Adoption

  • FamilyLegislation and Implementation

BACKGROUND AND CONCLUDING OBSERVATIONS

The Committee on the Rights of the Child in its Concluding Observations expressed a number of concerns over adoption. The Committee recommended that all states and territories amend their adoption legislation to comply with the Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, by giving full effect to the provisions on consent and legal representation and by ensuring that the best interests of the child is the primary consideration in adoption proceedings.

MINIMUM STANDARDS UNDER THE CONVENTION

  • Article 3: best interests of the child is a primary consideration
  • Article 21: all governments must ensure the best interests of the child are the paramount consideration in adoption.

DEVELOPMENTS

Positive Developments

TAS: Gay Adoption Bill passed

Tasmania passed legislation allowing gay couples to adopt children in June 2013.  [1] Under the new law, couples who have a relationship registered under the Relations Act can adopt children. This allows gay couples to apply for adoption and then authorities make a decision according to the best interests of the child.

Murchison Independent Ruth Forrest described how the change was in the best interests of children: ‘discouraging gay adoptions is severely diminishing loving, stable homes for children who are waiting. [2]

Developments requiring attention

NT, QLD, ACT, TAS, QLD: Consent of child not required in adoptions

The Committee in June 2012 were concerned that only three out of eight jurisdictions in Australia require the consent of a child over 12 years of age prior to adoption. This continues to be the case, with only New South Wales, [3] South Australia, [4] and Western Australia [5] requiring the consent of a child over 12 in adoption proceedings.

TAS, SA: Access to legal representation

The Committee recommended that Australia ensure that all children have access to legal representation in adoption proceedings. Despite this, legislation in Tasmania and South Australia does not entitle children in adoption processes to legal representation. Further, NSW remains the only state where a child over 10 years of age is presumed to be competent to instruct their legal representative. [6] Western Australia requires a legal representative to act on the instructions of the child if that child has sufficient maturity. [7]

NATIONAL: Best interests of the child

In June 2012 the Committee expressed concerns that the best interests of the child is not always the paramount consideration in adoption proceedings. Four out of eight of the jurisdictions in Australia restrict adoption rights to heterosexual couples, indicating that the best interest of the child is not always the primary consideration. [8]

NATIONAL: Federal government plan to simplify adoption within a year

Prime Minister Tony Abbott announced plans to make it easier and faster for Australian couples to adopt children overseas within a year in December 2013. [9] Whilst this may increase the amount of children that protecting children. Australian must ensure it meets its obligations under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoptions.

Australian Greens spokesperson on families and community services, Senator Rachel Siewert commented:

Adoption is a sensitive issue, in March the Government apologised to mothers, fathers, adoptees and their families over past adoption practices. I’m deeply concerned that we may not have learned from these terrible experiences. We must be very careful we don’t repeat the mistakes of the past and make assumptions about the benefits of policy change without careful consideration of all the factors involved. [10]

RECOMMENDATIONS

  • State and territory governments that do not already require the consent of a child over the age of 12 in adoption proceedings should amend legislation to include the requirement of consent of the adopted child prior to adoption.
  • State and territory governments should ensure that children in adoption proceedings have access to legal representation and are able to give instructions to their legal representative.
  • State and territory governments should ensure that the best interest of the child is the primary consideration in adoption procedures.

FOOTNOTES

  1. Tasmania (Adoption Amendments Bill 2013 (TAS).
  2. ABC News, ‘Tasmanian Upper House passes gay adoption bill’ http://www.abc.net.au/news/2013-06-27/gay-adoption-passes/4786102, 27 June 2013 (accessed on 20 January 2014)
  3. Adoption Act 2000 (NSW)s55.
  4. Adoption Act 1988 (SA)s16.
  5. Adoption Act 1995 (WA) s17(1)(c)(ii).
  6. Adoption Act 2000 (NSW)s122(4).
  7. Adoption Act 1995 (WA)s134(5)(3).
  8. Adoption by same-sex couples is legal in NSW (Adoption Amendment (Same-Sex Couples) Act 2010 (NSW)), ACT (Civil Unions Act 2012 (ACT)Sch 3, pt 3.2 amendment of Adoption Act 1993 (ACT),Tasmania (Adoption Amendments Bill 2013 (TAS)).
  9. Commonwealth of Australia, Prime Minister, ‘Making overseas adoption easier for Australian families’ 19 December 2013  http://searcha.beta.capmon.com/pdfdisplay/data/repository/pressrel/p131219179.pdf (accessed on 20 January 2014)
  10.  ‘Greens urge caution over adoption policies’, http://searcha.beta.capmon.com/pdfdisplay/data/repository/pressrel/p131220188.pdf (accessed on 20 January 2014
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