New South Wales: 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 authorised carers. Note— Part 3A of this Chapter provides for prospective adoptive parents who are authorised carers. 41A Definitions In this Part— applicant means a person whose application to adopt under this Part— (a) has been submitted to the Secretary or a principal officer, and (b) has not been withdrawn or finally dealt with by the making of, or refusal to make, an adoption order. reside on a property has the same meaning as in the Child Protection (Working with Children) Act 2012. 42 Expression of interest in adopting a child (1) One person, or a couple, may submit to the Secretary, or principal officer of an adoption service provider accredited to accept applications to adopt, an expression of interest in— (a) being approved as suitable to adopt a child (whether a citizen or non-citizen), and (b) being selected, in a manner determined by the Secretary or principal officer, to adopt a child. (2) A submission of an expression of interest may be made only if the person or each person is resident or domiciled in the State. 43 Application to adopt (cf AC Reg Part 3) The Secretary or principal officer may, in accordance with the regulations and subject to any conditions of the accreditation of the adoption service provider concerned, invite a person or a couple who have submitted an expression of interest to submit an application to adopt a child. 44 Form of expression of interest or application A submission of an expression of interest or application to adopt a child under this Part is to be made in accordance with the regulations. 45 Assessment of suitability, and selection, of adoptive parents (1) The regulations may make provision for or with respect to the following— (a) the assessment of the suitability of persons to be approved to adopt, and selection of persons to adopt, children under this Act from within New South Wales or elsewhere, (b) the keeping by the Secretary of a register of persons approved by the Secretary or by principal officers as fit and proper persons to adopt children. (2) The Secretary or appropriate principal officer must not assess a person as suitable to be approved to adopt a child unless the person and every adult person who resides on the same property as the person has a working with children check clearance that is in force under the Child Protection (Working with Children) Act 2012 or is exempted by the regulations under that Act from the requirement to hold such a clearance. 45A Background information about prospective adoptive parents to be made available to birth parents (1) If an application to adopt a child is made by a couple, background information relating to the couple that is obtained by the Secretary or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child. (2) In this section, background information relating to a couple includes information about the couple's social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the couple. 45AA Provision of information (1) Any person (the provider of information) may provide information to the principal officer of an accredited adoption service provider or the Secretary about another person if— (a) the provider of information has been notified by the principal officer or the Secretary that the other person is an applicant or a person who resides on the same property as an applicant, or (b) the provider of information otherwise reasonably believes the other person to be an applicant or a person who resides on the same property as an applicant. (2) Information provided under this section may be used to determine whether the applicant is suitable to adopt a child. (3) Information may be provided under this section regardless of whether the provider of information has been requested to provide the information. (4) A person who, acting in good faith, provides information under this section— (a) is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and (b) in providing the information, cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct. 45AB Notification about other residents An applicant must, as soon as reasonably practicable, notify the Secretary or the principal officer to whom the application was submitted— (a) if any person (other than the applicant or a person who submitted an application to adopt jointly with the applicant) resides on the same property as the applicant for 3 weeks or more, or (b) if a person residing on the same property as the applicant attains the age of 18 years. 45B Consideration of wishes of parents consenting to adoption (1) A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child. (2) Nothing in the Anti-Discrimination Act 1977 prevents the Secretary or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part. Part 3A Selection of authorised carers as adoptive parents 45C Application of Part This Part applies to the assessment of the suitability, and selection, of prospective adoptive parents who are authorised carers (within the meaning of section 137 (1) (b) of the Children and Young Persons (Care and Protection) Act 1998) of a child who is in out-of-home care. 45CA Definitions In this Part— applicant means a person whose application to adopt under this Part— (a) has been submitted to the Secretary or a principal officer, and (b) has not been withdrawn or finally dealt with by the making of, or refusal to make, an adoption order. reside on a property has the same meaning as in the Child Protection (Working with Children) Act 2012. 45D Application to adopt The Secretary or the principal officer of an accredited adoption service provider may, in accordance with the regulations, invite an authorised carer of a child who is in out-of-home care to submit an application to adopt the child. 45E Form of application An application to adopt a child under this Part is to be made in accordance with the regulations. 45F Assessment of suitability, and selection, of adoptive parents The regulations may make provision for or with respect to the assessment of the suitability of authorised carers of children to be approved and selected to adopt the children under this Act. 45G Background information about prospective adoptive parents to be made available to birth parents (1) If an application to adopt a child is made by an authorised carer, background information relating to the authorised carer that is obtained by the Secretary or principal officer in connection with the application is, at the request of the birth parents of the child, to be provided to the birth parents before any adoption order may be made in relation to that child. (2) In this section, background information relating to an authorised carer includes information about the carer's social and cultural background, religious beliefs, domestic relationship and living arrangements, but does not include any information that identifies the carer. 45GA Provision of information (1) Any person (the provider of information) may provide information to the principal officer of an accredited adoption service provider or the Secretary about another person if— (a) the provider of information has been notified by the principal officer or the Secretary that the other person is an applicant or a person who resides on the same property as an applicant, or (b) the provider of information otherwise reasonably believes the other person to be an applicant or a person who resides on the same property as an applicant. (2) Information provided under this section may be used to determine whether the applicant is suitable to adopt a child. (3) Information may be provided under this section regardless of whether the provider of information has been requested to provide the information. (4) A person who, acting in good faith, provides information under this section— (a) is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and (b) in providing the information, cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct. 45GB Notification about other residents An applicant must, as soon as reasonably practicable, notify the Secretary or the principal officer to whom the application was submitted— (a) if any person (other than the applicant or a person who submitted an application to adopt jointly with the applicant) resides on the same property as the applicant for 3 weeks or more, or (b) if a person residing on the same property as the applicant attains the age of 18 years. 45H Consideration of wishes of parents consenting to adoption (1) A general consent of the parent of a child to the adoption of the child, as referred to in section 53, may express the wishes of the parent as to the preferred background, beliefs or domestic relationship of any prospective adoptive parents of the child. (2) Nothing in the Anti-Discrimination Act 1977 prevents the Secretary or a principal officer of an adoption service provider from identifying (consistently with the best interests of the child) prospective adoptive parents who reflect those wishes in the adoption selection process under this Part. Part 4 Adoption plans 46 What is an adoption plan? (1) An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to— (a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following— (i) the child's medical background or condition, (ii) the child's development and important events in the child's life, (iii) the means and nature of contact between the parties and the child, and (b) any other matter relating to the adoption of the child. Note— Parties to an adoption is defined in the Dictionary. The Court is required to take an adoption plan into consideration in making an adoption order. See section 90 (2) and (3). (2) Without limiting the matters for which an adoption plan may make provision— (a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and (b) it may provide for the giving of certain financial and other assistance as referred to in section 201. (2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child. (2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child. (3) An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a). (4) If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation. 47 How is an adoption plan made? (1) Before the making of an order for the adoption of a child, parties to the adoption may agree on an adoption plan. Note— The parties must agree to an adoption plan in some circumstances—see sections 35 (5) and 39 (4). (2) An adoption plan is to be in writing and is to contain the particulars (if any) required by the regulations. 48 Adoption plan to accompany application for adoption order If the parties to an adoption agree to an adoption plan, a copy of the plan must (unless registered under section 50) accompany the application for an adoption order. 49 Notice to be given of adoption plan The Secretary or appropriate principal officer is to give notice to any person who has the care responsibility for the child of the terms of the adoption plan. 50 Registration of adoption plans (1) The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan. (2) The regulations may make provision for or with respect to such an application. (3) The Court may register an adoption plan if it is satisfied that— (a) the plan does not contravene the adoption principles, and (b) the parties to the adoption understand the provisions of the plan and have freely entered into it, and (c) the provisions of the plan are in the child's best interests and is proper in the circumstances. (4) An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order. 51 Review of adoption plans (1) The Court may review an adoption plan on application of one or more of the parties to the plan. (2) Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application. (3) Following its review, the Court may, by order— (a) make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or (b) revoke the plan, or (c) confirm the plan. (4) The Court may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so. (5) An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties. Part 5 Consents to adoptions Division 1 Who must consent to an adoption? 52 Consent of parents and persons who have parental responsibility generally required (cf AC Act s 26) The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given— (a) in the case of a child who has not been previously adopted by— (i) each parent of the child, and (ii) any person who has parental responsibility for the child, or (b) in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child. 53 Ways in which parent or person who has parental responsibility can give consent (cf AC Act s 27) (1) For the purposes of this Act, a parent of, or person who has parental responsibility for, a child may consent to the adoption of the child only by— (a) giving general consent to the adoption of the child by an adoptive parent or parents selected by the Secretary or principal officer of an accredited adoption service provider, or (b) giving specific consent to the adoption of the child by— (i) a specified adoptive parent who is a relative of the child, or (ii) 2 specified adoptive persons, one of whom is a parent or relative of the child, or (iii) a specified adoptive parent who is step parent of the child, or (iv) a specified adoptive parent who is an authorised carer who has had care responsibility for the child for 2 years or more. (2) Nothing in this section prevents the Secretary or principal officer from selecting an adoptive parent or parents for the purposes of subsection (1) (a) from one or more of the classes of persons referred to in subsection (1) (b). 54 When consent of parent or person who has parental responsibility not required (cf AC Act s 26 (4A)) (1) Consent is not required under section 52 if— (a) the requirement for the consent has been dispensed with by the Court, or Note— See Division 3 of Part 5. (b) the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or (c) the child gives sole consent to his or her adoption in accordance with subsection (2), or (d) the child is 18 or more years of age. (2) A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years. (3) However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless— (a) the Court is satisfied that at least 14 days' notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or (b) the Court dispenses with the giving of notice. (4) The regulations may prescribe the particulars to be contained in a notice under this section. Note— Parental responsibility is defined in the Dictionary. 55 Consent of child (cf AC Act ss 26 (4A), 33, 38 (2A)) (1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless— (a) the child has been counselled as required by section 63, and (b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and (c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent. Note— See Division 3 of Part 5. (2) The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order. 56 Birth father to be given opportunity to consent (cf AC Act s 31A) (1) This section applies if— (a) consent to the adoption of a child has been given by the child's birth mother or person who has parental responsibility but not the birth father of the child, and (b) an adoption hearing has not been held, and (c) the Secretary or appropriate principal officer knows, or after reasonable inquiry ascertains, the name and address of the person whom the Secretary or principal officer reasonably believes to be the birth father of the child. Note— A person may be presumed to be the father of a child under the Status of Children Act 1996 or may be registered as the father under the Births, Deaths and Marriages Registration Act 1995. (2) When this section applies, the Secretary or principal officer must give the person known, or reasonably believed, to be the birth father of the child notice— (a) that the child's birth mother or person who has parental responsibility has consented to the adoption of the child, and (b) advise him— (i) of the legal processes by which he can establish paternity in relation to the child or be registered as the father of the child, and (ii) of his rights as a parent in relation to the adoption of the child. Division 2 When is consent effective? 57 Definitions In this Act— counsellor means a person of a class or description, and having the qualifications and functions, prescribed by the regulations. informed consent means consent given after a person has been given the mandatory written information. mandatory written information, in relation to the adoption of a child, means written information on the following— (a) the alternatives to the adoption, (b) financial and other support services available whether or not the child is relinquished for adoption, (c) possible emotional effects, both short and long term, of relinquishing the child for adoption, (d) the legal process of adoption (including the consents required and effect and way of revoking consent, the selection procedure, the role of adoption plans, the role of the Court and review and appeals procedure) and the legal consequences of each stage in the process, (e) the duties and responsibilities of the Secretary and principal officer in relation to the placement of the child, (f) the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption, (g) any other matter prescribed by the regulations. 58 When is consent ineffective? (cf AC Act ss 29, 30, 31, AC Reg cll 21 (a) and (d), 22, 23, Sch 1 Forms 1, 4) (1) Consent to a child's adoption is not effective unless it is— (a) informed consent, and (b) given in accordance with this Act. (2) Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that— (a) it was not given in accordance with this Act, or (b) it was obtained by fraud, duress or other improper means, or (c) the instrument of consent has been altered in a material particular without authority, or (d) the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent. (3) Consent is not effective if it is revoked during the time allowed by section 73. (4) Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent. (5) Consent to a child's adoption given in another State under the law of the other State is an effective consent for the purposes of this Act. Note— Chapter 5 provides for the recognition of certain adoptions if an adoption compliance certificate has been issued by the appropriate authority of a country outside Australia. Such a certificate will only be issued if the appropriate consents have been given to the adoption. See eg Article 4 of the Convention (which is set out in Schedule 1). 59 Mandatory written information (1) The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption. (2) In the case of the adoption of a child by a step parent or relative of the child— (a) the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and (b) the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection. (3) In the case of an adoption of a child who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, this section does not require the mandatory written information to be given to the Minister or a delegate of the Minister who can consent to the adoption. 60 When is consent to be given? Consent to the adoption of a child cannot be given unless it is given— (a) at least 30 days after the child is born, and (b) at least 14 days after the person giving the consent is given a copy of the instrument of consent and the mandatory written information (if required). 61 Form of consent (1) Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations. (2) A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act. (3) Before the instrument is signed, a counsellor must sign a statement on it certifying that— (a) the child or other person giving the consent has been counselled by the counsellor, and (b) that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument. 62 Consent must be witnessed by person independent of counsellor (1) The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor. (2) Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent. (3) The witness must be a person of a class or description prescribed by the regulations. 63 Child or other person consenting must be counselled (1) A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption. (2) A person is counselled in accordance with this section if a counsellor— (a) accurately explains to the person, in a way that the counsellor thinks will be understood by the person— (i) the legal effect of signing the instrument of consent and the procedure for revoking consent, and (ii) the effect of the mandatory written information, and (b) counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child). (3) This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister. 64 Consent to adoption of Aboriginal child (1) Before a person gives consent to the adoption of an Aboriginal child— (a) he or she is to be given adoption counselling by a person approved in accordance with section 195, or (b) if he or she is offered, but refuses, adoption counselling by such a person he or she must— (i) be provided by the Secretary or appropriate principal officer with written information on Aboriginal customs and culture and any other matters the Secretary or principal officer considers would have been raised by the person, and (ii) sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information. (2) A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b). (3) In this section— adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customs and culture. 65 Consent to adoption of Torres Strait Islander child (1) Before a person gives consent to the adoption of a Torres Strait Islander child— (a) he or she must receive adoption counselling from a person approved in accordance with section 196, or (b) if he or she has been offered, but has refused, adoption counselling by such a person he or she must— (i) be provided by the Secretary or appropriate principal officer with written information on Torres Strait Islander customs and culture and on any other matters that the Secretary or principal officer considers would have been raised by the person, and (ii) sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information. (2) A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b). (3) In this section— adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Torres Strait Islander customs and culture. Division 3 Dispensing with consent 66 How is need for consent dispensed with? A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a consent dispense order). 67 When can Court dispense with consent of person other than the child? (cf AC s 32 (1)) (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that— (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child— (i) the child has established a stable relationship with those carers or guardians, and (ii) the adoption of the child by those carers or guardians will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. (3) In this section— guardian has the same meaning as in section 79A (1) of the Children and Young Persons (Care and Protection) Act 1998. 68 Who may apply for order dispensing with consent of person other than the child? (cf AC Act s 32