 22 81 (within Australia) or +61 2 6247 5111 (International)

Facsimile: (02) 6205 7187
Email: ocyfs@act.gov.au

Website: http://www.communityservices.act.gov.au/ocyfs/children/child-and-youth-protection-services/adoptions