Review of the Adoption Act 1984: Report

11. Assessment of applicants for adoption

Introduction

11.1 The Adoption Act 1984 (Vic) requires that all applicants are assessed as suitable to adopt.^[1] In practice, this means that no one can adopt a child unless they are approved by the Department of Health and Human Services (DHHS) or an approved agency. To obtain approval, applicants go through a comprehensive assessment process.

11.2 Applicants are assessed against suitability criteria set out in the Adoption Regulations 2008 (Vic) and must meet additional requirements. They must submit application paperwork, give extensive personal and financial details, undergo medical and criminal record checks and be interviewed a number of times. Information about the assessment requirements and procedures is spread across various sources, including policy documents that are not up-to-date.

11.3 The Commission was asked to make recommendations to ensure that ‘legislative practice and procedural requirements’ are ‘clearly articulated’.

11.4 It is not easy for community members to grasp the assessment process and requirements. Responses from parents, applicants, approved agencies and adoption workers highlighted that greater clarity and transparency is required.

11.5 Parents and applicants told the Commission they did not always understand what they were being assessed against or how the assessment process worked. Some people submitted that the suitability criteria—particularly age and health criteria—are unclear, subjective and discriminatory. A number complained about delays and inconsistency within and across agencies. Some people felt unable to give feedback to agencies during the process in case it affected their chances of adopting.

11.6 The specific issues raised in submissions and consultations are discussed in this chapter:

• fit and proper person approval

• the appropriateness of the criteria

• the clarity and transparency of the criteria and other requirements

• the transparency of the process

• inconsistency in practices across agencies.

11.7 The Commission found the suitability criteria are appropriate, but not easy to understand in detail. Applicants need access to better information. The overall purpose of the assessment is sometimes lost and needs to be made clearer. Improvements relating to assessment should be made to the Adoption Act and Adoption Regulations, and a single set of guidelines should be drawn up to facilitate consistent decision making. This would also help to address the problem of inconsistency between agencies.

Current law and practice

11.8 There is little detail about assessment of applicants in the Adoption Act and the Adoption Regulations. Most of the detail is found in DHHS policy documents such as the Adoption and Permanent Care Procedures Manual (the Adoption Manual) and Adoption and Permanent Care Learning Guide (the Learning Guide), which is a training resource for staff.^[2] The legal status and force of those documents is uncertain.

11.9 To make an adoption order, the court must be satisfied that the applicants meet suitability criteria called ‘prescribed requirements’ in the Adoption Regulations.^[3] DHHS and approved agencies assess applicants against these requirements and provide reports to the court.^[4] In practice, assessment focuses on ‘understanding how a family functions and what it offers a child’.^[5]

11.10 In addition, all applicants, other than applicants related to a child, must be approved by the Secretary or a principal officer as ‘fit and proper persons’ to adopt a child.^[6] This assessment is made against the suitability criteria.^[7] DHHS and approved agencies also require applicants to meet other policy requirements that are not contained in the Adoption Act or Adoption Regulations.

11.11 The assessment process is complex. It includes:

• information and training sessions

• submitting application documentation

• full medical examinations

• criminal history checks

• interviews

• home inspections

• decision by an assessment panel.

11.12 Parents told the Commission that the assessment process was demanding, testing and intrusive. They believed this was appropriate because it prepared them for parenting.^[8]

‘Fit and proper person’ approval

11.13 Couples, sole applicants and step-parents applying to adopt a child must have ‘fit and proper person’ approval from the Secretary or a principal officer.^[9] Approval is given if the applicants meet the suitability criteria.^[10]

11.14 Although all of these applicants require fit and proper person approval, the Adoption Act states that only eligible couples ‘may apply’ to the Secretary or a principal officer for approval.^[11]

11.15 A relative of a child does not need fit and proper person approval to adopt a child.^[12] However, all applicants including relatives are required to satisfy the suitability criteria.^[13]

11.16 The Commission identified three areas of confusion.

11.17 First, all applicants except relatives must satisfy the suitability criteria and be approved as fit and proper persons. Approval is based on the suitability criteria. This means that fit and proper person approval adds nothing to the suitability requirements.

11.18 Secondly, fit and proper person approval does not apply to relatives, but they must still meet the suitability criteria on which the approval is based.^[14]

11.19 Thirdly, the Adoption Act states that only certain people ‘may apply’ to the Secretary or a principal officer for approval.^[15] The group of applicants who may apply consists of couples who are eligible to adopt.^[16] Sole applicants and step-parents are not expressly excluded from applying, but they are not included in the group of people who ‘may apply’.^[17] This creates uncertainty about their ability to apply for the approval needed to adopt.

Commission’s conclusions

11.20 The requirement in the Adoption Act for approval as a fit and proper person is confusing, unnecessary and should be removed. A simple ‘suitability test’ should apply. The content of the test is discussed in the following sections.

11.21 The suitability test should apply to all applicants, except permanent care parents who apply to adopt a child in their permanent care. Chapter 10 discusses the circumstances in which these adoptions should be permitted.

Recommendation

48 A single ‘suitability’ assessment should replace the ‘fit and proper person’ approval requirement in sections 13 and 15 of the current Adoption Act. It should apply to all applicants other than permanent care parents who apply to adopt a child in their permanent care.

Suitability criteria: the Adoption Regulations

11.22 All applicants’ suitability to adopt is assessed against the suitability criteria in the Adoption Regulations. The criteria cover many aspects of an applicant’s background, personality, capacities and circumstances. The criteria, in full, are:

• The health of the applicants, including emotional, physical and mental health, is suitable.

• The age and maturity of the applicants are suitable.

• The applicants have suitable skills and life experience.

• The applicants’ financial circumstances are suitable.

• The applicants have the capacity to provide a stable, secure and beneficial emotional and physical environment during a child’s upbringing until the child reaches social and emotional independence.

• The applicants have the capacity to provide appropriate support to the maintenance of a child’s cultural identity and religious faith (if any).

• The applicants have a suitable appreciation of the importance of:

• contact with a child’s natural parents and family of origin

• exchange of information about the child with the child’s natural parents and family of origin.

• The general stability of character of the applicants is suitable and the criminal history (if any) of the applicants does not make the applicants unsuitable.

• The stability and quality of the applicants’ relationship with each other, and between them and any other household and family members, is suitable.

• The criminal history (if any) of any household members does not make the applicants unsuitable.

• If the applicants have had the care of a child before applying for approval as fit and proper persons to adopt a child, the applicants have shown an ability to provide a stable, secure and beneficial emotional and physical environment for the child.^[18]

11.23 The Supreme Court (Adoption) Rules 2015 (Vic) require the Secretary or principal officer arranging the adoption to give the court a report which addresses whether the applicant satisfies the suitability criteria.^[19]

11.24 Of the 11 criteria listed above, the Commission heard that two are of particular concern to people: age and health.

Adoption Manual and other documents

11.25 The suitability criteria in the Adoption Regulations are expressed in general terms. They do not specify, for example, what ‘suitable health’ means or what age range is suitable. The Adoption Manual provides guidance to decision makers about how to apply the criteria.

11.26 It discusses the criteria that applied under the previous Adoption Regulations 1998 (Vic).^[20] These are similar to the current suitability criteria. The Adoption Manual discusses factors which should be taken into account in the assessment, including applicants’ personality,^[21] family background,^[22] motivation for wanting to adopt,^[23] expectations,^[24] lifestyle,^[25] ability to cope with stress^[26] and acceptance of infertility issues.^[27] These factors are not mentioned expressly in the Adoption Regulations but appear to come within the scope of the suitability criteria set out in the regulations.

11.27 The Adoption Manual refers to principles set out in the 1986 Standards in Adoption (the Adoption Standards).^[28] These are practice standards developed in the 1980s to guide implementation of the Adoption Act.^[29] DHHS informed the Commission that it is in the process of updating the Adoption Manual.

11.28 Detail about the suitability criteria is found in other policy documents, including the Learning Guide and application documentation. DHHS and approved agencies use ‘uniform practice guidelines about the management of obesity’ to evaluate the suitability of an applicant’s health.^[30]

Appropriateness of criteria: responses

11.29 Submissions from two approved agencies and VANISH expressed support for the current suitability criteria.^[31] One person’s submission stated the criteria:

must include age, health and financial status to make sure that the child does not have adopted parents that are not within the normal age range for having children, not going to die and leave the child an orphan and have the financial capability to support a child.^[32]

11.30 Another submission said a person’s BMI (healthy weight) ‘should not be a factor’ in assessing their suitability to be a parent.^[33] The Victorian Gay and Lesbian Rights Lobby (VGLRL) submitted that specifying age, weight and physical and mental health requirements ‘may be too prescriptive’ and ‘may amount to discrimination’.^[34] The ‘primary criterion should be the applicants’ capacity to provide a stable, secure and beneficial emotional and physical environment during a child’s upbringing’.

11.31 The VGLRL submitted that some requirements could discriminate against LGBTI people. The criminal history requirement could exclude men with old convictions for historical homosexual offences, if a decision maker decided this criminal history made them ‘unsuitable’ applicants. VGLRL pointed out that the Adoption Manual should be updated to reflect that the requirements relating to infertility adjustment are not relevant to gay applicants.^[35]

11.32 One mother’s submission spoke about the focus on infertility issues:

I don’t feel this is well defined and feel that certain conditions (i.e. certain time since applicants last IVF treatment, the focus on time frame for grief and loss for couples who can’t conceive) need to be reviewed as not all couples ‘grieve’ at the same time/for the same length of time, not all couples want to go through IVF, but I felt the training was very targeted towards grief and loss on a couple’s ability to have a biological child …^[36]

11.33 A submission from a person adopted in the 1950s said:

Mental health [is important]. I believe many adoptive … mothers, similar to mine, never came to terms with not being able to have biological children. I know how that plays out, as I paid for that loss.^[37]

11.34 Rainbow Families Council raised concerns about possible exclusion of applicants with a disability.^[38] The Youth Disability Advocacy Service submitted:

an assessment of someone’s ability to care for a child should never be made on the basis of disability alone. In the case of a person with disability, options should be provided for a medical check to be undertaken by a medical professional of their choosing with whom they have built up a relationship over time, and who has an understanding of the individual’s disability and its real, rather than assumed impact.^[39]

11.35 The Commission did not hear from any people who had applied for approval unsuccessfully or receive any information indicating that criteria are applied inappropriately.

11.36 The VGLRL submitted that the criteria should differ ‘based on the child’s age’ and where the child and applicant have a pre-existing relationship.^[40] Barnados Australia, which arranges a high proportion of adoptions by carers in New South Wales, submitted

‘The pre-existing relationship and attachments between the adoptee and adoptive

family should be given the highest priority.’^[41]

Appropriateness of the criteria: Commission’s conclusions

11.37 On the whole, the suitability criteria are appropriate. They are consistent with the purpose of assessment, which is to determine an applicant’s ability to bring up an adopted child, through to adulthood, in a positive, stable family environment.^[42] All factors are relevant to a person’s ability to fulfil this responsibility. The criteria establish a reasonable framework for assessing a person’s capacity to provide for the needs of an adopted child. They are generally consistent with the criteria used in other states and territories^[43] and Victoria’s Children, Youth and Families Act 2005 (Vic).^[44]

11.38 Submissions and consultations did not raise major concerns about the relevance of the criteria. The Commission was told that there is a possibility that some criteria could be applied in a discriminatory way. However, the Commission did not receive any complaint that discrimination has occurred in the assessment of any applicant.

11.39 As discussed in Chapter 9, discrimination in the assessment of applicants is legitimate and necessary for the protection of children. In the Commission’s view, the criteria are not unreasonably discriminatory. Fair-minded application of the criteria would not cause improper discrimination. Applicants can have decisions reviewed if they consider a decision maker has applied the criteria unfairly or arbitrarily.^[45]

11.40 It is important that the suitability criteria are both clear and transparent so that applicants and potential applicants know what they are assessed against and decision makers apply the criteria correctly and consistently.

Clarity and transparency of the criteria: responses

11.41 Members of the public and approved agencies told the Commission that some criteria are not clear. Two criteria were of particular concern: age and health.^[46] The Adoption Regulations require that an applicant’s age and ‘emotional, physical and mental health’ are suitable, without specifying what this means.

11.42 An adoption worker said the Adoption Act should clarify the age requirement:

as this is a very sensitive and contentious issue and [presents] individual agencies with numerous challenges, due to lack of clarification both within the Adoption Act and the DHHS policy and procedure manuals.^[47]

11.43 A current applicant told the Commission the criteria relating to suitable age and health were ‘blurry’ and ‘subjective’. She was told she and her husband had ‘little chance’ of being able to adopt, because they are ‘in their 40s’.^[48] However, she knew that other people in their 40s had adopted.^[49] This couple also underwent an extensive medical assessment but it was not clear to them what health issues might disqualify them.^[50]

11.44 A number of people said the criteria should be more transparent.^[51] One submission said ‘There is barely any information anywhere, [including at] information sessions and training sessions … very little [is revealed] at any stage through the process’.^[52] A current applicant said no guidelines on the criteria and eligibility are provided to applicants.^[53] Another submission stated that all requirements should be ‘clearly set out’ in the Adoption Act and Adoption Regulations and on the ‘government website’.^[54]

11.45 An approved agency said transparency is needed to assist applicants to understand ‘why they have or have not been approved’. It submitted that the Adoption Regulations ‘need to be more concrete regarding [the] suitability criteria’:

The most frequent reason for an application for adoption not proceeding to assessment is on health grounds … Medical reports are sought and reviewed by the DHHS medical examiner which provides guidance to the Adoption agency about the applicant’s suitability. It is often difficult for applicants to accept that they are not recommended in the program due to health concerns such as obesity. The Victorian Adoption program has uniform practice guidelines about the management of obesity, but these are not referenced in the Regulations.^[55]

11.46 Another approved agency submitted that detail relating to the criteria should be kept in policy documents, rather than the Adoption Regulations, because flexibility is needed.^[56] A worker from an adoption agency submitted that a DHHS ‘policy guide [on healthy weight and age] would be very helpful to provide applicants when they first express interest’.^[57]

Clarity and transparency of the criteria: Commission’s conclusions

11.47 Based on what the Commission was told in consultations and submissions, many people are unclear about the exact nature of the assessment criteria, especially those to do with age and health. Most of the details and scope of the age and health criteria are available, but are located in several different policy and practice documents, such as the DHHS website, the Adoption Manual, application documentation and a medical report applicants must submit.

11.48 These documents indicate that applicants must be ‘fit and healthy enough to care for a child safely through to adulthood’.^[58] Age is relevant to this question.^[59] The health assessment is based on a detailed report from a doctor, who is asked whether ‘the applicant will be medically fit, to care for and support a child, until the child attains 18 years?’^[60] The Adoption Manual states that ‘situations involving medical issues are considered on an individual basis’ and highlights conditions that ‘may require further consideration’. These include conditions affecting ‘day to day coping’ and ‘life span’.^[61] The Adoption Standards state applicants will be excluded if they have a terminal illness and may die before a child turns 18, or ‘a substantial risk of a genetic disorder which may reduce their capacity to care for a child’.^[62]

11.49 Currently, the public and decision makers can only find the details of the age and health criteria by reviewing these different sources. It is not appropriate for such detailed information to be included in the Adoption Act or Adoption Regulations. However, it should all be located in one place so that people can easily refer to it.

11.50 The suitability criteria in the Adoption Regulations are framed broadly, which may reduce their clarity. The word ‘suitable’ is used in reference to various criteria, including ‘skills and life experience’, ‘general stability of character’ and ‘financial circumstances’. A person must not have an ‘unsuitable’ criminal history. What is considered ‘suitable’ or ‘unsuitable’ is not defined. This makes it difficult to know what is required to satisfy the criteria or what might disqualify an applicant. It also creates the risk of subjective assessment.

11.51 However, the Commission does not recommend entering into detailed definitions of terms like ‘suitable’. The point is not to encourage a ‘tick the box’ approach to assessment. Rather, decision makers should be using their judgment to assess applicants in a holistic way. This means keeping a clear focus on what the purpose of assessment is in the first place.

Purpose of assessment

11.52 The purpose of assessment should be clear to applicants and potential applicants. Previously, the 1998 Adoption Regulations expressed that the overall test was the applicants’:

capacity to provide a secure and beneficial emotional and physical environment during a child’s upbringing until the child reaches social and emotional independence.^[63]

11.53 This statement survives almost unchanged in the current list of criteria in the Adoption Regulations, but rather than being an overall test it is simply one item in the list:

capacity to provide a stable, secure and beneficial emotional and physical environment … ^[64]

11.54 The Commission considers that this statement encapsulates the overall purpose of the assessment. Its current position in the list means that its importance could be overlooked.

11.55 The Adoption Act should contain an overarching suitability test using these or similar words. This would emphasise that the focus of assessment is protecting children’s best interests. This, in turn, would provide clearer guidance to decision makers and assist applicants to understand the relevance of criteria like age, health and the others. The current suitability criteria should remain in the Adoption Regulations.

Flexibility in assessment

11.56 These changes would provide a clear and flexible framework for decision making. Agencies need to apply a range of criteria to evaluate applicants’ suitability.^[65] Decision makers must use their professional expertise in making assessments based on each applicant’s individual circumstances.^[66]

11.57 Decision makers should not take a ‘tick the box’ approach where, for example, an applicant is excluded if they have one specific health problem. While sometimes one factor alone will be enough to disqualify a person—such as a conviction for an offence against a child—usually all the circumstances should be taken into account. In most cases decision makers should look at the whole picture before making a decision. The overall question is whether an applicant can provide love, security and stability for a child who is adopted and meet their particular needs.

11.58 For instance, it would be wrong to conclude that a person with a disability is unable to be a suitable parent for an adopted child without fully evaluating all of their circumstances. Similarly, in many cases whether a person’s age is suitable will depend on their health. The Adoption Act does not intend that there be a fixed ‘cut-off’ age. Parliament removed strict age requirements in 1997.^[67] The Adoption Manual acknowledges this and states:

Age may be associated with health issues, and with a couple’s flexibility and ability to incorporate a child into their particular family situation and lifestyle. These matters require professional judgment within the context of the overall strengths and weaknesses of an application. ^[68]

11.59 The suitability criteria should not be overly prescriptive and do not need to be defined in further detail in the Adoption Regulations. However, to increase clarity about the factors that decision makers may take into account, a standard and complete set of assessment guidelines should be drawn up.

Assessment guidelines

11.60 Currently, the details of the assessment criteria can be found in various sources, including the Adoption Manual, Adoption Standards, Learning Guide, DHHS website, the medical report and application documentation. Rather than these multiple sources, one set of clear assessment guidelines should be drawn up which:

• sets out the relevant matters decision makers may consider when deciding whether an applicant is suitable

• is easy to understand

• is used by all approved agencies

• is published on the DHHS website and provided to any applicant who does not have access to the website

• is reviewed every three years.

Recommendations

49 The Adoption Act should provide an overall ‘suitability test’ against which applicants are assessed. The prescribed requirements currently set out in regulation 35 of the Adoption Regulations should be the relevant considerations decision makers must take into account in assessing an applicant’s or applicants’ suitability to adopt a child.

50 Assessments of an applicant’s or applicants’ suitability to adopt a child should be carried out in accordance with guidelines issued by the Secretary. The guidelines should:

a. set out relevant matters decision makers should consider

b. be published on the Department of Health and Human Services website

c. be reviewed by the Secretary every three years.

11.61 This would provide greater clarity about the assessment criteria for applicants and decision makers, increase their transparency and promote a consistent approach to decision making.

Additional requirements

11.62 DHHS and approved agencies apply additional requirements which may determine, in practice, whether a person is able to adopt. These requirements are found in the Adoption Manual and application documentation and include:

• At least one applicant in a couple must be an Australian citizen. If only one applicant is a citizen, the other applicant must be a permanent resident.^[69]

• Applicants must have completed fertility treatment at least six months before starting the assessment process.^[70] They must ‘have fully explored their fertility prior to entering the program—any possibility of having biological children must be fully explored’.^[71]

• If a child is placed with the applicants, at least one parent is expected to provide full-time care at home for the first 12 months.^[72] This is ‘so parents can solely focus on the physical and emotional needs of their child, and enable the child to settle and to develop attachment with their new parents’.^[73]

11.63 Similar requirements are set out in legislation in other states.^[74]

11.64 VANISH submitted that it may be appropriate to include additional policy requirements, such as these, in the Adoption Regulations, for transparency and ‘to underline [their] significance’.^[75] One approved agency said there is a ‘lack of clarity’ about the citizenship requirements.^[76] The VGLRL told the Commission that some employees might have difficulty being able to obtain adoption leave.^[77]

Recommendation

51 All policies, procedural requirements and processes that determine or affect whether a person is able to adopt should be included in the Adoption Act or Adoption Regulations. These include requirements relating to citizenship, fertility treatment and full-time care of a child.

Commission’s conclusions

11.65 In effect, these requirements decide whether a person is able to adopt. Because they determine people’s entitlements, they should be included in the Adoption Act or Adoption Regulations. This would make the requirements transparent and ensure they have a clear legal basis.

Assessment process

11.66 The Adoption Act does not set out the procedural steps involved in the assessment process. It states only that:

• An application may be made to the Secretary or a principal officer for approval as a ‘fit and proper person to adopt a child’.^[78]

• The application must comply with the Adoption Regulations.^[79]

• The Secretary or principal officer may approve applicants as fit and proper persons if they satisfy the suitability criteria.^[80]

• The Secretary or principal officer must not refuse to approve, or defer the making of a decision, without giving the applicant notice and the opportunity to be heard.^[81]

11.67 The Adoption Regulations state that the application must be in writing and contain certain information (for example, the applicant’s personal details, education and qualifications and financial circumstances).^[82]

11.68 In practice, before making their application, applicants must attend a two-hour group information session and a subsequent two-day group education program.^[83] These ‘provide information about issues in adoption’ and begin ‘the process and preparation for adoptive parenthood’.^[84] Agencies run a limited number of sessions each year. People interested in adopting are invited to attend when places become available.

11.69 After attending the information session and training, couples may apply for approval. The assessment is generally carried out by the agency (DHHS or approved agency) in the region where the applicants are situated. One approved agency operates a statewide adoption service. Practices may vary across agencies. Generally, the assessment process involves the following steps:^[85]

• The couple submits the application, including medical reports.

• A social worker from the agency is allocated to conduct the assessment.

• The social worker considers the information provided in the application, interviews the applicant several times, inspects their home and writes a report about the applicants’ suitability. The report is provided to an ‘applicant assessment committee’ (AAC).

• The AAC considers the report and any other relevant information and makes a recommendation to the Secretary or principal officer to approve, decline approval or defer the decision. The Secretary or principal officer makes the final decision.

11.70 The Learning Guide states that:

Guidelines suggest that an adoption assessment should be completed within four months from completed application to decision at the Application Assessment Committee (AAC).^[86]

11.71 The Commission was informed that the process from the information session through to approval can take from 12 to 18 months or longer.^[87]

11.72 Applicants who obtain approval are placed on registers of approved people.^[88] Unsuccessful applicants can request the agency to review the Secretary’s or principal officer’s decision. This is not mentioned in the Adoption Act but stated in the Adoption Manual and Learning Guide.^[89] The Adoption Act provides that applicants can apply to the Victorian Civil and Administrative Tribunal for review of the Secretary’s or principal officer’s decision.^[90]

11.73 The Adoption Act does not say how long approval lasts or how approval is renewed. The Adoption Manual states:

• Approval is ‘normally’ valid for two years.^[91]

• An ‘informal review’ is conducted at the end of the first year. Applicants are ‘contacted to confirm that they wish to remain on the [register] and are asked whether there has been any change in their circumstances’.^[92]

• A ‘formal review’ is undertaken at the end of the second year. Applicants are required to provide up-to-date information, including medical reports. A police check is conducted. A decision maker interviews the applicants and prepares a ‘short report’ on the applicants’ suitability. Decisions may or may not be made by the AAC, depending on the circumstances.^[93]

11.74 The Secretary or principal officer may revoke an approval. The person must be given notice and an opportunity to be heard.^[94]

Assessment process: responses

11.75 A few people said the assessment process should be set out clearly.^[95] VANISH submitted:

… the process is long, burdensome and intrusive. Setting out the steps and requirements in regulation makes it clear, minimises the need to explain why certain processes are necessary, and assists applicants to prepare necessary paperwork, etc.^[96]

11.76 One submission stated the assessment process should be set out in the Adoption Act. It said: ‘I’ve been through the process several times now and I’m still not 100% clear on the [whole] process.’^[97] Other submissions stated the process should be set out in the Adoption Regulations or DHHS policy, because these would be easier to update as processes change.^[98] One approved agency stressed ‘the need to have flexibility’.^[99]

11.77 Some people were happy with the amount of information they received about the assessment process.^[100] A mother who had recent experience of the assessment process told the Commission:

While I thought the training and assessment process was expertly and sensitively run and the training sessions were very useful, there is room to improve the provision of information to applicants about the practicalities of the process.^[101]

11.78 She submitted that better information could be provided to applicants, in a ‘plain English summary’, at the beginning of the process:

It would be very helpful and far less daunting if applicants were handed a booklet explaining each stage of the process and what happened next. Eg ‘Who reads my life story?’; ‘What information about me is placed on the adoption register?’ ‘How are applicants selected and how does the adoption register work?’^[102]

Commission’s conclusions

11.79 Assessment procedures should be more transparent. The Commission found it difficult to determine the full extent of the processes and procedural requirements. Some are in the Adoption Act, some are in the Adoption Regulations and some are in different policy documents. The requirement to attend information and education sessions, the internal review process, the duration of approval and the renewal process are contained in policy documents. These processes affect a person’s eligibility to adopt. Any process which has this effect should be included in the Adoption Act or Adoption Regulations.

11.80 Information about the administrative steps in the assessment process should be provided to applicants and available to anyone who expresses an interest in adoption. At a minimum, applicants should receive, in addition to the assessment guidelines, clear written information which outlines:

• who is eligible to apply for assessment

• the requirements applicants must meet to obtain approval

• the steps in the assessment process.

Recommendation

52 Clear written information about assessment requirements and procedures should be published on the Department of Health and Human Services website and otherwise be readily available to applicants and any person who expresses interest in adopting a child. This should include information about eligibility for assessment, the suitability test and criteria and the assessment process.

11.81 This information should be readily available on the DHHS website and provided to any applicant who does not have access to the website. Approved agencies may need to provide applicants with additional written information about their own processes. However, all applicants should receive generally consistent information.

Inconsistency in the assessment process

11.82 In Victoria, adoption services are provided by regional DHHS teams and approved agencies and one statewide approved agency. Approved agencies run their own information and training sessions on a rotational basis. Agencies have differing workloads and resources. This affects how quickly they can conduct and complete assessments.

The Commission heard complaints from parents and applicants about inconsistent practices across agencies relating to information, the amount of time taken, and assessment practices.^[103]

11.83 Parents and applicants’ experiences of assessment varied, depending on the agency and the individual social workers. One person described a very positive experience. Others said their social workers seemed to focus more on ‘whether the house was childproof’ than on how the couple interacted with each other and with children and the couple’s approach to parenting. One parent stated: ‘There needs to be more focus on the things that actually matter.’ Others said the workers need better training, acknowledging that they have difficult jobs.^[104]

11.84 One mother told the Commission:

We found the application process was not only an extremely long one but varied and inconsistent depending on which agency you went through … we found the wait times between initial information session, 2 day training days, being assigned a case worker, being assessed and then going to panel to be excessively long … While our case worker was supportive and helpful, we felt the ‘process’ was inconsistent and the level of support/degree of questioning during the assessment process from different case workers varied.^[105]

11.85 Another parent said ‘inconsistency’ between social workers can be ‘unbearable’.^[106] The Commission heard that applicants were allocated social workers after differing periods of time. It heard about delays of three months,^[107] 12 months and two years.^[108] One applicant had seen people in other regions allocated a social worker while she waited for months.^[109] One mother told the Commission her experience with an approved agency was much faster and more positive than the experiences of the others she knew, who went through DHHS.^[110]

11.86 Parents and an applicant told the Commission they felt unable to give feedback about the process, including concerns about delays and lack of information, because they were worried it would affect their chances of being selected to adopt a child.^[111] The Commission was informed that DHHS does not have an evaluative mechanism in place to enable it to improve processes or even understand how they are working.

11.87 Approved agencies told the Commission greater consistency is desirable. Some said applicants should receive the same information and training, and standard assessment methods should be developed.^[112] One approved agency said the assessment process should be set out clearly because there have been situations where people have been approved without attending information and training sessions.^[113] An adoption worker said more funding is needed to address ‘long delays’.^[114]

11.88 The Commission heard proposals which might improve consistency. Dr Briony Horsfall submitted that adoption services should be provided by a single, independent authority, similar to the Victorian Assisted Reproductive Treatment Authority.^[115] This is similar to a proposal for an integrated, centralised service model made by KPMG Management Consulting in 1998.^[116] However, this proposal may not be practical today given the low numbers of adoptions.

Commission’s conclusions

11.89 It is unsatisfactory that assessment practices and processes are unclear and inconsistent. Consistency in assessment practice and processes is important to ensure fairness to applicants.

11.90 Standard assessment tools should be developed for greater consistency and to ensure best practice is followed.

11.91 Applicants should receive the same information and training. Decision makers should take a consistent approach to assessments. The Commission has recommended above that applicants receive the same written information about assessment requirements and processes, and that decision makers conduct assessments in accordance with uniform guidelines.

11.92 Timeframes should be as consistent as possible. Long, uneven and unpredictable delays add to the stress of the process for applicants.

11.93 The Commission has not seen the service agreements between DHHS and the approved agencies and is not in a position to comment on the level of influence or control over agency practice available to DHHS. Agencies provide limited data to DHHS on the adoption services they provide. As the department responsible for adoption services in Victoria, DHHS should implement measures to improve consistency across agencies.

11.94 The Commission recommends that the Secretary establish an anonymous evaluative feedback mechanism, to enable applicants to give feedback about their experience of the assessment process. Parents and applicants told the Commission they were not willing to make complaints during the process because they were concerned this would affect their chances of adopting. This is understandable. DHHS and approved agencies decide whether or not applicants are approved and selected to adopt a child.

11.95 Feedback from applicants should inform standards and practice in adoption services in Victoria. This may improve consistency.

Recommendations

53 The Secretary should implement measures to develop consistency across agencies in the assessment process.

54 The Secretary should introduce a feedback mechanism to enable applicants to provide anonymous feedback about their experience of the assessment process.

1. Adoption Act 1984 (Vic) s 15(1)(a).

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2. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 1 Introduction (2005); Part 2 Infant Adoption (2005).

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3. Adoption Regulations 2008 (Vic) reg 35.

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4. Adoption Act 1984 (Vic) s 15; Supreme Court (Adoption) Rules 2015 (Vic) r 23.

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5. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 9.

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6. Adoption Act 1984 (Vic) ss 13, 15(1)(a).

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7. Adoption Regulations 2008 (Vic) reg 37.

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8. Consultation 6 (Roundtable with Permanent Care and Adoptive Families).

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9. Adoption Act 1984 (Vic) s 15(1)(a).

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10. Ibid s 13; Adoption Regulations 2008 (Vic) reg 37.

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11. Adoption Act 1984 (Vic) s 13.

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12. Ibid s 15(1)(a).

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13. Ibid.

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14. Ibid s 15(1)(a); see also s 20A(b).

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15. Ibid s 13(1).

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16. Section 13(1) of the Adoption Act 1984 (Vic) states that the people who ‘may apply’ for approval are ‘persons capable of making an application under section 10A(a) for an adoption order under section 11’. These people are ‘2 persons who are married or living in a relationship referred to in section 11(1)’: s 10A(a). The relationships referred to in 11 are marriages, traditional Aboriginal marriages, registered relationships and domestic relationships. See also s 20A(a).

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17. This is because they are not ‘persons capable of making an application under s 10A(a) for an adoption order under section 11’ of the Adoption Act 1984 (Vic).

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18. Adoption Regulations 2008 (Vic) reg 35.

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19. Adoption Act 1984 (Vic) s 15; Supreme Court (Adoption) Rules 2015 (Vic) r 23.

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20. Adoption Regulations 1998 (Vic) s 35; Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 46.

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21. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 51.

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22. Ibid. See also Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 15.

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23. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 55.

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24. Ibid 56–7.

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25. Ibid 56.

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26. Ibid.

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27. Ibid 55; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 23, 26.

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28. Department of Human Services, Victoria, Standards in Adoption (1986).

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29. Ibid 2.

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30. Submission 29 (Connections UnitingCare); Consultation 13 (Roundtable with approved adoption agencies).

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31. Submissions 29 (Connections UnitingCare), 34 (VANISH), 36 (Child & Family Services Ballarat Inc.).

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32. Submission 7 (Name withheld).

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33. Submission 5 (Confidential).

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34. Submission 44 (Victorian Gay & Lesbian Rights Lobby).

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35. Ibid.

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36. Submission 32 (Name withheld).

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37. Submission 23 (Fae Cuff).

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38. Consultation 17 (Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby).

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39. Submission 47 (Youth Disability Advocacy Service).

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40. Submission 44 (Victorian Gay & Lesbian Rights Lobby).

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41. Submission 50 (Barnardos Australia).

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42. See, eg, Department of Human Services, Victoria, Adoption and Permanent Care Standards (1986) 33–5; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 9.

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43. See, eg, Adoption Act 1993 (ACT) ss 18, 39F(1)(c); Adoption Act 2000 (NSW) s 45; Adoption Regulation 2015 (NSW) reg 45; Adoption Act 2009 (Qld) ss 120–133; Adoption Regulation 2009 (Qld) reg 7; Adoption Regulations 2004 (SA) reg 9(3); Adoption Act 1988 (Tas) s 24; Adoption Regulations 2006 (Tas) reg 18; Adoption Act 1994 (WA) s 68(2).

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44. Children, Youth and Families Regulations 2007 (Vic) reg 18.

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45. Adoption Act 1984 (Vic) s 129A.

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46. Submissions 17 (Name withheld), 29 (Connections UnitingCare), 40 (Confidential).

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47. Submission 17 (Name withheld).

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48. Consultation 3 (Confidential).

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49. The Commission has not identified documentation supporting the idea that people may not adopt in their 40s.

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50. Consultation 3 (Confidential).

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51. Consultation 17 (Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby).

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52. Submission 22 (Confidential).

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53. Consultation 3 (Confidential).

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54. Submission 10 (Confidential).

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55. Submission 29 (Connections UnitingCare).

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56. Submission 36 (Child & Family Services Ballarat Inc.). This view was also expressed in Submission 7 (Name withheld).

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57. Submission 40 (Confidential).

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58. Department of Human Services, Victoria, Applying to adopt an infant in Victoria (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/applying-to-adopt-an-infant-in-victoria>. See also Department of Human Services, Victoria, Standards in Adoption (1986) 35; Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 47; Department of Human Services, Victoria, Central Resource Exchange: Infant Adoption Program of Victoria, ‘Training Registration Form’ <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

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59. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 47.

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60. Department of Human Services, Victoria, Confidential medical report for prospective applicant to be considered to adopt or permanently care for a child.

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61. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 50.

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62. Department of Human Services, Victoria, Standards Adoption (1986) 35.

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63. Adoption Regulations 1998 (Vic) reg 35.

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64. Adoption Regulations 2008 (Vic) reg 35(e).

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65. See, eg, Adoption Legislation Review Committee, Parliament of Victoria, Report of Adoption Legislation Review Committee (1983) 3; New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 232–3.

    ↑

66. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 47.

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67. Disability Services and Other Acts (Amendment) Act 1997 (Vic) s 8.

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68. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 47.

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69. Submission 29 (Connections UnitingCare). This information is set out in documentation given to applicants interested in attending infant adoption training. Schedule 4 of the Adoption Regulations 2008 (Vic), which relates to the information that must be included in an application for approval as a fit and proper person, indicates that applicants may be asked to provide ‘citizenship certificates’.

    ↑

70. Department of Human Services, Victoria, Applying to Adopt an Infant in Victoria (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/applying-to-adopt-an-infant-in-victoria>.

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71. Department of Human Services, Victoria, Central Resource Exchange: Infant Adoption Program of Victoria, ‘Training Registration Form’ <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. The Adoption Manual refers to the Adoption Standards, which state ‘active fertility investigation and treatment and adoption assessment are not compatible’: Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 55; Department of Human Services, Victoria, Standards in Adoption (1986) 33. The Adoption Manual states that the Permanent Care Program requires all applicants to give an undertaking before beginning education and assessment that they are not receiving fertility treatment and to confirm their understanding of the need to use contraception for two years after placement: Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 55.

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72. The Adoption Standards state it is expected children placed will be ‘in the full time care of a parent for … the first eighteen months of life’: Department of Human Services, Victoria, Standards in Adoption (1986) 36. The Commission was informed the period of full-time care currently required is generally 12 months.

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73. Department of Human Services, Victoria, Central Resource Exchange: Infant Adoption Program of Victoria, ‘Training Registration Form’ <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

74. Adoption Act 2009 (Qld) ss 71, 76(1)(b), 189(1); Adoption Regulation 2009 (Qld) reg 5; Adoption Regulations 2004 (SA) regs 8(1); Adoption Act 1994 (WA) s 39. The Adoption and Other Legislation Amendment Act 2016 (Qld) removed a requirement from the Adoption Act 2009 (Qld) that a person must not be ‘undergoing fertility treatment and [had] not undergone fertility treatment with the previous 6 months’: Adoption and Other Legislation Amendment Act 2016 (Qld) s 13.

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75. Submission 34 (VANISH).

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76. Submission 29 (Connections UnitingCare).

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77. Submission 44 (Victorian Gay & Lesbian Rights Lobby).

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78. Adoption Act 1984 (Vic) s 13(1).

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79. Ibid s 13(2).

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80. Ibid s 13(3).

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81. Ibid s 13(5).

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82. Adoption Regulations 2008 (Vic) reg 36, schs 4, 5.

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83. Department of Human Services, Victoria, Applying to Adopt an Infant in Victoria (3 July 2013) <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-in-victoria/applying-to-adopt-an-infant-in-victoria>.

    ↑

84. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 9.

    ↑

85. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 49, 67–8; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 8, 10, 14, 27.

    ↑

86. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 14.

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87. The Commission obtained this information at an information session for couples considering applying for infant adoption.

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88. Adoption Act 1984 (Vic) s 13A.

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89. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 71–2; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 27.

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90. Adoption Act 1984 (Vic) s 129A.

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91. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 69.

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92. Ibid.

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93. Ibid 70.

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94. Adoption Act 1984 (Vic) ss 13(4)–(5).

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95. Consultation 18 (Fiona De Vries).

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96. Submission 34 (VANISH).

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97. Submission 22 (Confidential).

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98. Submissions 7 (Name withheld), 58 (Name withheld).

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99. Submission 36 (Child & Family Services Ballarat Inc.).

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100. Consultations 6 (Roundtable with Permanent Care and Adoptive Families), 36 (Kylie Martens).

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101. Submission 58 (Name withheld).

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102. Ibid.

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103. Consultation 6 (Roundtable with Permanent Care and Adoptive Families).

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104. Ibid.

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105. Submission 32 (Name withheld).

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106. Consultation 6 (Roundtable with Permanent Care and Adoptive Families).

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107. Ibid, Consultation 18 (Fiona De Vries).

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108. Consultation 6 (Roundtable with Permanent Care and Adoptive Families).

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109. Consultation 3 (Confidential).

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110. Consultation 19 (Chrissie Davies).

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111. Consultations 3 (Confidential), 6 (Roundtable with Permanent Care and Adoptive Families), 18 (Fiona De Vries).

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112. Submission 36 (Child & Family Services Ballarat Inc.); Consultation 13 (Roundtable with approved adoption agencies).

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113. Consultation 13 (Roundtable with approved adoption agencies).

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114. Submission 40 (Confidential).

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115. Submission 45 (Dr Briony Horsfall).

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116. KPMG Management Consulting, Redevelopment of Adoption and Permanent Care Services Options Paper (Department of Human Services, Victoria, 1998) 17.

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