Review of the Adoption Act 1984: Report

Executive summary

Introduction

1 This report completes the Victorian Law Reform Commission’s review of Victoria’s adoption laws, referred by the Victorian Attorney-General, the Hon. Martin Pakula MP on 18 December 2015.

2 The terms of reference asked the Commission to make recommendations to modernise the Adoption Act 1984 (Vic) and Adoption Regulations 2008 (Vic).

3 The Commission was asked to make recommendations to ensure that:

• the best interests and rights of the child are the foremost considerations in adoption law

• they reflect community attitudes and contemporary law better

• the law upholds the principles of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and the United Nations Convention on the Rights of the Child (CRC).

4 The Commission was required not to consider:

• intercountry adoption programs or commercial surrogacy

• adoption by same-sex couples

• contact statements.

5 At the time of its introduction, the Adoption Act represented a significant change in Victorian adoption policy, as it brought in open adoption. However, it is now over 30 years old, and in many respects out of step with modern understandings of the needs of children and contemporary law in relation to family and community. The language and structure of the Adoption Act are not in line with modern drafting, and amendments over time have made it complex and difficult to navigate.

6 The Commission published a consultation paper in August 2016, which set out its analysis of the law and issues arising from the terms of reference. The consultation paper posed a range of questions which guided the consultation process. Consultations were held in Melbourne and across regional Victoria. The Commission convened 27 meetings with individuals and groups and nine roundtable discussions. Sixty-one written submissions were received.

7 The Commission’s conclusions and recommendations are summarised below and its 88 recommendations are listed at page xxvii.

8 The Commission acknowledges the harm caused by past forced adoptions. It has been mindful of the need to ensure that the mistakes of the past are never repeated.

9 Key themes emerged during the review and informed the Commission’s analysis and recommendations:

• The effects of adoption are lifelong, and affect an adopted person’s extended, past and future families.

• The loss of family connection at the heart of adoption can cause ongoing psychological and emotional harm even where the adoption is ‘successful’ and happy.

• A strong culture of confidentiality and sometimes secrecy remains around adoption. This is inconsistent with the principle of openness and not in the best interests of the adopted person.

• While the child is the central figure in an adoption, current adoption law does not provide well for children’s views to be considered.

• All parties to an adoption need support to manage its effects at key points in their lives, before and after the adoption. As the state arranges adoptions, it is appropriate that it assume some responsibility for the needs and rights of these children.

• Finally, the processes and the rules governing adoption in Victoria are hard to understand, because they are not clearly articulated or readily available to the public. The Commission makes a range of recommendations to promote clarity and transparency in adoption practice.

Chapter 2 A modern Adoption Act

10 Many users of the Adoption Act are not lawyers but people who want to access adoption information or find out how to adopt. Amendments to the Act have reduced its readability and made it hard to navigate. The current Act should be repealed and replaced by a new Adoption Act. This will enable the use of modern drafting practices to ensure it is clear and accessible to all.

11 The Commission recommends that the new Act include objects to clearly set out its overall aims. The Act should also include general principles to guide decision making about adoption and the provision of adoption services. The principles should apply to the Court, the Secretary, principal officers of approved agencies as well as any other persons and bodies involved in the administration of the Act.

Chapter 3 Participation of the child

12 While the child is the central figure in an adoption, current adoption law does not provide well for their views to be considered at key stages in the adoption process. The Commission makes recommendations that aim to increase children’s participation in decision making about their adoptions, including about placement, contact with their family of origin, and whether an adoption order should be made.

Chapter 4 Contact and adoption plans

Preservation of sibling relationships

13 The Commission makes recommendations aimed at preserving sibling relationships after an adoption. This includes requirements that all reasonable steps be taken to place siblings together and that if siblings are separated through adoption, arrangements for contact be made.

Adoption plans

14 The Commission makes recommendations to help children to continue existing relationships with people of significance to them after an adoption. These recommendations aim to reduce trauma associated with adoption and assist with the development of a child’s identity.

15 The Commission recommends that a written adoption plan should be made for each child who is to be placed for adoption. Adoption plans providing for information exchange and contact would replace the current limited ability of the Court to place conditions on an adoption order.

16 An adoption plan should be negotiated before a child is placed for an adoption. It may provide for contact with a broad range of people. In addition to detail about contact with natural parents it should always include detail about contact with siblings and grandparents.

17 All adoption plans should be approved and registered by the Court, becoming part of the adoption order and enforceable as an order of the Court.

Chapter 5 The best interests of the child

18 In accordance with the paramount principle for adoption, the Commission recommends that the best interests of the child concerned, both in childhood and in later life, must be the foremost consideration.

19 The Adoption Act does not provide guidance about the matters that should be considered in determining the best interests of the child. Submissions and consultations strongly supported the introduction of ‘best interests’ guidance.

20 The Commission recommends principles to guide decisions and actions in adoption to ensure that they are in the best interests of the child.

21 Best interests guidance should apply to all decision makers under the Adoption Act, including the Court, the Secretary, the principal officers of approved agencies and any other people and bodies involved in the administration of the Act.

Changing the adopted child’s name

22 Identity and openness in adoption were key concerns of people who consulted with the Commission. A child’s name is a key part of their identity and may provide important links to their culture. It may be the one thing a natural parent can give their child.

23 The Commission makes recommendations aimed at preserving a child’s identity by limiting the situations in which a child’s name may be changed.

Chapter 6 Birth certificates of adopted people

24 Adopted children are issued with new birth certificates which reflect their new, post-adoption identity. The new birth certificate looks like any other person’s birth certificate, with the adoptive parents named as the child’s parents. For many adopted people their amended birth certificate represents the erasure of their past, a re-writing of their identity and a falsehood which must be corrected.

25 The Senate Community Affairs References Committee report, Inquiry into Commonwealth Contribution to Former Forced Adoption Policies and Practices, recommended that:

all jurisdictions adopt integrated birth certificates, that these be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates.^[1]

26 An integrated birth certificate shows details of a child’s birth and adoption, including both their adoptive and natural parents.

27 A fundamental question for the Commission was: ‘What is the purpose of a birth certificate?’ A birth certificate does not have one single purpose. A common theme in submissions and consultations was that a birth certificate should be a true record of a person’s birth and, therefore, show a child’s biological origins.

28 While acknowledging its symbolic value, the Commission concluded that the primary purpose of a birth certificate is legal. It establishes a person’s legal identity and shows who a child’s legal parents are. Across Australia, people named on birth certificates are presumed to be a child’s parents.

29 An adopted person’s original birth certificate cannot be maintained for legal use because it does not show a person’s legal identity or who the legal parents are.

30 The Commission has recommended that, subject to security and cost implications, optional integrated birth certificates be introduced in Victoria, with equal legal status to regular birth certificates.

Chapter 7 Adoption of Aboriginal and Torres Strait Islander children

31 The Commission focused on three key ideas emphasised by Aboriginal and Torres Strait Islander groups and individuals:

• Statutory adoption is generally not a culturally appropriate option for Aboriginal and Torres Strait Islander children.

• Any adoption must ensure that cultural connections for Aboriginal and Torres Strait Islander children are not merely preserved but also promoted and developed.

• Aboriginal and Torres Strait Islander communities are the experts in what is best for their children. The law needs to ensure that Aboriginal and Torres Strait Islander communities are involved early and consistently in decisions about their children.

32 The Commission concludes that there should be special requirements and considerations for adoption of Aboriginal and Torres Strait Islander children. Recommendations include:

• a positive duty on the Secretary of DHHS or principal officer to make inquiries about whether a child whose parents are considering adoption is an Aboriginal or Torres Strait Islander child.

• a requirement that more culturally appropriate options be used for the care of children who cannot be cared for by their parents. Statutory adoption is a last resort for providing for the care of Aboriginal and Torres Strait Islander children.

• a requirement that an Aboriginal agency be involved in all aspects of the adoption process for Aboriginal or Torres Strait Islander children.

• a revised Aboriginal and Torres Strait Islander Child Placement Principle and decision-making principles that align with those in the Children, Youth and Families Act 2005 (Vic) (the CYF Act).

• a requirement that a cultural support plan be developed for any Aboriginal or Torres Strait Islander child who is placed for adoption or for whom an adoption order is made.

Chapter 8 Consent

33 Consent to an adoption is required from the child’s mother and father. This requirement protects the rights of the natural parents. It also protects a child’s right to know and be cared for by their parents. In the past, forced adoptions occurred without effective consent under then existing adoption legislation, despite those laws containing consent provisions.

34 The Commission makes recommendations to strengthen the consent process. These include new requirements for the independence, qualifications, and experience of counsellors involved in adoption.

35 The Commission recommends extending the timeframe for a parent to revoke consent to a child’s adoption. The current timeframe does not provide a parent with adequate time to come to terms with the decision and consider alternatives. The recommendation balances the need to ensure that consent is informed and freely given with a child’s need for timely decision making about their permanent placement.

36 Because of the importance to the child of knowing both their natural parents, the Commission proposes the introduction of a duty on the Secretary of DHHS to take reasonable steps to identify the father.

Dispensing with consent

37 The Commission recommends changes to the grounds for the Court to dispense with consent.

38 Consent to an adoption can currently be dispensed with on the basis of what may be summarised as ‘child protection’ grounds. These considerations are not appropriate in the adoption framework, as adoption is premised on consent. The child protection system is established to make decisions in relation to children at risk of harm.

39 The Commission recommends that the grounds for dispensing with consent be narrowed to exclude its use for child protection matters.

40 In some limited circumstances dispensing with consent should be allowed where it is in the best interests of the child. The Commission makes recommendations about what the grounds for dispensing with consent should be.

Chapter 9 Discrimination and equal opportunity in adoption

41 Adoption laws, policies and practices are discriminatory, in the ordinary sense of the word. Only certain people are eligible to adopt a child, based on their relationship status. Assessment of their suitability to adopt is based on their age, physical and mental health, financial circumstances and other personal characteristics. Selection of adoptive families is based on the natural parents’ wishes about applicants’ religion, race and ethnic background.

42 The law can place reasonable limits on Charter rights. Exceptions to the Equal Opportunity Act 2010 (Vic) permit discrimination where it is authorised by another law or necessary to comply with another law.

43 Victoria’s adoption laws, policies and practices are intended to protect the best interests of children by ensuring that they are adopted by the people who are best able to meet their needs. The right of a child to a safe, stable, family environment, in which they maintain their connection with their family of origin, may in some circumstances outweigh the rights of people who want to adopt.

Chapter 10 Eligibility to adopt

44 The Commission makes recommendations which widen the eligibility criteria in the Adoption Act. While every eligible person should be entitled to apply to the Secretary or principal officer to adopt, an application should not create an entitlement to be assessed. The Commission recommends that the Adoption Act require the Secretary to manage applications for approval to adopt, anticipating the number of children able to be adopted and their needs.

Cohabitation

45 To be eligible to adopt through the local adoption program, couples must have been married, in a registered domestic relationship or in a domestic relationship for no less than two years. Since 1 September 2016 this includes same-sex couples.

46 Couples in a domestic relationship must also be ‘living together’. This is not required of couples who are married or in a registered domestic relationship. The cohabitation requirement discriminates against certain couples based on marital status and is inconsistent with Charter rights. Further, there is no evidence that the cohabitation requirement demonstrates the stability of a relationship. The assessment criteria under the Adoption Act and Regulations, together with the assessment process, provide a robust method of ensuring that only suitable people in a stable relationship are approved to adopt. The Commission recommends that the eligibility criteria under the Adoption Act should not require or imply that couples in a domestic relationship live together.

Adoption by a single person

47 Single people may only adopt a child where ‘special circumstances exist in relation to the child which make it desirable so to do’. The Adoption Act does not define ‘special circumstances’. In practice, it has been interpreted as meaning they may adopt children with ‘special needs’.

48 The law in Victoria already recognises that single people are suitable parents who can provide children with a safe, stable and secure environment. Single people are eligible to care for a child under CYF Act orders and undertake IVF on their own.

49 The Commission considers differentiating between couples and single people on the basis of marital status is inconsistent with the Charter and the right to recognition and equality before the law. Marital status is not relevant to the safety, wellbeing and interests of a child to be adopted.

50 The Commission recommends that the Adoption Act apply the same eligibility criteria to single applicants as to couples.

Known-child adoption

51 The Adoption Act recognises two types of known-child adoption in Victoria: adoption by a step-parent and adoption by a relative of a child. ‘Exceptional circumstances’ must exist in relation to the child which make the adoption desirable. Additionally, parenting orders under the Family Law Act 1975 (Cth) are preferred to adoption orders as they do not sever the legal relationship between the child and their parents, and expire when the child turns 18. There is also concern that when a relative adopts a child, it can distort family relationships. The Commission supports the preference for Family Law Act orders over adoption orders in relation to adoption by step-parents and relatives.

52 Adoption agencies told the Commission that they do not prioritise adoption applications by step-parents, due to funding constraints. Such applications are considered low-risk, in that they seek to formalise an existing relationship which will continue whether or not the child is adopted.

53 The Commission considers it is reasonable to expect a step-parent to contribute to the administrative cost of their application if they wish to adopt the child before the child turns 18. It makes a recommendation to this effect. At 18 years old a person can elect to be adopted by a step-parent or relative without the involvement of the Secretary or principal officer.

Adoption from care

54 In Victoria, permanent care orders under the CYF Act provide permanency for children in Victoria’s child protection system. A permanent care order transfers parental responsibility for the child from the natural parents to the permanent care parents while maintaining the legal parental relationship. The Adoption Act does not provide a way for a person with responsibility for a child under a permanent care order to adopt that child.

55 The Commission recommends the creation of a pathway to adoption from permanent care in strictly limited circumstances.

56 The consent of a child’s natural parents should remain the fundamental requirement. ‘Child protection’ grounds for dispensing with consent should not be available in granting an order for adoption from permanent care.

57 Eligibility should be limited to people applying to adopt a child who has been placed with the applicant under a permanent care order for at least two years. The two-year requirement ensures that children will not be quickly moved from permanent care to adoption.

58 As a form of known-child adoption, it is appropriate that ‘exceptional circumstances’ be demonstrated which make the adoption desirable. Lack of contact between a child and their natural parents should not of itself satisfy this requirement. The court should also be satisfied that an adoption order would make better provision for the child’s welfare and best interests than continuation of the permanent care order, or an order under the Family Law Act.

59 As permanent care orders are under the Children’s Court jurisdiction, discharge of a permanent care order is a decision of that Court. Leave from Children’s Court should be granted before an application for an adoption order is made to the County Court.

Chapter 11 Assessment of applicants for adoption

60 The Adoption Act requires that all applicants be assessed as suitable to adopt against suitability criteria set out in the Adoption Regulations.

Suitability criteria

61 The criteria assess the ‘suitability’ of many aspects of an applicant’s background, personality, capacities and circumstances, including emotional, physical and mental health, age and maturity, skills and life experience and financial circumstances. The Commission concludes that on the whole, the suitability criteria establish a reasonable framework for assessing a person’s ability to bring up an adopted child, through to adulthood, in a positive, stable, family environment.

62 The Commission considers that one criterion encapsulates the overall purpose of the assessment: the applicants’ ‘capacity to provide a stable, secure and beneficial emotional and physical environment during a child’s upbringing until the child reaches social and emotional independence’. It proposes that this criterion be elevated to become the overarching purpose of the suitability assessment process.

63 Additional requirements, including requirements relating to citizenship, fertility treatment and full-time care of a child, which are currently set out in policy, should be included in the Adoption Act or Adoption Regulations.

Assessment process

64 The Commission had difficulty determining the full extent of the requirements of the assessment process. The Commission heard complaints from adoptive parents and applicants about inconsistent practices across agencies relating to information, the amount of time taken, and assessment practices.

65 Any process which affects a person’s eligibility to adopt should be included in the Adoption Act or Adoption Regulations. All applicants should receive the same information and training. Decision makers should take a consistent approach to assessments. Timeframes should be as consistent as possible.

66 DHHS should take steps to improve consistency across agencies. Information about the assessment steps should be provided to applicants and available to anyone who expresses an interest in adoption.

67 To increase clarity about the factors that decision makers may take into account, assessment guidelines should be developed. The guidelines should be easy to understand and used by all approved agencies. They should be published on the DHHS website and provided to any applicant who does not have access to the website.

68 As well as improving transparency, these measures would assist applicants’ understanding and expectations of the assessment process, promote a transparent and consistent approach to decision making and increase the accountability of agencies.

69 Parents and applicants told the Commission they felt unable to give feedback about the process, including concerns about delays and lack of information, because they were worried it would affect their chances of being selected to adopt a child. The Commission recommends that the Secretary establish a mechanism that enables applicants to give anonymous feedback about their experience of the assessment process. This would inform improvements to adoption services in Victoria.

Chapter 12 Selection of adoptive parents

The matters parents may express wishes about

70 After assessment, approved applicants are added to a register of potential adoptive parents. To adopt a child, they must be selected for a child who needs a family. This process is called ‘linking’. When making this decision, the Secretary or principal officer must consider the parents’ wishes about the ‘religion, race or ethnic background’ of the adoptive parents.

71 On its face, the linking process infringes the principle of non-discrimination contained in the Charter and the Equal Opportunity Act.

72 While there is a tension between parents’ ability to express wishes about the adoptive family and protecting applicants from discrimination, the overriding principle in adoption is that all decisions must be in the child’s best interests.

73 The Equal Opportunity Act prohibits discrimination against a person based on particular attributes unless it is authorised by another law or necessary to comply with another law. Currently, the Adoption Act authorises parents to state preferences about applicants’ religion, race and ethnic background.

74 The Commission considers parents should be able to participate in decision making about who adopts their children, because it increases the possibility that they will have ongoing contact with their child and the adoptive family.

75 The Commission recommends that the Adoption Act permit parents to express wishes about the full range of suitability criteria set out in the Adoption Regulations, replacing the factors currently specified in section 15(1)(b) of the Adoption Act. This would ensure parents’ wishes focus on factors already established as relevant to applicants’ ability to care and provide for a child and increase the chances of a successful open adoption.

76 However, parents’ wishes should not decide the outcome. A wish that is contrary to a child’s best interests should not be followed.

77 To ensure the Adoption Act and Equal Opportunity Act operate harmoniously, the Commission also recommends that the Equal Opportunity Act should not apply to the assessment of applicants reasonably based on the suitability criteria and decisions which give effect to parents’ wishes in selecting parents in a child’s best interests.

Adoption services—conflict of interest

78 The Adoption Act empowers the Secretary to approve agencies to ‘make arrangements or enter into negotiations’ towards an adoption. In each adoption, all services—options counselling, assessment of applicants, linking, placement, guardianship, monitoring of the placement and legalisation—may be managed by the same agency.

79 This situation creates a risk of actual or perceived conflict of interest for the social workers and counsellors involved in the adoption, where they may have conflicting duties to two or more clients or where a personal interest conflicts with a duty to a client. A second possible issue is that agencies placing a child may consider only applicants in their own region, whom they have assessed and approved, rather than considering the full range of approved applicants on the statewide register. This limits the range of families considered for a child, which is contrary to the child’s best interests.

80 The Commission recommends that the Secretary be empowered to approve agencies to carry out discrete adoption services to enable them to be carried out by separate service providers. This would reduce the risk of conflict of interest. It also recommends that the Adoption Act establish a central, statewide register of approved applicants to be consulted when selecting prospective adoptive parents. This approach to linking would serve the best interests of children by maximising the number of applicants that can be considered to adopt a child.

Chapter 13 Adoption services and the Equal Opportunity Act

81 Adoption and permanent care teams provide services in geographical service regions of Victoria. CatholicCare provides a statewide adoption service. People who wish to apply to adopt are assigned to the adoption service in their local region. Applicants may not ‘shop’ between regional adoption services, but they may choose between their local service and the statewide service provided by CatholicCare.

82 LGBTI couples have been eligible to adopt since 1 September 2016 and may apply to their regional office for service. CatholicCare’s information sheet for prospective adoptive parents states that it is able to assess and accredit LGBTI couples but not select them to adopt or proceed to legalisation through the court. LGBTI couples are referred to another approved adoption agency. While heterosexual couples may adopt through either their regional adoption service or the statewide service, this option is not available to LGBTI couples.

83 The Equal Opportunity Act prohibits discrimination on the basis of attributes including gender identity, marital status, sex and sexual orientation. However, the Act contains exceptions and exemptions that permit discrimination. Section 82(2) of the Equal Opportunity Act permits a religious body to act in discriminatory ways if the action conforms with the doctrines, beliefs or principles of the religion. Section 84 permits a person to discriminate against another person where the discrimination is reasonably necessary to comply with the doctrines, beliefs or principles of their religion. CatholicCare is relying upon an exception to refuse to provide adoption services to LGBTI applicants.

84 The Commission considers that a ‘blanket’ religious exception should not apply to the provision of adoption services under the Adoption Act. Discrimination should only be permissible to the extent that the Adoption Act provides, upon grounds that are in the best interests of children.

85 The Commission recommends that the religious exceptions under the Equal Opportunity Act not apply to approved adoption agencies providing publicly funded adoption services under the Adoption Act. This recommendation is consistent with the secular nature of adoption.

Chapter 14 The role of the court in the adoption process

86 The vast majority of adoption proceedings are heard in the County Court. Currently, the court’s opportunity for engagement with the adoption process is limited. The Commission makes recommendations to facilitate a more meaningful role for the court throughout the adoption process.

Dispensing with consent

87 The court hears applications for an adoption order at the end of a long adoption process, when the child has been with the prospective adoptive family for around 12 months. Applications to dispense with consent tend to be determined late in the adoption process, often days prior or on the same day as the court makes the adoption order. This timing inevitably shifts the balance in favour of dispensing with consent to enable the making of an adoption order, to support the child’s need for stability.

88 Because of its potentially drastic consequences, the Commission recommends the court hold a preliminary hearing to determine any application to dispense with consent, regardless of whether the application is contested. This should occur before the placement of a child with prospective adoptive parents.

Parties to proceedings

89 Currently, the court has a broad discretion to permit anyone it thinks fit to be a party to an adoption hearing. The Commission recommends that the Adoption Act define the parties to adoption hearings at each stage of the process.

90 In all adoption hearings, parties should include the child and the child’s natural parents. This grants them the right to be heard by the court in decisions that affect them. However, they should not be obliged to participate.

Confidentiality

91 There is a presumption of confidentiality in adoption proceedings. This is not consistent with the principles of open adoption. It limits the transparency of the court process and the opportunity to understand the court’s thinking. The Commission recommends that proceedings under the Adoption Act should be heard in open court.

92 The Adoption Act should require that judicial reasons be publicly available, unless an order has been made under section 17 of the Open Courts Act 2013 (Vic), and should be anonymised to ensure confidentiality of any matters likely to enable the child, the adoptive parents, or natural parents, to be identified.

93 Publication of judicial reasons will provide greater understanding of adoption practice and jurisprudence, and facilitate and support much-needed open adoption research.

Representation of the child

94 The Commission considers that an independent children’s lawyer should be appointed for all children in the adoption process. This should occur as early as possible, including during the development of an adoption plan, at a preliminary hearing, at a final hearing and at any subsequent hearings such as variation or revocation of the terms of an adoption plan.

95 The two key models used for the legal representation of a child in Australia are the ‘best interests’ model and the ‘direct representation’ model. The Commission recommends that independent children’s lawyers act in accordance with the direct representation model for children aged over 10, that is, act on the child’s instructions. If a child is under 10 or is not mature enough to give instructions, the best interests model should be used.

96 There are cost implications of appointing independent children’s lawyers in adoption proceedings. However, the decisions under consideration by the court have great and lasting significance for the child. In view of the small number of adoptions in Victoria the Commission considers that the cost is justified.

97 The Adoption Act should also provide for the court to direct the Secretary or principal officer to appoint a person, such as a social worker or other person of expertise to support a child in proceedings, as well as a lawyer. This person should not be an employee of the Department or of an approved adoption agency.

Discharge of an adoption order

98 Currently an adoption order may be discharged where the order or consent was based on fraud, duress or other improper means, or where ‘special circumstances’ exist, such as irretrievable breakdown of the relationship between the adopted person and their adoptive parents. Additionally, the court must be satisfied that ‘the welfare and interests of the child would be promoted by the discharge of the adoption order.’

99 A discharge order effectively reverses the legal effect of an adoption. It severs an adopted person’s relationship with their adoptive family and reinstates their legal relationship with any biological parents or wider family.

100 From 2010 to 2016, 17 applications for discharge of an adoption order were made in Victoria. All 17 applications were made by adults.

101 The Commission considers that the current legal tests for discharge of an adoption order are appropriate in relation to an adopted child, and for any application brought by someone other than the adopted person.

102 However, the Adoption Act should not impose a barrier to an adult adopted person applying to the court for a discharge of an adoption order. The court should be satisfied that the discharge of an adoption order is appropriate and desirable in all the circumstances. The court should also ensure that all parties are advised of the legal effect of discharging an adoption order when they are notified of proceedings.

Chapter 15 Adoption support

103 In the past, support was not considered necessary after an adoption order was made. There is now recognition that adoption has lifelong, intergenerational effects and ongoing support is needed to help parties to adoption manage its effects at a range of times and key points in their lives.

104 Currently, the key form of post-adoption support is for people seeking access to adoption information. Grants of financial assistance are available in special circumstances.

105 The Commission was told of a need for a variety of services, tailored to meet the needs of people affected by adoption.

106 The Commission recommends the Secretary establish and maintain adoption and post-adoption services. The Commission considers that as the state is responsible for arranging adoptions it should also be responsible for post-adoption support. These services should include support provided by approved adoption agencies and other organisations, and specialised adoption support services, including specialist counselling, psychological and psychiatric services.

107 The people eligible for adoption support, including grants of financial assistance, should include adopted people, natural parents, adoptive parents, parties to an adoption plan, natural relatives, and the natural children of adopted people. This recognises the far-reaching effects of adoption and is consistent with access to adoption information rights under the Adoption Act.

Mediation

108 Currently, the only recourse for parties in conflict over contact and information conditions on an adoption order is application to the court, in limited circumstances. The Commission recommends that the Secretary develop a mediation service to assist families in negotiating conflict in relation to any adoption arrangements.

Data and research

109 Effective adoption support should be evidence-based. However, available adoption data in Victoria is limited. The Commission recommends that the Secretary maintain and annually report comprehensive, statewide data on the operation and delivery of adoption services at all stages of the adoption process, including support and mediation services. This would support the operation of the Adoption Act and enable effective provision of adoption services.

Chapter 16 Access to adoption information

110 Before 1984, adoption information was kept confidential. The current Adoption Act made some of this information available. Part VI of the Adoption Act regulates access to information held in records about adoptions that were negotiated or arranged by the Secretary, an approved agency, or a private adoption agency under the Adoption of Children Act 1964 (Vic).

111 Part VI of the Adoption Act needs significant revision. The provisions do not set out clearly what information may be made available on request, and under what conditions. Nor do they incorporate the features of subsequent legislation that regulate the handling of personal information by government agencies and protect privacy, such as the Charter, the Privacy and Data Protection Act 2014 (Vic), or the Health Records Act 2001 (Vic).

A new access to information scheme

112 The Commission recommends that Part VI of the Adoption Act be replaced with a new access to information scheme, designed by DHHS in consultation with the Privacy and Data Protection Commissioner, the Health Services Commissioner and the Ombudsman. The new scheme should incorporate contemporary standards of transparency, accountability and fairness in the management of personal information by Victorian government agencies.

113 It should ensure that people about whom information is collected are aware of its collection, the purpose of collection, to whom information of that kind is usually disclosed, and their right to have access to the information and correct it if necessary.

114 The new scheme should apply to information in the possession or control of the Secretary or an agency that relates to an adoption that was negotiated or arranged at any time under current or corresponding previous legislation.

115 A new scheme provides an opportunity to address issues identified during the Commission’s review.

Centralised administration

116 People seek access to information under the Adoption Act from Family Information Networks and Discovery (FIND) and three approved agencies. Each of these organisations assesses requests for access, locates the information, obtains it from the Registry of Births, Deaths and Marriages, courts or other organisations, and provides it to the applicant in accordance with the Adoption Act.

117 The Secretary has information-collection powers (exercised by FIND) that are not available to the other approved agencies. FIND and the approved agencies operate independently under different guidelines and procedures.

118 Many of the problems identified during consultations, such as delays in obtaining information and inconsistent decision making, arise from this devolved structure.

119 The Commission recommends that the Secretary be solely responsible for the new access to information provisions. This would address many of the problems raised during consultations. It would provide greater certainty and accountability, and is also a practical solution.

Information covered by the scheme

120 The new scheme should provide a simple yet comprehensive description of the information to which access may be granted that does not pre-empt decisions about how to respond to a request for access to it.

Protection of information

121 Part VI of the Adoption Act includes measures to balance one person’s right to access information with another’s right to privacy. These provisions can be very complex, and in some cases the people who have rights to apply for access are the same people as those whose information is protected from unreasonable disclosure.

122 The new access to information scheme should describe clearly the circumstances in which information may be released under the Adoption Act.

Eligibility to request information

123 The Adoption Act controls access to information about an adopted person by specifying who has a right to apply for access. Adopted people, adoptive parents, natural parents, natural relatives (a brother, sister, uncle, aunt and grandparent) and the natural adult children of adopted people have the right to apply.

124 The Commission recommends that the new scheme extend some rights to apply for adoption information, for example the rights of adopted children under 18 and natural relatives. It also recommends that eligible people be enabled to authorise another person to apply on their behalf in defined circumstances.

Access to medical information

125 Part VI of the Adoption Act permits disclosure to an adopted person of some medical information which is contained in the records relating to the adoption. However, where they do not have contact with their natural parents or natural relatives, they may not be able to obtain up-to-date family medical information. The new access to information provisions should enable adopted people to obtain non-identifying medical information from their natural parents and natural relatives through the Secretary.

Notification and disclosure

126 Generally there is no requirement for a person to be notified about a disclosure where their agreement or consent is not required.

127 It is likely that DHHS and approved agencies hold a great deal of personal information about people who are unaware that the records exist or what they contain. Much of this information does not require their consent for its disclosure.

128 The Commission considers the Secretary should be required to make all reasonable efforts to notify someone that information about them is going to be released, and give them a reasonable opportunity to correct or add comments to information that is wrong or misleading. This would be in accordance with good privacy practice and consistent with the requirements of the modern information privacy regimes.

Adoption Information Register

129 People who are entitled to apply for information under the Adoption Act are able to ask for certain details to be recorded in an Adoption Information Register maintained by DHHS and each approved agency. This includes their name, contact details and preferences about exchanging information with anyone else on the register. The new access to information scheme should specify the purpose of the Adoption Information Register and provide accurate and complete details about how it works.

Guidelines about information decisions

130 A request for access to information under the Adoption Act requires the decision maker to assess the relevance and sensitivity of the information and the likely effect on anyone that it identifies.

131 The Commission recommends that the Secretary develop clear, publicly accessible guidelines to promote consistent decision making about access to information.

Counselling

132 Access to information under Part VI of the Adoption Act is generally available only if the applicant has attended an interview with an approved counsellor. Mixed views were expressed about the value of this interview.

133 The Commission recommends that the interview be offered as an option to all applicants. The Secretary should advise an applicant if the information could reasonably be expected to be distressing to the applicant.

Review of decisions

134 The modernisation of the access to information scheme provides an opportunity to introduce internal and external review of decisions about those requests. No such reviews are currently provided by the Adoption Act.

135 A review process would also help to ensure that decision makers are accountable for how they respond to requests. It may identify the need for more training, guidance or resources or other actions to improve the consistency of decisions and the efficiency with which requests are handled.

136 Reviews should be inexpensive and accessible. The Victorian Civil and Administrative Tribunal (VCAT) is the appropriate external review body in Victoria. An internal review should be a pre-requisite to seeking external review.

137 The Commission recommends that decisions of the Secretary under the new access to information scheme relating to the disclosure of information be subject to internal review within DHHS and external review by VCAT.

1. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) Recommendation 13.

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