Adoption and Permanent Care Legal Issues

Adoption and permanent care provide a stable and secure family life for children who, for various reasons, cannot live with their birth family.

Adoption

Australian adoption legislation is a State, rather than federal, responsibility. The relevant Victorian legislation is the Adoption Act 1984. This Act resulted from a comprehensive review of adoption legislation in Victoria. It introduced a range of progressive provisions, including access to information and ongoing contact between birth parents and children.

Who can be legally adopted?

A child can be adopted if adoption consents have been signed, or the County Court has dispensed with the need for consent. The court may only dispense with consent if certain grounds are met that indicate that the parents are unable to meet the needs of the child. Adoption consents must be signed by the child's mother and, if he has established paternity, by the child's father. Adults may be adopted if they have been brought up, maintained and educated by the applicants. It is not necessary for consent to be given by the parents in this instance.

What are the legal effects of an Adoption Order?

An adoption order is granted by a judge in the County Court and means the adoptive parents become the child's legal parents, and the child is no longer the legal child of the irth parents. The order affects the child's name, birth certificate and inheritance rights.

Permanent Care

What is a Permanent Care Order?

Permanent care orders are granted by a magistrate in the Children's Court and involve the transfer of custody and guardianship to the permanent caregivers. Custody involves the responsibility for day-to-day care and decision making. Guardianship provides for the long-term welfare of the child and involves decisions about education, religious upbringing and so on. In some situations, custody and guardianship may be granted by the Family Court through the granting of a parenting order.

What legislation governs children placed from overseas?

The guardianship of children placed from overseas is governed by the Immigration (Guardianship of Children) Act 1946 (Cwlth). For children who are adopted under the Hague Convention, a full adoption order can be made in the country of origin and is recognised by Australia. For children whose adoption orders are not finalised in the country of origin, the Act provides that the federal Minister for Immigration is the guardian of non-citizen children who enter the country for the purpose of adoption. This guardianship responsibility is then delegated to the secretary of the relevant State or Territory welfare department where the child is resident and ceases when a local adoption order is granted or the adoption is recognised under the Adoption Act 1984.

Recent developments in legislation

Provision relating to access to information and contact between parents and children are discussed in the information sheet Making Contact.

How have the rights of the birth father changed?

In the past, if the parents were not married, only the mother needed to give consent for adoption. Since 1984, law has required that if the father of the child is known, he must be informed that an adoption consent has been signed, and he has the opportunity to legally establish that he is the father. (This is established automatically if his name is on the birth certificate). If he has established paternity, he must sign an adoption consent before the child can be adopted. In some cases, the court may dispense with the need to notify the father. In certain situations, the court may also dispense with the need for the father to sign consent. The law was changed to give fathers the opportunity to make decisions about adoption. It is also considered to be in the best interests of children to have knowledge of both parents wherever possible.

How do Aboriginal placements differ from other placements?

Adoption and permanent care are not traditionally accepted forms of child care within the Aboriginal community. The principles of Aboriginal self-management, and of Aboriginal community responsibility for Aboriginal children, are now recognised. An Aboriginal agency is involved in all stages of adoption or permanent placement of Aboriginal children.

In Victoria, this is the Victorian Aboriginal Child Care Agency. If a parent wants an Aboriginal child to be adopted within the Aboriginal community, consent can be signed on the condition that the parents and relatives or members of the Aboriginal community named in the consent form have the right to visit the child. If the conditions for access cannot be met, or there are no suitable adoptive parents available within the Aboriginal community, the adoption agency must notify the parents in writing. The parents then have 28 days during which they may withdraw their consent or change the conditions for access. An Aboriginal agency is also involved when decisions are made about placement of a child with a particular family.

Is adoption an appropriate option for step-parents and relatives?

During the 1970s and 1980s, it became common for step-parents to adopt the child of their spouse's previous marriage to give legal security to the relationship between step-parent and child. In other situations, children were adopted by a natural parent's relatives, particularly grandparents. Then, adoption was the only legal order available.

The law was changed due to concerns that adoption by step-parents cut legal ties to the non-custodial parent and extended family. There were concerns that adoption by relatives distorted family relationships; for example, by grandparents legally becoming parents and mothers becoming aunts. This can be very confusing for the child. A child may now only be adopted by a natural parent's relatives, or by a step-parent, if the court is satisfied that there are exceptional circumstances. The court must be satisfied that the child's welfare is better served by an adoption order rather than an order for guardianship and custody from the Family Court, and that an order for guardianship and custody would not make adequate provision for the welfare and interests of the child.

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