The Bligh Government is committed to reforming and improving systems and practices that affect all Queenslanders.

Transcription

1 Minister s Message The Bligh Government is committed to reforming and improving systems and practices that affect all Queenslanders. Queensland s current adoption laws were crafted over 40 years ago. It gives me great pleasure to present the Bligh Government s proposal for new adoption laws, detailed in Future Adoption Laws for Queensland. These proposals are based on feedback from community consultation and an investigation of adoption best class and contemporary for everyone affected by adoption. These proposals will be incorporated into a new Adoption Bill which I will introduce into the Queensland Parliament before the end of the year. The new laws will be governed by one overriding principle which our adoption laws must consider at all times the best interests of the adopted child throughout his or her lifetime. New laws include reforms which will: adoption their child grow up. Adoption of Children Act 1964 that was not considered in previous consultative reviews. The Balancing Privacy and Access: Adoption Consultation Paper seeks to address issues that surround the release of personal information to all those involved in the adoption process. Feedback from the consultation paper will inform the Government s decision about the reform of this very sensitive area of adoption law. Margaret Keech MP Minister for Child Safety Minister for Women Member for Albert

2 Table of Contents Introduction Object and Guiding Principles... 3 Main object of new adoption laws...3 Wellbeing and best interests of adopted people throughout their lives are paramount...3 Other guiding principles...3 Anti-Discrimination Act 1991 not to apply Open Adoption... 4 What is open adoption?...4 Adoption plans... 5 Court order restricting access to identifying information Aboriginal and Torres Strait Islander Children...6 Why focus on issues for Aboriginal and Torres Strait Islander children?...6 Principles particular to Aboriginal and Torres Strait Islander children... 7 Consent to an Aboriginal or Torres Strait Islander child s adoption... 7 Child Placement Principle...8 Adoption plans to be mandatory Consent to a child s adoption...9 Informed and voluntary consent of every parent and guardian required...9 Identifying, locating and involving a child s father Dispensing with the need for a person s consent Child s views...11 Intercountry Adoption Recruitment, selection and assessment of prospective adoptive parents Selections for assessment Deciding suitability to be adoptive parents Selecting a couple to be a child s prospective adoptive parents Adoption of children by step-parents and relatives Application for adoption...20 Leave of the Family Court Application for adoption order Adoption orders...22 Adoption orders to be made by the Childrens Court...22 Interim adoption orders to be mandatory Legal effect of adoption orders...24 Court orders about a child s name Discharge of adoption orders Access to Adoption Information Pre-June 1991 adoptions...28 Post-June 1991 adoptions...29 Intercountry adoptions...29 Open adoptions Miscellaneous Restrictions on publication Offences... 32

3 Introduction Queensland s current adoption laws date from While these laws have been amended over the years since, The Queensland Government recognised the need to develop new adoption laws to support cotemporary, Adoption of Children Act The following chapters set out, in some detail, the Queensland Government s proposal for new adoption laws. These proposals will be incorporated into an Adoption Bill to be introduced into the Parliament to become law. This will happen after the feedback in response to the Balancing Privacy and Access: Adoption Consultation Paper has been received so the Adoption Bill can also include any new laws about access to identifying adoption information. Adoption Today at different times in history. Adoption has served different purposes in different societies at different times. In contemporary Queensland and Australian society, adoption is a way to provide a permanent family for children who, for various reasons, cannot live with their family of birth. The legal process of adoption establishes a permanent parent-child relationship between a child and his or her adoptive parents. Adoption also removes the legal relationship of infants who required adoptive placements. Today, only a small number of Queensland parents choose adoption for the long-term care of their children each year, although a large number of people still wish to adopt children. In recent years, most of the children adopted in Queensland were born overseas and came to Queensland to be adopted by Queensland couples through an intercountry adoption program. In , 91 children were adopted in Queensland. Of these, 12 were infants from Queensland, 63 were children from overseas adopted by Queensland families through an intercountry adoption program, 14 were children adopted by a step-parent and two were children adopted by a foster carer. adopt a child born in Queensland, or a child born overseas through an intercountry adoption program. People can also apply to the Department to adopt a child through the Special Needs Childrens Adoption Program or, through the Relative Childrens Adoption Program, can apply to adopt their step-child or another child who is related to them. 1

4 Major Areas of Change practices and outcomes and developments in other jurisdictions. Open adoption: practice. The Department will be able to work with a child s birth parents and prospective adoptive parents to help them to come to a mutual agreement about how open the adoption arrangement will be. Through an adoption plan, the parties will be able to document how and when they propose to communicate with each other and, if they agree to in-person contact, how and when the contact will happen. Adoption orders to be made by the court: Queensland is currently the only Australian jurisdiction in which adoption orders are made administratively by a public servant. This means the Department of Child Safety makes all of the arrangements for, and decisions about, the adoption of a child, including making the adoption order. In all other states and territories and most international jurisdictions, adoption orders are made by a court. The adoption of a child has court rather than by a government department and future adoption laws will give the responsibility for making adoption orders to the Childrens Court. Expression of interest register: As a result of reforms introduced in 2002, people initiate their involvement in the adoptive parents of a child who requires a permanent family. While the basis of the 2002 reforms remains sound, the uncertainty surrounding the opening and closing eligibility criteria will ensure the register accurately represents only the people who remain committed to participating in the adoption process at a particular time. Eligibility: laws, de facto couples will also be eligible, subject only to these requirements: Meet the individual needs of every child: New adoption laws will acknowledge that every child for whom adoption is being considered has particular needs that will have to be met through an adoptive placement. No longer will adoption laws refer to children with special needs as every child s needs must be individually considered and met as best as possible. Where the Department knows of a particular child and what his or her individual needs are, new laws will give child protection system may be the people who are best able to meet the child s needs, given the parent-child Meeting international obligations Adoption policy and practice in Queensland is governed by Australia s obligations under the United Nations Convention on the Rights of the Child and the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption obligations. 2

5 1. Object and Guiding Principles Main object of new adoption laws The main object of the new adoption laws will be to provide for the adoption of children in Queensland in a way that: Wellbeing and best interests of adopted people throughout their lives are paramount The Queensland Government intends that new adoption laws will establish the principle that the wellbeing and interests of an adopted child, both through childhood and the rest of his or her life, are paramount. This principle will underpin the way in which every other provision of the Bill is read and administered. wellbeing and best interests. Other guiding principles the following themes: secure them a permanent family this, the parties to an adoption have the right to come to a mutual agreement about the degree of openness there will be in a particular adoption arrangement develop a cultural identity ability to understand, by being kept informed about matters that affect him or her and by being given the opportunity Anti-Discrimination Act 1991 not to apply New adoption laws will be child focussed the paramount consideration will always be the wellbeing and best interests of the adopted child or person. The child-focussed nature of the laws will be reinforced by placing the needs of children who require an adoptive placement ahead of the basic right of every person to be protected from unfair discrimination. Therefore, the Anti-Discrimination Act 1991 necessary to meeting the adoptive needs of children. even though it is illegal under the Anti-Discrimination Act 1991 to do so in relation to the administration of government programs. 3

6 2. Open Adoption What is open adoption? The Government intends to make new adoption laws that allow and support open adoption. Queensland is currently the only state that does not allow for open adoption practice. Open adoption does not describe a single practice or refer to only one part of the adoption process. Open adoption practice recognises that: adoption process Trends in other Australian states and territories, where the parties to an adoption are given the option to agree to the adoptions are now open. The Australian Institute of Health and Welfare reports that nationally only seven out of 59 1 The majority of people who responded to the Adoption Legislation Review consultation paper supported the There are strong indications in Queensland that members of many adoptive families are interested in knowing and developing relationships with members of their child s birth family. Most adopted people who are under 18 are building adoption since part 4A of the Act was introduced in 1991 to allow access to adoption records. New adoption legislation will introduce a more open framework for future adoptions, allowing the degree of openness in an adoption arrangement before the adopted person turns 18 to be arrived at through agreement between the birth family and the adoptive family. Current adoption law and practice in Queensland provide a strong foundation for a move to open adoption. In the case of all adoptions that have been made since 1 June 1991, from the time the adopted person is 18 years of age, the parties will allow these families to decide for themselves when to establish a relationship between them, and the ongoing In making a decision to place a child with particular prospective adoptive parents, the Department takes into account 1 Australian Institute of Health and Welfare, Adoptions Australia AIHW child welfare series no. 44. Canberra: AIHW. 4

7 Adoption plans wish to develop or contact they wish to have, will be set out in an adoption plan. Under new adoption laws, an adoption plan will be a written plan about anything relating to the adopted child s wellbeing or interests agreed to by the parties to an adoption or proposed adoption. It will not be legally binding or enforceable. The purpose of an adoption plan will be to contribute to the success of an adoption by ensuring parties to the arrangement properly consider, and commit to practical ways to address: - when a party will communicate with another party - how a party will communicate with another party, including whether the communication will be direct and medical history of child s biological family, the child s development and important events in the child s life. circumstances of the adoption. adoptive parents will help the child to develop and maintain a connection with the child s culture and preserve and enhance the child s sense of cultural identity. New laws will require an adoption plan to be entered into where a birth parent and a prospective adoptive parent have advised the Department they wish there to be in-person contact between the child and the child s birth family after the adoption. The adoption plan will have to address how the contact will happen and the intended nature and frequency of the contact. An adoption plan will also be compulsory where the child to be adopted has been in the child protection system and will have to address the degree of openness there will be in the adoption and how and when communication between the child s birth and adoptive families would occur. An adoption plan will also be compulsory if an Aboriginal or Torres Strait Islander child is adopted. This is discussed Court order restricting access to identifying information The Queensland Government recognises that in some rare circumstances, one party to an adoption may pose a risk interests of the child for his or her adopted identity not to be disclosed to the birth father as a means of protecting the child from the risk of ongoing harm from the birth father. order or someone else if the information were given. The application will be able to be made and dealt with at the time an application is made for an adoption order to be granted, or after an adoption order is made. 5

8 3. Aboriginal and Torres Strait Islander Children Why focus on issues for Aboriginal and Torres Strait Islander children? The Government intends to introduce new adoption laws that respect Aboriginal tradition and Island custom and will not promote adoption as an appropriate option for the long-term care of an Aboriginal or a Torres Strait Islander child. Queensland s early legislation and child welfare policies and procedures allowed the forcible removal of Aboriginal and Torres Strait Islander children from their families and had a devastating impact on Australia s Indigenous peoples. Some children who were removed were placed with non-indigenous adoptive parents and grew up without knowing their culture. Bringing them home, the 1997 report of the Human Rights and Equal Opportunity Commission s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, powerfully documented the effects and legacy of forcible removal policies. On 26 May 1999, the Queensland Parliament, and more recently on 13 February 2008 the Australian Parliament, apologised to Aboriginal and Torres Strait Islander people for the past policies under which their children were forcibly laws are a tangible way for the Queensland Government to show it has learned from the past and will take positive action to ensure the past is not repeated. Adoption is an unknown concept in Aboriginal customary law: Aboriginal traditional values and law oppose adoption. 2 The separation of children from birth families and the absolute transfer of parental rights are incompatible with the basic tenets of Aboriginal culture. 3 Island custom includes a customary child-rearing practice that is similar to adoption in that parental responsibility for a child is permanently transferred to someone other than the child s parents. This practice is sometimes referred to as either customary adoption or traditional adoption. New adoption laws for Queensland will respect Aboriginal tradition and Island custom and will not promote adoption as an appropriate option for the long-term care of an Aboriginal or a Torres Strait Islander child. for the child s care and asked the Department of Child Safety to make arrangements for the child s adoption. New adoption laws will include a range of safeguards to ensure, in these circumstances, the child s culture is respected and the adoption of an Aboriginal or Islander child only proceeds if there is no better option available for the child s long-term stable care. These safeguards will have regard to the standards recommended in the Bringing them home report for Aboriginal and Torres Strait Islander children relevant to adoption. 4 2 Human Rights and Equal Opportunity Commission, Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney, New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965, Report No. 81, Human Rights and Equal Opportunity Commission, Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney, 1997,

9 Principles particular to Aboriginal and Torres Strait Islander children New adoption laws for Queensland will set out a range of principles to govern all decisions and actions that concern Aboriginal children and Torres Strait Islander children. adoption of an Aboriginal or Torres Strait Islander child should only be considered if there is no better option for meeting the child s need for long-term stable care. - to be cared for within an Aboriginal or Torres Strait Islander community - to maintain contact with the child s community or language group - to develop and maintain a connection with the child s Aboriginal or Torres Strait Islander culture, and - for the child s sense of Aboriginal or Torres Strait Islander identity to be preserved and enhanced. Another principle will require the Childrens Court, before making any decisions about an Aboriginal or Torres Strait of the child s community, a recognised entity for the child or another entity providing services to Aboriginal or Torres Consent to an Aboriginal or Torres Strait Islander child s adoption The general provisions to be included in new adoption laws will require the Department to give every parent who understand the nature of adoption and a decision to consent to adoption, and to ensure the parent is comfortable with any decision he or she ultimately makes. For a parent who indicates his or her child may be Aboriginal or Torres Strait Islander, provisions will require the parent to be given the option of receiving pre-consent counselling, support and information from an appropriate Aboriginal or Torres Strait Islander person. If the parent refuses this option, the Department will have to record that the offer was made and refused. Also, pre-consent information about adoption that is given in writing and discussed with a parent will have to include information about: Island custom, and child s Aboriginal or Torres Strait Islander culture and preserves and enhances the child s sense of Aboriginal and Torres Strait Islander identity. 7

10 Child Placement Principle New adoption laws will contain a clear statement of the Aboriginal and Torres Strait Islander child placement principle. The principle was implemented into child protection and adoption practice in Queensland in 1986 and has been entrenched into the Child Protection Act The new laws will see the child placement principle, which continues to The Department will also be required to consult with an appropriate Aboriginal or Torres Strait Islander person in selecting a couple to be considered to be the child s prospective adoptive parents. The child placement principle will not be the only consideration in selecting a couple to be the prospective adoptive parents for an Aboriginal or Torres Strait Islander child. Other matters, including the child s individual age-related, assessed capacity of possible adoptive parents will also be taken into consideration to ensure the selection best promotes the child s wellbeing and best interests. New laws will allow the Department to invite a couple to consider being the adoptive parents of a child and to have their suitability to be the child s adoptive parents assessed. This will assist the Department to comply with the child placement principle and to be able to best meet the adoptive needs of an Aboriginal or Torres Strait Islander child. Adoption plans to be mandatory While adoption plans will generally be entered into voluntarily, they are to be mandatory if an Aboriginal or Torres Strait Islander child is to be adopted by a couple from outside of his or her community. The plan will be required to set out ways in which the prospective adoptive parents will help the child to: For an Aboriginal or Torres Strait Islander child who is adopted, the plan will be able to include agreement about how the child might be assisted to develop a cultural identity, including establishing links with the child s cultural heritage generally, including members of the child s community or language group. 8

11 4. Consent to a child s adoption The way in which a birth parent s consent to the adoption of his or her child is obtained is fundamental to ensuring the child s best interests are promoted through adoption, and birth parents rights and interests are protected. Many criticisms of past adoption practices relate to the way in which adoption consents were obtained from parents. consequences of the decision they are making when they sign a document of consent. The United Nations Convention on the Rights of the Child and the Hague Convention set out a range of principles and whose consent is required for adoption have been counselled and properly informed of the effects of their consent, that they have given their consent freely, their consent has not been induced by payment or other compensation, their consent has not been withdrawn and the consent of the mother has only been given after the birth of the child. Queensland. Informed and voluntary consent of every parent and guardian required New adoption laws will require a child s mother and father and every person who is a guardian of the child to freely the child. Requiring a child s father to consent to the child s adoption is an important reform to Queensland s adoption law. Under the current law, the Adoption of Children Act 1964, a father is only required to consent to his child s adoption if he was married to the child s mother, either at the time the child was conceived or at the time of adoption. A new legal requirement for the consent of all fathers to a child s adoption to be obtained or dispensed with by the who responded to the Adoption Legislation Review consultation paper. The new laws will include a number of measures designed to ensure a person s consent is informed and is given voluntarily: consenting to the child s adoption, including information about adoption and options other than adoption for the child s long term care and the adoption process under the new law information about adoption and counselling about the alternatives to adoption and the possible emotional effects of carried out, in a way that enables the parent to understand of giving consent and the effect of adoption whether the person is capable of consenting. A parent or guardian who has consented to a child s adoption will be able to revoke the consent within 30 days by giving written notice of the revocation to the Department. 9

12 Identifying, locating and involving a child s father In contemporary Australian society, both of a child s parents are considered to have equal responsibility for the child s care and wellbeing. This is also set out in article 18 of the United Nations Convention on the Rights of the Child, which says that governments should, as far as possible, ensure that both parents have common responsibilities for the upbringing and development of a child. The Department s current adoption practice is to involve a child s father, wherever possible, in making decisions about his child s adoption or other long-term care. New adoption laws will require the Department to take reasonable steps to establish the identity and location of a child s father so he has the opportunity to participate in decisions about the child s adoption or other long-term arrangements for the child s care. If the Department knows, or reasonably believes, a man is a child s father, the Department will be required to give him a notice stating: - give consent to the adoption - take steps to establish whether he is the child s father, or - apply for a parenting order for the child in the Family Court of Australia. The Government acknowledges there may be some circumstances in which a child s mother should be allowed to solely offence such as rape or incest committed by the father, or where there would be an unacceptable risk of harm to the child or mother if the father were made aware of the child s birth or proposed adoption. In these cases, new laws will not require the Department to notify a man believed to be a child s father of the child s proposed adoption and the steps he may take in relation to the adoption, establishing his paternity or assuming responsibility for the child s care. Dispensing with the need for a person s consent As with the current Adoption of Children Act 1964, new adoption laws will allow the Childrens Court to make an order consider any views the child holds about the parent, having regard to the child s age and ability to understand and The grounds for dispensing with the need for a person s consent will largely mirror the current grounds in the Adoption of Children Act 1964: or proposed adoption nature and effect of the adoption, freely and voluntarily making decisions about the adoption and communicating the decisions in some way able to protect the child and meet the child s need for long-term stable care and is unreasonably withholding his or her consent to the adoption arrangements for the child s adoption to continue to be made. Also, the court will not be able to dispense with the need for a parent s consent where there is a current application before another court seeking a declaration of paternity for the child or a parenting order for the child under the Family Law Act

13 Child s views In some circumstances, a child to be adopted will be old enough to have his or her own views about the adoption. This is more likely to be in cases where a step-parent of the child has applied to adopt him or her, or where a child has been in the child protection system and the child s adoption is a means of securing a permanent family environment for the child. Department to provide the child with information to help the child to form views about the adoption, including information about the adoption process and options other than adoption for the child s long term care. This information will have to be provided to the child in a way that is reasonable given the child s age and ability to understand. The child will also have to receive counselling about the proposed adoption in a way that is appropriate to the child s age and ability to understand. The Department will also be able to appoint another person, who is not an employee of the Department, to provide support to the child during the adoption process. The Childrens Court will be required to consider the child s views before deciding whether or not to make an adoption order for the child. The court will also be able to appoint a person to give separate legal representation or other support to the child during the court hearing. This is different from the current adoption law. Under the Adoption of Children Act 1964, an adoption order cannot be made for a child who is aged 12 years or older unless the child also consents to the adoption. The reason for this proposed change is an effort to balance a child s right to participate in the decision-making with ensuring the child does not feel responsible for the decision and is not under undue pressure, particularly where the decision involves choosing between a birth parent and the person who is caring for the child. A new legislative requirement for a child s views and wishes about a proposed adoption to be obtained and considered Consultation paper. Intercountry Adoption The new laws about consent will not apply to the adoption of a child through an intercountry adoption program. In the case of a child from another country who is to be adopted in Queensland, the appropriate authority in the child s Hague convention. 11

14 5. Recruitment, selection and assessment of prospective adoptive parents who require a permanent family of which to be a part. Also, under Australia s arrangements with other countries about require the permanent care of a family. To assist the Department to meet these obligations, new adoption laws will be designed to: information to plan for the future need for adoptive parents a child, and or known, placement needs of children requiring adoption. only when they are ready to actively proceed through the process, the Government believes waiting periods for people interested in adding to their families by adopting a child born in Queensland or a child from overseas through an adoption program. The application process and eligibility criteria that will apply to people who wish to adopt their step-child or another child who is related to them is discussed ahead in 7 - Adoption of children by step-parents and relatives. adoption laws will be required to be, and remain, both eligible and suitable eligible to have their names entered on suitable to be an adoptive parent. 12

15 Expressions of interest responded to the Adoption Legislation Review Consultation paper. This will create greater certainty for people who are interested in adoption as a means of forming or adding to their The Department will continue to keep an expression of interest register which lists the names of all of the people criteria. interest. New adoption laws will also make some changes to the remaining eligibility criteria. A couple will be eligible to lodge Child Protection Act 1999). The last three criteria relate to matters that are currently taken into account by the Department when selecting a couple to be the prospective adoptive parents for a child. These criteria are indicators of a couple s current ability to focus their commitment of time and emotion to participate in fertility treatment, or between children. assessment and adoption processes, the register will be an accurate representation of the people who are committed to participating in the adoption process at a particular time. 13

16 assessment process. This will guarantee people reconsider their decision to pursue adoptive parenthood at regular in doing so, will demonstrate their ongoing commitment to adoption. For those people whose names are on the does not give them the right to be assessed to see if they are suitable to be adoptive parents. This is to reinforce that adoption is about the needs of children who require an adoptive family and that no person has a right to adopt a child. eligibility and to participate in the adoption process honestly and in good faith. The Department will be able to remove they are required to pay, have not provided information to the Department within the time requested, have not told the Department about a change in their circumstances that affects their eligibility or have given the Department information that is materially false or misleading. in adoption each year than there are children who are adopted in Queensland. It is not uncommon for intercountry adoption programs to slow down, or close altogether, particularly as countries develop their local adoption programs assessment processes, and 14

17 Selections for assessment adoption process when the Department selects the couple to assess whether they are suitable to be adoptive parents. The Department will select a couple to be assessed for one of two reasons: there is no-one who has already been found to be suitable to be the adoptive parents who are likely to meet the child s needs. preferences that make them likely to be able to meet the placement needs of children requiring adoption that have been anticipated by the Department. For the intercountry adoption program, this will include people who meet all of the criteria set by the various overseas adoption authorities which may relate to matters such as their age, marital status or religion. For the adoption of children born in Queensland, it will also take into account the preferences that birth The Department will then be able to give priority to people with the same ethnic background as children to be adopted, as they are well placed to be able to assist a child to establish and develop a connection with his or her culture of origin, and to people who have previously adopted a child with similar placement needs to a child to be adopted, because they are likely to have a greater understanding of, and capacity to meet, the child s needs. If there are two or more couples who the Department considers to have equal claims to being selected for assessment on these priority bases, they will be invited forward for assessment in chronological order, according to the date on so they are not disadvantaged in any consideration of chronological order. New adoption laws will give the Department a great deal of latitude in selecting people to be assessed for suitability child when the child s particular needs are known. In particular, new laws will allow the Department to ask the following people to agree to be assessed to see if they are suitable to be the adoptive parents of a particular child: Child Protection Act

18 Deciding suitability to be adoptive parents The purpose of assessing a couple is for the Department to decide whether they are suitable to be adoptive parents. A couple are assessed jointly to see whether together they are suitable to parent an adopted child, although each member of the couple must also be found to be suitable in their own right. It is just as important for a person who is part of a couple to also be capable of being a single parent to an adoptive child. Adoptive parenthood is for an adopted child s lifetime. It is inevitable that a family s circumstances will change over time and, for some families, a relationship breakdown or premature death may unfortunately leave one parent to raise the children on his or her own. sources and analysed. Under new laws, the Department will obtain this information about a couple in a range of ways, including by: adoption contract workers, who are people with the decisions about a couple s suitability. the person poses an unacceptable risk of harming a child, or mental health so as to be able to provide stable, high level care for a child until adulthood. If the person has a condition to consider: someone else, and the time for which the person is likely to be able to provide the care or social wellbeing. 16

19 Similar to assessment under the current Adoption of Children Act 1964, new laws will require the Department to consider a range of matters about a couple in deciding whether they are suitable to be adoptive parents. For each person in the couple, these matters will include: character and capacity: the assessment will consider whether the person is of good character and a range of matters related to his or her capacity to be an adoptive parent, including emotional capacity, personal qualities, educational, recreational and social needs parenting and adoptive parenting: consideration will be given to the person s attitudes to, and understanding of, the issues relevant to parenting and, more particularly, adoptive parenting, including the physical and emotional her birth parents and their families and issues about informing a child of his or her adoption relationship: the quality, duration and stability of the person s relationship with his or her spouse will be considered, and adjustment to infertility: where relevant, the person s adjustment to and acceptance of their infertility will be If a couple s suitability to be the adoptive parents of a child of a particular ethnic or cultural background is being considered, the assessment will also consider their ability and willingness to understand the child s background and to develop and maintain the child s ethnic or cultural identity, attitudes to and understanding of a particular country and its culture and ability and willingness to continue to learn and to help the child to learn about the child s country and culture. Director-General, will consider all of the information gathered during the assessment and decide whether a couple are suitable to be adoptive parents. Any decision made by the Department that a couple are unsuitable to be adoptive parents will be reviewable by the Children Services Tribunal. The Department will be required by the new law to inform a couple that they have been found to be unsuitable, provide the reasons for the decision and inform the couple of the right to have the decision reviewed. assessment register. The assessment register will include the pool of couples the Department has found to be suitable to be adoptive parents. The Department will look to this pool when it is necessary to select a couple to be the prospective adoptive parents for a child. There are times the Department considers it is necessary to conduct a further assessment of a couple. New adoption laws will allow the Department to have a couple re-assessed in the following circumstances: relevant to suitability couple to be re-assessed of particular characteristics or needs of the child to be adopted, the Department considers it would be appropriate to assess the couple s suitability relative to the child s characteristics or needs. 17

20 6. Selecting a couple to be a child s prospective adoptive parents Prospective adoptive parents for a child are selected from the couples who are listed in the assessment register, having been assessed and found by the Department to be suitable to be parents for a child requiring an adoptive placement. New laws will oblige the Department to make the selection that will best promote the child s wellbeing and best In selecting a couple to be the prospective adoptive parents for a child, the Department will be required to have regard to a range of matters including: Child s needs: Each child to be adopted has a range of needs which could relate to the child s age and gender, background. Birth parents preferences: upbringing in an adoptive family, including preferences about the child s religious upbringing, characteristics of the child s adoptive parents and adoptive family and the degree of openness they would like in the adoption arrangement. Placement with sibling: If the child has a sibling who is also to be adopted or who has previously been adopted, it will generally be in the child s best interests to be placed with the same family as the sibling. Other children in the prospective adoptive family: Research and evidence suggest it would generally be in a child s best interests to be the youngest child in the adoptive family by at least two years at the time of placement and for placement. 5 Characteristics of persons being considered: The characteristics of the persons the Department is considering selecting would be relevant to their willingness and capacity to parent a child with the needs of the child to be Initial period of personal care by adoptive parents: adopted, it is generally in the child s best interests to be personally cared for full-time by his or her prospective adoptive parents for at least a year after placement, and hence consideration would be given to a person s willingness and ability to provide this care. child. This provision is known as the child placement principle and is discussed in 3 - Aboriginal and Torres Strait Islander Children. The Department is responsible for making placement decisions for children from Queensland who require adoptive are made by the adoption authorities in a child s country of birth, with the Department s agreement under article 17 of the Hague Convention. However, on occasion the placement of a child who has travelled from overseas for adoption in Queensland breaks down. In consultation with the relevant overseas authority, the Department may arrange another adoption placement for the child by selecting another couple from the assessment register to be the child s prospective adoptive parents. 5 Universities Press, United States of America. 18

21 7. Adoption of children by step-parents and relatives It was fairly common for children in Queensland to be adopted by a step-parent or another relative in the 1960s and ests of children in step-families. These options include all family members registering and using a common surname, A very small number of step or blended families in Australia still consider adoption to be the right option for their family. Census data from the Australian Bureau of Statistics indicates that in 2006 there were 57,578 step and blended families in Queensland. In there were 16 children adopted by a step-parent and, as at 30 June 2007, 179 people seeking to adopt a step-child. 6 if a child were adopted by his or her grandmother, according to the law, the grandmother would become the child s mother and the child s parent would become the child s sibling. Alternatives such as parenting orders in the Family Court and parent s appointing legal guardians of their children in their wills in the event of their death will generally better serve a child s interests. In Queensland, there have been no recent instances in which making an adoption order in favour of a relative other than a step-parent has been considered to better serve a child s interests than another type of order. 6 Australian Institute of Health and Welfare, Adoptions Australia AIHW child welfare series no. 44. Canberra: AIHW. 19

22 Application for adoption child. New laws will allow a person to apply to the Department to adopt the person s step-child if: years at the time of the application Family Law Act 1975 person is the child s grandparent, uncle, aunt or sibling and the child is, and has been for at least 3 years, living with After receiving an application to adopt a child from a step-parent or relative, the Department will be required to take steps to obtain the consent of each parent to the adoption. If it is necessary to apply to the court to dispense with the the new laws will make it the responsibility of the person who made the adoption application to apply to the court for the dispensation. Once all of the consents necessary for the adoption have been obtained or dispensed with by the court, the Department will be required to have the applicant assessed for suitability to be the child s adoptive parent. take into account the nature, closeness and quality of the child s relationship with the person and members of the person s household and the relationship and closeness with the non-custodial parent. Under the new laws, the Childrens Court, in deciding whether to make an adoption order in favour of a child s Family Law Act 1975, any other court or no court order, and To make this decision, the court would consider the Department s assessment, as well as the circumstances in which the child came to be living with the person and the likely effect on the child, both through childhood and the rest of his or her life, of permanently ending the parent-child relationship between the child s biological parents and the child 20

23 Leave of the Family Court To be eligible to apply to adopt a person s step-child, the person must have been granted permission by the Family Court to commence adoption proceedings. This is necessary because, without the Family Court s permission, an adoption order made under Queensland law would not end the rights of the child s non-custodial parent to make applications to the Family Court about the child. Therefore, the child s parent who is not living in the household with the child would be able to apply for parenting orders that would allow the child to live with the other parent, or to have contact with the other parent. The requirement for step-parents to have been granted permission by the Family Court to commence adoption Adoption legislation Review Consultation paper. Application for adoption order Under new adoption laws, the step-parent or relative will be responsible for applying to the court for an adoption order in relation to their step-child or related child. The person will be required to serve a copy of the application on the Department and on every parent of the child. Once the application has been made, the Department would lodge a copy of the suitability report, which would be used by the court in making a decision about granting an adoption order. Before making an adoption order in favour of the step-parent or relative of a child, the Childrens Court will have to be the Family Law Act

24 8. Adoption orders Adoption orders to be made by the Childrens Court New adoption laws will require adoption orders to be made by the Childrens Court. Queensland is currently the only Australian jurisdiction in which a court does not make adoption orders. matter to be decided by a court rather than by a government department. Under Queensland s current adoption law, the Adoption of Children Act 1964, the Department of Child Safety makes all of the arrangements for, and decisions about, the adoption of a child. This includes: informed and haven been given voluntarily At the end of these arrangements, the Director-General of the Department makes an adoption order for the child. By transferring the responsibility for making adoption orders to the Childrens Court, new laws will ensure that all of the decisions and actions of the Department in making the arrangements for children s adoption are overseen by a completely independent person. Retaining the current arrangements, in which adoption orders are made by the 22

25 Interim adoption orders to be mandatory An interim order grants custody of a child to prospective adoptive parents but the Department remains the child s prospective adoptive parents named in the order become the child s only legal parents. In practice, interim orders are currently made only for children from overseas who enter Queensland with their prospective adoptive parents. These orders are usually made for 12 months so the Department can prepare the post-placement reports required by the child s country of origin and can support the prospective adoptive parents and the child during the early stages of the placement. In the past, interim adoption orders were also often made for children with special needs. This allowed the Department to supervise the placement to make sure the prospective adoptive parents had the necessary supports in place to help them meet the child s particular needs. There is no current requirement for a child to be placed with prospective adoptive parents for a minimum period before an adoption order is made. Adoption orders are generally made very soon after a child from Queensland is placed with prospective adoptive parents and interim orders are rarely used. New laws will increase the child focus in placement arrangements by requiring an interim order of at least 12 months duration to be made in respect of all children to be adopted. Interim orders are proposed for all children for the following reasons: healthy attachments to be formed parents to identify placements that are at risk of breaking down and to enable timely intervention and support to these adoptive families to protect the interests of children, and adoptive families will be provided with the same level of support. The majority of respondents to the Adoption Legislation Review consultation paper supported a new legal requirement for the placement of children from Queensland to be supervised for a period before an adoption order is made This minimum interim order period will not apply to applications by a person to adopt the person s step-child or related child. This is because step-parents and relatives are required to have been living with the child for at least three years to be eligible to apply to the Department for adoption arrangements. Also, an interim order will not be required for people who have been the foster carers of a child under the Child Protection Act 1999 for at least three years. 23

26 Legal effect of adoption orders The legal effect of an adoption order made under new adoption laws will be the same as under the current Adoption of Children Act 1964 the adopted child, and adopted child. adoptive familial relationships will be recognised by the law and birth familial relationships will stop being recognised by the law. emotional relationships with birth family. New adoption laws will allow open adoption arrangements and will recognise or her birth family and to have ongoing contact with them, according to the nature of the open adoption arrangement agreed between the child s adoptive and birth families. The degree of openness in the adoption will be able to be documented in an adoption plan. As discussed in 2 - Open Adoption, an adoption plan will be mandatory where the adoptive and birth families agree to ongoing contact in person before the adopted child is 18 years old. Despite what is agreed in an adoption plan, after an adoption order is made, a child will have only one set of legal parents and nothing in an adoption plan will: between the child and the adoptive parents. 24

27 Court orders about a child s name important for older children. The United Nations Convention on the Rights of the Child clearly says that a child has the right to a name from birth and a right to preserve his or her identity, including nationality, name and family relations The current law provides that an adopted child will have the same surname as his or her adoptive parents once an if approved by the Director-General when making the adoption order, the child will have that name when the order is The Adoption of Children Act 1964 also gives the Director-General the discretion to allow a child to retain the surname the child had been generally known by prior to his or her adoption. A child s name can also be a way to secure a child s identity within his or her new adoptive family by giving a child a traditional family name as a second given name. The court will be able to make an order that: given name. In making a decision, the court will be required to consider the child s right to preserve his or her identity and whether, The court will also be required to consider how any orders about the child s name would promote the child s wellbeing and best interests. This will be particularly relevant when the court is considering making an order that the child not language of the child s country of origin and has offensive of negative connotations in the English language. New laws will not prevent any name of an adopted child being changed after an adoption order is made under another Act or law, such as the right to register a change of a given or surname under the Births, Deaths and Marriages Registration Act