Adoption

Contributed by Anna Copeland, Alexa Morcombe, Stephen Walker and Judith Kenny and current to 1 September 2005

Adoption is the legal arrangement where a child has a new parent approved under the provisions of the Adoption Act 1994 (WA) (“the Act”) and which is legitimised by an Adoption Order from the Family Court of Western Australia. Under the Act, legal and social responsibilities for the child are moved from the birth family to the new legal parent. Once adopted, a child takes the adoptive parent’s surname and has the full rights and privileges of a non-adoptive child, including those in relation to inheritance.

The fundamental principles in administration of the Act (s.3) are the welfare and best interests of a child who is an adoptee or a prospective adoptee; and that the adoption of a child should occur only in circumstances where there is no other appropriate alternative for the child. The Act further acknowledges that adoption is not part of Aboriginal or Torres Strait Islander culture and that therefore the adoption of a child who is an Aboriginal person or a Torres Strait Islander should occur only in circumstances where there is no other appropriate alternative for that child (s.3(2)).

The Western Australian Department for Community Development (“the DCD”), through its Adoption Service, is the only agency authorised to arrange adoptions in Western Australia. It is illegal to make private arrangements for the adoption of a child. There are heavy penalties – $25,000 fine and two years' imprisonment – for doing so (s.8).

CATEGORIES OF ADOPTION

There are a number of different categories of adoption, namely:

Adoptions between parties that do not know each other

These can be either the adoption of a locally born child (a 'local adoption'), or of a child from overseas. Changing social, medical and financial circumstances has lead to a sharp reduction in the number of adopted children who are born locally. Most of the adoptions that occur are 'inter-country' adoptions, where children are born overseas and adopted by Australians. WA can only deal with countries that have safeguards in place to ensure that the adoptions are legal and are in the best interests of the child. See further below under ‘Overseas Adoptions.’

“Known” adoptions
These include:

• Step-parent adoptions: where the step-parent applies to the Family Court of Western Australia for an Adoption Order, which permanently severs the legal relationship of a child with their birth parents and establishes a legal relationship with the adoptive parents. A Parenting Order or a Consent Order from the Family Court may be a preferred option to adoption, as such orders do not sever the legal and family ties, while allowing the long-term care to be provided by the step-parent.

Where the stepchild is 12 years or older, they must consent to the adoption. In addition, the Act requires that before an application for an Adoption Order is made, an adoption plan has been agreed between the birth parents of the child, who have signed consent to the child’s adoption, and the prospective adoptive parent of the child (s.55).

The Act prohibits adoptions by relatives, other than a step-parent (s.66(3)). Parenting Orders may be a suitable option in these situations.

• Carer adoptions are adoptions by someone who has had the long-term care of the child, including a foster child. A carer adoption requires many of the same processes as a local adoption, including an adoption plan and the Family Court Adoption Order. In addition to the legal adoption criteria (see below) the child’s birth parents must give their consent for the adoption (or the Family Court has dispensed with consent); the child must have been in the applicant’s care for at least three consecutive years; and the placement needs to have been approved or arranged by the DCD.

Overseas adoptions

Australia has signed the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption. This is an international legal Convention which sets out agreed minimum standards and procedures to regulate adoption of children between countries and to prevent the stealing and selling of children.

Western Australians can only adopt children from countries which have signed the Convention, or from those countries with which Australia has a bi-lateral agreement ensuring safeguards are met. The Hague Convention countries and those with which we have agreements include China, Ethiopia, Hong Kong, India, South Korea, the Philippines, Sri Lanka, Taiwan and Thailand.

In addition to the Western Australian adoption criteria (see below), overseas countries also have their own criteria. Adoption Service has these details, which are subject to change.

ELIGIBILITY CRITERIA

To apply to adopt a child in Western Australia, an applicant needs to meet the eligibility criteria set out in s.39 and s.67 of the Act. He/she needs to meet the following criteria:

• be over 18 years;
• if in a marriage or de facto relationship, the relationship must have existed for at least 3 years;
• at least one person in the relationship must be an Australian citizen and the other be a citizen of a country that gives similar rights to adopted persons; and
• be a resident of, or domiciled in, Western Australia.

During assessment by Adoption Service and at the time of placement of the child with the applicant, other criteria are also considered.

What are the age limits for prospective adoptive parents?

If applying to adopt a first child as a couple, the maximum age difference allowed between the child and the younger of the applicants is 45 years. If applying to adopt a first child as a single person then the maximum age difference allowed is 45 years.

The maximum age difference allowed between the child and the older applicant is 50 years. The age limit applies at the time the child is placed in the parent(s)’ care, not at the time of application.

If the application is to adopt a second or subsequent child, the age limits increase to 50 years between the child and the younger applicant, and 55 years between the child and the older applicant.

For a single person applying to adopt a second child, the age gap between the applicant and the child cannot be more than 50 years. These age limits do not apply if the child is a foster child, a child in the applicant(s)’ long-term care or a step-child. However, in all cases the applicant(s) would need to demonstrate an ability to remain in good health to provide care until the child reaches 18 years.

SINGLE PEOPLE

Single people can apply to adopt. For local adoptions, the relinquishing parent/s can chose to select the parent/s they want for their child and may choose a single person to be the new parent for their child. With inter-country adoptions, the sending country chooses the adoptive parents and may have policies that do not allow single people to adopt children from their country.

SAME SEX COUPLES

Same sex couples can apply to adopt and have their suitability assessed. Adoption of a local child is possible if the relinquishing parent/s choose a same sex couple to be the new parent for their child. Currently no overseas country allows adoptions to Australia to same sex couples.

Proposed changes to Commonwealth law will prohibit an application from a same sex couple from being sent overseas for consideration. At the present time the amendment to the legislation to ban same sex couples from adopting from overseas has been withdrawn, although it may be re-introduced at a later stage.

STEPS INVOLVED IN ADOPTING A CHILD

There are a number of steps required to be followed in the adoption process. A formal application is made to the DCD after attendance at information and education seminars. An assessor is appointed to prepare a report and make recommendations to the Adoption Applications Committee. The applicant must meet the eligibility criteria, including checks on their character. The Committee has both independent and Departmental members and considers the applicant’s competencies and suitability to adopt. The applicant is given the opportunity to read the report before it is submitted. The Committee must provide the applicant with written advice of their decision, and the reasons, if requested (s.43).

An applicant who is dissatisfied with the Committee’s decision has the right to request the Committee to review its decision under s.42(1) of the Act. He/she may also apply to the Director-General of the DCD to direct the Committee to review the procedure by which the decision was made and to give a direction as to the procedure that he or she thinks is appropriate (s.113). External appeal of the Committee’s decision can be made to the Family Court of WA on a question of law, a question of fact or a question of mixed law and fact (s.114). There is a limited further right of appeal to the Full Court of the Supreme Court (on grounds of law only).

Following approval by the Committee, either the child’s birth parents choose the adoptive parents (where the adoption is a local one) or the overseas adoption authority considers material provided by the applicant and conducts an assessment against its own criteria.

If the applicant is offered and accepts having a child placed in his/her care, staff from the Adoption Service will supervise and support the placement for at least the first six months. During this time the child is under the guardianship of the Director General and the placement is supervised by officers from Adoption Service. The exceptions to this are for adoptions from China and Sri Lanka, where the adoptions are finalised in that country before the child arrives in Australia. Supervision of the placement still occurs in these situations though, as China requests that the placements be supervised and supported for at least the first 6 months.

Once the supervision period is finished, the Adoption Service will prepare a report for the Family Court of Western Australia. The report recommends whether an Adoption Order should be granted. This order makes the adoption legal.

NAMING THE ADOPTED CHILD

The Act has a principle of keeping the child’s first name (s.74).The right to retain one’s first name is contained in the United Nations Convention on the Rights of the Child.

Approval is needed from the Family Court of Western Australia to change the child’s first name. In cases where the child is 12 years or older, they must give their written consent for a change of name. The new name is registered with the Registry of Births, Deaths and Marriages.

RELINQUISHING A CHILD FOR ADOPTION

Birth parents are free to make up their own minds about whether to relinquish their child or not and heavy penalties exist for any coercion. Once notified of a proposed relinquishment, the Department must provide information about adoption to a birth parent within 7 days (s.16).

If a decision is made to follow through with the adoption, both birth parents must give their written consent for the child to be placed for adoption. This is required even if the parents did not have a relationship. The only exceptions are those where the Family Court allows a dispensation, such as if the conception was the result of an assault for which there has been a conviction or incest.

After signing adoption consents the birth parent has a further 28 days to consider and make a decision on whether to proceed or not. If the decision is made to proceed, the DCD then becomes the legal guardian of the child until an adoption order is made by the Family Court. During this period the birth parent is involved in selecting a prospective adoptive parent(s) (s.45). Once the adoptive parents have been chosen an Adoption Plan must be negotiated between the prospective adoptive parent of the child and the relinquishing parents.

Where the child is 2 or more years of age, the child must have the nature and implications of his or her adoption explained in a manner appropriate to the child’s age and level of understanding (s.52(b)).

When the child has been with the adoptive family for at least six months, the adoptive parents can apply for an Adoption Order from the Family Court of Western Australia. The DCD prepares a report for the Court that informs the Court about the desirability of the proposed adoption.

SURROGACY

Adoption is not thought of as a way to legitimise a surrogate child. The laws do not see a connection between adoption and surrogacy. There is no surrogacy legislation in Western Australia.

ACCESSING INFORMATION ABOUT A PAST ADOPTION

The principle of ‘Open’ adoption and recent changes in the legislation means that people generally have access to information about a past adoption. For adoptions that occurred in the past before legislation changed to allow for ‘open adoption’, access to information and agreed contact between birth relatives may be possible. Only people who were directly involved in the adoption can get this information. However, relatives may be able to obtain information in some circumstances. For further information, contact the DCD Adoption Service or download the form Application for past adoption services (PDF) from its website (contact details are at the end of this chapter).

FURTHER INFORMATION

Further useful information on the adoption process, eligibility criteria, fees etc can be obtained from the DCD (contact details are provided at the end of this chapter) or from the website of the DCD Adoption Service: www.community.wa.gov.au.