Adoption Act 2000 (NSW)

Adoption Act 2000 No 75 An Act with respect to the adoption of children and access of information relating to an adoption; to repeal the Adoption of Children Act 1965 and the Adoption Information Act 1990; to amend the Births, Deaths and Marriages Registration Act 1995 with respect to registration of adoptions and adopted persons' birth records; to make consequential amendments to other Acts; and for other purposes. Chapter 1 Preliminary Introduction— This Chapter contains provisions that are helpful in understanding the Act as a whole. It also contains some machinery provisions. 1 Name of Act This Act is the Adoption Act 2000. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of the Act have the meanings set out in the Dictionary. Note— Expressions used in this Act (or in a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act. 4 Meaning of "Aboriginal" and "Torres Strait Islander" (1) In this Act— Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983. Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2). Torres Strait Islander means a person who— (a) is descended from a Torres Strait Islander, and (b) identifies as a Torres Strait Islander, and (c) is accepted as a Torres Strait Islander by a Torres Strait Islander community. Torres Strait Islander child means a child descended from a Torres Strait Islander and includes a child who is the subject of a determination under subsection (3). (2) Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent. (3) Despite the definition of Torres Strait Islander in subsection (1), the Court may determine that a child is a Torres Strait Islander for the purposes of this Act if the Court is satisfied that the child is of Torres Strait Islander descent. 5 Notes Introductions to Chapters and other notes in the text of this Act do not form part of this Act. Note— For the purpose of comparison, a number of provisions of this Act contain bracketed notes in headings, drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of other laws. Abbreviations in the notes include— • AC Act: Adoption of Children Act 1965 • AC Reg: Adoption of Children Regulation 1995 • AI Act: Adoption Information Act 1990 • AI Reg: Adoption Information Regulation 1996. Chapter 2 Objects and adoption principles 6 What are the roles of the objects and adoption principles of this Act? The provisions of this Chapter are intended to give guidance and direction in the administration of this Act. They do not create, or confer on any person, any right or entitlement enforceable at law. 7 What are the objects of this Act? (cf AI Act s 3) The objects of this Act are as follows— (a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, (d) to recognise the changing nature of practices of adoption, (e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, (g) to encourage openness in adoption, (h) to allow access to certain information relating to adoptions, (i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents. 8 What principles are to be applied by persons making decisions about the adoption of a child? (cf AC Act s 17, AC Reg cl 35) (1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles— (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare, (f) if the child is Aboriginal—the Aboriginal child placement principles are to be applied, (g) if the child is a Torres Strait Islander—the Torres Strait Islander child placement principles are to be applied. (2) In determining the best interests of the child, the decision maker is to have regard to the following— (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child. 9 Participation of child in decisions (1) To ensure that a child is able to participate in any decision made under this Act that has a significant impact on his or her life, the decision maker is responsible for providing the child with the following— (a) adequate information, in a manner and language that the child can understand, concerning the decision, (b) the opportunity to express his or her views freely, according to his or her abilities, (c) information about the outcome of the decision and an explanation of the reasons for the decision, (d) any assistance that is necessary for the child to understand the information and to express his or her views, (e) appropriate counselling when the child's consent is required to his or her adoption. (2) In the application of this principle, due regard must be had to the age and developmental capacity of the child. (3) Decisions about the adoption of a child that have a significant impact on the life of the child include, but are not limited to, decisions relating to the following— (a) the placement for adoption of the child, (b) the development of any adoption plan concerning the child and the views of the child's parents about the plan, (c) an application for an order for the adoption of the child, (d) contact with birth parents or others connected with the child. Chapter 3 Adoption service providers Introduction— This Chapter provides for the making of arrangements for the placement of children for adoption through a government department and adoption service providers accredited in accordance with the Children's Guardian Act 2019. It makes it clear that individuals must not make their own adoption arrangements, either personally or through private institutions. Part 1 Authority to provide adoption services 10 Adoption services to be provided by or on behalf of Secretary (1) Subject to this Act, the Secretary is to provide adoption services. Note— Under section 206, the Secretary may delegate this and any other function under this Act to any person. (2) Without limiting subsection (1), the Secretary is, subject to this Act, responsible for the following— (a) the assessment of the suitability of a person or persons to adopt a child, (b) any decision to place a child with a person or persons wishing to adopt the child, (c) the transfer of the care responsibility for a child to the person or persons who will adopt the child, (d) the giving of consent to the adoption of a child of whom he or she has parental responsibility, (e) (Repealed) (f) the provision in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents, (g) the provision of post-adoption services, including the provision of information and arrangements to facilitate post-adoption contact with the parties to an adoption. 11 Unauthorised arrangements for adoption (cf AC Act s 51) (1) An adoption service in relation to the adoption in New South Wales (including the intercountry adoption) of a child may be provided only by— (a) the Secretary, or (b) an organisation accredited by the Children's Guardian under the Children's Guardian Act 2019 as an adoption service provider that may provide the service. (2) A person (other than the Secretary) must not provide any adoption service referred to in section 10 (2) (a), (b) or (c) in relation to the adoption in New South Wales (including the intercountry adoption) of a child unless the person is, or is acting on behalf of, an organisation accredited under the Children's Guardian Act 2019 as an adoption service provider that may provide the service. Maximum penalty—10 penalty units or imprisonment for 12 months, or both. Note— Intercountry adoption is defined in the Dictionary. Part 2 12, 13 (Repealed) Part 3 Principal officer of accredited adoption service provider 14–21 (Repealed) Chapter 4 The adoption process Part 1 General 22 Proceedings Proceedings for the making of adoption orders and other orders under this Act are to be heard and determined by the Supreme Court. 23 Jurisdiction (cf AC Act ss 8 and 9) (1) Subject to this Act, the Court may make an order for the adoption of a child (an adoption order) solely in favour of one person or jointly in favour of a couple. Note— Couple is defined in the Dictionary to mean 2 persons who are married to each other or who are de facto partners of each other (de facto partner is defined in section 21C (1) of the Interpretation Act 1987 and refers to persons whether of the same sex or a different sex). The effect of the making of an adoption order is described in Part 11 of this Chapter. (2) The Court must not make an adoption order unless, when the application for the order is filed— (a) the child is present in the State, and (b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State. (3) For the purposes of this section, if the Court is satisfied that the child was present in the State, or that the applicant or each applicant was resident or domiciled in the State, for a period of 3 months immediately before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that— (a) the child was present in, or (b) that the applicant or each applicant was resident or domiciled in, the State when the application was filed. (4) The Court has jurisdiction under this section to make an adoption order despite any rule of private international law to the contrary. (5) Subject to Part 2 of Chapter 5, the Court has jurisdiction, under and in accordance with this Part, to make an adoption order with respect to the intercountry adoption of a child referred to in Part 2. Note— Child is defined in the Dictionary. 24 Who can be adopted? (cf AC Act s 18 (1)) (1) An adoption order may be made in relation to a child who— (a) was less than 18 years of age on the date on which the application for the order was made, or (b) was 18 or more years of age on that date and was cared for by the applicant or applicants for the order. (2) For the purposes of subsection (1) (b), a child was cared for if the child— (a) has been cared for by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or her or their child prior to reaching the age of 18 years, or (b) has, as a ward within the meaning of the Children (Care and Protection) Act 1987 or a person under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, been in the care responsibility of the applicant or applicants or of the applicant and a deceased spouse of the applicant. Note— Spouse is defined in the Dictionary. (3) (Repealed) 25 Previous adoption or marital status immaterial (cf AC Act s 18 (5)) An adoption order may be made— (a) even if the child concerned has, whether before or after the commencement of this section and whether in the State or elsewhere, previously been adopted, and (b) irrespective of the marital status of the child. 26 Who can adopt? (cf AC Act ss 8, 19, 20, 21 (1) (c) (i) (a)) An application for an adoption order may be made in accordance with this Act solely by or on behalf of one person or jointly by or on behalf of a couple. Note— Couple is defined in the Dictionary. 27 Adoption by one person (cf AC Act ss 8, 19 (2) and (3), 20, 21 (1) (c) (i) (a)) (1) Basic requirements One person may, subject to this Act, adopt a child only if the person is— (a) resident or domiciled in the State, and (b) of good repute and a fit and proper person to fulfil the responsibilities of a parent. (2) Age requirements The Court must not make an adoption order in favour of one person who is not a birth parent or relative of the child unless— (a) the person is 21 or more years of age and 18 or more years older than the child, or (b) the Court considers that in the particular circumstances of the case it is desirable to make the order even though the person does not fulfil the age requirements. (3) Consent of spouse The Court must not make an adoption order in favour of one person who is living with a spouse unless the person's spouse consents in writing to the application for the adoption order. Note— Spouse is defined in the Dictionary. 28 Adoption by couple (cf AC Act ss 8, 19, 20, 21 (1) (c) (i) (a)) (1) Basic requirements Two persons who are a couple may, subject to this Act, adopt a child only if— (a) both of them are resident or domiciled in the State, and (b) both of them are of good repute and are fit and proper persons to fulfil the responsibilities of parents. (2) Requirements for step parent The Court must not make an order in favour of a couple if one of them is a step parent unless section 30 is complied with. (3) Age requirements The Court must not make an adoption order in favour of a couple if neither of them is a birth parent or relative of the child unless— (a) each of them is 21 or more years of age and 18 or more years older than the child, or (b) the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements. (4) Length of relationship requirement The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 2 years immediately before the application for the adoption order. (5) The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child. Note— Couple is defined in the Dictionary. 29 Adoption by relative The Court must not make an adoption order in favour of a relative of a child unless— (a) specific consent to the adoption of the child by the relative has been given in accordance with this Act by the appropriate person or persons specified in section 53(1)(b), and (b) the child has established a relationship of at least 2 years' duration with the relative, and (c) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child. Note— Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth. 30 Adoption by step parent (1) The Court must not make an adoption order in favour of a step parent of a child unless— (a) the child is at least 5 years old, and (b) the step parent has lived with the child and the child's birth or adoptive parent for a continuous period of not less than 2 years immediately before the application for the adoption order, and (c) specific consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and (d) the Court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child. Note— Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth. (2) Subsection (1) (b) does not apply to the adoption of a child who is 18 years of age or more at the time of the application for the adoption order. 31 Adoption of non-citizen child (1) The Court must not make an adoption order in relation to a non-citizen child as referred to in Part 2 of Chapter 5 unless— (a) arrangements for adoption of the child have been made by the Secretary or an accredited adoption service provider that may provide intercountry adoption services or the Secretary applies for the order on the basis that the proposed adoptive parent has intercountry parental responsibility for the child, and (b) the provisions of this Act and the regulations relating to intercountry adoptions have been complied with. (2) For the purposes of this section, a person has intercountry parental responsibility for a child if the child is from a country other than a Convention country or a prescribed overseas jurisdiction and the person, after being resident in that country for 12 months or more or being domiciled in that country, was given parental responsibility for the child under the law of that country. Part 2 Placement of children for adoption Division 1 Children other than Aboriginal and Torres Strait Islanders 32 Regard to be had to cultural heritage of child (1) In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. (2) Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following— (a) the capacity to assist the child to develop a healthy and positive cultural identity, (b) knowledge of or a willingness to learn about, and teach the child about, the child's cultural heritage, (c) a willingness to foster links with that heritage in the child's upbringing, (d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community. Division 2 Aboriginal children 33 Aboriginal participation in decision making (1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of an Aboriginal child— (a) a person approved in accordance with section 195, or (b) a person nominated by the child's parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Aboriginal children. (2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Aboriginal organisation. 34 Application of Aboriginal child placement principles (1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child. (2) The Aboriginal child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is an Aboriginal child for adoption. 35 Aboriginal child placement principles (1) General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements). (2) The general order for placement The Aboriginal child placement principles are as follows— (a) The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs. (b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community. (c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents. (3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent— (a) has the capacity to assist the child to develop a healthy and positive cultural identity, and (b) has knowledge of or is willing to learn about, and teach the child about, the child's Aboriginal heritage and to foster links with that heritage in the child's upbringing, and (c) has the capacity to help the child if the child encounters racism or discrimination in the wider community, and that the Aboriginal child placement principles have been properly applied. Note— Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80. (4) Child with one Aboriginal parent and one non-Aboriginal parent If a child has one Aboriginal parent and one non-Aboriginal parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act. (5) If a child to whom subsection (4) applies— (a) is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or (b) is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs. 36 Alternatives to placement for adoption to be considered An Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child. Note— Examples of other action that may be taken by law are the making of a care order under the Children and Young Persons (Care and Protection) Act 1998 or a parenting order under the Family Law Act 1975 of the Commonwealth. Division 3 Torres Strait Islanders 37 Torres Strait Islander participation in decision making (1) The Secretary or appropriate principal officer must ensure that the following are consulted about the placement of a Torres Strait Islander child— (a) a person approved in accordance with section 196, or (b) a person nominated by the child's parents, extended family or kinship group, as recognised by the Torres Strait Islander community to which the child belongs, or by that community, with expertise in relation to the adoption or substitute care of Torres Strait Islander children. (2) In addition, the Secretary or appropriate principal officer must ensure that the placement of the child is made in consultation with a local, community-based and relevant Torres Strait Islander organisation. 38 Application of Torres Strait Islander child placement principles (1) The Secretary or appropriate principal officer is to make reasonable inquiries as to whether a child to be placed for adoption is a Torres Strait Islander child. (2) The Torres Strait Islander child placement principles are to be applied in placing a child that the Secretary or principal officer is satisfied is a Torres Strait Islander for adoption. 39 Torres Strait Islander child placement principles (1) The general order for placement The Torres Strait Islander child placement principles are as follows— (a) The first preference for placement of a Torres Strait Islander child is for the child to be placed for adoption with a prospective adoptive parent or parents within the child's extended family. (b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents within the community, or one of the communities, to which the birth parent or birth parents of the child belongs. (c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a prospective adoptive parent or parents from another Torres Strait Islander community. (d) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), (b) or (c), the child is to be placed with a non-Torres Strait Islander prospective adoptive parent or parents. (2) A Torres Strait Islander child is not to be placed with a prospective adoptive parent who is not a Torres Strait Islander unless the Court is satisfied that the prospective parent— (a) has the capacity to assist the child to develop a healthy and positive cultural identity, and (b) is willing to learn about, and teach the child about, the child's Torres Strait Islander heritage and foster links with that heritage in the child's upbringing, and (c) has the capacity to help the child if the child encounters racism or discrimination in the wider community, and that the Torres Strait Islander child placement principles have been properly applied. Note— Placement with a non-Torres Strait Islander prospective adoptive parent requires an application to the Court for a preliminary hearing—see section 80. (3) Child with one Torres Strait Islander parent and one non-Torres Strait Islander parent If a child has one Torres Strait Islander parent and one non-Torres Strait Islander parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act. (4) If a child to whom subsection (3) applies— (a) is placed with a person who is not within a Torres Strait Islander family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Torres Strait Islander community to which the child belongs, or (b) is placed with a person who is within a Torres Strait Islander community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Torres Strait Islander community to which the child belongs. Division 4 Placement outside Australia 40 Report on child for intercountry adoption (1) A child who is resident or domiciled in the State is not to be adopted in a place outside Australia unless the Secretary has— (a) determined that the consent necessary for the adoption has been given in accordance with this Act (or dispensed with), and (b) determined that a suitable family to adopt or otherwise care for the child cannot be found in Australia, and (c) if satisfied that the child should be adopted outside Australia, prepared a report to that effect. (2) The report is to include information about the child's identity, adaptability, background, social environment, family history, medical history of the child and the child's family and any special needs of the child and is to indicate that the consents required under this Act have been obtained. Note— Under Article 16 of the Hague Convention on Intercountry Adoption the report prepared under this section will be transmitted by the Secretary to the appropriate authority in the place outside Australia. Part 3 Selection of prospective adoptive parents other than authorised carers 41 Application of Part This Part applies to the assessment of the suitability, and selection, of prospective adoptive parents of a child other than step parents or relatives or a