Review of the Adoption Act 1984: Report

12. Selection of adoptive parents

Introduction

12.1 After assessment, approved applicants are added to a register of possible adoptive parents.^[1] To adopt a child, they must be chosen for a child who needs a family. How applicants are selected is not set out clearly in the Adoption Act 1984 (Vic) or the Adoption Regulations 2008 (Vic).

12.2 In practice, the process is called ‘linking’ and is carried out by the Department of Health and Human Services (DHHS) and approved agencies, often with the involvement of the child’s parents. Under the Adoption Act, the Secretary or principal officer makes the decision and must consider the parents’ wishes about:

• the ‘religion, race or ethnic background’ of the adoptive parents

• having contact with and receiving information about the child after the adoption.^[2]

12.3 Parents may express preferences about a broader range of characteristics regarding the adoptive parents in practice. They may also choose the family which they would like to adopt their child, from options selected by the agency which match, as closely as possible, the child’s needs and parents’ wishes.^[3]

12.4 Four issues are examined in this chapter:

• parents’ role in the process

• the matters parents can express wishes about

• the transparency of the process

• agencies’ practices.

12.5 The main issue discussed in submissions and consultations was parents’ wishes. Some people proposed that the Adoption Act should formalise current practice. Other people objected to possible discrimination against applicants.

12.6 On its face, the linking process infringes the principle of non-discrimination contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and Equal Opportunity Act 2010 (Vic). However, the overriding principle in adoption is that all decisions must be in the child’s best interests. Applying this test, the Commission recommends expanding the matters parents can express wishes about under the Adoption Act. This differs from a recommendation of the 2015 report on adoption by same-sex couples.

Current law and practice

12.7 The Adoption Act does not provide a clear picture of the linking process. It does not specify who selects the adoptive parents or how and when the decision is made.

12.8 After parents’ consents are given (or dispensed with), the Secretary or principal officer becomes the child’s guardian ‘for all purposes’ until the adoption order is made.^[4] Although not stated, these purposes include placing the child with the adoptive family. The guardian’s ‘paramount consideration’ is ‘the welfare and interests of the child’, as this principle applies to all decisions under the Adoption Act.^[5]

12.9 In making the order, the court must be satisfied that the Secretary or principal officer ‘has given consideration to any wishes expressed by a parent regarding:

• the applicants’ religion, race or ethnic background

• having contact with, or receiving information, about the child.^[6]

12.10 The Adoption Regulations require the Secretary or principal officer to give parents the opportunity to express their wishes at the time of giving consent to adoption.^[7]

12.11 The linking process is described in more detail 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). The Learning Guide states that the ‘intent’ of the Adoption Act is to ‘involve’ parents ‘in the decision making regarding their child’.^[8] It states ‘Practice has evolved which encourages’:

• parents to participate and state ‘a preference for the family for the child after reading non-identifying profiles of prospective adoptive parents’

• ‘exchange of information and contact’ between the two families.^[9]

12.12 As the child’s legal guardian, the Secretary or principal officer must approve the parents’ decision.^[10] The Adoption Manual states: ‘Decisions made by birth parents must be seen within this context.’^[11] However, the Adoption Manual states that it is ‘unlikely’ a proposed placement would proceed if the parents were strongly opposed to it, even if only one suitable family were available.^[12] The Adoption Manual explains:

This approach is based on the assumption that it is important for birth parents to participate in planning for their child’s future wherever possible. It is envisaged that birth parents are likely to select a family with whom they feel some compatibility exists, and that this will assist the parties in feeling comfortable during future contacts.^[13]

12.13 If parents do not wish to be involved in the decision making, the agency makes the linking decision.

Parents’ role in the process

12.14 Parents are encouraged to be ‘actively’ involved in selecting the family for their child.^[14] Similar practices are followed in other states and territories.^[15] Recognising a parent’s involvement in these decisions is an object of adoption law in the Australian Capital Territory and a guiding principle of Queensland’s Adoption Act 2009 (Qld).^[16]

12.15 Previous adoption reviews have observed that involving parents in the selection process may ‘increase the chances of a successful open adoption’.^[17] The New South Wales Law Reform Commission reported in 1997 that participating ‘in the selection of adoptive parents’ gave natural parents ‘a sense of control and helped them define their role in relation to their child’ and helped some ‘come to terms with their loss in the long term’.^[18] ‘Being selected by the [natural] parent also gave [adoptive parents] increased confidence to parent the child.’^[19]

12.16 The 1997 Draft National Principles in Adoption recognise that parents ‘should be involved’ in selecting adoptive parents (if they wish to) as a principle of open adoption.^[20] They state, as a general principle, that parents ‘have the right to express their wishes and be involved in the planning for the placement of their child’,^[21] and that parents:

should be given as much information as possible about the prospective adoptive parents and be allowed to participate to the greatest extent possible as is reasonably practical in the selection of approved adoptive parents for their child having regard to the paramount consideration of the needs of the child(ren).^[22]

Responses

12.17 Submissions and consultations reflected these views. There was strong support from a range of people and groups to maintain parents’ ability to express wishes about the adoptive parents’ qualities.

12.18 Approved agencies told the Commission that parents are encouraged to be involved in the selection process, because this can facilitate an open adoption relationship between the parents and adoptive family. In agencies’ experience, if parents choose a family they are comfortable with, there is a better chance of the parents and adoptive family establishing and maintaining contact. One adoption worker said that ‘if you go too far outside [a parent’s wishes] you may be setting up open adoption to fail’.^[23]

12.19 Another adoption worker submitted that ‘under the open adoption practices [parents’] wishes for their child need to be heard and respected’:

In order to provide the best possible opportunity for ongoing relationships between all parties a congruence between the natural parents’ wishes and the adoptive parent is imperative … To discount the natural parents’ wishes is counter-productive to positive contact in the future.^[24]

12.20 VANISH and Women’s Forum submitted parents’ ability to express wishes about the adoptive parents’ characteristics is central to facilitating open adoption relationships.^[25] VANISH stated allowing parents ‘an active and informed role’ is ‘in the best interests of children by ensuring some commonality and acceptance between the adults involved in their life’.^[26]

12.21 An adoption worker submitted:

for the adoptee (whether child or adult) to know they were placed with a family in accordance with their natural parents’ wishes can be very powerful and important to all parties. So whether there has been ongoing contact or not the adoptee has a sense of who their natural parent is and what they wanted for them.^[27]

12.22 Three adoptive mothers and a current applicant supported natural parents’ ability to state their preferences.^[28] One mother said:

For me, it is very important to be able to say to our son, ‘your birth mum chose us as parents’. The fact that she had input into that decision is in the best interests of the child.^[29]

12.23 Another mother said ‘it is essential to empower the child’s parents to decide what they hope for their child’s future’:

Thinking about their hopes for their child and choosing the adoptive parents that they feel are best in light of those hopes is not much to ask and one of the only choices that they will be able to make for their child. Second, in most cases the adoption is the beginning of a relationship between the birth parents, adoptive parents and—most importantly—the child. Allowing the parents to be open and honest about their wishes and empowering them to make the choice about who will adopt their child is one of the best ways to start that relationship.^[30]

12.24 She also told the Commission:

At its best, this is a tricky and fraught relationship that none of the parties have experience in navigating. Anything reasonable that can be done to give that relationship its best shot from the outset should be done. ^[31]

12.25 Some participants in a roundtable with lawyers stated parents should not be able to express wishes, because it is hard to know where this should ‘start and finish’ and it ‘opens the door to discrimination’ against applicants.^[32]

12.26 Some submissions warned against removing parents’ ability to express wishes, because it could affect the openness of an adoption^[33] and may ‘tak[e] us back to past practices and forced adoptions where the natural parent, especially the natural mothers felt they had no voice’.^[34] In a consultation with agencies representing culturally and linguistically diverse communities, a participant said a mother’s wishes are ‘essential’ in making decisions about a child’s placement.^[35]

12.27 A number of submissions emphasised that parents’ wishes should not be ‘binding’ or ‘determinative’.^[36] Placement decisions should be ‘based on the best interests of the child and the parents’ wishes [should] not override this’.^[37] One submission stated:

The best interests of the child are that the adoptive parents can provide a stable and safe environment and that the child is allowed to know its biological, racial and religious background when the child wants.^[38]

12.28 The Commission was told at the roundtable with approved agencies that selecting couples who could best provide for a child depends on a range of factors, including:

• the child’s needs, including any special needs such as a disability or developmental issues

• the parents’ background

• the child’s cultural background and the parents’ wishes about this.^[39]

12.29 Participants explained the tensions that can arise between respecting the parents’ role and ability to express their wishes and their child’s best interests in being placed with the most suitable family.^[40]

Commission’s conclusions

12.30 Parents’ participation in the linking process is in children’s best interests, because it increases the possibility that they will have ongoing contact with their child and the adoptive family.^[41]

12.31 The Adoption Act intends that the child may have ongoing contact with their natural parents, if the natural and adoptive parents agree. The Commission accepts this is more likely to occur if natural parents are comfortable with the family which adopts their child. This, in turn, is more likely if natural parents are involved in decision making and their preferences are respected. Natural parents’ wishes therefore form part of the consideration of the child’s best interests when choosing the family for the child.^[42]

12.32 The Commission has considered the possible tension between children’s best interests in being placed with the most suitable family available and in maintaining contact with their natural parents. These interests may compete where a child’s parent prefers a family which is less suitable than another family, or where selecting the most suitable family, over a parent’s wishes, means the parent will be less willing to maintain contact. The Commission has balanced these interests and concluded that generally both interests must work together. In most cases, the most suitable family for a child will be one that enables a child to maintain contact with the natural parents.

12.33 However, parents’ wishes should not be determinative. A wish that is contrary to a child’s best interests should not be followed. Nor should parents be able to prevent (or ‘veto’) placement of a child with a suitable family if that would be in the child’s best interests. The Commission appreciates that this principle can be difficult to apply in practice. Determining a child’s best interests where the child’s interests and parents’ wishes conflict is a difficult balancing exercise for adoption workers. The best interests principles recommended in Chapter 5 are intended to assist workers in making these assessments.

The matters parents may express wishes about

12.34 Under the Adoption Act, parents may express wishes about:

• the ‘religion, race or ethnic background’ of the adoptive parents

• having contact with and receiving information about the child after the adoption.^[43]

12.35 The Adoption Act does not say what weight, if any, the Secretary or principal officer must give these wishes.^[44] The court must simply be satisfied that the Secretary or principal officer has considered them.

12.36 In practice, parents are invited to express preferences about a broader range of factors than those set out in the Adoption Act, including ‘location, education level, opportunities, and relationship’.^[45] The Learning Guide states that these ‘wishes must be considered when selecting a family for the child’.^[46]

12.37 There is a tension between parents’ ability to express wishes about the adoptive family and protecting applicants from discrimination.

Other Victorian legislation

12.38 The Children, Youth and Families Act 2005 (Vic) (the CYF Act) allows parents to express wishes about the full range of suitability criteria that permanent care parents must satisfy when permanent care orders are being made.^[47] The criteria are broadly similar to the suitability criteria that applicants for adoption must meet, set out in Chapter 11.^[48]

12.39 The Equal Opportunity Act prohibits discrimination against a person based on attributes including age, employment activities, marital status and physical features. However, a general exception permits discrimination which is authorised by another law or necessary to comply with another law.^[49] Currently, the Adoption Act authorises parents to state preferences about applicants’ religion, race and ethnic background. It does not expressly authorise parents to indicate preferences about other attributes of applicants.

12.40 The right to equality in the Charter includes freedom from discrimination. All Charter rights are subject to reasonable limits, as discussed in Chapter 9.

2015 review

12.41 The 2015 Adoption by Same-Sex Couples Legislative Review advised the Government on how to change the Adoption Act to enable LGBTI couples to adopt.^[50] The purpose of the review was to ‘examine how to best legislate for adoption equality’.^[51] The review addressed questions including:

What amendments would be necessary to permit natural parents to express wishes in relation to the gender of the adoptive parents, including advice as to whether any such amendments would be consistent with the Adoption Act and consistent with the Charter of Human Rights and Responsibilities Act 2006, including whether such an amendment would satisfy a reasonableness test?^[52]

12.42 The review recommended that parents should not be able to express wishes about adoptive parents’ relationship status, sex or gender because it could ‘open up discrimination against same sex couples’ and ‘undermine the commitment to allow same sex couples to adopt’.^[53] It advised that ‘an issue of inconsistency’ with the Charter right to equality could arise.^[54] However, it acknowledged that the limitation may not be ‘unreasonable’.^[55]

12.43 The review advised that, if the Government wanted to allow parents to indicate preferences about these matters, following the approach in the CYF Act would be one way of achieving this.^[56]

Responses

12.44 Submissions from approved agencies,^[57] an adoption worker,^[58] people who were adopted,^[59] an adoptive parent,^[60] OzChild^[61] and VANISH^[62] supported the ability of parents to express wishes about the adoptive parents’ religion, race and ethnicity.^[63] Some expressed this in consultations.^[64] A few people expressed contrary views.^[65]

12.45 The Law Institute of Victoria supported parents’ ability to state wishes about religion, race and ethnic background but submitted that the Adoption Act should use different language to express this right.^[66]

12.46 One adopted person submitted:

Birth parents should be able to express wishes about racial or ethnic preferences for the adoptive parents. It is hard enough being an adoptee without growing up outside of your ethnic group—where no one looks like you do. Looking like others is a very important aspect of identity. Adoptees generally do not have others who look like them. This is very alienating and can result in mental health issues.^[67]

12.47 Another said:

The child needs to grow up with their own ethnicity, culture and family wishes. The contact and story of their original family needs to be kept intact.^[68]

12.48 One adopted person disagreed that parents should be able to express wishes about race, religion and ethnicity but said it would be ‘inappropriate if adoptive parents of a different cultural background’ denied their child access to the child’s ‘culture and heritage or racial/ethnic group of origin’.^[69]

12.49 There was strong support for extending the matters parents can formally express wishes about.

12.50 A mother whose child was adopted in 1987 said parents should be able to express

wishes about any matter and should have ultimate say about who adopts their child.^[70] She submitted that a parent’s wishes should be treated as ‘requirements’:

[Parents] are already disempowered and it is their right, and that of their child, that they identify what they wish to see in the adopters.^[71]

12.51 An adoptive mother said:

I believe that it is highly appropriate that birth parents are able to express their wishes about the religion, race and ethnic background of adoptive parents and about any other characteristics that are important to them. I think that the current system works well where birth parents can openly and honestly nominate anything they wish in terms of adoptive parents and the agency will try to shortlist 3-4 couples that best meet these criteria.^[72]

12.52 Approved agencies submitted that the Adoption Act should specify a broader range of factors for parents to express wishes about. Their submissions spoke about the importance of parents’ involvement in the selection process to an ongoing open adoption arrangement.^[73] Connections UnitingCare (Connections) submitted:

it should continue to be at the discretion of the parents to choose the characteristics of the family their child will reside with. Questions about the religion, ethnicity, gender and sexual orientation may be important to birth parents and their preferences should be respected wherever possible. The ability of the birth family to form a relationship with the adoptive family will be important for the child’s future sense of identity and kinship.^[74]

12.53 Connections submitted that parents should be permitted to express wishes about general matters such as the ‘background, beliefs or attitudes’ of the adoptive parents.^[75] Child & Family Services Ballarat submitted parents should be able to ‘express their wishes and any other views that are important to them’.^[76]

12.54 An adoption worker submitted that the factors about which parents can indicate wishes should include the adoptive parents’ relationship status, following the changes enabling LGBTI couples to adopt.^[77] Women’s Forum submitted:

We consider that for many parents, the marital status of the prospective parents will be of equal, if not more, importance than these other characteristics and the right to specify marital status must be protected.

… the concerns of adoptive parents about issues such as discrimination must take second place to the needs of birth parents and vulnerable children. Birth parents must be allowed to have some control over the adoption process where possible in order to achieve the most favourable long-term outcomes. This includes having the right to specify the gender and marital status of the adoptive parents.^[78]

12.55 VANISH proposed that parents be able to express wishes about all of the suitability criteria in the Adoption Regulations.^[79] The Victorian Gay and Lesbian Rights Lobby shared this view.^[80]

Commission’s conclusions: parents’ wishes

12.56 The questions of whether current law and practice is appropriate and the matters parents should be able to express wishes about must be considered in light of children’s best interests. It is in children’s best interests that their parents participate in the linking process. It follows that parents should be able to state preferences about a broad range of characteristics, including the religious (or non-religious) and cultural background of the family which adopts their children.

12.57 The Adoption Act should expressly allow parents to indicate wishes about a broad range of matters. This would formalise the current practice of inviting parents to indicate their preferred characteristics of the adoptive family and be consistent with adoption legislation in other states and territories, as well as Victoria’s CYF Act.

12.58 The Commission has considered whether the approach taken in other adoption legislation or the CYF Act would be preferable. Some adoption Acts frame parents’ ability to express wishes broadly. In Queensland, ‘any preferences’ of the parents must be taken into account.^[81] In the Australian Capital Territory, the court must consider ‘any preferences’ a parent expresses about the ‘social, religious and financial characteristics of the adoptive family’.^[82] In Western Australia, parents may tell the chief executive their wishes about the ‘child’s upbringing and the preferred attributes of the adoptive family’.^[83]

12.59 The Commission recommends that the Adoption Act follow the approach taken in the CYF Act, whereby parents may express wishes about the matters contained in the suitability criteria. The criteria in the Adoption Regulations provide factors already established as relevant to applicants’ abilities to care and provide for a child.^[84] On this approach, a parent would be able to express preferences about matters including:

• adoptive parents’ ages, health, skills, life experiences, financial circumstances and characters

• adoptive parents’ capacity to provide appropriate support to maintaining the child’s cultural identity and religious faith (if any). This description of factors is preferable to the language in the current Act

• adoptive parents’ attitudes towards ongoing contact with the child and information exchange^[85]

• the ‘stability and quality’ of adoptive parents’ ‘relationship with each other’ (if any). This would include whether the adoptive parents are married or in another kind of relationship.

12.60 The Commission acknowledges that this is inconsistent with the recommendation of the Adoption by Same-Sex Couples Legislative Review. The Commission has come to a different conclusion from that review, as a result of the wider review required by the Commission’s terms of reference.

12.61 The Commission supports adoption by LGBTI people. In 2007, the Commission recommended that same-sex couples be eligible to adopt.^[86] The Commission supports removing discrimination to the greatest extent possible.^[87]

12.62 However, as discussed in Chapter 9, discrimination in the process of selecting a family for a child is justified, reasonable and necessary to give effect to the overriding purpose of supporting and protecting a child’s best interests. Linking is a service for the child who needs a family, not a service for the applicants wishing to adopt.

12.63 The Commission acknowledges that the recommended approach will enable parents to express wishes about applicants’ relationship status. To this extent it may discriminate against LGBTI applicants where a parent expresses a preference for a heterosexual couple to adopt their child. However, it is equally open to a parent to prefer a LGBTI couple over a heterosexual couple. Similarly, a parent may prefer applicants with particular religious beliefs over atheists, or applicants from one cultural background rather than another. The discrimination applies equally to everyone in the pool of possible adoptive parents.

12.64 As Chapter 9 discussed, no applicant has a right to adopt a child. Applicants’ entitlements extend no further than being able to apply for assessment if eligible and obtain approval if assessed as suitable. Once approved, all applicants go into the pool of approved people. They may or may not be put forward as possible parents for a child. Selection depends on the best interests of the particular child, which includes the parents’ wishes as well as the child’s needs.

12.65 The recommended approach does not limit LGBTI couples’ entitlements. Nor does it undo or undermine the equality achieved by the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic).

12.66 The Commission is mindful that the consultation paper observed:

The Commission is not able to consider whether [natural] parents should be able to express wishes about the relationship status, sex or gender of adoptive parents. The [Adoption by Same-Sex Couples Legislative Review] recommended against allowing this, as it could be inconsistent with the amendments which enable same-sex couples and people who do not identify with a specific sex or gender to adopt. This recommendation was followed. The Commission considers this matter to be excluded from the present review.^[88]

12.67 The Commission revised this position with the benefit of the understanding it gained over the course of the review. The Commission now considers it would be artificial to exclude this question from its recommendation.

Recommendation

55 The Adoption Act should provide that parents may express wishes about the factors in the prescribed requirements set out in regulation 35 of the Adoption Regulations. These should replace the factors currently specified in section 15(1)(b) of the Adoption Act.

12.68 The Commission acknowledges the potential inconsistency with the Charter right to equality. However, it considers the proposed limitation to be reasonable.^[89] Children have rights under the Charter ‘without discrimination, to such protection as is in [the child’s] best interests and is needed by [the child] by reason of being a child’.^[90] The best interests of the child are the primary consideration, above equal rights of applicants.

Commission’s conclusions: Equal Opportunity Act

12.69 The Commission considers that, to ensure that the Adoption Act and Equal Opportunity Act operate harmoniously, the Equal Opportunity Act should not apply to agencies’

• giving effect to parents’ wishes

• choosing suitable adoptive parents for a child, based on the child’s best interests (whether or not parents express wishes).

12.70 This would protect agencies from claims of discrimination when they carry out linking practices that are consistent with a child’s best interests. Other jurisdictions have enacted specific exclusions.^[91]

12.71 The Adoption by Same-Sex Couples Legislative Review recommended against specific exclusions for any adoption services in Victoria, because this would ‘legitimise’ discrimination.^[92] The Commission has come to a different conclusion. Discrimination in the linking process is justified in the best interests of children.

12.72 The review considered that the general exception in the Equal Opportunity Act which permits discrimination authorised by or necessary to comply with another law may provide ‘sufficient’ cover against possible breach of the Equal Opportunity Act.^[93] A specific exclusion would provide certainty.

12.73 A specific exclusion should also apply to assessment of applicants which is reasonably based on the suitability criteria set out in the Adoption Regulations. Decisions about applicants’ suitability are based on factors including their age, emotional, physical and mental health and employment activity. Discrimination based on these attributes is unlawful under the Equal Opportunity Act. The Commission does not suggest that assessment breaches the Equal Opportunity Act: the general exclusion in the Equal Opportunity Act may authorise any discriminatory conduct. However, a specific exclusion applying to assessment carried out in good faith would avoid any doubt and ensure there is no conflict between the Adoption Act and Equal Opportunity Act.

Recommendation

56 The Equal Opportunity Act 2010 (Vic) should not apply to:

a. assessment of applicants reasonably based on the prescribed requirements contained in regulation 35 of the Adoption Regulations

b. identification of prospective adoptive parents in the best interests of a child, who reflect wishes expressed by the child’s parents

c. where a child’s parents do not express wishes about the preferred characteristics of the adoptive parents—identification of prospective adoptive parents in the best interests of a child.

12.74 Recourse should be available under the Equal Opportunity Act if an assessment is not genuinely based on the suitability criteria. Currently under the Adoption Act, applicants may also apply to the Victorian Civil and Administrative Tribunal for reviews of assessment decisions.^[94]

The transparency of the process

12.75 The Adoption Act and Adoption Regulations say little about the linking process. A few provisions indicate parts of the process:

• Only people approved as fit and proper persons can obtain an adoption order.^[95]

• The Secretary and principal officers must maintain registers of the people with this approval.^[96]

• The Secretary or principal officer arranging the adoption becomes the child’s guardian ‘for all purposes’ until the adoption order is made.^[97]

• When making an adoption order, the court must be satisfied that the Secretary or principal officer has considered ‘any wishes expressed by a parent’ regarding:

• the applicants’ religion, race or ethnic background

• having contact with, or receiving information, about the child.^[98]

12.76 The Adoption Regulations require the Secretary or principal officer to give parents the opportunity to express these wishes at the time of giving consent to adoption.^[99]

12.77 In practice, parents may have a greater role in the process than the Adoption Act indicates. Based on their preferences and the child’s needs, agencies prepare a short list of two or three couples who they consider are best able to meet a child’s needs and, to the extent possible, the parents’ wishes.^[100] Parents are given de-identified information and photographs of each couple,^[101] and invited to select their preferred family.^[102]

12.78 These processes apply to local infant adoptions. The process for linking children with special needs may vary from the usual processes.

12.79 Linking practices vary across agencies.^[103]

Responses

12.80 A current applicant told the Commission she was not clear about how adoptive parents are selected. She said there needs to be more clarity and communication to applicants about this process.^[104]

12.81 A few submissions, including one from an approved agency, said the selection process should be set out more clearly.^[105] Some said the Adoption Act should set this out.

Commission’s conclusions

12.82 The selection of a family for a child decides the child’s life course, dramatically

changes the lives of the adoptive parents and affects the relationship the natural parents will have with the child. The process should be clear and transparent, for parents and applicants. Acts in other states and territories provide greater clarity and detail about the selection process.^[106]

12.83 The main elements of the process should be included in the Adoption Act. At a minimum, the Adoption Act should clearly set out:

• that the Secretary or principal officer makes placement decisions

• that the Secretary or principal officer may select applicants from the register of approved people

• that parents have the opportunity to consider information about prospective adoptive parents and indicate their preferred family

Recommendation

57 The Adoption Act should set out the main elements of the linking process, including any different procedures for the placement of children with special needs.

• when selection occurs.

12.84 Different processes may need to be used to match a child with special needs with a family—for example, when placing the sibling of an adopted child.^[107] Specific processes for selecting families with special needs should be reflected in the Adoption Act or Adoption Regulations.^[108]

Agencies’ practices

12.85 The way in which adoption services are provided in Victoria gives rise to two possible issues in the linking process:

• Agencies may face conflicts between their duties to the parents and to the child.

• Agencies may favour applicants they have assessed and fail to consider all approved applicants when selecting possible adoptive parents for a child.

12.86 Each adoption agency (whether within DHHS or an approved agency) carries out all aspects of adoption services. The Adoption Act empowers the Secretary to approve agencies to carry out ‘the activity of conducting or making arrangements with a view to the adoption of children’.^[109] It appears to assume that each approved agency will provide all adoption services. The Secretary’s approvals currently cover the full range of adoption services.

12.87 This means that one agency may provide options counselling to parents considering adoption, assess and approve applicants who may be selected to adopt the child, carry out the linking process, act as the child’s guardian, monitor the placement and manage legalisation.

12.88 The options counsellor has a ‘primary role’ in the linking process.^[110] They:

• have a discussion with the parents about their wishes

• generally co-ordinate the process within the agency

• ‘[check] that a choice of families that meet the needs of the child are available and, where [a] couple has been assessed by another agency, [discuss] the possible link with that agency’

• present the child’s needs and information about the parents to a ‘Link Committee’ which may be involved in decision making.^[111]

12.89 Where a Link Committee is not used to draw up the short list of prospective adoptive parents to be presented to the natural parents, the adoption worker does this in consultation with their supervisor. The short list must be approved by the principal officer or team leader who holds guardianship of the child, before presentation to the natural parents to indicate their preference.^[112]

12.90 Some people submitted to the Commission that there is a risk of actual or perceived conflict of interest for the social workers and counsellors involved in the adoption.^[113] Conflicts of interest arise where:

• a person has conflicting duties to two or more clients

• a personal interest conflicts with a duty to a client.

12.91 A 1998 report by KPMG Management Consulting commissioned by the then-Department of Human Services identified conflict of interest as a potential issue where one team attempts to represent the interests of the child, their parents and the alternative family.^[114]

12.92 A possible risk is that when identifying prospective adoptive parents, agencies may consider only applicants in their own region, whom they have assessed and approved. Applicants can be selected from within the same service region as the parent and child or from other service regions.^[115]

12.93 There is a statewide register of approved applicants, the Central Resource Exchange (CRE),^[116] but agencies are not required to consider all applicants on the register. The Adoption Act requires the Secretary and each principal officer to maintain separate registers of approved people.^[117] Policies set out in the Adoption Manual and Learning Guide recommend but do not require that agencies consider all approved applicants on the CRE.^[118]

12.94 On the one hand, the Adoption Manual states:

The primary role of the [CRE] is to facilitate placement of children across regions. Information about children available for placement and approved families is made available on a statewide basis, and is circulated to all teams. The process is intended to maximise placement opportunities for children, particularly these who are difficult to place. It is also intended to address inequities between regions with respect to availability of applicant families.^[119]

12.95 On the other hand, the Adoption Manual states that an agency ‘may initially wish to consider the family … which has been identified within [the] region’ (that is, assessed by that agency) but it may explore options in other regions.^[120] Parents’ preferences about the child’s location are relevant.^[121]

Commission’s conclusions

12.96 A risk that agencies may face conflicts of interest is a natural consequence of the way in which adoption services are provided.

12.97 It is not reasonable or realistic to expect even the most professional and committed social worker to engage in the linking process completely disinterestedly. Personal preferences may enter into decision making, even if unconsciously.

12.98 This creates a risk that the most suitable family may not be chosen for a child. A social worker or agency may favour applicants it has assessed and approved, without considering whether applicants in other regions may be better able to meet a child’s needs and parents’ wishes. Limiting the range of families considered for a child is contrary to the child’s best interests. The purpose of linking is to match a child with the family best able to provide for the child’s needs.

12.99 Changes to the Adoption Act and adoption practice would address these issues. First, it would be helpful to ‘unbundle’ the provision of adoption services. The Secretary should have the power to approve an agency to carry out specific functions. Ideally, options counselling, assessment of applicants and linking would be carried out by separate people or agencies. The Commission recommends in Chapter 8 that options counsellors should be independent of DHHS and approved agencies.

12.100 Secondly, a centralised approach to linking would better serve the best interests of children, by maximising the families that can be considered for a child. The Adoption Act should establish a central statewide register of approved applicants and require the Secretary and principal officers to consult the register when selecting prospective adoptive parents (except where this would be impracticable when placing a child with special needs: see [12.84] above).

Recommendations

58 The Adoption Act should enable the Secretary to approve agencies to carry out discrete, rather than all, adoption services.

59 The Adoption Act should establish a central statewide register of approved applicants which the Secretary and principal officers must consult when selecting prospective adoptive parents for a child who needs a family (except where this would be impracticable when placing a child with special needs).

12.101 It would be preferable if a central, independent panel with oversight over the entire pool of approved applicants selected the families presented to parents, rather than a panel formed by a regional agency. At the least, administrative linking processes and arrangements should ensure the full list of approved applicants is considered for children who need families, taking into account parents’ preferences about the child’s location.

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

   ↑

2. Ibid ss 15(1)(b)–(c).

   ↑

3. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 49; Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 60; Department of Human Services, Victoria, Standards in Adoption (1986) 86.

   ↑

4. Or other circumstances set out in s 46 of the Adoption Act 1984 (Vic) occur.

   ↑

5. Adoption Act 1984 (Vic) s 9.

   ↑

6. Ibid ss 15(1)(b)–(c).

   ↑

7. Adoption Regulations 2008 (Vic) reg 18.

   ↑

8. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 30.

   ↑

9. Ibid.

   ↑

10. Adoption Act 1984 (Vic) s 46; Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26; Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 47, 49.

    ↑

11. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26. The Learning Guide states: ‘The birth parent choice is therefore a recommendation for placement to the team leader or principal officer who holds guardianship of the child’: Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26; Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 49.

    ↑

12. Ibid 60.

    ↑

13. Ibid.

    ↑

14. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 47. See also Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26, 60.

    ↑

15. See, eg, New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 286; New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Discussion Paper No 34 (1994) 173-–4; Adoption Legislative Review Committee, Parliament of Western Australia, Review of the Adoption Act 1994 (2007) 24.

    ↑

16. Adoption Act 1993 (ACT) s 4(f); Adoption Act 2009 (Qld) s 6(2)(e).

    ↑

17. New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 284, see also 215. See also New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Discussion Paper No 34 (1994) 173–4. See also Adoption Legislative Review Committee, Family and Children’s Services, Western Australia, Adoption Legislative Review: Adoption Act (1994), Final Report (1997) 48; Department of Disability, Housing & Community Services, Australian Capital Territory, A Better System for Children without Parents to Care for Them: Discussion Paper on the Adoption Act 1993 (2006); Department of Families, Queensland, Adoption Legislation Review (2002) 34–5.

    ↑

18. New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 285. See also Linda F Cushman et al, ‘Openness in Adoption’ (1997) 25 Marriage & Family Review 7.

    ↑

19. New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 286.

    ↑

20. Community and Disability Services Ministers Conference, National Principles in Adoption 1997, 4.3 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications/national-principles-in-adoption-1997>.

    ↑

21. Ibid 1.23.

    ↑

22. Ibid 5.9.

    ↑

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

    ↑

24. Submission 17 (Name withheld).

    ↑

25. Submissions 34 (VANISH), 38 (Women’s Forum Australia).

    ↑

26. Submission 34 (VANISH).

    ↑

27. Submission 17 (Name withheld).

    ↑

28. Submissions 32 (Name withheld), 58 (Name withheld); Consultation 3 (Confidential).

    ↑

29. Consultation 36 (Kylie Martens).

    ↑

30. Submission 58 (Name withheld).

    ↑

31. Ibid.

    ↑

32. Consultation 9 (Roundtable with legal sector).

    ↑

33. Submissions 17 (Name withheld), 36 (Child & Family Services Ballarat Inc.).

    ↑

34. Submission 17 (Name withheld). See also Submission 38 (Women’s Forum Australia).

    ↑

35. Consultation 15 (Roundtable with culturally and linguistically diverse representative agencies).

    ↑

36. Submissions 20 (Name withheld), 22 (Confidential), 35 (OzChild), 50 (Barnardos Australia), 51 (Law Institute of Victoria).

    ↑

37. Submission 35 (OzChild); Consultation 17 (Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby).

    ↑

38. Submission 20 (Name withheld).

    ↑

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

    ↑

40. Submission 36 (Child & Family Services Ballarat Inc.); Consultations 13 (Roundtable with approved adoption agencies), 24 (Australian Association of Social Workers).

    ↑

41. See also Chapter 4 on contact and adoption plans.

    ↑

42. This is reflected in the best interests principles recommended in Chapter 5.

    ↑

43. Adoption Act 1984 (Vic) ss 15(1)(b)–(c).

    ↑

44. Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015) 26, 31.

    ↑

45. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 49.

    ↑

46. Ibid.

    ↑

47. Children, Youth and Families Act 2005 (Vic) s 319(1)(c).

    ↑

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

    ↑

49. Equal Opportunity Act 2010 (Vic) s 75.

    ↑

50. Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015) 3.

    ↑

51. Ibid.

    ↑

52. Ibid 5.

    ↑

53. Ibid 41; see also 8, 29, 32 and Recommendation 5.

    ↑

54. Ibid 8, 32.

    ↑

55. Ibid 42.

    ↑

56. Ibid 29–30.

    ↑

57. Submissions 29 (Connections UnitingCare), 36 (Child & Family Services Ballarat Inc.).

    ↑

58. Submission 17 (Name withheld).

    ↑

59. Submissions 7 (Name withheld), 16 (Name withheld).

    ↑

60. Submission 58 (Name withheld).

    ↑

61. Submission 35 (OzChild).

    ↑

62. Submission 34 (VANISH).

    ↑

63. Submissions 21 (Name withheld), 22 (Confidential).

    ↑

64. Consultations 3 (Confidential), 15 (Roundtable with culturally and linguistically diverse representative agencies).

    ↑

65. Submissions 5 (Confidential), 10 (Confidential), 44 (Victorian Gay & Lesbian Rights Lobby); Consultation 17 (Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby).

    ↑

66. Submission 51 (Law Institute of Victoria).

    ↑

67. Submission 7 (Name withheld).

    ↑

68. Submission 16 (Name withheld).

    ↑

69. Submission 5 (Confidential).

    ↑

70. Consultation 35 (Confidential).

    ↑

71. Submission 33a (Name withheld).

    ↑

72. Submission 58 (Name withheld).

    ↑

73. Submissions 29 (Connections UnitingCare), 36 (Child & Family Services Ballarat Inc.).

    ↑

74. Submission 29 (Connections UnitingCare).

    ↑

75. Ibid.

    ↑

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

    ↑

77. Submission 17 (Name withheld).

    ↑

78. Submission 38 (Women’s Forum Australia).

    ↑

79. Submission 34 (VANISH).

    ↑

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

    ↑

81. Adoption Act 2009 (Qld) s 157.

    ↑

82. Adoption Act 1993 (ACT) ss 39D(3)(a), 39F(2)(b).

    ↑

83. Adoption Act 1994 (WA) s 45.

    ↑

84. Adoption Regulations 2008 (Vic) reg 35.

    ↑

85. In Chapter 4, the Commission recommends the introduction of adoption plans which provide for parents’ wishes about contact and information exchange.

    ↑

86. Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Report No 12 (2007) Recommendation 67.

    ↑

87. Equal Opportunity Act 2010 (Vic) s 3(a).

    ↑

88. Victorian Law Reform Commission, Review of the Adoption Act 1984, Consultation Paper (2016) 110.

    ↑

89. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

    ↑

90. Ibid s 17(2).

    ↑

91. Discrimination Act 1991 (ACT) s 25A; Adoption Act 2000 (NSW) s 45B; Adoption Act 2009 (Qld) s 8; Equal Opportunity Act 1984 (WA) s 4 (definition of ‘services’).

    ↑

92. Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015) 37-–8.

    ↑

93. Ibid 8, 32.

    ↑

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

    ↑

95. Ibid s 15(1)(a). This does not apply to relatives of a child.

    ↑

96. Ibid s 13A.

    ↑

97. Or other circumstances set out in s 46 of the Adoption Act 1984 (Vic) occur.

    ↑

98. Ibid ss 15(1)(b)–(c).

    ↑

99. Adoption Regulations 2008 (Vic) reg 18.

    ↑

100. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 47–50; Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 60; Department of Human Services, Victoria, Standards in Adoption (1986) 86.

     ↑

101. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26, 60; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 49–50; Department of Human Services, Victoria, Information for Parents Considering Adoption of their Child (2008) 11, 15.

     ↑

102. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 26, 60; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 40, 50.

     ↑

103. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 47.

     ↑

104. Consultation 3 (Confidential).

     ↑

105. Submissions 20 (Name withheld), 22 (Confidential), 29 (Connections UnitingCare).

     ↑

106. See, eg, Adoption Act 2000 (NSW) ss 45A, 45B; Adoption Regulation 2015 (NSW) regs 69–73; Adoption Act 2009 (Qld) ss 153–63; Adoption Regulations 2004 (SA) reg 19; Adoption Regulations 2006 (Tas) reg 29; Adoption Act 1994 (WA) s 45.

     ↑

107. In Chapter 5, the Commission recommends that best interests principles should specify that it would ordinarily be in a child’s best interests to be placed with the same family as any sibling of the child who is also to be adopted or has been adopted. Chapter 4 makes recommendations to ensure all reasonable steps are taken to place siblings together.

     ↑

108. See, eg, Adoption Act 2009 (Qld) ss 89, 106.

     ↑

109. Adoption Act 1984 (Vic) ss 21–2.

     ↑

110. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 48.

     ↑

111. Ibid 48–9.

     ↑

112. Ibid 48.

     ↑

113. Submission 45 (Dr Briony Horsfall); Consultations 6 (Roundtable with Permanent Care and Adoptive Families), 24 (Australian Association of Social Workers), 32 (Ann Jukes and Gabrielle Hitch), 35 (Confidential), 38 (Professor the Honourable Nahum Mushin, Adjunct Professor of Law, Monash University).

     ↑

114. KPMG Management Consulting, Redevelopment of Adoption and Permanent Care Services Options Paper (Department of Human Services, Victoria, 1998) 5, 8, 17.

     ↑

115. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 60.

     ↑

116. Ibid. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005). The Commission is informed all approved applicants are on the CRE.

     ↑

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

     ↑

118. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 60–1; Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 2 Infant Adoption (2005) 49.

     ↑

119. Department of Human Services, Victoria, Adoption and Permanent Care Procedures Manual (2004) 3.

     ↑

120. Ibid 61.

     ↑

121. Ibid.

     ↑