Review of the Adoption Act 1984: Report

3. Participation of the child in adoption decision making

Introduction

3.1 This chapter provides recommendations to increase the participation of children in decision making about adoptions.

3.2 A key theme from consultation was that the central figure in adoption—the child—is not heard. Article 12 of the United Nations Convention on the Rights of the Child (CRC) requires that children be heard in all matters affecting them. It emphasises that they are rights holders, not just the object of protection from adults.

3.3 Although children are sometimes too young to express a view, the current opportunities for the child to participate are inadequate. The fact that a child’s views may not decide the outcome does not mean that the child should not be given an opportunity to express their views. In addition to contributing to the decision, the child is more likely to respect a decision that they participated in and understand the reasons for, even if the result is not what they wished for.

3.4 Recommendations in this chapter aim to ensure that the child has the maximum opportunity to participate in decision making about their adoption, including decisions about placement, contact with the family of origin, changes of name, and whether an adoption order should be made.

United Nations Convention on the Rights of the Child

Child’s right to be heard—Article 12

3.5 Article 12 of the CRC provides a right for a child who is capable of forming their own views to express those views freely in all matters affecting them. It requires that the views of the child are given due weight in accordance with the age and maturity of the child.^[1]

3.6 This right, often described as the right to be heard or the right to participation, has been identified by the Committee on the Rights of the Child as one of the four general principles of the CRC which ‘highlights the fact that this article establishes not only

a right in itself, but should also be considered in the interpretation and implementation

of all other rights’.^[2]

3.7 The Committee on the Rights of the Child has discounted the view that young children are not capable of forming views:

Research shows that the child is able to form views from the youngest age, even when she or he may be unable to express them verbally. Consequently, full implementation of article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences.^[3]

3.8 A child is not obliged to express their views:

Expressing views is a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or his best interests.^[4]

3.9 Age alone is not determinative of the weight to be given to the views of the child.

Article 12 also requires consideration of the maturity of the child:

Children’s levels of understanding are not uniformly linked to their biological age. Research has shown that information, experience, environment, social and cultural expectations, and levels of support all contribute to the development of a child’s capacities to form a view. For this reason, the views of the child have to be assessed

on a case-by-case examination.^[5]

3.10 The Committee on the Rights of the Child has stated that maturity ‘refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child’.^[6] It has also indicated that:

The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child.^[7]

3.11 Article 12 stipulates that ‘simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views’.^[8]

3.12 The Committee on the Rights of the Child also commented specifically on the right to be heard in relation to adoption, identifying that the child should be heard both when they are to be placed for adoption and before an adoption is finalised:

When a child is to be placed for adoption … and finally will be adopted … it is vitally important that the child is heard. Such a process is also necessary when step-parents or foster families adopt a child, although the child and the adopting parents may have already been living together for some time.^[9]

3.13 The Committee on the Rights of the Child has stated that in adoption decisions ‘the “best interests” of the child cannot be defined without consideration of the child’s views’.^[10] It has urged that, if possible, the child is informed about the effects of adoption and that legislation ensures that the views of the child are heard.^[11]

3.14 Gerison Lansdown summarises research into children’s capacity from the perspective and experience of children. She concludes that ‘it is increasingly clear … that adults consistently underestimate children’s capacities’.^[12] Lansdown suggests:

Children’s physical immaturity, relative inexperience and lack of knowledge do render them vulnerable and necessitate specific protections … However, in many cases, children are denied opportunities for decision making in accordance with their evolving capacities. Neither legal frameworks, nor policy and practice in most countries throughout the world give sufficient consideration to the importance of recognising and respecting the capacities of children.^[13]

3.15 Claire Fenton-Glynn argues that the right of the child to be heard in adoption proceedings is of substantive value, procedural value and symbolic value.^[14]

3.16 The substantive value is that better decisions are made: ‘Without hearing the views of the child … and taking them into consideration, it is not possible to determine the content of the child’s best interests.’^[15]

3.17 The procedural value is that it increases the chances that the child will respect the decision:

The success of an adoption depends heavily on the attitude of the child, and his or her willingness to integrate into a new environment. Where the child is unhappy with the decision taken, he or she may cause difficulties in the placement, and pose a bar to its success. Even where the decision taken is against the child’s wishes, the participation of the child can help him or her understand the process, and why that particular decision has been made.^[16]

3.18 The symbolic value is that it recognises children as active rights holders, who are empowered to participate in decision making:

The recognition of the autonomy of children was one of the most important features of the UNCRC … the right of a child to participate was a landmark change in the way in which children were viewed before the law … Children’s views are not listened to simply because it helps a decision to be made, but because they come from someone who has a right to be heard.^[17]

3.19 In 2012, the United Nations Committee on the Rights of the Child expressed concern ‘that only three out of eight jurisdictions in [Australia] require the consent of the adopted child (as of 12 years of age) prior to adoption’.^[18] However, as Fenton-Glynn observes:

Article 12 of the UNCRC requires that a child’s opinions be given due weight according to his or her age and maturity, and as such there is no obligation under the Convention that the child be able to definitively determine whether he or she will be adopted.^[19]

3.20 To give effect to the right for children to express views in all matters affecting them, article 12 provides that:

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.^[20]

3.21 This means that in some cases a child may be heard through a representative. Recommendations about legal representation for children in adoption are provided in Recommendation 66 in Chapter 14.

Evolving capacity of the child—Article 5

3.22 Article 5 of the CRC provides for recognition of a child’s evolving capacity:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.^[21]

3.23 Article 5 ‘establishes that as children acquire enhanced competencies, there is a reduced need for direction and a greater capacity to take responsibility for decisions affecting their lives’.^[22] It ‘implies a transfer of responsibility for decision-making from responsible adults to children, as the child acquires the competence, and of course, willingness to do so’.^[23] The parents of children are entrusted with powers to make decisions on their behalf ‘either until they judge it appropriate to hand over responsibility to the child or until a prescribed age-limit determined by law’.^[24]

3.24 Lansdown comments that ‘children must not be forced against their will to take decisions they do not feel competent or willing to take’, suggesting that ‘it is one of the rights of childhood that children are not burdened with inappropriate levels of responsibility’.^[25]

3.25 Similarly, Taylor, Tapp and Heneghan have argued that:

it is unethical to give the child the opportunity to express their views in the form of a choice or preference between the options before the Court unless the child is able to understand the Court process, the role they are being offered in the process and the potential consequences of expressing a choice or preference.^[26]

Age-based approach to rights

3.26 The law sometimes draws a ‘bright line’ to determine when someone has capacity to make a particular decision based on their age—for example, the age for voting, marriage, or consent to sexual relations. This avoids the need to make an individual assessment on capacity in each case. However, in areas such as consent to medical treatment, the common law does not draw a ‘bright line’, recognising that young people have the capacity to make decisions at different ages and requiring that each situation be assessed on its merits.

3.27 There are advantages and disadvantages of using an age-based approach to the acquisition of rights. A fixed age provides certainty and consistency but sacrifices flexibility, adaptability and an ability to respond to the specific factual circumstances.^[27] Fenton-Glynn suggests that a fixed age for a child to participate in adoption decision making ‘fails to respond to the evolving capacities of the child’.^[28] She suggests that the ‘capability, understanding and intelligence of the child should be viewed as working on a spectrum, not as a dichotomy’.^[29]

3.28 The use of a fixed age to provide a right is an accepted part of daily life. It is appropriate in situations where it would be impractical and too costly to assess each person’s decision-making capacity on a case-by-case basis. Examples of these types of fixed age rights include the age of sexual consent, the voting age, and the age at which someone may buy alcohol or tobacco. As Fenton-Glynn suggests:

Prospective adoptive children are a much smaller subset of the population, however, and the potential impact on their lives of an adoption order is far greater. Although it may be easier and cheaper for states to use an inflexible limit, it clearly disregards the requirements of the UNCRC and more nuanced systems should be implemented.^[30]

3.29 The Committee on the Rights of the Child has stated in its General Comment on article 12 that domestic authorities:

cannot begin with the assumption that a child is incapable of expressing his or her own views. On the contrary, States parties should presume that a child has the capacity to form his or her own views and recognize that she or he has the right to express them; it is not up to the child to first prove … capacity.^[31]

3.30 Gilllick v West Norfolk, a medical consent case in England, provided recognition of the evolving capacity of young people.^[32] The case said that the ability to provide consent to medical procedures is not age-based but requires that the person has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.^[33]

3.31 In Marion’s Case, the majority of the High Court of Australia approved this principle, stating that:

This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.^[34]

3.32 In the 2004 case Re Alex, which considered whether Alex was competent to consent to hormone treatment, Chief Justice Nicholson observed that, following Marion’s Case, the Gillick approach had been accepted and applied in Australia:

Even though the question of Marion’s Gillick competency was not, in fact, an issue in that case, given the degree of Marion’s disability, the … statement by the High Court majority has been applied by this Court in special medical procedure cases…^[35]

Current law

3.33 In Victoria a child is not required to consent to their adoption. Instead, children must receive counselling subject to their age and understanding, and consideration must be given to their wishes.

3.34 In general, counselling must be provided to the child a minimum of 28 days before the adoption order is to be made.^[36] Counselling is not required if the court is satisfied that it would not be appropriate considering the age and understanding of the child.^[37]

3.35 The counsellor must counsel the child about the effects of the adoption and provide a written report to the court.^[38]

3.36 The court must be satisfied that the wishes of the child have been ascertained and have been given due consideration. There are no age requirements but the age and understanding of the child is taken into account.^[39]

3.37 The child’s views are also sought when the court is considering varying the conditions about contact arrangements. An order may not be made ‘to grant a person a right of access, or greater rights of access, to an adopted child’ unless the court is satisfied that, as far as practicable, the wishes of the child have been ascertained and considered, having regard to the age and understanding of the child.^[40]

Consent, views or wishes of the child

3.38 The Adoption of Children Act 1964 (Vic) included a general requirement for a child from the age of 12 to consent to their adoption.^[41] In the Adoption Act this was replaced with the current requirements for mandatory counselling and consideration of the child’s wishes.

3.39 One reason for this change was the view that a child’s signature on a consent form does not necessarily demonstrate that the child understands the implications of adoption or of consent.^[42]

3.40 A second concern was that requiring a child’s consent places a heavy responsibility on a child and ‘may subject the child to unwarranted pressure and manipulation from the parents’.^[43]

3.41 The approach taken in other Australian jurisdictions varies. The Northern Territory, South Australia, Western Australia and New South Wales require the consent of a child to their adoption if the child is aged 12 or older.^[44]

3.42 The Australian Capital Territory, Tasmania, and Queensland do not include requirements that a child consent to an adoption, irrespective of their age.

3.43 The Adoption Act 2009 (Qld) removed a previous requirement that a child aged 12 or older consent to an adoption. This was replaced with requirements to provide information to help the child form their own views about the proposed adoption; counselling; and a requirement that the court consider the child’s views before deciding whether or not to make an adoption order.^[45]

3.44 The new requirements aimed to:

balance a child’s right to participate in the decision making with ensuring the child does not feel responsible for the decision and is not under undue pressure, particularly where the decision involves choosing between a birth parent and the person who is caring for the child.^[46]

3.45 Similar provisions in the Family Law Act were also removed. Prior to 1983, the Family Law Act included a requirement that the court did not make an order contrary to the child’s wishes if the child was aged 14 or older, unless there were special circumstances that made it necessary to do so.^[47]

3.46 This requirement was removed in 1983. There were concerns that it sometimes had the effect of forcing a child to express a preference in favour of one parent, which many children did not want to do.^[48] There was also concern that pressure was sometimes placed on the child and that the wish expressed was not their genuine wish.^[49]

3.47 It was replaced with a requirement that the court consider any wishes expressed by the child and give the wishes the weight that the court considers appropriate in the circumstances of the case.^[50] A provision was also included to clarify that no one may require a child to express their wishes.^[51]

3.48 The current formulation requires that one of the best interests considerations is ‘any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views’.^[52] No one may require a child to express their views.^[53]

Responses

3.49 There was very strong support for the idea that children should be involved in decision making about adoption to the maximum degree possible. There were mixed views on whether this should include requirements that a child consent to their adoption.

3.50 Responses to the issue of whether a child should consent to their adoption fell into three main categories:

• Those who considered a child’s consent to their adoption should not be required, but rather that consultation with the child should occur and that their views and wishes should be considered.^[54]

• Those who considered a child’s consent to their adoption should be required.

A number of these people considered that the age for consent should not be fixed but instead should be determined on a case-by-case basis, or that if the age is fixed,

it should be lower than 12.^[55]

• Those who suggested a third option that the child should be able to withhold consent, object,^[56] or neither consent nor refuse consent, which was described as ‘unopposed’ adoption.^[57]

3.51 Many people commented on the need for legal representation to ensure that the child has the opportunity to be heard. Legal representation for the child, including consideration of responses to this issue, is discussed in Chapter 14 and Recommendation 66.

3.52 The following concerns were raised about requiring a child’s consent to an adoption:

• the potential for duress or for a child to be manipulated, including through unequal power relationships between children and adults who are caring for them^[58]

• that having to express a view for or against adoption may place undue pressure on a child and cause conflicted loyalties^[59]

• that requiring a child’s consent may cause them fear, including fear that if they do not consent they will not be able to stay with the family they are placed with^[60]

• that a child does not have the same decision-making capabilities as an adult.^[61]

3.53 One submission suggested that requiring a child’s consent to an adoption could make a child very fearful:

Children under care of adults are not in an equitable relationship. They cannot speak their truth without being afraid of the repercussions. They should not be placed in that predicament. At 12 I was terrified, at 50 I am still terrified, of offending in any way my adoptive mother. The fear, terror, of repeating the original trauma is pathological and deep.^[62]

3.54 VANISH considered that a child’s wishes should always be sought and considered in adoption proceedings and that their involvement should be facilitated to the fullest extent possible. However, it opposed:

any provision that places the onus on the child/young person to have to consent to being adopted—given adoption is a legal institution with a more profound influence throughout the adoptee’s adulthood than marriage.^[63]

3.55 Berry Street submitted that requiring the child’s consent ‘creates a scenario where the child is forced to express a view either in favour of or against the adoption and that this can place undue pressure on children’.^[64] It supported a requirement that a child aged 12 and over cannot be adopted where the child withholds their consent to the adoption. It defined withholding consent as declining to express a view. It considered that this ‘would lessen the pressure on children while preserving their rights within the decision making process’. ^[65]

3.56 Participants at a roundtable with the disability and mental health sector expressed concern that requirements to consent to their adoption might place pressure on a child. Some participants said that this would raise concerns about whether any consent given by a child was genuine consent. A related concern was the potential pressure on a child if their consent was required in situations where a parent’s consent had been dispensed with.

The child could be in a position where they are choosing against a natural parent’s

wishes. One participant suggested that a better approach would be to assess the child’s needs and wishes.^[66]

3.57 The key reasons given for requiring a child’s consent to an adoption were:

• providing self-determination for the child^[67]

• the serious consequences of an adoption, including the loss of some entitlements and rights^[68]

• harmonisation with other legislation.^[69]

3.58 Fae Cuff submitted:

I think had I been asked at 12 y[ea]rs of age I could have made an informed decision about my adoption. A case conference discussing the child, the family or extended family needs to happen to consider all aspects. A child could have representation if he/she was mature enough to verbalise concerns. A non-legal support or advocate could also represent [the] child. This could be a close relative or friend. Often workers who have had long term involvement with a family are seen as a trustworthy and important part of the child’s life, and therefore make an excellent advocate.^[70]

3.59 The Australian Association of Social Workers highlighted self-determination as a reason for requiring a child’s consent.^[71]

3.60 Barnardos Australia also highlighted issues relating to the autonomy and self-determination of children:

Children over age twelve being able to consent to their own adoption (given an existing relationship), is very important and endorsed by the many children in NSW who use this provision … many children find it very important to be able to consent to who their family should be.^[72]

3.61 The Australian Adoptee Rights Action Group expressed the strong view that a child’s consent to adoption should be required, noting the effect on the inheritance rights of the child:

Adoption disinherits a child for life. It is arguable that disinheritance without consent is a violation of the rights of the child so really there should be no adoption without consent unless you allow retention of inheritance rights as well as assuming enhanced rights within the adoptive family whom you can inherit off anyway as anyone can inherit off those they are dependent on.^[73]

3.62 A number of responses noted that a child’s age does not necessarily determine their capacity to understand and make decisions. They suggested that a fixed age for requiring a child’s consent is problematic because some children under that age may be able to understand and consent to being adopted. Equally, some children older than the fixed age may not have the capacity to consent^[74]

3.63 The Australian Association of Social Workers said that ‘the focus on a specific age does not appreciate all the varying factors that contribute to a child being able to provide an informed decision’.^[75] It suggested that the Gillick approach would be more appropriate than specifying an age at which a child can consent.^[76] Gillick is discussed above at [3.30].

3.64 Some people observed that the age of criminal responsibility in Victoria is 10 years of age and suggested that, as a matter of consistency, a child’s consent to adoption should be required from the age of 10 upwards.^[77] They considered that it would be problematic if one Act treats children as having capacity to make decisions when they are aged 10 and another Act requires them to be aged 12.^[78]

3.65 Connections Uniting Care told the Commission that it ‘is committed to listening to the voices of children and, where children are able to provide informed consent, firmly believes that their wishes should be upheld’.^[79] In relation to the organisation’s current practice regarding children consenting to their adoption it said:

The majority of adoptions involve younger children … If the child was old enough to understand adoption and provide informed consent, their consent would be sought. However, determining competency to provide informed consent has been challenging in recent times for children aged 11–12. Connections currently seeks the views of children in step-adoption matters, which are the majority of cases where children older than 12 years of age are adopted.^[80]

3.66 Some people considered that children should be able to consent to their own adoption where there is an existing relationship with the proposed adoptive parents.^[81]

3.67 Some people considered alternative options to a requirement that a child must consent to their adoption. Berry Street submitted that an adoption should not proceed if a child over 12 declines to express a view.^[82] Another submission suggested that rather than a right or requirement to consent, a child should have a right to object, with a supporting rationale for the objection.^[83]

3.68 Dr Briony Horsfall submitted that in addition to the options of consenting or opposing an adoption:

a third option of unopposing an application for adoption would enable children to continue participating in the process, to the extent that they wished to do so, without having to publically consent or oppose or if they do not have a clear view either way. Access to independent legal advice and representation would be necessary to support children in the decision to consent, oppose or not oppose adoption.^[84]

Commission’s conclusions

3.69 As the person most affected by a decision about adoption, the child should have the maximum opportunity to participate in the decision. The Adoption Act should provide greater opportunity for the child to participate in adoption decisions.

3.70 A key component of modernisation of Victoria’s adoption law is providing for the participation of the child in adoption decisions. Understanding of the capacities and rights of children has evolved since 1984 and adoption law should reflect this. Significantly, the ratification of the CRC by Australia in 1990 recognises children as rights holders. Articles 5 and 12 recognise the child’s right to be heard and that as their capacity evolves, their ability to make decisions increases.

3.71 The Adoption Act provides very limited opportunity for the child to participate. It provides for consideration of the wishes of the child before an adoption order is made^[85] and before changes to an order to provide greater rights of contact with an adopted child.^[86]

3.72 Language used in the Adoption Act to describe the participation rights of the child in adoption decisions should mirror the language used in article 12 of the CRC. This will better reflect the intention of article 12 and ensure consistency throughout the Adoption Act. This view is reflected in recommendations throughout the report relating to the participation of a child in adoption decisions.

3.73 The Adoption Act should retain the requirement for the child to be counselled a minimum of 28 days before the adoption order is to be considered. A child’s ‘views’ should be sought rather than their ‘wishes’. This is not intended to prevent a child from expressing wishes if they want to do so. It replicates the language used in article 12 of the CRC. It also aligns with the Family Law Act, which was amended in 2006 to replace ‘wishes’ with ‘views’. This change was aimed at enabling ‘a child’s perceptions and feelings’ to be considered ‘and … for any decision to be made in consultation with the child without the child having to make a decision or express a “wish”’.^[87]

3.74 The words ‘at least 28 days before the adoption order is to be made’ should be replaced with ‘at least 28 days before the day of the hearing for the adoption order’. This wording better reflects the fact that the court has a discretion to decide whether or not to make an adoption order.

3.75 The phrase ‘age and maturity’ should be used rather than ‘age and understanding’ to mirror the wording of article 12 of the CRC.

3.76 At the time counselling is required, the child would have been placed with the adoptive parents for almost 12 months. Limiting a child’s right to be heard to this stage in the process does not accord well with a child’s rights to participate in decisions affecting them. The child should be able to be heard and be an active participant in decisions about their adoption at a much earlier stage.

3.77 The Committee on the Rights of the Child has commented that it is ‘vitally important’ that the child should be heard both when they are to be placed for adoption and before an adoption is finalised, and that this applies to adoption by step-parents or foster families too.^[88]

3.78 The Commission considered whether a child should be required to consent to their adoption, and if so, whether there should be a fixed age for this.

3.79 On balance, the Commission considers that a child should not be required to consent to an adoption, irrespective of their capacity to do so. It acknowledges that in 2012 the Committee on the Rights of the Child expressed concern ‘that only three out of eight jurisdictions in [Australia] require the consent of the adopted child (as of 12 years of age) prior to adoption’.^[89] However, requiring a child’s consent to an adoption places the child in the position of being required to express an opinion. The Committee on the Rights of the Child has stated that ‘[e]xpressing views is a choice for the child, not an obligation’.^[90]

3.80 The Adoption Act should require that a child have the opportunity to be heard in relation to any decision that has a significant impact on the child’s life. Decisions with a significant impact should be defined to include the development of an adoption plan, placement for adoption, an application for an adoption order and a decision about a child’s name.^[91]

3.81 A child’s views should also be sought during the 12-month period that the child is placed with a proposed adoptive family.

3.82 The Act should specify that a child not be required to express their views.

3.83 Adoption plans providing for contact, which are discussed in Chapter 4, should be made with rather than for the child wherever possible. In accordance with article 5 of the CRC, they should evolve as the child matures and is able to take on more responsibility for managing contact and determining what is best for them. Currently, the Adoption Act requires a child’s wishes to be sought if an increase in contact is contemplated.^[92] The child’s views should be sought on contact arrangements generally, not just if increased contact is contemplated.

3.84 There should not be a fixed age for a child’s participation in adoption decisions. The combined effect of the CRC’s article 12 (right to be heard) and article 5 (recognition of a child’s evolving capacity) requires that a case-by-case approach be taken. This acknowledges that capacity exists on a spectrum, rather than a hard-line separation between capacity and incapacity. Providing a fixed age at which a child is able to express their views thwarts the intention of articles 5 and 12.

3.85 The starting presumption should be that a child is capable of forming their own views on a matter concerning their adoption. The Committee on the Rights of the Child has emphasised that ‘article 12 imposes no age limit on the right of the child to express her or his views’^[93] and discouraged States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard.^[94]

3.86 A decision about what weight to place on the child’s views requires a decision maker to consider the ‘age and maturity of the child’. This must occur on a case-by-case basis. If there is doubt about the maturity of the child, then expert opinion should be sought from a suitably qualified professional with expertise in childhood development, such as a child psychologist.

3.87 The views of a child who is strongly objecting to a particular decision or strongly in favour of a particular decision should weigh heavily with a decision maker. If a child has strong views, it is likely to influence the success of any decision.^[95]

3.88 To ensure that the child is able to participate in decisions and express their views if they wish, the Act should provide guidance about what information must be provided to them and the manner in which it should be provided.

3.89 Consideration should be given to producing practice guidelines and training about the type of information that should be provided. The Adoption Act 2009 (Qld) provides a useful guide about the type of information that should be provided to a child before an application for an adoption order is made.^[96] Both the type of information and the manner in which it is provided should be tailored to the decision being made and the age and maturity of the child.

3.90 A child should also be provided with information about why a particular decision has been made. The child should be given assistance to understand the information, if required. This aligns with the comments by the Committee on the Rights of the Child that:

Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint.^[97]

Recommendations

8 The Adoption Act should specify that the views of the child must be sought on any decision that has a significant impact on the child’s life and that:

a. the child must have the opportunity to express their views freely

b. the decision maker must give these views due weight in accordance with the age and maturity of the child

c. the child is not required to express their views.

9 A decision that has a significant impact on the child’s life should be defined as including but not limited to:

a. the development of the adoption plan concerning the child

b. the placement of the child for adoption

c. the application for an order for the adoption of the child

d. a decision about the child’s name.

10 To ensure that the child is able to form and express their views on a decision, the Adoption Act should specify that the child must be provided with:

a. relevant and adequate information concerning the decision

b. any assistance that is necessary for the child to understand the information and to express their views

c. information about the child’s rights

d. information about the outcome of the decision and an explanation of the reasons for the decision.

11 The requirements in section 14 of the Adoption Act that a child must receive counselling before an adoption order is made should be retained with the following modifications:

a. The ‘child’s views’ should be sought rather than their ‘wishes’.

b. The words ‘at least 28 days before the day on which the adoption order is to be made’ should be replaced with ‘at least 28 days before the day of the hearing for the adoption order’.

c. The words ‘age and understanding’ should be replaced with ‘age and maturity’.

1. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
   
   art 12.

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2. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [2].

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3. Ibid [21].

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4. Ibid [16].

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5. Ibid [29].

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6. Ibid [30].

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7. Ibid.

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8. Ibid [28].

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9. Ibid [55].

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10. Ibid [56].

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11. Ibid.

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12. Gerison Lansdown, The Evolving Capacities of the Child (UNICEF, 2005) 30–1.

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13. Ibid 31.

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14. Claire Fenton-Glynn, ‘The Child’s Voice in Adoption Proceedings: A European Perspective’ (2013) 21 International Journal of Children’s Rights 590, 592–3. See also Baroness Hale of Richmond, ‘Children’s Participation in Family Law: Lessons from Abroad’ (2006) 20 Australian Journal of Family Law 119, 119.

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15. Claire Fenton-Glynn, ‘The Child’s Voice in Adoption Proceedings: A European Perspective’ (2013) 21 International Journal of Children’s Rights 590, 592.

    ↑

16. Ibid 593.

    ↑

17. Ibid.

    ↑

18. United Nations Committee on the Rights of the Child, 60th sess, 1725 mtg, UN Doc CRC/C/AUS/CO/4 (28 August 2012) [53].

    ↑

19. Claire Fenton-Glynn, ‘The Child’s Voice in Adoption Proceedings: A European Perspective’ (2013) 21 International Journal of Children’s Rights 590, 593. Lansdown argues similarly: ‘Article 12 asserts the child’s right to be involved in a process of participation in all matters affecting him or her, but adults retain responsibility for the outcome. The outcome will be decided by adults but informed and influenced by the views of the child.’ See Gerison Lansdown, The Evolving Capacities of the Child (UNICEF, 2005) 4.

    ↑

20. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
    
    art 12(2).

    ↑

21. Ibid art 5.

    ↑

22. Gerison Lansdown, The Evolving Capacities of the Child (UNICEF, 2005) ix.

    ↑

23. Ibid 4.

    ↑

24. Ibid.

    ↑

25. Ibid.

    ↑

26. Nicola Taylor et al, ‘Respecting Children’s Participation in Family Law Proceedings’ (2007) 15(1) International Journal of Children’s Rights 61, 74.

    ↑

27. See generally Gerison Lansdown, The Evolving Capacities of the Child (UNICEF, 2005) 49–53; Claire Fenton-Glynn, ‘The Child’s Voice in Adoption Proceedings: A European Perspective’ (2013) 21 International Journal of Children’s Rights 590, 594–602.

    ↑

28. Claire Fenton-Glynn, ‘The Child’s Voice in Adoption Proceedings: A European Perspective’ (2013) 21 International Journal of Children’s Rights 590, 595.

    ↑

29. Ibid.

    ↑

30. Ibid 597.

    ↑

31. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [20].

    ↑

32. Gillick v West Norfolk [1986] AC 112.

    ↑

33. Ibid 189 (Lord Scarman).

    ↑

34. Marion’s Case (1992) 175 CLR 218, 237–8 (Mason CJ, Dawson, Toohey and Gaudron JJ).

    ↑

35. Re Alex (2004) 180 FLR 89, 116–7 [155].

    ↑

36. Adoption Act 1984 (Vic) s 14(1)(a).

    ↑

37. Ibid s 14(2).

    ↑

38. Ibid ss 14(1)(a), 14(3).

    ↑

39. Ibid s 14(1)(b).

    ↑

40. Ibid s 60(5)(b).

    ↑

41. Adoption of Children Act 1964 (Vic) s 30. The court could decide it was not required if it was satisfied that there were ‘special reasons, related to the welfare and interests of the child, why the order should be made notwithstanding that the child has refused to consent to the adoption or his consent has not been sought’.

    ↑

42. Adoption Legislation Review Committee, Parliament of Victoria, Report of Adoption Legislation Review Committee (1983) 157.

    ↑

43. Ibid.

    ↑

44. Adoption of Children Act (NT) s 10(2); Adoption Act 1988 (SA) s 16; Adoption Act 1994 (WA) s 17(1)(c)(ii); Adoption Act 2000 (NSW) s 55.

    ↑

45. Adoption Act 2009 (Qld) ss 44, 45, 179(2).

    ↑

46. Department of Communities, Queensland, Future Adoption Laws for Queensland (2008) 11.

    ↑

47. Family Law Act 1975 (Cth) s 64(1)(b), later amended by the Family Law Amendment Act 1983 (Cth) s 29.

    ↑

48. Anthony Dickey, Family Law (Law Book, 6th ed, 2014) 336.

    ↑

49. Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1914 (Cecil Blanchard).

    ↑

50. Family Law Amendment Act 1983 (Cth) s 29(b).

    ↑

51. Ibid s 29(d).

    ↑

52. Family Law Act 1975 (Cth) s 60CC(3)(a).

    ↑

53. Ibid s 60CE.

    ↑

54. Submissions 34 (VANISH), 35 (OzChild), 57 (Patricia Harper); Consultations 4 (ARMS (Vic)), 15 (Roundtable with culturally and linguistically diverse representative agencies), 34 (Elaine Taylor).

    ↑

55. Submissions 9 (Australian Adoptee Rights Action Group), 16 (Name withheld), 26 (Adoption Origins Victoria Inc.), 50 (Barnardos Australia), 54 (Australian Christian Lobby).

    ↑

56. Submissions 6 (Name withheld), 60 (Berry Street).

    ↑

57. Submission 45 (Dr Briony Horsfall).

    ↑

58. Submissions 3 (Leilani Hannah), 16 (Name withheld); Consultation 4 (ARMS (Vic)).

    ↑

59. Submissions 35 (OzChild), 60 (Berry Street); Consultations 5 (Roundtable with disability and mental health sector), 15 (Roundtable with culturally and linguistically diverse representative agencies), 32 (Ann Jukes and Gabrielle Hitch).

    ↑

60. Submission 3 (Leilani Hannah); Consultation 5 (Roundtable with disability and mental health sector).

    ↑

61. Submission 6 (Name withheld).

    ↑

62. Submission 3 (Leilani Hannah).

    ↑

63. Submission 34 (VANISH).

    ↑

64. Submission 60 (Berry Street).

    ↑

65. Ibid.

    ↑

66. Consultation 5 (Roundtable with disability and mental health sector).

    ↑

67. Submissions 42 (Australian Association of Social Workers), 50 (Barnardos Australia); Consultation 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies).

    ↑

68. Submission 9 (Australian Adoptee Rights Action Group).

    ↑

69. Submission 41 (Adopt Change).

    ↑

70. Submission 23 (Fae Cuff).

    ↑

71. Submission 42 (Australian Association of Social Workers).

    ↑

72. Submission 50 (Barnardos Australia).

    ↑

73. Submission 9 (Australian Adoptee Rights Action Group).

    ↑

74. Submissions 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 27 (Institute of Open Adoption Studies, University of Sydney), 29 (Connections UnitingCare), 42 (Australian Association of Social Workers), 45 (Dr Briony Horsfall).

    ↑

75. Submission 42 (Australian Association of Social Workers).

    ↑

76. Ibid.

    ↑

77. Submissions 26 (Adoption Origins Victoria Inc.), 45 (Dr Briony Horsfall); Consultation 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies).

    ↑

78. Consultation 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies).

    ↑

79. Submission 29 (Connections UnitingCare).

    ↑

80. Ibid.

    ↑

81. Submissions 7 (Name withheld), 50 (Barnardos Australia).

    ↑

82. Submission 60 (Berry Street).

    ↑

83. Submission 6 (Name withheld).

    ↑

84. Submission 45 (Dr Briony Horsfall).

    ↑

85. Adoption Act 1984 (Vic) s 14.

    ↑

86. Ibid s 60(5)(b).

    ↑

87. Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) 15.

    ↑

88. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [55].

    ↑

89. United Nations Committee on the Rights of the Child, 60th sess, 1725 mtg, UN Doc CRC/C/AUS/CO/4 (28 August 2012) [53].

    ↑

90. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [16].

    ↑

91. This approach is taken in New South Wales. See Adoption Act 2000 (NSW) s 9.

    ↑

92. Adoption Act 1984 (Vic) s 60(5)(b).

    ↑

93. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [21].

    ↑

94. Ibid.

    ↑

95. See Pini v Romania (2005) 40 EHRR 132, which demonstrates the risks of not involving a child in decision making and trying to enforce decisions that a child strongly objects to.

    ↑

96. Adoption Act 2009 (Qld) s 44(3).

    ↑

97. United Nations Committee on the Rights of the Child, General Comment No 12 (2009): The Right of the Child to be Heard, 51st sess, CRC/C/GC/12 (20 July 2009) [45].

    ↑