Introduction

In 1965, community attitudes towards ex nuptial birth, the roles of men and women in society, de facto relationships, sexual orientation and many other aspects of family life were significantly different from attitudes which currently prevail. The nuclear family, headed by a legally married husband and wife, was not only perceived to be the norm but was considered by many to be the only truly acceptable form of family. In Australia, at least, reproduction technology had barely begun to be explored. Australia had yet to establish itself as an essentially multi-cultural society. There was not a developed and widespread awareness of the values of other cultures: in particular, that of indigenous peoples. The process of reconciliation with indigenous peoples had not begun. It was in this climate that the Adoption of Children Act 1965 (NSW) was drafted.

Since that time, legislation in many fields has been enacted or amended to reflect social changes. This is particularly apparent in the areas of Family Law, laws relating to indigenous peoples, anti-discrimination and reproduction technology. In addition, an international trend in the development of children’s rights, and legislation to protect children, has placed new international obligations on Australia.

The Commission’s terms of reference required a comprehensive review of the Adoption of Children Act 1965 (NSW). This review has extended over four years, during which time the Commission released an Issues Paper and a Discussion Paper for public deliberation. It involved detailed research into developments in other jurisdictions, both in Australia and overseas, intensive community consultation and analysis of current research.

A new Act

The Commission recommends that the Adoption of Children Act 1965 (NSW) be rewritten so that adoption:

• is characterised by openness, and is no longer shrouded in secrecy;
• conforms with Australia’s international obligations; and
• is brought into line with other areas of child law, as well as with prevailing community expectations and attitudes.

The language of the new legislation should reflect the contemporary approach to adoption and the standing of children as individuals with their own rights.

General principles

The welfare and interests of the child, expressed in the internationally accepted phrase “best interests”, should continue to be the paramount consideration in adoption. The Commission recommends that the legislation include guidelines to assist in applying this principle.

In relation to all adoptions, the Commission recommends that an adoption order should only be made where it makes better provision for the best interests of the child than parenting orders under the Family Law Act 1975 (Cth) or any other order for the care of the child.

There has been a growing recognition of a child’s capacity and right to participate in the legal processes which affect him or her. This is reflected in case law, recent legislation and international conventions. The child affected by adoption proceedings should have a greater voice in those proceedings and respect for the child’s viewpoint should underlie the language and application of the new legislation.

New adoption procedure

One of the most distinctive features of recent thinking and practice in adoption is the view that the law should not facilitate deception or secrecy, but should promote openness and honesty. The Adoption Information Act 1990 (NSW) enables adult adoptees to access information about their origins and to have contact with birth parents once they have reached 18 years of age. The Commission recommends that this Act be merged with the new Adoption Act. But separate from this is the need for openness from the start of the adoption process and during the course of the adoptee’s childhood.

The Commission considered a legislative scheme for agreements for openness in an adoption. However, the Commission has concluded that the advantages of this are outweighed by the undesirability of creating legally enforceable rights in the parties to the open adoption agreement. Rather, the legislation should encourage the parties to negotiate a voluntary plan, making arrangements for contact and exchanges of information between the adoptive and birth families.

The Commission recommends that the principle of allowing the child to participate in his or her adoption, and respecting his or her views, be implemented in adoption procedure by providing for those views to be taken into consideration and given weight commensurate with the child’s age and maturity. As well, the Court should have the power to appoint a guardian ad litem and/or a representative for the child, in appropriate cases.

Parties to the adoption should have access to assistance from the Court at any stage of the adoption process, by means of a preliminary hearing. The Commission does not envisage that a preliminary hearing would be common but, where necessary, it would enable many problems to be resolved prior to a final hearing. For example, where there is a potential for the child to be moved, an early independent review of the consents and adoption plans before a child becomes too settled in a placement would be in the child’s best interests. Another instance where a preliminary hearing may be necessary is where an agency is having difficulty placing an Aboriginal or Torres Strait Islander child in accordance with the Commission’s recommended Child Placement Principles. In appropriate cases, the Court could proceed to final orders at the preliminary hearing.

In relation to adoption of adults, the Commission recommends two changes only. It should continue to be permitted, but only where the adult, prior to turning 18, had been cared for, for at least five years, by the applicants. The marital status of the adoptee should be irrelevant. This latter recommendation applies to all adoptees.

At present, a step-parent wanting to adopt his or her step-child must make a joint application with his or her partner (the “custodial parent”), involving the custodial parent having to first relinquish his or her own child for adoption. Not surprisingly, this requirement is found by most applicants to be offensive, and it has been abandoned in other States. The Commission recommends that a step-parent be able to make a sole application, without having legal effect on the custodial parent’s relationship with the step-child. However, step-parents, as well as foster parents, should have an established relationship with the child of at least five year’s duration before being allowed to adopt. This introduces a new requirement.

The Commission’s recommendations in relation to consent to the adoption of a child introduce the requirement of annexing to the form of consent an independent counsellor’s report. This report would certify that the independent counsellor:

• is satisfied the consent-giver understands the legal effects of adoption and the procedure for revoking consent;
• has counselled the consent-giver on the emotional effects of adoption and the alternatives; and
• is not aware of any mental, emotional or physical unfitness to give consent.

Presently, a person can give consent on the fifth day after the birth of the child. It is also possible for the Court to make an order for adoption before the 30 day revocation period expires. The Commission recommends that consent cannot be given until 30 days after the birth of the child and that an order for adoption cannot be made before the expiration of the period during which consent can be revoked.

Who can adopt

Under the Adoption of Children Act 1965 (NSW), to be selected as an adoptive parent, an applicant must meet criteria relating to age, marital status and character. The Court is also required to consider the applicant’s religious upbringing and convictions (if any) and his or her education. Further criteria are specified in the Adoption of Children Regulation 1995 (NSW).

Selection of adoptive parents is a controversial area, as demonstrated by the volume and range of community response to this section of Discussion Paper 34. The Commission has concluded that there should be very few legislative requirements relating to eligibility to adopt. The role of the legislation should be to provide minimum requirements for eligibility, although guidelines should identify the factors that may be taken into account in assessing suitability to adopt. Beyond this, selection of the best parent for each child should be a matter for the agencies, which, equipped as they are with adoption expertise and experience, are in the best position to determine the more detailed requirements for eligibility.

The Commission recommends that the legislation should provide that an applicant to adopt must be resident or domiciled in New South Wales, over the age of 21 years and at least 18 years older than the child, and a fit and proper person to fulfil the responsibilities of a parent and the special tasks of adoptive parenting. The legislation should permit an adoption order to be made in favour of either a couple (whether married or living in a de facto, heterosexual or homosexual relationship) or a single person. The Commission recommends that the legislation require joint applicants to have been cohabitating for at least three years, and a step-parent applicant to have been cohabitating with the child’s parent for at least three years, before applying for an adoption order.

Cultural heritage and Aboriginal customary law

The Commission’s terms of reference required it to consider the relevance of ethnic and racial heritage and Aboriginal customary law in adoption legislation. The Commission prefers the term “cultural heritage” to “ethnic and racial heritage”. Whilst it does not seem possible to put a quantitative value on cultural heritage or continuity of cultural heritage, it is generally accepted that cultural heritage has value: this is enshrined in both legislation and international conventions. The Commission recommends that the cultural heritage of every child to be adopted, and the desirability of continuity in that cultural heritage, will be a relevant consideration in the placement of the child. The Commission recommends that the legislation should specifically cater for the placement of both Aboriginal and Torres Strait Island children because of the special place which they occupy in Australia’s history and because of particular, unique features of their cultures.

The Commission recommends that the legislation include:

• a Cultural Heritage Placement Principle;
• an Aboriginal Child Placement Principle; and
• a Torres Strait Islander Child Placement Principle.

As well, the Commissions recommends involvement of indigenous persons in the adoption process.

Intercountry adoption

Intercountry adoption is an area which is barely mentioned in the current legislation, yet it now accounts for almost half of all non-family adoptions in NSW. This trend has been partly in response to humanitarian considerations and partly as a result of the dramatic decrease in the number of healthy new-born Australian children available for adoption. It is a unique area of adoption in that adoptive parents have formed support groups to assist applicants to adopt overseas-born children and these groups now play a significant role in the adoption process.

Australia is poised to ratify the Hague Convention on Protection of Children and International Co-operation in Respect of Intercountry Adoption, which will require certain standards of practice in intercountry adoption. Some practices which have developed in New South Wales, if not regulated, will be in breach of the treaty. The Commission recommends legislative safeguards and requirements to ensure that adoption practice conforms with Australia’s international treaty obligations. The Commission also recommends that parent support groups, or any other bodies which meet the legislative requirements, be able to apply to be accredited as intercountry adoption agencies. There would then be clearly delineated roles between the New South Wales Department of Community Services, the accredited agencies and the unaccredited parent support groups. The latter would no longer be involved in the adoption process but would continue their support and fundraising functions.

Surrogacy and donor reproduction technology

The Commission considered whether adoption legislation should be used to regulate rights and responsibilities in relation to children born where there is a surrogacy arrangement, or children born as a result of donor reproduction technology or embryo donation. The Commission has concluded that the legislation should neither specifically prohibit nor specifically allow the commissioning parents to adopt a child born of a surrogacy arrangement. The legislation should be applied generally to such applications to adopt. The Commission has also concluded that specialised legislation, not adoption legislation, should govern all legal issues arising from donor reproduction technology and embryo donation.