Review of the Adoption Act 1984: Consultation Paper

1. Introduction

Referral to the Commission

1.1 On 18 December 2015, the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission, under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic) to provide recommendations to government on the modernisation of the Adoption Act 1984 (Vic) and the Adoption Regulations 2008 (Vic). The terms of reference appear at page ix.

Scope of the reference

1.2 At the time of its introduction, the Adoption Act represented a significant change in Victorian adoption policy. The Adoption Act established open adoption, which facilitates information sharing or contact between the adoptive and birth parents. Since the introduction of the Adoption Act, all adoptions in Victoria have been under the open adoption system.

1.3 The Commission acknowledges that before the current Act came into effect, closed adoption was practised, in which no information was shared between adoptive and birth families, and birth parents and their children were denied the possibility of contact after relinquishment. These practices often resulted in significant trauma for people affected by them.

1.4 While the Commission encourages individuals to participate in our consultations and to make submissions informed by personal experience, the terms of reference ask the Commission to review the operation of the current adoption legislation and regulations.

1.5 The terms of reference expressly exclude a number of matters from the review. The Commission is therefore not reviewing:

• Inter-country adoption programs and commercial surrogacy—these matters are more appropriately considered at a national level.

• Adoption by same-sex couples—the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic), which amends the Adoption Act to enable the adoption of children by same-sex couples and people who do not identify with a specific sex or gender, will come into effect in September 2016.

• Contact statements—provisions relating to contact statements and the associated offence were removed by the Adoption Amendment Act 2015 (Vic).

1.6 The Commission will not consider submissions on the above three matters.

1.7 Further, the terms of reference assume the ongoing existence of adoption in Victoria.

Terminology

1.8 Adoption can be difficult to write about due to the trauma suffered by many people affected by past adoption practices in Australia. The Commission acknowledges the need to balance the sensitivities of language and to communicate clearly with a range of audiences, including those directly affected by adoption. The Commission has sought to write without bias, balancing linguistic sensitivities with the need to distinguish between parties to adoption.

1.9 The Commission appreciates that there may be some people who will remain dissatisfied with the language used in this paper, but has tried to respect all views and strike a balance between sensitivity to individuals and clarity for a wider readership. Appropriate terminology in the Adoption Act is discussed in Chapter 9.

Parents: birth and adoptive

1.10 The Commission acknowledges that mothers who have given up their children, whether voluntarily or forcibly, may disagree with terms such as ‘birth mother’, ‘natural mother’, ‘biological mother’ and ‘relinquishing mother’. Often, the simple term ‘mother’ is preferred.

1.11 However, adoptive mothers who have raised these children may object to the use of the term ‘mother’ in this context. Indeed, the terms ‘adoptive mother’ and ‘adopter’ have been rejected by some in favour of the term ‘mother’.

1.12 Wherever possible in this consultation paper, the Commission has used the terms ‘parents’, ‘mother’ and ‘father’ to refer both to the people to whom a child was born, and the people who have adopted a child, where it is clear from the context which circumstance applies.

1.13 Where the context is not clear, the term ‘birth mother’ has been used to refer to the person to whom the child was born. The term ‘adoptive mother’ has similarly been used to identify the person who has adopted the child. The same reasoning applies in referring to ‘adoptive fathers’ and ‘adoptive parents’.

1.14 References to ‘natural parents’, ‘natural relative’ and ‘natural child’ have been made only where the Adoption Act and the Adoption Regulations use these terms.^[1]

Adopted child/person

1.15 Adopted persons and children may also disagree with the terms ‘adopted person’, ‘adopted child’ or ‘adoptee’, particularly if they were adopted during the period of forced or closed adoption.

1.16 Wherever possible, the Commission has used the term ‘child’ and ‘infant’ in the context of adoption processes. However, where it is not clear from the context that a child or person was adopted, the Commission has used the term ‘adopted child’, and when that person is over 18 years of age, ‘adopted person’.

Family of origin

1.17 When referring to relatives of the birth parents, the term ‘family of origin’ has been used for clarity. This may include references to the child’s grandparents, siblings and other relatives from the child’s family of origin.

Aborigine

1.18 The term ‘Aborigine’ is used in the Adoption Act, defined as ‘a person who is descended from an Aborigine or Torres Strait Islander, identifies as an Aborigine or Torres Strait Islander, and is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Islander community’.^[2] The Commission notes that the term ‘Aborigine’ is often considered inappropriate and may cause offence.^[3] It also notes that the term ‘Aboriginal person’ or ‘Aborigine’ does not include Torres Strait Islander people, although it has been defined to do so in the Adoption Act.^[4] The Commission recognises that Torres Strait Islanders are a separate people in origin, history and way of life. For these reasons, the Commission does not use the term ‘Aborigine’ in this discussion, substituting ‘Aboriginal or Torres Strait Islander person’ where possible.

Domestic relationships and registered domestic relationships

1.19 This consultation paper uses terminology introduced to the Adoption Act by the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic).

1.20 When it comes into effect in September 2016, the amending Act will enable same-sex couples and people who do not identify with a specific sex or gender to adopt. To achieve this, the amending Act introduced non-gendered language and new types of relationship to the Adoption Act. This included adding ‘registered domestic relationships’ to the types of relationship that may be eligible to adopt a child and replacing the terms ‘de facto relationship’ and ‘de facto spouse’ with the terms ‘domestic relationship’ and ‘domestic partner’.

Conduct of this reference

Division

1.21 The Chair of the Commission exercised his powers under section 13(1)(b) of the Victorian Law Reform Commission Act to constitute a Division to guide and oversee the conduct of the reference. The Chair of the Commission is the Chair of the Division.

Experts

1.22 Experts have assisted the Commission in identifying issues and exploring options for reform, although they are not involved in developing or voting on the Commission’s recommendations. The Chair sought the advice of two experts in the field, who were consulted during preparation of the consultation paper to identify and advise on issues raised by the terms of reference. They will be consulted after submissions have been received and contribute further insight and guidance.

Consultation paper and submissions

1.23 This consultation paper draws from the preliminary research conducted by Commission staff, along with a small number of confidential, preliminary consultations with key stakeholders who assisted with identifying the issues arising from the terms of reference.

1.24 This paper describes the law, provides background information and asks questions about the issues arising from the terms of reference. The questions are listed on pages 148–152.

1.25 The Commission is seeking submissions in response to these questions by 16 September 2016. Information about how to make a submission is set out on page vii.

1.26 Public consultations will be held during the submission period, to allow members of the community to identify issues and propose reform options.

Structure of this paper

1.27 The paper is divided into two parts. Part 1 (Chapters 1–4) provides a historical context for the reference and sets out the current law. It does not pose questions. Part 2 (Chapters 5–9) draws out the issues raised by the terms of reference and provides the questions for the consultation paper. All the questions are listed on pages 148–152.

Part 1

1.28 Chapter 1 provides an introduction and overview of the reference.

1.29 Chapter 2 sets out the history of adoption law in Victoria and identifies recent relevant reviews and amendments to the law.

1.30 Chapter 3 provides an overview of the operation of adoption law and practice in Victoria.

1.31 Chapter 4 provides a brief overview of adoption in the child protection system in Victoria and the legal framework for adoption in the child protection context, including the need for consent or dispensation with consent under the Adoption Act.

Part 2

1.32 Chapter 5 explores a range of issues relevant to ensuring that the best interests and rights of the child are the foremost consideration in any decision made under the Adoption Act.

1.33 Chapter 6 considers the way the Adoption Act provides for the best interests of Aboriginal and Torres Strait Islander children.

1.34 Chapter 7 considers the requirements applicants must meet to be able to adopt, the compatibility of these requirements with community attitudes and contemporary law about the family, and whether the requirements are set out clearly.

1.35 Chapter 8 considers rights to access adoption information and how they affect people’s privacy. It also considers how a birth certificate should reflect an adopted person’s identity, and when it is appropriate for an adopted child’s name to be changed.

1.36 Chapter 9 discusses the operation of the Adoption Act and Regulations, the clear articulation of practice and procedures, terminology which is no longer socially or operationally relevant, and post-adoption support.

1.37 Chapter 10 concludes the paper.

1. The terms ‘natural parent’, ‘natural relative’ and ‘natural child’ are discussed in Chapter 8 from page 112. These terms are also discussed in Appendix B on page 157.

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2. Adoption Act 1984 (Vic) s 4(1).

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3. See, eg, Oxfam Australia, Aboriginal and Torres Strait Islander Cultural Protocols (1 December 2007) Oxfam Australia <resources.oxfam.org.au>; Reconciliation Queensland, Appropriate Terminology Use in Reconciliation Groups (November 2008) Reconciliation Queensland <rqi.org.au/wp-content/uploads/2012/01/appropriate_terminology.pdf>.

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4. See, eg, Oxfam Australia, Aboriginal and Torres Strait Islander Cultural Protocols (1 December 2007) Oxfam Australia <resources.oxfam.org.au>; Reconciliation Queensland, Appropriate Terminology Use in Reconciliation Groups (November 2008) Reconciliation Queensland <rqi.org.au/wp-content/uploads/2012/01/appropriate_terminology.pdf>.

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