Review of the Adoption Act 1984: Report

4. Contact and adoption plans

Introduction

4.1 This chapter addresses the ways that adoption law should provide for the many important relationships and connections that a child has before an adoption, and which are not extinguished by an adoption order.

4.2 Many people told the Commission that adopted people do without things that most people take for granted. These included growing up with your biological siblings, seeing people who look like you, knowing your family’s medical history and genetics, knowledge of your culture, and knowing where various traits come from.

4.3 People told the Commission that contact and information help an adopted person make sense of their life and identity. It helps the person know what their life would have been like if they had not been adopted, understand why they were adopted, allows the continuation of existing relationships with parents, siblings, grandparents, carers or other people of significance, and helps with grief and loss.

4.4 Adoption law must provide better for existing relationships that the adopted person has before their adoption. Decision makers should consider existing relationships and provide for them to continue after adoption. A failure to do so poses risks for the identity formation of the adopted child and increases the chance of trauma for the child and their family of origin.

4.5 Nor is this limited to adoptions involving older children. All adoptions in Victoria between 2012 and 2015 were of infants under two years old.^[1] However, the fact that someone is adopted at a young age does not mean that they are a ‘clean slate’ with no need to know where they come from or have contact with their family of origin. The adopted person’s ability to take their own responsibility for contact increases as they mature. Adoption law should recognise this.

4.6 This chapter makes recommendations about the ways that adoption law should provide for relationships with relatives from the family of origin and other people of significance in the adopted person’s life. These include recommendations about better provision for sibling relationships, and the use of adoption plans. Adoption plans provide an ability to negotiate contact arrangements but also provide for the court to make decisions about contact arrangements in the best interests of the child.

Child’s relationships with siblings

4.7 This section considers the way that adoption law should provide for relationships between an adopted child and their siblings. It focuses on recommendations for placing siblings together and providing for contact between siblings where they are not placed together.

4.8 The recommendations in this section provide for siblings as defined by the Adoption Act 1984 (Vic). It defines a relative of a child as:

a grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of any person.^[2]

4.9 The Commission notes that legal definitions of siblings may not match with the child’s identification of who is a sibling because ‘[c]hildren are less formal than adults in their view of who is a brother or sister’. The term ‘fictive kin’ describes ‘relationships in a child’s life where there is no legal or biological tie, but a strong, enduring bond exists’.^[3]

4.10 This section makes recommendations relating to siblings who fit within the legal definition of relative in the Adoption Act. The Commission recommends adoption plans which may provide for the relationships a child has with people of significance, who may not fit within the Adoption Act’s definition of relative (Recommendations 14 to 19).

Current law

4.11 The Adoption Act does not provide any specific requirements to consider the importance of sibling relationships to an adopted person or the preservation of sibling relationships.

4.12 Chapter 16 discusses the limited rights to information about an adopted person that a sibling has and makes recommendations that limitations be removed.

Responses

4.13 There was strong support for making the preservation of sibling relationships a key consideration in adoption decision making.^[4]

4.14 Many people emphasised the importance of sibling relationships. Responses included:

• It is one of the longest lasting relations a person has.^[5]

• Separation from siblings through adoption causes additional trauma and keeping siblings together helps reduce this trauma.^[6]

• It is cruel to separate siblings who are losing their parents.^[7]

• Biological links are important and placing siblings together helps with security and continuity of family bonds.^[8]

• If the relationship with the adoptive family ends at least the siblings have each other.^[9]

• Placing siblings together is a resilience factor.^[10]

4.15 At a roundtable discussion with Bounce Youth Leaders, which is a youth peer leadership training program for young people who have left out-of-home care, participants had varied views on the importance of contact with siblings.^[11]

4.16 One participant told the Commission that their brothers had ‘been there for them’ and the fact that they were family made a big difference. Another participant thought the biological connection was not very important and the feeling of having two families can be problematic.^[12]

4.17 Many people said that decision makers should be required to consider placing siblings for adoption in the same family.^[13] Some people considered there should be a stronger requirement than this, that siblings must be placed together.^[14]

4.18 Bobby Richards, an adopted person, told the Commission that ‘it would have made a difference if we’d been adopted together … we’re two people that looked the same, did the same and grew together in life’.^[15] He said that a mother’s wish to put her children in separate families is not in the children’s best interests and should be overridden.

4.19 CREATE Foundation submitted that young people with a lived experience of care often regard sibling relationships as some of their most important relationships. They contact their siblings more often than other people in their families and desire more frequent contact with their siblings than others.^[16]

4.20 VANISH submitted that placing siblings together should always be prioritised:

sibling relationships are often the longest and most significant relationships that people have in their lives … research indicates that placement with siblings is a resilience factor for vulnerable children … The need for siblings to stay together is well researched and well understood by the agencies concerned.^[17]

4.21 Grandparents Victoria and ARMS (Vic) both considered that if an adoptive family cannot take siblings then the adoption should not proceed. Instead, a family who can take the siblings should be found.^[18]

4.22 Other responses emphasised a need for flexibility.^[19] Child & Family Services Ballarat submitted that a principle about placing siblings together should be:

sufficiently flexible to weigh up the best interests of individual children with the sibling relationship, and consider the appropriateness of them being placed together, based upon their individual developmental needs, the capacity of the adoptive family and the assessment of the adoptive family’s suitability.^[20]

4.23 A significant number of people considered that if siblings are not placed together, arrangements should be made for contact to occur.^[21] Some people suggested that this should include siblings who may not be born at the time one sibling is adopted.^[22]

4.24 Bobby Richards told the Commission that sibling contact is essential. He said it should be available when siblings are adopted into different families, and when one child is adopted and another is not.^[23]

4.25 Participants at a roundtable with approved agencies told the Commission that they had experienced situations where a natural mother does not want siblings to know about each other or be placed with each other.^[24] A participant said that it would help agencies to make decisions if the Adoption Act stated that connections with siblings is a priority.

4.26 A participant at a roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies said that the focus has to be on the best interests of the child, rather than the wishes of a natural parent. They thought that in most cases, connection of a child with their siblings is in the child’s best interests.^[25]

Commission’s conclusions

4.27 The Adoption Act should provide better for sibling relationships to continue after an adoption. The responses to the consultation paper emphasised the importance of sibling relationships. This is supported by research.^[26]

4.28 Other states and territories provide stronger obligations to consider the relationship of the child with their siblings.^[27]

4.29 A number of commentators have urged for sibling bonds to be better recognised by the law.^[28]

4.30 Jill Hasday describes the historical premise of adoption law and its treatment of siblings in the United States, which parallels the Australian situation, as follows:

Adoption law historically did not create a ‘presumption’ in favor of keeping siblings together, much less impose an ‘affirmative duty’ … to do so. If siblings were adopted into separate families … the law considered their relationship severed and made no provision for contact, visitation, or even the opportunity to learn of a sibling’s existence. The operative premise was that biological siblings were legally connected through their relationship with a shared parent or parents. Once a child’s legal relationship with her birth parents ended, siblings no longer had any legally recognised ties to each other.^[29]

4.31 Hasday argues that ‘despite the potential significance and value of sibling bonds, legal interest in sibling relationships is radically underdeveloped’.^[30] She suggests that ‘family law envisions children almost entirely in terms of their relationships with adults—their parents—rather than in terms of their relationships with other children—their siblings’.^[31]

4.32 The effect of adoption law’s failure to provide for sibling relationships can be devastating. Siblings separated by adoption have written and spoken about the pain and complete shock that such a separation can inflict. Some people spend decades searching for siblings.^[32]

4.33 Adoption law should provide for sibling relationships in two key ways. First, every effort should be made to keep siblings together. Secondly, if siblings are not kept together, contact arrangements should be made.

4.34 The guidance on best interests should specify that it would ordinarily be in a child’s best interests to be placed with the same family as any of the child’s siblings who is also to be adopted or has previously been adopted. (See Recommendation 23(g) in Chapter 5.)

4.35 All reasonable steps should be taken to place siblings together. The onus should be on the Secretary or principal officer to thoroughly explore this option. This should include investigating whether any of the child’s siblings have been adopted.

4.36 Any policy relating to age spacing between children in adoptive families should not apply where siblings are placed together with one family.

4.37 In some situations it may not be appropriate or possible to place siblings together. The focus of decision making must be the best interests of the child. If placing siblings together for adoption would not be in the best interests of the child, it should not occur—for example, if there is evidence of violence or abusive behaviour between the siblings, or other severe dysfunction, they should not be placed together.

4.38 There are also situations where the adoptive family may be unwilling or unable to adopt the child’s sibling. There should not be any pressure placed on parents who have adopted a child to also adopt their sibling.

4.39 The views of natural parents on placing siblings together should be considered but should not be decisive. The focus of decision making must be the best interests of the child. In some cases, placing siblings together could pose a risk to one of the siblings or to the natural mother. These factors may be raised by a natural parent and should be taken into account.

4.40 If siblings are separated through adoption, including situations where a sibling is born after an adoption, contact arrangements should be considered as part of the adoption planning process discussed below at [4.89].

4.41 There should be a presumption that siblings will have contact because it is in their best interests. This presumption should be able to be displaced.

4.42 The written report provided to the court on behalf of the Secretary or the principal officer about the proposed adoption should address the preservation of sibling relationships.^[33] This should include detail about whether other siblings have been placed for adoption, whether consideration was given to placing the child with the family that adopted their sibling, and the proposed provision for preserving these relationships through contact arrangements, or the reasons why this is not appropriate.

Recommendations

12 The Adoption Act should specify that the written report provided to the court on behalf of the Secretary or principal officer to enable it to consider an application for an adoption order must include information about:

a. whether other siblings have been placed for adoption

b. what consideration was given to placing a child with their siblings

c. how sibling relationships will be preserved through contact arrangements or the reasons why this is not appropriate.

13 The Adoption Act should specify that one of the matters the court must be satisfied about before making an adoption order is that due consideration has been given to the preservation of sibling relationships and appropriate provision has been made for this.

Contact with the family of origin and other people of significance after the adoption

4.43 The previous section discussed and made recommendations on how adoption law should provide for contact between siblings after an adoption.

4.44 There are many other people whose role should be considered in any decision about the best interests of the child. They include the adopted person’s grandparents, aunts and uncles, and carers. They may also include the extended family and the child’s cultural and linguistic community.

4.45 This section considers the way that adoption law should provide for contact with the family of origin and other people of significance to the child after an adoption.

4.46 The Adoption Act provides for the child to maintain connection to these people and for the interests of these people in the following ways:

• requirements that the people seeking to adopt the child have a suitable appreciation of the importance of contact with parents and family and exchange of information about the child with the child’s parent and family^[34]

• the ability, in some circumstances, for the court to place conditions on an adoption order that provide for parents to receive information about the child and for parents and relatives of the child to have contact with the child (discussed below at [4.48])^[35]

• an ability to make consent to the adoption of an Aboriginal or Torres Strait Islander child subject to conditions that the relevant parent, specified relatives, and members of the Aboriginal or Torres Strait Islander community to which the child belongs have rights to have contact with the child (discussed in Chapter 7).^[36]

4.47 There are also rights for various people with a legitimate interest in an adoption, including relatives, to access information about the adoption.^[37] The information provisions and the Commission’s recommendations for improvement are discussed in Chapter 16.

Current law

Conditions on an adoption order

4.48 An adoption order may be made subject to conditions relating to contact with the child or the provision of information about the child.^[38]

4.49 The ability for the court to place conditions on an adoption order only applies to adoption orders made with the consent of the parent or parents.^[39] It does not apply to situations where consent was dispensed with by the court.

4.50 Conditions relating to contact with the child and information about the child may be made where the court is satisfied that:

• circumstances exist which make it desirable to do so, whether by reason of the age of the child or otherwise^[40]

• after consent to the adoption, the birth parent(s) and the adoptive parent(s) have agreed that the adoption order should be made subject to certain conditions.^[41]

4.51 Two types of condition may be made on the adoption order. The first provide that specified people have the right to have contact with the child. This may be the child’s parents or other relatives.^[42]

4.52 The other type of condition requires the adoptive parent(s) to provide information about the child. In this case, the Adoption Act provides for the Secretary or principal officer of an approved agency to act as an intermediary. Information is provided to the Secretary or principal officer and passed on to the parent(s).^[43]

4.53 It is possible to add the conditions described above to an adoption order after an adoption.^[44] It is also possible for the court to vary or revoke conditions after an adoption.^[45] The court must be satisfied that it is in the ‘best interests of the welfare of the adopted child’.

4.54 An application for the addition, variation, or revocation of conditions can be made by an adoptive parent, a natural parent if they consented, or the child (this can also be made on their behalf).^[46] It must be accompanied by a report from an approved counsellor.

4.55 An order cannot be made granting a person a right of contact or greater rights of contact with an adopted child unless the adoptive parent(s) agree and the court is satisfied that ‘as far as practicable, the wishes of the child have been ascertained and due consideration is given to them, having regard to the age and understanding of the child’.^[47]

4.56 Special provisions in the Adoption Act enable the parents of Aboriginal and Torres Strait Islander children to give conditional consent to an adoption, providing that consent is only given subject to conditions about ongoing contact with the child. ^[48] These provisions are discussed in Chapter 7.

Adoption plans

4.57 In some states and territories, negotiated adoption plans are used to provide for contact and information exchange after adoption. The Australian Capital Territory,^[49] Queensland,^[50] Western Australia^[51] and New South Wales^[52] all provide for adoption plans.

4.58 Western Australia and New South Wales provide for adoption plans that are enforceable by the court.

4.59 Enforceable adoption plans offer a significantly different approach to the limited ability to place conditions on an order under section 59A of the Adoption Act. The next sections describe the key features of adoption plans in Western Australia and New South Wales.

Who negotiates an adoption plan?

4.60 In Western Australia adoption plans are negotiated (if possible) between natural parents who consented to the adoption and the prospective adoptive parent(s). If the CEO of the department thinks it is appropriate, the child’s representative may also be involved in negotiation.^[53]

4.61 The court may allow someone who is not a party to the proposed adoption to become a party to an adoption plan.^[54] The parties to an adoption plan may include anyone who is a party to the proceedings and various relatives if a natural parent is deceased or cannot be found.^[55]

4.62 In New South Wales, an adoption plan is agreed by two or more of the parties to the adoption of a child.^[56] Parties to an adoption are generally defined in the Act as the child, natural parent(s) who have consented to the child’s adoption, the proposed adoptive parent(s), the Secretary and the appropriate principal officer.^[57] A natural parent who has not consented to the adoption of a child is, as far as possible, to be given the opportunity to participate in the development of, and to agree to, an adoption plan.^[58]

When is an adoption plan negotiated?

4.63 In Western Australia an adoption plan is negotiated once the period for revocation of consent has passed but before the child is placed for adoption.^[59]

4.64 The court may dispense with the requirement for an adoption plan or that a particular natural parent be a party to the plan if a natural parent is unable or unwilling to participate, or incapable of participating; or cannot be found or contacted.^[60]

4.65 New South Wales provides that an adoption plan may be agreed before the making of an adoption order.^[61]

What does an adoption plan provide for?

4.66 In Western Australia an adoption plan may provide for information exchange or contact including that there will be no information exchange or contact. It may also provide for any other matters relating to the child and a process for reviewing the adoption plan.^[62]

4.67 New South Wales requires that an adoption plan contain detail about:

• the type of information to be exchanged and the frequency of exchange

• how contact between the child and the child’s family and siblings is to be maintained, including people authorised to have contact with the child, purposes, frequency and location of contact

• how the child is to be assisted to develop a healthy and positive cultural identity and how links with the child’s cultural heritage are to be fostered^[63]

• details of financial and other assistance arrangements that the Secretary has agreed be included

• the period for which the plan is to have effect.^[64]

What must be considered in developing an adoption plan?

4.68 Western Australia requires that people negotiating an adoption plan consider a set of rights and responsibilities corresponding with four developmental stages: infancy, childhood, adolescence and adulthood. The changing needs and evolving capacity of the child, and the changing rights and responsibilities of the natural parents, adoptive parents and adopted person are described at each stage of development (see Appendix D).

What if an adoption plan can’t be agreed on?

4.69 In Western Australia the CEO must provide assistance and mediation to people in the process of negotiating, varying or reviewing an adoption plan.^[65] The CEO must establish and maintain mediation services for negotiations about contact and matters arising between parties to an adoption or an adoption plan.^[66] If there is a dispute in negotiating an adoption plan, the court has powers to make an order about the disputed matter.

The terms of the order are treated as the provision of the adoption plan in relation to

that matter.^[67]

What happens once an adoption plan is made?

4.70 In Western Australia an adoption order cannot be made unless the court approves the adoption plan.^[68] The court has a range of enforcement powers.^[69]

4.71 In New South Wales the parties to the adoption who have agreed to an adoption plan may apply to the court for it to be registered.^[70] A non-consenting natural parent may also apply for the adoption plan to be registered.^[71]

4.72 The court may register an adoption plan if it is satisfied that:

• the plan does not contravene the adoption principles

• the parties to the adoption understand the provisions of the plan and have freely entered into it

• the provisions of the plan are in the child’s best interests and are proper in the circumstances.^[72]

4.73 If an adoption plan is registered, it is treated as if it were part of the adoption order. This means that it is enforceable as an order of the Supreme Court of New South Wales.^[73]

Variation to an adoption plan

4.74 In Western Australia the court may vary the adoption plan after an adoption order is made. The people who may apply for a variation are a party to the adoption plan and a person who is a party to the adoption (the adoptee, the adoptee’s natural parents, and the adoptee’s adoptive parent).^[74] This includes a parent whose consent was dispensed with and a person who was not a party to the approved adoption plan.^[75] Mediation must be undertaken before an application to vary an adoption plan is made.^[76]

4.75 In New South Wales a party to the adoption plan may apply to the court for a review of the plan.^[77] The court may make changes to the provisions, revoke or confirm the plan.^[78]

It may only take any of these actions if it is satisfied that it is in the best interests of the child and proper in the circumstances.^[79]

4.76 An adoption plan that is changed by an order of the court has effect as if it were the plan originally agreed to by the parties.^[80]

Responses

4.77 Many people thought that there should be greater provision for contact in the Adoption Act.^[81]

4.78 Professor the Hon. Nahum Mushin considered that there should be no fetters to the court’s discretion about contact and that every case should be considered on its own facts.^[82]

4.79 A range of benefits of contact were identified:

• The child does not have to wonder what their life would have been like if they were not adopted because they can see this; reality replaces speculation and a child’s need for information can be met.^[83]

• The natural family has information about things like family medical history and genetics, which play an important role in a person’s life.^[84]

• It assists the child to understand their identity, their sense of self and cultural connections.^[85]

• Research studies suggest that contact assists the child to come to terms with some of the difficult aspects of their past life.^[86]

• The child can get an understanding of who they are and where particular traits came from.^[87]

• It can help both the adoptive family and the adopted person to understand who the adopted person is.^[88]

• The child needs to know who their family of origin is and know that family in order to grow up as emotionally healthy as possible.^[89]

• It can help avoid trauma in the child’s life. Contact with siblings and other key people in an adopted person’s life can alleviate grief associated with separation from their natural parents.^[90]

• It can help the natural parents to resolve their grief and loss^[91]—’most studies indicate that the overwhelming need of birth parents is to know their child is well and happy. Without contact the parents may experience the living death of the child who is developing in ways they can only imagine’.^[92]

• When the child wants to know their story, the adoptive parents cannot provide all the answers; some of these answers come from the natural parents.^[93]

4.80 Some people said that contact can be frightening for adoptive parents. They may fear that the child will have a special connection with the natural parents which will take away from their own connection with the child.^[94]

4.81 Others thought that contact may be painful or distressing for natural parents^[95] and disruptive for the child and the adoptive family.^[96] Some people suggested that there is a need for post-adoption support to help people manage contact and increase its chances of success.^[97]

4.82 Professor Meredith Temple-Smith suggested that contact would function better in practice and have a greater chance of success if there was better information and education prior to adoptions about what contact will involve, and if support was provided both before and after adoptions. Some of the challenges that she suggested might be addressed through information, education and support were:

• the expectations of adoptive families and natural families may not match

• clarifying expectations about the purpose of contact—for example, a condition on an adoption order about information exchange does not clarify the purpose of the information exchange

• different cultural expectations of how the family works, which may need to be considered in contact arrangements

• potential distress for those involved in contact.^[98]

4.83 Post-contact support is discussed in Chapter 15.

4.84 The Institute of Open Adoption Studies submitted that:

The belief underpinning past adoption practices that favoured secrecy was that all ties with a child’s family should be severed in order to foster a secure attachment in his new family. This belief has not been supported by evidence. The largest survey of adoption and permanent foster care placements ever undertaken in the UK, involving 1,165 placements, found that birth family contact was the single factor which could be identified as enhancing the stability of placements.^[99]

4.85 A number of people suggested that any provisions about contact in the Act need to be flexible. Reasons identified for providing flexibility included that:

• decisions about contact need to be made on the basis of the best interests and needs of the specific child^[100]

• it should be possible for contact arrangements to vary over time to suit changing circumstances, in particular to enable the child to participate in decisions about contact in a way that recognises their evolving capacity^[101]

• to allow for the possibility of contact with future siblings or other natural family members after an adoption^[102]

• the imposition of a rigid formula can reduce the ability of the adults to allow arrangements to develop organically because a desire to change arrangements is viewed negatively as breaking the rules.^[103]

4.86 Some people emphasised that the child should be involved in decisions about contact and that contact arrangements should be able to change over time to reflect the child’s evolving capacity to determine what contact they wish to have.^[104]

4.87 Dr Briony Horsfall drew on her PhD research to emphasise the importance of a court’s power to order safe contact conditions according to each individual child’s best interests.^[105]

4.88 The Commission heard that contact with people other than the natural parents is important and that when adoption decisions are made, consideration should be given to contact with a range of people.^[106] They included siblings (and possibly future siblings), grandparents, other family members, other significant people in the adopted child’s life, such as teachers, carers, family friends, neighbours and other community members.

Commission’s conclusions

4.89 The question of how the law should provide for existing relationships after adoption draws together many of the key themes that emerged in consultations.

4.90 Appropriate provision for existing relationships after an adoption and more openness in adoption helps to support the best interests of the child. It addresses:

• the impact of adoption on identity formation—by helping a child to understand where they come from, their cultural heritage, why they look like they do, and where various traits come from

• trauma caused by adoption—by providing for the natural parents and other people of significance to know that the child is well and happy and for the child to have contact with people who are important in their life

• the lifelong effects of adoption—by acknowledging that the child will always have two families, and providing for existing relationships, including preservation of sibling relationships

• the need for greater participation of the child in decisions about their adoption—by providing the child with the opportunity to express their views freely and for these views to be given due weight in accordance with the age and maturity of the child. This is a key part of providing adequately for the needs of the central figure in an adoption, the child, and ensuring that decisions are in their best interests.

4.91 The Commission considers that the best way to provide for successful contact and information exchange is for a written adoption plan to be developed for each adoption placement. An adoption plan can provide for contact and information exchange with the family of origin and significant others.

4.92 An adoption plan should be able to provide for any other matters relating to the child.

It should always include detail about:

• contact arrangements with natural parents, grandparents and siblings and any requirement that there not be contact

• information exchange, and any requirement that information not be exchanged

• how the child is to be assisted to develop a healthy and positive cultural identity

• any financial and other assistance approved by the Secretary for the proposed adoptive parent(s)

• the period of time over which the plan is to have effect.

4.93 The court should be required to approve an adoption plan before an adoption order is made. This independent oversight will help ensure that any arrangements in an adoption plan are in the best interests of the child. An approved adoption plan should be registered by the court. Registration should have the effect of making the plan part of the adoption order and enforceable as an order of the court.

4.94 The court should be satisfied that the people who signed the adoption plan understand its provisions, have freely entered into it, and that the provisions of the plan are in the child’s best interests. The court should have powers to vary, remove or add terms to the adoption plan where satisfied that it is in the best interests of the child to do so.

4.95 Adoption plans that are approved and registered by the court should replace the current provision under section 59A of the Adoption Act for the court to place conditions on an adoption.

4.96 Adoption plans are a preferable option to the current limited provision in section 59A for contact conditions to be placed on an adoption order because:

• they place more power in the hands of those most affected by an adoption to negotiate contact arrangements that work for them in their specific situation. This provides an increased likelihood of successful contact.

• they allow the court to have oversight of arrangements and make a determination about contact in the best interests of the child where agreement cannot be reached. Section 59A of the Adoption Act only allows the court to place contact conditions on an adoption order if the relevant parent has consented to an adoption and the adoptive parents and natural parents have agreed to the conditions.

4.97 The adoption planning document used by New South Wales (Appendix C) provides a useful template. These could be used as a guide to develop appropriate documentation for Victorian adoption plans.

4.98 The adoption plan should be tailored to address the individual circumstances. Depending on the relationship between the natural parents, separate maternal and paternal adoption plans may be required.

4.99 An adoption plan should not be developed until after consent to an adoption has been given and the period to revoke consent has passed, or consent has been dispensed with. It should be negotiated after the prospective adoptive parents have been chosen but before the placement of the child for adoption. This timing ensures that an adoption is actually in contemplation while minimising the chances for pressure to be placed on any of the parties.

4.100 The people who should always ideally be involved in negotiation of an adoption plan are: the child and/or their independent legal representative, the natural parents, the adoptive parents, and the Secretary or principal officer. The Adoption Act should define the parties to an adoption plan as the people who sign it.

4.101 Western Australian adoption law requires that in particular circumstances, ‘close relatives’ are notified 30 days before an application for an adoption order is made. The circumstances are: where a parent’s consent is not required because they are deceased; where a parent has died after providing consent; and where the parent’s consent has been dispensed with because the natural parent cannot be found or contacted.^[107]

4.102 It is valuable to have a requirement to notify close relatives about a proposed adoption in these circumstances. The Commission considers that notification of close relatives should occur prior to placing the child for adoption. Waiting until 30 days before an application for an adoption order means the child would already be placed with the prospective adoptive family. Earlier notification is preferable because a relative may be able to provide a better care option for the child than adoption.

4.103 Close relatives should be defined to include the parent and siblings of the child’s parent. If no ‘close relative’ can reasonably be located, notification should be given to an aunt or uncle of the parent who is 18 years or over and reasonably available at the relevant time. These relatives should have the opportunity to be involved in negotiating and agreeing to an adoption plan.

4.104 Western Australia allows the natural parents to select another prospective adoptive parent if the adoption plan cannot be agreed upon.^[108] The Commission sees this option as risking the unintended effect of encouraging potential adoptive parents to agree to contact arrangements or other features of an adoption plan that they are not genuinely committed to. This could occur because the proposed adoptive parents may fear that if they do not agree, the natural parents will choose new prospective adoptive parents.

4.105 If there is a dispute in negotiating an adoption plan, a preferable approach is for the court to make a decision about the disputed matter based on the best interests of the child. The terms of the decision should be treated as the terms of the adoption plan in relation to that matter (Chapter 14, Recommendation 63(a)).

4.106 Responses to the consultation paper emphasised the importance of contact to an adopted person’s identity, to help address the lifelong effects of adoption, and to minimise trauma. For these reasons, the Commission considers that there should be a general presumption that a parent may be involved in negotiating and agreeing to an adoption plan even where their consent has been dispensed with.

4.107 As outlined in Chapter 14, Recommendation 61, a decision to dispense with a natural parent’s consent should happen prior to a child being placed for adoption. The court should also have the power to decide that a parent whose consent has been dispensed with should not be involved in adoption planning. This decision should be made at the same time that consent is dispensed with.

4.108 The rights and responsibilities that people negotiating an adoption plan in Western Australia are required to consider (Appendix D), provide a useful guide to the shifting rights and responsibilities of the natural parents, adoptive parents and adopted person as the child grows up. It recognises that as the adopted person gets older, they increasingly take control of any contact arrangement and information exchange. A similar document should be included in a new Adoption Act to guide the negotiation of adoption plans in Victoria.

4.109 Any conditions in an adoption plan relating to contact or information exchange would cease at the time the adopted person turns 18. Once the adopted person is 18 years old (the age of majority)^[109] any decisions about contact or information exchange would be a matter for the adopted person and their family of origin to determine.

4.110 An adoption plan should include sufficient detail about contact to ensure it is clear to all parties what contact will involve and to be enforceable if it is registered. This should include detail about: who is to have contact with the child, the purpose of the contact, how contact is to occur, the frequency of contact, and the location for face-to-face contact.

4.111 An adoption plan should also include sufficient detail about information exchange to ensure it is clear to all parties what this will involve. This should include detail about: the type of information that is to be exchanged, the purpose of the exchange of information, how and how often information is to be exchanged, and who is to receive the information.

4.112 In situations where the child’s paternity is unknown, a statement should be included about what would occur if a person who claims to be the child’s biological father requests contact or information. The New South Wales adoption plan templates (Appendix C) provide a suggested statement. A similar statement could be usefully included in Victorian adoption plan templates.

4.113 New South Wales adoption planning documentation (Appendix C) includes a statement that the adoptive parents agree to support and facilitate contact with any siblings born after their adoption. To provide adequately for sibling relationships, an equivalent statement about contact with any future siblings should be included in any Victorian adoption plan templates.

4.114 A key aim of the proposed adoption planning process is to provide for a successful ongoing relationship and contact between the adopted person, the adoptive family and the family of origin. For this reason, it is vastly preferable for non-court-based review and renegotiation to occur, rather than resorting to court enforcement, which is likely to harm ongoing relationships.

Recommendations

14 A written adoption plan should be made for each child who is to be placed for adoption. An adoption plan should be approved and registered by the court. A registered adoption plan should become part of the adoption order and enforceable as an order of the court. This should replace the ability for the court to place contact and information conditions on an adoption order under section 59A.

15 Adoption plans should be negotiated:

a. after the necessary consents for a child to be adopted have been given or dispensed with and the period for consent to be revoked has passed

b. prior to the placement of the child for adoption.

16 The Adoption Act should set out the rights and responsibilities that are to be considered and weighed in the negotiation of an adoption plan. The provision should be modelled on schedule 2 of the Adoption Act 1994 (WA).

4.115 A recommendation is made in Chapter 15 that the Secretary develop a specialist mediation service to assist families in negotiating conflict in any adoption arrangements (Recommendation 72(b)). In Chapter 14 a recommendation is made to the effect that mediation should occur before any court proceedings relating to an adoption plan (Recommendation 68(a)).

4.116 Chapter 14 also proposes that any new agreement that parties want reflected in the adoption plan should be filed with the court. Unless the court is not satisfied that the terms are in the best interests of the child, this should not require an appearance by the parties at court. If agreement cannot be reached, access to the court should be available for all parties.

17 The Adoption Act should provide the following detail about who is to be involved in the negotiation and agreement of an adoption plan:

a. An adoption plan should be negotiated between the natural parents, the adoptive parents, the Secretary or principal officer, and the child and/or their legal representative. Due regard should be given to the age and maturity of the child.

b. A parent whose consent has been dispensed with by the court may be involved in negotiating and agreeing on an adoption plan, unless the court orders that they may not be so involved.

c. The Secretary or principal officer should notify the parents and siblings of the natural parent or, if they cannot reasonably be located, an aunt or uncle of the natural parent who is 18 years and over, that the necessary consents have been given to place a child for adoption and give them the opportunity to be a party to the adoption plan when:

i. the natural parent is unable or does not wish to be involved in adoption planning and does not object to the relative being involved

ii. the natural parent’s consent to the adoption is not required because they are deceased

iii. the natural parent died after consenting to the adoption

iv. the requirement for the natural parent’s consent to the adoption has been dispensed with because they cannot be found or contacted.

18 The Adoption Act should define the parties to an adoption plan as the people who sign it.

19 Adoption plans should be able to provide for any other matters relating to the child but the Adoption Act should require that they include the following details:

a. contact arrangements with natural parents, siblings and grandparents, and any requirement that there not be contact

b. information exchange, and any requirement that information not be exchanged

c. how the child is to be assisted to develop a healthy and positive cultural identity

d. any financial and other assistance approved by the Secretary for the proposed adoptive parent(s)

e. the period of time over which the plan is to have effect.

1. Department of Health and Human Services, Victoria, Data Collections for Australian Institute of Health and Welfare, Adoptions Australia (2012–15), provided to the Commission 29 July 2016, Tables 4a-b.

   ↑

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

   ↑

3. Children’s Bureau, Administration for Children and Families, U. S. Department of Health and Human Services, Sibling Issues in Foster Care and Adoption (2013) 2 <https://www.childwelfare.gov/pubs/siblingissues/>. See also Joseph J McDowall, Sibling Placement and Contact in Out-Of-Home Care (CREATE Foundation, 2015).

   ↑

4. Submissions 3 (Leilani Hannah), 7 (Name withheld), 9 (Australian Adoptee Rights Action Group), 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 16 (Name withheld), 20 (Name withheld), 21 (Name withheld), 30 (Name withheld), 33a (Name withheld), 34 (VANISH), 35 (OzChild), 45 (Dr Briony Horsfall), 48 (Victorian Council of Social Service), 50 (Barnardos Australia), 51 (Law Institute of Victoria), 55 (CREATE Foundation), 57 (Patricia Harper); Consultations 7 (Bobby Richards), 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies), 22 (Fae Cuff), 23 (Wathaurong Aboriginal Co-operative), 29 (Staff at the Bendigo and District Aboriginal Co-operative), 36 (Kylie Martens).

   ↑

5. Submission 34 (VANISH).

   ↑

6. Submissions 45 (Dr Briony Horsfall), 48 (Victorian Council of Social Service).

   ↑

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

   ↑

8. Submissions 3 (Leilani Hannah), 20 (Name withheld), 21 (Name withheld), 33b (Name withheld), 57 (Patricia Harper).

   ↑

9. Submission 20 (Name withheld).

   ↑

10. Submission 34 (VANISH).

    ↑

11. Consultation 1 (Bounce Youth Leaders).

    ↑

12. Ibid.

    ↑

13. Submissions 6 (Name withheld), 7 (Name withheld), 30 (Name withheld), 33a (Name withheld), 34 (VANISH), 35 (OzChild), 39 (ARMS (Vic)), 45 (Dr Briony Horsfall), 48 (Victorian Council of Social Service), 50 (Barnardos Australia), 51 (Law Institute of Victoria), 55 (CREATE Foundation), 57 (Patricia Harper); Consultations 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies), 22 (Fae Cuff), 23 (Wathaurong Aboriginal Co-operative), 36 (Kylie Martens).

    ↑

14. Submissions 3 (Leilani Hannah), 9 (Australian Adoptee Rights Action Group), 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 16 (Name withheld), 20 (Name withheld), 21 (Name withheld).

    ↑

15. Consultation 7 (Bobby Richards).

    ↑

16. Submission 55 (CREATE Foundation).

    ↑

17. Submission 34 (VANISH).

    ↑

18. Submissions 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 39 (ARMS (Vic)).

    ↑

19. Submissions 36 (Child & Family Services Ballarat Inc.), 48 (Victorian Council of Social Service), 50 (Barnardos Australia).

    ↑

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

    ↑

21. Submissions 23 (Fae Cuff), 30 (Name withheld), 33b (Name withheld), 35 (OzChild), 36 (Child & Family Services Ballarat Inc.), 39 (ARMS (Vic)), 45 (Dr Briony Horsfall), 48 (Victorian Council of Social Service), 50 (Barnardos Australia), 55 (CREATE Foundation); Consultations 7 (Bobby Richards), 21 (Roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies), 29 (Staff at the Bendigo and District Aboriginal Co-operative).

    ↑

22. Submissions 33a (Name withheld), 45 (Dr Briony Horsfall); Consultation 7 (Bobby Richards).

    ↑

23. Consultation 7 (Bobby Richards).

    ↑

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

    ↑

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

    ↑

26. For an overview of the social science literature relating to sibling bonds, see Randi Mandelbaum, ‘Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain their Relationships Post-Adoption’ (2011) 41 New Mexico Law Review 1, 29-–36; Jill Elaine Hasday, ‘Siblings in Law’ (2012) 65(3) Vanderbilt Law Review 896, 899–902; William Wesley Patton and Sarah Latz, ‘Severing Hansel from Gretel: An Analysis of Siblings’ Association Rights’ (1994) 48 University of Miami Law Review 745, 760–8; Children’s Bureau, Administration for Children and Families, U. S. Department of Health and Human Services, Sibling Issues in Foster Care and Adoption (2013) 4–7
    
    <https://www.childwelfare.gov/pubs/siblingissues/>.

    ↑

27. Adoption Act 1993 (ACT) s 5(2)(e); Adoption Act 2000 (NSW) s 8(2)(f); Adoption Act 2009 (Qld) s 160; Adoption Act 1994 (WA) s 52(1)(d)–(e).

    ↑

28. See, eg, Jill Elaine Hasday, ‘Siblings in Law’ (2012) 65(3) Vanderbilt Law Review 896; Kristen L Settlemire, ‘Post-Adoption Contact Between Siblings: Is “Avoidance of Harm” the Right Standard for New Jersey Siblings Adopted From Foster Care Parents?’ (2011) 36(1) Seton Hall Legislative Journal 165; Josh Gupta-Kagan, ‘Non-Exclusive Adoption and Child Welfare’ (2015) 66(4) Alabama Law Review 715, 738–40; Randi Mandelbaum, ‘Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain their Relationships Post-Adoption’ (2011) 41 New Mexico Law Review 1.

    ↑

29. Jill Elaine Hasday, ‘Siblings in Law’ (2012) 65(3) Vanderbilt Law Review 896, 906.

    ↑

30. Ibid 902.

    ↑

31. Ibid 903.

    ↑

32. Ibid 903–4.

    ↑

33. Adoption Act 1984 (Vic) s 15.

    ↑

34. Ibid s 15(1)(a); Adoption Regulations 2008 (Vic) reg 35(g).

    ↑

35. Adoption Act 1984 (Vic) s 59A.

    ↑

36. Ibid ss 37, 59.

    ↑

37. Ibid pt VI.

    ↑

38. Ibid s 59A. Section 40 of the Adoption Act 1993 (ACT) provides for conditions on an adoption order in almost identical terms. Consideration was given to this provision in Re Adoption of J [2009] ACTSC 49 (6 May 2009).

    ↑

39. Adoption Act 1984 (Vic) s 59A(b).

    ↑

40. Ibid s 59A(a).

    ↑

41. Ibid s 59A(b).

    ↑

42. Ibid s 59A(c).

    ↑

43. Ibid s 59A(d).

    ↑

44. Ibid s 60(1).

    ↑

45. Ibid s 60(2).

    ↑

46. Ibid s 60(3).

    ↑

47. Ibid s 60(5).

    ↑

48. Ibid s 59.

    ↑

49. Adoption Act 1993 (ACT) s 39D(2)(c).

    ↑

50. Adoption Act 2009 (Qld) s 165.

    ↑

51. Adoption Act 1994 (WA) s 46.

    ↑

52. Adoption Act 2000 (NSW) s 46(1).

    ↑

53. Adoption Act 1994 (WA) s 46(1)(c).

    ↑

54. Ibid s 70.

    ↑

55. Ibid ss 59(2), 70(1). Section 59(1)–(2) requires that if a natural parent dies without giving consent, dies after giving consent, or their consent is dispensed with because they cannot be found, an application for adoption cannot be made unless written notice of the intention to file an application order is given to various relatives specified in the Act 30 days before the application is made. Section 70(1) provides that a relative notified under s 59(2) may become a party to the adoption plan. Section 60 gives the court the ability to vary or override these notification requirements.

    ↑

56. Adoption Act 2000 (NSW) s 46(1).

    ↑

57. Ibid dictionary.

    ↑

58. Ibid s 46(2A).

    ↑

59. Adoption Act 1994 (WA) ss 46(1), 48.

    ↑

60. Ibid s 73.

    ↑

61. Adoption Act 2000 (NSW) s 47(1). In some circumstances the parties must agree to an adoption plan.

    ↑

62. Adoption Act 1994 (WA) s 46(2). Section 46(6) provides that a provision that purports to prevent, restrict or make conditional the movement (whether within or out of Australia) of a party to the adoption, is of no effect.

    ↑

63. Adoption Act 2000 (NSW) s 47(2); Adoption Regulation 2015 (NSW) reg 75(b). Section 46(4) requires that for an Aboriginal or Torres Strait Islander child, any provisions relating to cultural identity and heritage should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

    ↑

64. Adoption Regulation 2015 (NSW) reg 75(f).

    ↑

65. Adoption Act 1994 (WA) s 47.

    ↑

66. Ibid s 79(1)(d). Section 79(1)(h)(iii) requires the CEO to develop and supervise the implementation of codes of practice in relation to the mediation of disputes between the parties to an adoption or an adoption plan, or negotiations of parties to an adoption as to those parties’ wishes in relation to contact between them.

    ↑

67. Ibid s 50(2). Section 50(1) provides the CEO or any of the parties to the proposed adoption plan may apply for an order about the disputed matter.

    ↑

68. Ibid s 72(1). Except in cases where the court has dispensed with the requirement for an adoption plan.

    ↑

69. Ibid s 72(2).

    ↑

70. Adoption Act 2000 (NSW) s 50.

    ↑

71. Ibid s 46(2B).

    ↑

72. Ibid s 50(3).

    ↑

73. Ibid s 50(4).

    ↑

74. Adoption Act 1994 (WA) s 76.

    ↑

75. Ibid s 76(1)(b).

    ↑

76. Ibid s 76(2).

    ↑

77. Adoption Act 2000 (NSW) s 51(1).

    ↑

78. Ibid s 51(3).

    ↑

79. Ibid s 51(4).

    ↑

80. Ibid s 51(5).

    ↑

81. Submissions 3 (Leilani Hannah), 6 (Name withheld), 7 (Name withheld), 9 (Australian Adoptee Rights Action Group), 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 16 (Name withheld), 17 (Name withheld), 21 (Name withheld), 23 (Fae Cuff), 29 (Connections UnitingCare), 33a (Name withheld), 33b (Name withheld), 34 (VANISH), 36 (Child & Family Services Ballarat Inc.), 39 (ARMS (Vic)), 45 (Dr Briony Horsfall), 49 (Office of the Public Advocate), 51 (Law Institute of Victoria), 55 (CREATE Foundation), 57 (Patricia Harper); Consultations 5 (Roundtable with disability and mental health sector), 12 (Adoption Origins Victoria Inc.), 15 (Roundtable with culturally and linguistically diverse representative agencies), 32 (Ann Jukes and Gabrielle Hitch), 38 (Professor the Honourable Nahum Mushin, Adjunct Professor of Law, Monash University).

    ↑

82. Consultation 38 (Professor the Honourable Nahum Mushin, Adjunct Professor of Law, Monash University).

    ↑

83. Submission 27 (Institute of Open Adoption Studies, University of Sydney); Consultation 16 (Professor Meredith Temple-Smith).

    ↑

84. Consultation 32 (Ann Jukes and Gabrielle Hitch).

    ↑

85. Submissions 56 (Centre for Excellence in Child and Family Welfare Inc.), 57 (Patricia Harper).

    ↑

86. Submission 27 (Institute of Open Adoption Studies, University of Sydney).

    ↑

87. Consultations 16 (Professor Meredith Temple-Smith), 32 (Ann Jukes and Gabrielle Hitch).

    ↑

88. Consultation 16 (Professor Meredith Temple-Smith).

    ↑

89. Submission 3 (Leilani Hannah).

    ↑

90. Submissions 16 (Name withheld), 56 (Centre for Excellence in Child and Family Welfare Inc.).

    ↑

91. Submission 27 (Institute of Open Adoption Studies, University of Sydney); Consultation 4 (ARMS (Vic)).

    ↑

92. Submission 27 (Institute of Open Adoption Studies, University of Sydney).

    ↑

93. Consultation 19 (Chrissie Davies).

    ↑

94. Consultations 16 (Professor Meredith Temple-Smith), 36 (Kylie Martens).

    ↑

95. Consultations 16 (Professor Meredith Temple-Smith), 36 (Kylie Martens).

    ↑

96. Consultations 9 (Roundtable with legal sector), 18 (Fiona De Vries).

    ↑

97. Submissions 11b (Grandparents Victoria Inc./Kinship Carers Victoria), 12 (Dorothy Long), 37 (Permanent Care and Adoptive Families), 45 (Dr Briony Horsfall); Consultation 16 (Professor Meredith Temple-Smith).

    ↑

98. Consultation 16 (Professor Meredith Temple-Smith).

    ↑

99. Submission 27 (Institute of Open Adoption Studies, University of Sydney) citing Jane Rowe and June Thoburn, in Joan Fratter (ed), Permanent Family Placement: A Decade of Experience (British Agencies for Adoption and Fostering, Great Britain, 1991) 7–57.

    ↑

100. Submissions 45 (Dr Briony Horsfall), 56 (Centre for Excellence in Child and Family Welfare Inc.), 57 (Patricia Harper); Consultation 38 (Professor the Honourable Nahum Mushin, Adjunct Professor of Law, Monash University).

     ↑

101. Submissions 33a (Name withheld), 45 (Dr Briony Horsfall), 50 (Barnardos Australia), 57 (Patricia Harper).

     ↑

102. Submission 33a (Name withheld).

     ↑

103. Submission 57 (Patricia Harper).

     ↑

104. Submissions 45 (Dr Briony Horsfall), 50 (Barnardos Australia), 55 (CREATE Foundation) 57 (Patricia Harper).

     ↑

105. Submission 45 (Dr Briony Horsfall).

     ↑

106. Submissions 11a (Grandparents Victoria Inc./Kinship Carers Victoria), 33a (Name withheld), 33b (Name withheld), 45 (Dr Briony Horsfall), 55 (CREATE Foundation), 57 (Patricia Harper); Consultation 15 (Roundtable with culturally and linguistically diverse representative agencies).

     ↑

107. Adoption Act 1994 (WA) s 59.

     ↑

108. Ibid s 46(3).

     ↑

109. The Age of Majority Act 1997 (Vic) s 3(1) provides that once a person is 18 years of age they attain ‘full age and full capacity’.

     ↑