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Adoption in the Australian Capital Territory

Introduction

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 Australian Capital Territory (“ACT”).

Types of adoption

In the Australian Capital Territory, there are three types of adoption:
  1. Local Adoption;
  2. Inter-Country Adoption; and
  3. Step-Parent Adoption
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

The ACT has strict requirements about who can adopt. The requirements are:
  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; AND
  2. The person/s are on the register of suitable people; AND
  3. If the application is made by two people jointly:
    1. those people must have lived together in a relationship for the previous three years; AND
    2. The Court is satisfied that the couple have demonstrated stability and commitment to their relationship
    3. If the application is made by 1 person only:
      1. The person is a step-parent of the child that is the focus of the application; AND
      2. The Family Court of Australia has provide the step-parent with leave to make an application for adoption
        OR
      3. The person is not in a domestic partnership
      4. If the person applying for adoption is a relative of the child, the Court must be satisfied that:
        1. It is beneficial for the child/young person if their family relationships are redefined by the adoption; AND
        2. 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 (ACT) 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 (ACT). 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 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.

There is a provision in the Adoption Act that will permit a person over 18 to be the subject of an adoption application and order if:

- They are located in the ACT; AND

- They have been in the care of the proposed adoptive parent while they were under 18 years of age (those proposed adoptive parent must have being responsible for the ongoing care of the child – including their care, welfare and education)

Where a person over 18 years old is the subject of the application to adopt, the requirements for that adoption will be different to that of a minor child adoption. For example, consent for adoption is not required for a child over 18 in the same manner as a child under 18.

Local adoption

In some cases, a child is placed for adoption by the birth parents who have decided they cannot look after the child. 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.

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 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 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.

Step-Parent Adoption

In the ACT, a step-parent adoption has an added step of requiring the adoption to be reviewed by the Family Court before to making the application in the ACT Supreme Court.

The Adoption Act 1993 specifically requires that a step-parent must make an application to the Family Court to ask for leave (permission) to adopt their step child. In making (or refusing) that application, the Family Court 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.

If you do obtain leave from the Family Court for a step-parent adoption, you will then be required to follow the usual adoption process – becoming a suitable person, obtaining consents and meeting all requirements of the Adoption Act 1993 as detailed above.

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 10 October 2018 they are:
  • Bulgaria
  • Chile
  • China
  • Colombia
  • Hong Kong
  • Latvia
  • 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.

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
Level 4, 1 Farrell Place, Canberra City

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/

Child and Youth Protection Service

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

Tel: 132 281
Facsimile: (02) 6205 7187
Email: ocyfs@act.gov.au

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

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