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3.7 Adoption

11 Aug 2016 - 14:15 | Version 8 |

Contributed by Department of Children and Families and current to 1 May 2016

Adoptions in the Northern Territory are covered by two Acts. The Adoption of Children Act 1994 (ACA), which deals with:
  • adoption procedures
  • the effects of adoption orders
  • the rights of the parties to an adoption to obtain adoption information

and the Family Law Act 1975 (Cth) [FLA] which deals with:
  • certain effects of an adoption order
  • procedures for adopting a step-child
  • procedures for recognising adoption orders from some overseas countries.

What is adoption?

Effects of adoption

An adoption order changes legal relationships in a number of ways.

Birth family's rights

The birth family loses all rights concerning the child except those specifically preserved under the legislation (such as the right to information) or granted by a court (such as contact).

Adoptive parents' responsibilities

The adoptive parents have parental responsibility for, and a duty to maintain, the child.

Change of name

The child gets a new birth certificate in their adopted name, with the details of the adoptive parents and their other children (if any) shown on the certificate rather than the birth family.

Rights to inherit

The child's right to inherit from the birth family will cease (unless the child is referred to by name) and be replaced by a right to inherit from the adoptive family.

This change does not affect any vested rights. For example, a member of the birth family may have died but the estate has not been distributed before the child's adoption. If the child (as a member of the birth family) was entitled to a share in the estate or a gift, they will not lose that share or gift because of the adoption.

Is adoption appropriate?

Adoption is just one of the legal options for giving a child long-term care, and its appropriateness should be assessed according to the needs and wishes of the parties (especially the child) and existing relationships.

The ACA sets out the principles to be taken into account when making decisions about the adoption of a child.

Alternatives to adoption

Given the effects of an adoption and the fact that they are permanent, it is important to be aware of the alternatives to adoption so that the most appropriate choice can be made.

When people want long-term care of a non-related child their choices are limited to:
  • foster care
  • adoption
  • sole parental responsibility over the child until the child turns 18
  • a permanent care order over the child until the child turns 18.

Who is a relative?

Under the general law, a child can be 'related' to a wide range of people, including step relationships. However, the definition of 'relative' for adoption purposes are defined as a child's grandparent, brother, sister, uncle or aunt [ACA s.3(1)].

When the child is already with the carers

When the child is already with the carers, especially if one of them is a parent, options to be considered are:
  • a power of attorney from the parents of the child to the step-parent living with the child
  • a change of name for the child
  • parenting, residence or specific issues orders
  • specific inclusion of the child in a will or family trust.

Long-term foster care

Who can arrange foster care?

Foster care must be arranged or authorised by the Department of Children and Families (DCF).

Family Court orders

The Family Court cannot make a residence order in favour of people who are not the child's parents, grandparents or other relative unless it has considered a report from a court counsellor or welfare officer, or this report has been dispensed with [FLA s.65G(2)].

This applies even where the parents or guardians have consented to the order.

Considering the alternatives

The ACA requires that people consenting to an adoption be given certain information, including information about alternatives [ACA s.30].

What the Local Court must consider

The Local Court will also be asked to consider the alternatives.

Under section 41 of the ACA the court cannot make an adoption order unless it believes the making of the adoption order is clearly preferable to any other action that could be taken by law in relation to the care of the child.

The adoption process

Who can arrange an adoption?

Under the ACA, adoption arrangements may only be made by DCF including when:
  • one of the people adopting the child is a parent of the child
  • one or both of the people adopting the child is a 'relative' of the child (defined in the Act to mean an aunt, uncle or grandparent of the child, or the child's brothers and sisters).

It is an offence for a person to give or receive money in exchange for the adoption of a child, for a consent to adopt, for the transfer of the control or custody of a child with a view to adopting the child or for making any such arrangements, unless the money is for legal expenses, approved hospital or medical expenses or any other payment authorised by the Minister or the court [ACA s.69].

Types of adoption

There are several types of adoption, but they can be grouped under two general headings.

One, adoptions where the child is already placed with the prospective parents, including:
  • step-parent adoptions
  • relative adoptions
  • adoptions of people under the Minister's parental responsibility
  • special cases (unauthorised placements)

Two, adoptions where the prospective parents want to adopt a child, including:
  • local adoptions
  • intercountry adoptions
  • adoptions of children with special needs.

Where the child is already with the prospective parents

In this case, the adoption process involves applying to the Local Court for an adoption order.

Step-parents must also apply to the Family Court for permission to adopt.

If permission is not granted

If permission is not granted, any subsequent adoption order will not be fully recognised by the court, any pre-adoption court orders will remain in force, and, for a child of a marriage, the FLA will still regard the child being a member of their birth family [s.60F(3), (4)].

Where the prospective parents wish to adopt

In this case, the adoption process begins with an expression of interest to DCF followed by an application seeking approval of suitability to adopt.

Applicants are then assessed and, if they are considered suitable, their application is approved.

Approved applicants are included in the pool of eligible applicants.

Procedure for intercountry adoptions

For intercountry adoptions, approved applicants' files are sent to the nominated overseas country's adoption program. If the applicants are then selected by the overseas country's adoption authorities as most suitable to adopt a particular child, the child is placed with them.

Application to the Local Court

After a monitoring period an application is made to the Local Court for an adoption order or, in some cases, recognition of a foreign adoption order is ratified.

Intercountry adoptions

Where an adoption order has been made in a country which (like Australia) is a signatory to the Hague Convention on Intercountry Adoption, the country can issue an adoption certificate.

If this certificate has been issued, the adoption will automatically be recognised in Australia, and it may not be necessary to make an application to the Local Court for an order made in Australia. In these circumstances it may not be necessary to obtain a local order if the Minister has approved the country where a foreign order was made for automatic recognition of such orders under s51, or it is considered appropriate for the Local Court to recognise the foreign order as if it were a local order under s50.

The Hague Convention on Intercountry Adoption

The Hague Convention came into force in Australia on 1 December 1998. Under the convention, if an adoption of a child from one convention country to another takes place and an adoption compliance certificate is issued by the appropriate authority, the adoption will be automatically recognised in any other convention country.

Where recognition of an Australian adoption in another convention country is required, an adoption certificate under the Hague Convention should be arranged.

Who can be adopted?

Section 12 of the ACA allows for the adoption of a person under 18 on the date the application is filed in court. A child cannot be adopted if they are married or they live or have lived in a de facto relationship.

If the child is in the applicants' care

As a general rule, the court is reluctant to make an adoption order unless the child has been in the applicants' joint care for a significant period of time.

Telling the child

DCF considers it in the best interests of the child to be informed of their adoption from an early age and in a manner appropriate to their developmental stage.

At 12 years of age the child's consent is required [ACA s.10(2)(a)] unless there are special reasons why the court should dispense with this requirement [ACA s.10(2)(b)]

Age limits

Unless there are exceptional circumstances [ACA s.16], the court cannot make an order if either of the applicants is:
  • under 25 years of age
  • less than 25 years older than the child
  • more than 40 years older than the child unless they have other children in their custody in which case they can be 45 years older than the child

Character requirements

Applicants must also be considered by the court as suitable to adopt; that is, they must be:
  • of good repute
  • fit and proper persons to fulfil the responsibilities of a parent.

Step-parent adoptions

A court cannot make an adoption order in favour of a step-parent or spouse of a relative, unless it is satisfied that:
  • an order made under the FLA or the Guardianship of Infants Act about the child's living arrangements doesn't provide adequately for their welfare and interests
  • exceptional circumstances exist
  • an adoption order would better provide for the welfare and interests of the child than an order under the FLA or the Guardianship of Infants Act.

Further conditions apply:
  • the step-parents must be residents of the Northern Territory and have been married for two years at the time of the adoption order being made in the Local Court
  • the adoption must be clearly preferable, in the child's best interests, to any other action that could be taken.

Adoptions by relatives

Where relatives want to adopt the adoption must be clearly preferable, in the child's best interests, to any other action.

Indigenous children

For Aboriginal and Torres Strait Islander children [ACA s.11]
  • the placement must be in accordance with the Aboriginal placement principle (see below)
  • appropriate consultation must have taken place with the Aboriginal community
  • the adoption must be clearly preferable, in the child's best interests, to any other action.

The Aboriginal and Torres Strait Islander placement principles

The placement of Aboriginal children for adoption is covered in ACA s.11(1):
  • Prior to the court making such an order it must be satisfied that every effort has been made to arrange appropriate custody of the child within the child's extended family or with Aboriginal people who have the correct relationship with the child according to customary law [ACA s.11(1)(a)(b)].
  • When the above cannot be met the court must take into account considerations such as placement with another Aboriginal person, approved of by the Minister and family members, geographical proximity to the extended family and the encouragement of contact with extended family and culture. [ACA s.11 (2)(a)(b)(c)].

Applicants seeking to adopt through DCF

Applicants who want to adopt a child through DCF are assessed against formal criteria.

If applicants are not approved, they have the right to a review of that decision if the request is received in writing within one month of the decision being made [ACA s.22].

Consents to adoption

An adoption order cannot be made unless each birth parent or guardian of the child has consented to the adoption [ACA ss.26(a), 27, 28, 29] or an order has been made to dispense with the necessary consents [ACA ss.26(b), 35].

Rights of the father

Where the child is an ex-nuptial child, that is, born outside marriage, only the consent of the birth parent is required [ACA s.27(1)]. However, where one birth parent consents and the Minister knows or, after making inquiries, learns the name and last known address of the person believed to be the other birth parent, they must write and tell that person that the first parent has consented to the adoption, unless the court orders otherwise [ACA s.28(1)].

The person believed to be the birth father can then take steps to establish parenthood (the Unit will contact the other birth parent to ascertain this), or start proceedings under the Status of Children Act, but they must do so within one month of notifying the Minister of that intention. If they do take steps, their consent is then required for the adoption to go ahead [ACA s.28(4)]. If they don't take any action, their consent is not needed [ACA s.28(3)].

There are official forms for giving consent.

Parents and guardians consenting to the adoption of their child by any person use a general consent.

When the consent is for adoption by a step-parent or relative or by a foster carer who has had the care of the child for two years or more, a consent form nominating the adoptive parents is used.

The child's consent is given on a special form.

The forms of consent are prescribed under the regulations to the ACA.

Acknowledgements

The forms include acknowledgements that:
  • the person giving consent has been given, and had explained to them, written information about adoption and the alternatives (s.30) and has received counselling before giving consent
  • the person witnessing the consent is not the person giving counselling.

Religious preference

The general consent form allows parents and guardians to express a wish about the child's religious upbringing.

Ultimately, the court can make an adoption order where the placement is not in accordance with this wish but is otherwise in the child's best interests.

Time limits

The person must be given the written information [ACA s.30] and the form of consent at least seven days before being asked to give consent [ACA s.30(2)].

Counselling

A person giving consent to adoption should first be counselled about [ACA s.30]:
  • the legal effect of signing the consent
  • the procedure for revoking consent
  • the written information about adoption
  • the emotional effects of the adoption
  • the alternatives to adoption (including, in the case of a birth parent, whether it is possible for them to keep the child).

Witnesses

The signature on the consent form must be witnessed.

The witness must also certify that:
  • the consenting person has received the written information and counselling
  • the counsellor is of the view that the person understands the effect of giving consent
  • the witness is not aware of any mental, emotional or physical unfitness of that person to give consent.

A child's consent is only effective if [ACA s.10]:
  • it is informed consent
  • it has been given in accordance with the Act.

The consent of a parent or guardian can be regarded as defective if
  • the proper procedures are not followed
  • the proper forms are not used
  • the consent has been altered materially without authority
  • the consent was obtained by fraud, duress or improper means.

If the child is a newborn child

The court cannot make an adoption order if the birth mother signs a consent before the child is born or within one month of the birth, unless it can be proved that the birth mother was in a fit condition to give consent [ACA s.34(2)(a)(b)].

The child

A child can revoke consent at any time.

Parents and guardians

A birth parent can withdraw a signed consent to adoption within one month from the date they signed it by serving a written notice to that effect on the Minister [ACA s.33]. Birth parents who decide to withdraw consent should contact the Unit as soon as possible to prevent an adoptive placement proceeding. After a thirty-day period has transpired consent is irreversible.

Adoption cannot go ahead once consent has been withdrawn, unless a court has dispensed with the need for consent.

If a person whose consent is required under the Act refuses to consent or cannot be found, the adoption can only proceed if the court dispenses with that person's consent.

Generally, a child cannot be adopted unless consent has been given by those parents or guardians required to give consent under the ACA. Where the welfare and interests of a child are at stake the court may dispense with the consent of a person other than the Minister or the child where:
  • the parent or guardian can't be found [ACA s.35(a)]
  • the parent or guardian is physically or mentally incapable of properly considering the giving of consent [ACA s.35(b)]
  • the parent or guardian has abandoned, deserted or persistently neglected or ill-treated the child [ACA s.35(c)]
  • the parent or guardian has, for at least one year, failed, without good reason, to fulfill their parental obligations [ACA s.35(d)]
  • there are other special circumstances [ACA s.35(e)].

After consents have been obtained

Once all necessary consents have been given or dispensed with, the Minister becomes the child's guardian [ACA s.36].

Cost of inter-country adoption applications

The approximate cost of adopting a child through DCF can be, on average, a total of $6,000, consisting of:
  • application and registration
  • education and assessment
  • file transmittal and allocation ranges and depends on the country
  • post placement supervision.

For applicants adopting a child from overseas, airfares and other expenses need to be added to the figures as well as additional fees being payable to the overseas country. The fees increase on a regular basis.

Cost of local and step/relative adoptions

For local adoptions and adoptions by step-parents and relatives, no fees are charged by the NT.

Court procedure and court orders

Who may attend the hearing?

Adoption proceedings take place in closed court and persons not directly involved in the case, including lawyers, will not be allowed into the courtroom other than with its leave [ACA s.79].

Changing of child's name

When the adoption order has been made, the court changes the child's surname to that of the adoptive parents [ACA s.48(1)]. If the parents have different names it is up to the parents to decide the name they would like their adopted child to have. The court may, following an application from the adoptive parents, change the child's first names [ACA s.48(2)]. An adopted child has the normal rights regarding change of name.

If an adoption order is made

If the order is made, the court can use its powers to deal with matters not covered by the Act.

What the court must consider

The court must be satisfied that discharge will not be prejudicial to the best interests of the child.

Adoption information rights

Adopted people and their birth parent in NT have the option of identifying and contacting each other.

Relevant legislation

The ACA introduced legislation pertaining to access to adoption information.

Obtaining the original birth certificate

An adopted person wishing to apply to the Registry of Births, Deaths and Marriages for their birth certificate must first obtain a supply authority from the NT Adoption Unit.

They can then also seek more information from the Adoption Unit or from agency or hospital files.

What information is available?

It is still possible to obtain certain information from adoption files held by DCF and other agencies. There is, however, a great variation in the quantity and quality of the information available from different sources.

If one of the parties dies

If the adopted person or the birth parent dies, certain relatives can apply to DCF for the release of identifying information by the Registry of Births, Deaths and Marriages.

When to lodge a veto

A person who does not want to make contact with their birth parent or child should put their name on the contact veto register kept at the Unit as soon as possible. To lodge a contact veto, a person should make an appointment and go to the Unit, taking with them suitable identification, such as a photo licence, passport, birth certificate, marriage certificate, naturalisation or immigration papers, credit card, water or rates notice, tax assessment, bank statement or a phone, gas or electricity bill. A person can also ring the Unit and ask that a form be sent to them to lodge a contact veto.

Leaving a statement

A person who registers a contact veto can leave a statement with DCF about their wellbeing, their family background and their reasons for not wanting contact. This may help the person seeking contact to understand the decision.

If you want to search for your birth parent or child

An adopted person wishing to find identifying information must first attend a counselling session with an approved counsellor. All people eligible to apply for identifying information must attend a counselling interview before they receive any information [ACA s.63].

After this interview you can obtain a letter from the adoption branch of DCF. Then obtain a copy of the original or amended birth certificate from the Registry of Births, Deaths and Marriages. Once you have the letter of authority and certificate, the registry can search for more information for you.

You will also be entitled to certain information from files held by the department or the hospital where you were born.

You may be entitled to certain information from records of the Supreme Court if information from other sources proves to be inadequate.

If you were adopted

The original birth certificate may show your birth parents' names. Often the birth father's name is not recorded. The certificate entitles you to further information, including your birth mother's birth record or any record of marriage. If you know a brother or sister was adopted into a different family and is now an adult, you may obtain details of their adoptive identity from the department's family information service.

If you are the birth parent

Your child must be at least 16 years of age for you to seek information about them; however, if the child has not attained 16 years of age the NT Adoption Unit has the discretion to contact adoptive parents to discuss the request and to seek their views on contact. It is still an offence to contact an adopted child who is under the age of 16 without their adoptive parent's consent.

If you don't want to search, but would like contact

Place your name on the department's reunion information register. If your birth parent or child also registers, you will be put in touch with each other.

Fees

The NT Family Information Service does not charge any fees for this service.

Further Information

For further information, see DCF's page on Adoption and their page on Intercountry Adoption Reforms (see Contact points).

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