Review of the Adoption Act 1984: Consultation Paper

4. Adoption in the child protection context

Introduction

4.1 This chapter provides an overview of the legal framework for adoption in the child protection context.

4.2 The Commission understands adoption from child protection in Victoria currently occurs very rarely. The chapter outlines recent amendments to the Children, Youth and Families Act 2005 (Vic) (CYF Act) which came into effect on 1 March 2016. The changes appear to raise the possibility that the use of adoption may increase.

4.3 The chapter also explores a policy shift towards increasing the use of adoption in child protection contexts, within Australia and internationally.

4.4 The Commission is aware that there is significant interest from the community in the recent changes to the CYF Act. The terms of reference provide for the Commission to review the Adoption Act 1984 (Vic) and the Adoption Regulations 2008 (Vic). The CYF Act is outside the scope of the review and the Commission is unable to consider submissions on the provisions of the CYF Act.

4.5 Any adoptions, whether from a child protection context or otherwise, must comply with the requirements of the Adoption Act. One of the requirements for the court to make an adoption order is that the parents must have consented to the adoption. In some circumstances the court may dispense with this consent.

4.6 The provisions of the Adoption Act that provide for consent and dispensation with consent are considered in Chapter 5. The Commission welcomes community views on these provisions, and encourages community members with an interest in the use of adoption in the child protection context to consider the questions posed in Chapter 5.

Changing national policy approach to the use of adoption in the child protection context

4.7 There is an ongoing policy discussion nationally and internationally about how to provide for the best interests of the child. The debate includes the question of how much weight should be placed on family preservation and reunification. There is a broad range of views on how to provide for the best interests of the child.

4.8 Some people consider that adoption should only be used to provide permanency for a child if it is not possible for the child to return to their family and no other permanent care options are possible. (The Commission notes that some people consider that adoption should never be used.)

4.9 Others believe that it is desirable to increase the use of adoption generally and  in particular for children in the child protection system.^[1]

4.10 As discussed below, current policy in New South Wales aims to increase the use  of adoption for children in the child protection system.

4.11 There have also been major policy shifts on how to provide for the best interests of the child in England and Wales and the United States of America. In those jurisdictions, policy has shifted away from a focus on reunifying children with their birth parents to a focus on reducing delays in putting children in permanent placements, including adoption. This has resulted in the streamlining of processes for adoption of children in out-of-home care.^[2]

4.12 Two reports by the Standing Committee on Human and Family Services (Parliament of Australia) in 2005 and 2007 advocated a revision of the approach to adoption in Australia, criticising an ‘anti-adoption’ culture.^[3] The discussion in these reports captures the arguments underlying the policy shift in New South Wales.

Inquiry into adoption of children from overseas

4.13 The 2005 report was Overseas Adoption in Australia: Report on the Inquiry into Adoption of Children from Overseas.^[4] The terms of reference focused on ‘how the Australian Government can better assist Australians who are adopting or have adopted children from overseas countries (intercountry placement adoptions)’.^[5] However, the observations in the report went beyond this to encompass local adoptions and adoptions for children in out-of-home care.^[6]

4.14 The report identified an ‘anti-adoption culture’ in Australia, and observed that:

The committee is concerned that, due to past practices, adoption generally has become the poor relation of child protection in Australia. In New South Wales and Queensland, adoption is either neglected or some departmental officers are openly hostile to it.^[7]

4.15 It queried the focus on family preservation or reunification in child protection policy:

Following the unsympathetic adoption practices between the 1950s and 1970s, the policy focus has been on the birth parents and a belief that children should maintain their biological links above all else. The term ‘in the best interests of the child’ seems to be used as a shield against any criticism of current adoption policy. This has led to tens of thousands of children being placed in foster care and other forms of out-of-home care when adoption could well have been in their best interests.^[8]

4.16 The report stated that ‘the past social attitudes and practices that brought it about [‘it’ can be interpreted to mean a preference against adoption in the child protection context] are no more’.^[9] It noted that birth mothers receive counselling before they are permitted to put up their child for adoption; there is now a range of financial benefits to support single mothers; being a single parent of itself is no longer stigmatised; adoption is no longer clouded in secrecy; and that depending on the circumstances, a mother who gives up her child can continue to have contact or re-establish contact in later years.^[10]

Report on impact of illicit drug use on families

4.17 The terms of reference of the 2007 report, The Winnable War on Drugs: The Impact of Illicit Drug Use on Families, required the Standing Committee on Human and Family Services to ‘inquire into and report on how the Australian Government can better address the impact of the importation, production, sale, use and prevention of illicit drugs on families’.^[11] As part of this review the Committee considered the use of adoption from child protection where the child protection notification involved illicit drug use by a parent.^[12]

4.18 The Committee concluded that current policies are biased against adoption, and lead to too many children being left in at-risk situations because of a shortage of out-of-home placements, or to children being moved from carer to carer.^[13] It criticised ‘attitudes shared by state departments and many magistrates that force children to be with their biological parents as their preferred policy’, suggested that parents seek to have children returned to their care because of financial incentives, and that policy and practice currently operate in the best interests of the parent rather than the child.^[14]

4.19 The Committee recommended that for children aged 0–5 years, adoption be established as the ‘default’ care option where the child protection notification involved illicit drug use by the parent or parents, with the onus on child protection authorities to demonstrate that other care options would result in superior outcomes for the child or children.^[15]

4.20 It considered that ‘this would be a way of giving greater stability and certainty for children in out-of-home care, particularly for younger children’.^[16]

4.21 As a result of the Australian history of forced adoption practices (see Chapter 5) and the Stolen Generations (see Chapter 6), there is ongoing disquiet about the possibility of increased adoption for children in the child protection system. Parliamentary apologies recognised these past failings of policy, legislation and practice. Some people are concerned that there is potential for past mistakes to be repeated.^[17]

Adoption in the CYF Act

4.22 As outlined in Chapter 3, there are different types of adoption and situations in which adoption may occur. One situation in which adoption may be considered is when a child is unable to live with their family and provision needs to be made for their protection and permanent care.

4.23 The CYF Act underpins the Victorian system of statutory child protection.

Permanency objective of adoption in CYF Act

4.24 A number of significant amendments were made to the CYF Act in 2014.^[18] The changes discussed below came into effect on 1 March 2016.

4.25 The amendments were intended to respond to findings in the Report of the Protecting Victoria’s Vulnerable Children Inquiry, tabled in Parliament in 2012.^[19] A major finding was that the average time taken for permanent care orders to be granted was too long, despite these orders being necessary to ensure a child’s safety and wellbeing. On average, it took five years between a child’s first child protection report and a permanent care order.^[20]

4.26 The amendments introduced ‘permanency objectives’ to case planning, and timeframes for achieving family reunification.^[21] The changes were intended to ‘ensure[s] that decisions regarding vulnerable children will be made in a timely way, to avoid children being in care without a timely response and to promote permanency of care arrangements’.^[22]

4.27 The concept of permanency was introduced by the 2014 amendments. Previously, the concept of ‘stability’ had been used in planning for permanent care for children. All references in the CYF Act to ‘stability’ were removed. The reason for the conceptual change was explained in the Second Reading Speech in Parliament:

‘Stability’ was often interpreted as addressing immediate issues only. The change to ‘permanency’ will focus attention on plans for the child’s long-term and permanent care arrangements. Case planning, at the point child protection becomes involved, is critical to making timely permanency arrangements for the care of children. The bill requires that a case plan is developed as soon as abuse or neglect is substantiated […] The bill requires that a clear permanency objective be articulated for the case plan … and case plans be reviewed annually or when there is a significant change in circumstances. ^[23]

4.28 A case plan must include a ‘permanency objective’.^[24] Adoption is one of the options for  a permanency objective.

4.29 A case plan is prepared for a child by the Secretary of the Department of Health and Human Services (DHHS). It must contain all significant decisions made by the Secretary that relate to the present and future care and wellbeing of the child.^[25]

4.30 The CYF Act provides a hierarchy of permanency objectives. It requires that the permanency objectives be considered in that order of preference ‘as determined to be appropriate in the best interests of the child’.^[26]

4.31 The possible permanency objectives, in the order that the CYF Act requires them to be considered, are:

1. family preservation—the objective of ensuring a child who is in the care of a parent  of the child remains in the care of a parent

2. family reunification—the objective of ensuring that a child who has been removed from the care of a parent of the child is returned to the care of a parent

3. adoption—the objective of placing the child for adoption under the Adoption Act

4. permanent care—the objective of arranging a permanent placement of the child with a permanent carer or carers

5. long-term out-of-home care—the objective of placing the child in—

• a stable, long-term care arrangement with a specified carer or carers; or

• if a stable, long-term care arrangement with a specified carer or carers is not possible, another suitable long-term care arrangement.^[27]

4.32 The placement of adoption ahead of permanent care and long-term out-of-home care in the permanency objective hierarchy is discussed below starting at [4.39].

4.33 The CYF Act introduced timeframes for the family reunification objective of 12 to 24 months.^[28] The timeframes are cumulative.^[29]

4.34 The CYF Act provides the following guidance for the choice of permanency objective in a child’s case plan:

• A permanency objective of family reunification is appropriate if the child has been in out-of-home care for a cumulative period of less than 12 months and the safe reunification of the child with a parent is likely to be achieved.^[30]

• Except in ‘exceptional circumstances’, the appropriate permanency objective is adoption, permanent care, or long-term out-of-home care if the child has been in out-of-home care for a cumulative period of 24 months.^[31]

• If a child has been in out-of-home care for a cumulative period of 12 months, and there is no real likelihood of the safe reunification of the child with a parent in the next 12 months, a permanency objective of adoption, permanent care, or long-term out-of-home care is appropriate.^[32]

4.35 If the permanency objective in the case plan is adoption, permanent care, or long-term out-of-home care, the CYF Act directs that ‘it is to be preferred that a child is placed with a suitable family member or other person of significance to the child’.^[33] Placements with another suitable carer or carers should only be made if a placement with a suitable family member or other person of significance is not possible.^[34]

4.36 The preference in the CYF Act for placements with family members, including for adoptions, does not appear to sit comfortably with the Adoption Act, which imposes restrictions on relative adoptions, providing a presumption in favour of orders under the Family Law Act 1975 (Cth), rather than adoption orders for relatives of a child.^[35] Relative adoptions are discussed in Chapter 7.

Legal framework for adoption in child protection context

4.37 Generally, any court orders required to implement a permanency objective would be governed by the CYF Act. For example, if the permanency objective is ‘family preservation’, it is likely that the court order sought would be a ‘family preservation order’ made by the Children’s Court in accordance with the requirements in the CYF Act.^[36]

4.38 In contrast to the other permanency objectives, if adoption is the permanency objective in a child’s case plan, the legal requirements and processes to be followed would be provided by the Adoption Act and Adoption Regulations. An adoption order would be made by the County Court.^[37]

Concerns about adoption in child protection

4.39 Following the 2014 amendments to the CYF Act, a number of individuals and agencies expressed opposition to the placement of adoption third in the ‘permanency objective’ hierarchy, ahead of permanent care and long-term out-of-home care.

4.40 A submission by the Law Institute of Victoria to a 2015 Victorian parliamentary committee inquiry typifies the concerns raised:

The LIV agrees that it is in the best interest of children to provide them with stability by achieving a permanent outcome. However, to rank Adoption over and above Permanent Care or Long-Term Out of Home Care ignores the recommendations of the state and federal forced adoption inquiries and is inconsistent with the principles of the original Act, which focus on protecting the family as the fundamental group unit of society. Adoption should be the last resort.^[38]

4.41 The Law Institute advocated for the amendment of the permanency objectives to make adoption last in the permanency objective hierarchy.^[39]

4.42 A key concern expressed by agencies and individuals is that the number of adoptions in Victoria from child protection may increase as a result to the changes to the CYF Act.^[40] The placement of adoption above permanent care and long-term out-of-home care in the new permanency objective hierarchy appears to raise this possibility.

4.43 The Victorian Government has not made any statements suggesting an intention to increase the use of adoption in the child protection context. In the Second Reading Speech for the 2014 Bill, the then-Minister for Community Services indicated that:

In line with creating a better fit between case planning and court decisions, a change of case plan objective will usually require a change of protection order. Adoption should be discussed in the small number of situations where it is clear that a parent will never be able to care for their child and is willing to consent to adoption.^[41]

4.44 In its submission to the parliamentary committee, the Law Institute stated that recent correspondence from the minister had advised that the policy of DHHS with respect to adoption would not change as a result of the 2014 Amendment Act.^[42]

4.45 The Law Institute noted that a future minister could approach the legislation with a different intention.^[43]

Adoption policy in New South Wales

4.46 Some agencies and individuals consider that there might be more adoptions of children from the child protection system in Victoria because of its similarities to New South Wales legislation addressing the same issue.

4.47 The New South Wales Government has an active policy of increasing the use of adoption. On 16 March 2016 it announced the establishment of an Institute of Open Adoption Studies to support implementation of this policy. Launching the Institute, Premier Mike Baird said:

We are committed to increasing adoption numbers in NSW, and particularly helping more vulnerable children in Out Of Home Care into permanent and loving families. Every child deserves a stable home. Already NSW has the highest numbers of children and young people adopted from care but we can do more, and the Institute will help us with this goal.^[44]

4.48 The Children and Young Persons (Care and Protection) Act 1998 (NSW) includes principles which appear to be similar to the new Victorian permanency objective.^[45]

They provide that a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles hierarchy. The permanent placement principles were introduced into the New South Wales Act as part of a suite of amendments made to the child protection legislation in 2014.^[46]

4.49 In New South Wales, guardianship (the equivalent of the permanent care option in Victoria) is placed ahead of adoption.^[47] However, some other amendments to the New South Wales legislation suggest that adoption, rather than a guardianship order, is the preferred option for authorised carers.

4.50 The New South Wales Government has made a number of legislative changes to facilitate the increased use of adoption for children who are in out-of-home care. These changes are not mirrored in the 2014 Victorian amendments, and include:

• a dual authorisation process for authorised carers and prospective adoptive parents^[48]

• establishing a framework for simplified procedures to enable the authorised carers of a child who is in out-of-home care to be invited to apply to adopt the child and to be assessed as suitable to adopt the child^[49]

• enabling a birth parent who has not consented to the adoption of a child to be given the opportunity to participate in the development of, and agree to, the adoption plan for the child and to the review of such a plan.^[50]

4.51 The Adoption Act 2000 (NSW) provides for a number of situations, all concerning a child living in out-of-home care, where parental consent to an adoption is not required or may be dispensed with by the court. These provisions, which existed prior to the changes made to the New South Wales legislation in 2014 to facilitate carer adoptions, are also not mirrored in the Victorian legislation. They are:

• If the adoptive child is 12 or more years of age and of sufficient maturity to understand the effect of giving consent, he or she may give sole consent to his or her adoption by a proposed adoptive parent or parents, if the child has been cared for by the proposed adoptive parent or parents for at least two years.^[51]

• If the court is satisfied that it is in the best interests of the child, it may dispense with parental consent if an application has been made to the court for the adoption of the child by one or more persons who are authorised carers for the child where:

• the child has established a stable relationship with those carers, and

• the adoption of the child by those carers will promote the child’s welfare, and

• in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with the Act.^[52]

Effect of CYF Act changes

4.52 At this stage it is too early to say whether the amendments to the CYF Act that came into effect on 1 March 2016 will lead to an increase in the use of adoption for children from child protection in Victoria.

4.53 The terms of reference do not provide for the Commission to consider submissions about the CYF Act. All adoptions require that the parents have consented to the adoption or that the court has dispensed with consent. The Commission encourages community members with an interest in adoption, including in the child protection context, to comment on these provisions, discussed in Chapter 5 at [5.55]–[5.99].

1. See generally Lorna Hallahan, Adoption Act 1988 (SA) Review (2015) 56–63 and 89–100, which reviews the arguments for and against adoption from care. For arguments supporting the use of adoption for children in out-of-home care in the Australian context, see especially Jeremy Sammut, The Madness of Australian Child Protection: Why Adoption will Rescue Australia’s Underclass Children (Connor Court Publishing, 2015); Susan Tregeagle and Louise Voigt, ‘Overcoming the Pain of “Never Belonging”: The Case for Open Adoption for Severely Abused and Neglected Children’ (2014) 8(1) Australian Journal of Adoption (archived online) <http://pandora.nla.gov.au/pan/98265/20150416-0016/www.nla.gov.au/openpublish/index.php/aja/issue/view/271/showToc.html>; House of Representatives Standing Committee on Human and Family Services, Parliament of Australia, The Winnable War on Drugs: The Impact of Illicit Drug Use on Families (2007) 72–84. For a discussion of the policy shifts in the use of adoption in Australia, see Kate Murphy, Marian Quartly and Denise Cuthbert, ‘In the Best Interests of the Child: Mapping the (Re)Emergence of Pro-Adoption Politics in Contemporary Australia’ (2009) 55(2) Australian Journal of Politics and History 201.

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2. See generally Kate Murphy, Marian Quartly and Denise Cuthbert, ‘In the Best Interests of the Child: Mapping the (Re)Emergence of Pro-Adoption Politics in Contemporary Australia’ (2009) 55(2) Australian Journal of Politics and History 201, 206–7; Kerry O’ Halloran, The Politics of Adoption: International Perspectives on Law, Policy and Practice (Springer, 3rd ed, 2015) 207–10, 334–5; Nicole Ross and Judy Cashmore, ‘Adoption Reforms New South Wales Style: A Comparative Look’ (2016) 30 Australian Journal of Family Law 51, 57–75.

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3. For a detailed discussion see Kate Murphy, Marian Quartly and Denise Cuthbert, ‘In the Best Interests of the Child: Mapping the (Re)Emergence of Pro-Adoption Politics in Contemporary Australia’ (2009) 55(2) Australian Journal of Politics and History 201.

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4. House of Representatives Standing Committee on Human and Family Services, Parliament of Australia, Overseas Adoption in Australia: Report on the Inquiry into Adoption of Children from Overseas (2005).

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5. Ibid xiii.

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6. Ibid 123–32.

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7. Ibid 4.

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8. Ibid viii–ix.

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9. Ibid 5.

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10. Ibid.

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11. House of Representatives Standing Committee on Human and Family Services, Parliament of Australia, The Winnable War on Drugs:
    The Impact of Illicit Drug Use on Families (2007) xvii.

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12. Ibid 83–4.

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13. Ibid 75–6. But see House of Representatives Standing Committee on Human and Family Services, Parliament of Australia, Dissenting Report (2007) 316–17 which did not support the approach to child protection taken in the report.

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14. House of Representatives Standing Committee on Human and Family Services, Parliament of Australia, The Winnable War on Drugs:
    The Impact of Illicit Drug Use on Families (2007) xi–xii.

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15. Ibid 84.

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16. Ibid 83.

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17. See, eg, submission to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015 by Association of Relinquishing Mothers, Submission No 20, 24 June, 2–3; and by Liberty Victoria, Submission No 27, 30 June, 3.

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18. The amendments were made by the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (Vic).

    A number of changes were made that do not relate to adoption and are therefore not discussed in this chapter.

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19. Philip Cummins, Dorothy Scott and Bill Scales, Report of the Protecting Victoria’s Vulnerable Children Inquiry (Department of Premier and Cabinet, 2012).

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20. Ibid 229.

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21. Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (Vic) s 97 repealing ss 167–171 and substituting Children, Youth and Families Act 2005 (Vic) ss 167–169.

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22. Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2657–61, 2658 (Mary Wooldridge, Minister for Community Services).

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23. Ibid.

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24. Children, Youth and Families Act 2005 (Vic) ss 166(3), 167.

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25. Ibid s 166. Section 168 of the Act provides that: ‘[t]he Secretary must ensure that a case plan is prepared in respect of a child if a protective intervener is satisfied on reasonable grounds that the child is in need of protection’. A ‘protective intervener’ is defined in section 181 of the Act as either the Secretary or a police officer.

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26. Ibid s 167(1).

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27. Ibid.

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28. Ibid ss 167(3)–(5).

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29. Ibid ss 167(3)–(5). Sections 287 and 287A of the Act provide the timeframes for a family reunification order and detail on how the court should determine the period of the family reunification order, including how to determine a cumulative period.

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30. Ibid s 167(3).

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31. Ibid s 167(4)(b).

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32. Ibid s 167(4)(a).

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33. Ibid s 167(2)(a)

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34. Ibid s 167(2)(b).

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35. Adoption Act 1984 (Vic) s 12. The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 8, which is not yet in force, amends this section but does not change the preference for the use of orders under the Family Law Act 1975 (Cth) for relatives over adoption orders. The amendments to section 12 relate to the removal of the use of the de facto spouse and de facto relationship terminology and concepts and replacement with domestic partner, domestic relationship and registered domestic relationship.

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36. Children, Youth and Families Act 2005 (Vic) ss 280–281. See generally, Children, Youth and Families Act 2005 (Vic) pt 4.9, which provides for protection orders.

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37. In practice, applications are made to the County Court. However, section 6(1) of the Adoption Act 1984 (Vic) provides for application to the Supreme Court or the County Court at the option of the applicant. Section 6(1A) of the Act also enables the County Court to direct that the application be transferred to the Supreme Court.

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38. Law Institute of Victoria, Submission No 15, 22 June 2015, to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, 14.

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39. Ibid 14–15.

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40. See, eg, Children’s Court Private Practitioners Association, Submission No 13, 22 June 2015, to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, 25; Law Institute of Victoria, Submission No 15, 22 June 2015, to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, 14.

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41. Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2657–61, 2658 (Mary Wooldridge, Minister for Community Services).

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42. Law Institute of Victoria, Submission No 15, 22 June 2015, to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, 3.

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43. Ibid. See also Aboriginal Family Violence Prevention and Legal Service Victoria, Submission No 21 to Standing Committee of Legal and Social Issues, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015,10.

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44. New South Wales Government, ‘New Institute Puts Focus on Adoption’ (Media Release, 16 March 2016) <https://www.nsw.gov.au/media-releases-premier>.

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45. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10A.

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46. Child Protection Legislation Amendment Act 2014 (NSW).

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47. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10A(3).

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48. Ibid s 137(1)(d), as amended by Child Protection Legislation Amendment Act 2014 (NSW) sch 1 cl 75.

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49. Adoption Act 2000 (NSW) pt 3A, as amended by Child Protection Legislation Amendment Act 2014 (NSW) sch 2.1 cl 9.

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50. Adoption Act 2000 (NSW) ss 46(2A)–(2B), as amended by Child Protection Legislation Amendment Act 2014 (NSW) sch 2.1 cl 10.

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51. Adoption Act 2000 (NSW) ss 54(1)(c), (2).

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52. Ibid s 67(1)(d)(2), as inserted by Adoption Amendment Act 2006 (NSW) sch 1 cl 6.

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