NSW Law Reform Commission REPORT 81 (1997) - REVIEW OF THE ADOPTION OF CHILDREN ACT 1965 (NSW) Table of Contents Table of Contents Terms of reference Participants Executive summary List of recommendations Cataloguing in publication 1. INTRODUCTION OVERVIEW OF THE REPORT Background to the review CONSULTATIONS AND PUBLICATIONS Issues Paper 9 Discussion Paper 34 Research Reports: Intercountry Adoption and Parent Support Groups; The Aboriginal Child Placement Principle OUTLINE OF THE REPORT 2. THE CONCEPT OF ADOPTION SHOULD ADOPTION CONTINUE TO EXIST? THREE KEY FEATURES OF ADOPTION LAW RECONSIDERED CHILD’S WELFARE AND INTERESTS ARE THE PARAMOUNT CONSIDERATION Public regulation of adoption Secrecy SIGNIFICANCE OF INTERNATIONAL TREATIES LEGAL EFFECT OF ADOPTION ORDERS GUIDING PRINCIPLES FOR THE PRACTICE OF ADOPTION Respect for the child’s viewpoint Preserving the child’s identity 3. THE ADOPTION PROCESS REGULATION OF STANDARDS OF PRACTICE FOR PRIVATE ADOPTION AGENCIES Conclusion LEGAL RESPONSIBILITY FOR THE CHILD BEFORE AN ADOPTION ORDER IS MADE Current law and practice Local adoptions Intercountry adoptions Conclusion INDEPENDENT REVIEW OF ADOPTION PLACEMENTS Current law and practice Discussion Paper 34 Submissions and response Conclusion Preliminary hearing Who could request a preliminary hearing? INDEPENDENT REPRESENTATION OF THE CHILD Current law and practice Discussion Paper 34 Submissions and response Conclusion: provision for guardian ad litem and independent legal representative Discretionary appointment Role of the guardian ad litem Role of the child’s legal representative Separate party status of the child in proceedings Presence at the proceedings granting the adoption order CHILD’S VIEWS Current law and practice Discussion Paper 34 Submissions and response Conclusion DISCHARGE OF ADOPTION ORDERS Conclusion DRAFTING OF LEGISLATION OFFENCES A CLOSED COURT? Conclusion DISCLOSURE OF CONTENTS OF REPORT RULES OF EVIDENCE STATE-FEDERAL ISSUES Uniform legislative power over adoptions? Conclusion The Family Law Act and step-parent adoptions WHICH COURT OR BODY SHOULD HAVE JURISDICTION? Tribunal or court? Which court? APPEALS AND REVIEW Current law and practice Selection of adoptive parents Approvals of private adoption agencies Discussion Paper 34 Submissions and response Conclusion 4. PARTICULAR CATEGORIES OF ADOPTION INTRODUCTION ADOPTION OF ADULTS Current law and practice Discussion Paper 34 Submissions and response Legislation in other States Conclusion ADOPTION BY STEP-PARENTS AND OTHER RELATIVES Current law and practice Step-parent adoptions Discussion Paper 34 Submissions and response Legislation in other States Step-parent adoptions Relative adoption Adoption or other orders? Step-parent adoption Relative adoption Conclusion Joint applications in step-parent adoptions The process of applying for a step-parent or relative adoption order ADOPTION OF CHILDREN IN CARE Current law and practice Discussion Paper 34 Submissions and response Conclusion ADOPTION OF CHILDREN IN PRIVATE PLACEMENTS Current law and practice Discussion Paper 34 Submissions and response Conclusion ADOPTION OF CHILDREN WITH SPECIAL NEEDS Current law and practice Discussion Paper 34 Submissions and response Conclusion 5. CONSENT TO ADOPTION ENSURING INFORMED AND VOLUNTARY CONSENT Timing of consent Current law and practice Discussion Paper 34 Submissions and response Conclusion Form of consent Current law and practice Discussion Paper 34 Submissions and response Conclusion Witnessing consent Current law and practice Discussion Paper 34 Submissions and response Conclusion Revocation of consent Current law and practice Discussion Paper 34 Submissions and response Conclusion Further issues Written information Video taping the giving of consent BIRTH FATHER'S CONSENT Current law and practice Consent Notice of consent Discussion Paper 34 Submissions and response Conclusion Further issue: practical problems associated with notifying birth fathers Conclusion CONSENT OF THE CHILD Current law and practice Discussion Paper 34 Submissions and response Conclusion DISPENSING WITH CONSENT Current law and practice Discussion Paper 34 Submissions and response Conclusion PARTICIPATION OF THE BIRTH PARENTS Current law and practice Discussion Paper 34 Submissions and response Conclusion Intercountry adoption 6. SELECTION OF ADOPTIVE PARENTS INTRODUCTION OVERVIEW Current law and practice Control of the eligibility requirements and selection process Eligibility requirements - Introduction Eligibility requirements under the Adoption Act Eligibility requirements under the Adoption Regulation Selection processes Discussion Paper 34 General response to Discussion Paper 34 SPECIFIC ELIGIBILITY CHARACTERISTICS Interaction with discrimination legislation Relationship between adoption laws and the Anti-Discrimination Act 1977 (NSW) Discussion Paper 34 Submissions and response Conclusion Full-time carer Discussion Paper 34 Submissions and response Conclusion Infertility Discussion Paper 34 Submissions and response Conclusion Religion Discussion Paper 34 Submissions and response Conclusion Cultural issues Issues of non-marginalisation and continuity Discussion Paper 34 Submissions and response Conclusion Age Discussion Paper 34 Submissions and response Further issues Conclusion Wishes of birth parents and child Discussion Paper 34 Submissions and response Conclusion Health 224 Conclusion Spacing of children and examination of family relationships Discussion Paper 34 Submissions and response Further issues Conclusion Marital status and family structure Present eligibility requirements Discussion Paper 34 Submissions and response Submissions against adoption by same-sex couples Submissions supporting the Commission’s proposal in Discussion Paper 34 Conclusion SELECTION PRACTICE Legislative requirements Discussion Paper 34 Submissions and response Conclusion Assessment of parents for a particular child Discussion Paper 34 Submissions and response Conclusion “Pools” and placements Discussion Paper 34 Submissions and response Further issues Conclusion Education and training Discussion Paper 34, submissions and response Conclusion 7. OPENNESS IN ADOPTION INTRODUCTION DEFINING OPENNESS IN ADOPTION CURRENT PRACTICE DISCUSSION PAPER 34 SUBMISSIONS AND RESPONSE General attitudes Difficulties experienced with open adoption Summary of conclusions reached in submissions LEGISLATIVE SUPPORT FOR OPEN ADOPTION The Adoption Act 1994 (WA) Models for open adoption agreements from other jurisdictions Submissions and response in relation to a legislative scheme of agreements for openness The advantages and disadvantages of a legislative scheme Conclusion TELLING ADOPTEES OF THEIR ADOPTIVE STATUS INVOLVING BIRTH PARENTS IN PLACEMENT BREAKDOWN BIRTH CERTIFICATES The present law Discussion Paper 34 Submissions and response Conclusion Further issue: adoptive parent who dies before the making of the adoption order FACILITATING OPENNESS Allowing birth parents to participate in the selection of adoptive parents Encouraging adoptive parents and birth parents to meet prior to placement The provision of adequate post-adoption services Birth parents’ understanding of the adoption OPENNESS AND INTERCOUNTRY ADOPTION 8. CULTURAL HERITAGE INTRODUCTION DEFINITIONS Racial heritage Ethnic Heritage Cultural heritage VALUE OF CULTURAL HERITAGE Research Australian research Overseas research Pronouncements and practice Arguments raised against a need for cultural continuity Arguments in favour of cultural continuity CONCLUSION IMPLEMENTING CULTURAL CONTINUITY IN ADOPTION PLACEMENTS: A CULTURAL HERITAGE PLACEMENT PRINCIPLE 9. ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN INTRODUCTION ABORIGINAL CHILDREN Background Adoption and Aboriginal customary law Who is an Aboriginal child? Identification as an Aborigine Acceptance by community Other legislative definitions Support for a “descent” definition Difficulties with a “descent” definition Conclusion Identifying Aboriginal children Aboriginal Child Placement Principle Should legislation include an Aboriginal Child Placement Principle? What form should an Aboriginal Child Placement Principle take? Aboriginal involvement in the adoption process Involvement before consent to the adoption is given Involvement after consent to the adoption is given Finding Aboriginal adoptive parents TORRES STRAIT ISLANDER CHILDREN Introduction Adoption and Torres Strait Islander customary law Who is a Torres Strait Islander child? Torres Strait Islander Child Placement Principle Should legislation include a Torres Strait Islander Child Placement Principle? What form should a Torres Strait Islander Child Placement Principle take? Torres Strait Islander involvement in the adoption process Involvement before consent to the adoption is given Involvement after consent to the adoption is given Legal recognition of customary adoption INTERNATIONAL LAW 10. INTERCOUNTRY ADOPTION SYNOPSIS INTRODUCTION HISTORY OF INTERCOUNTRY ADOPTION CURRENT LEGISLATION CURRENT PROCEDURE THE CONCEPT OF INTERCOUNTRY ADOPTION Controversial aspects of intercountry adoption Cultural heritage Openness Intercountry adoption as a form of aid Discrimination in the birth country Adopting children from deprived and abusive backgrounds Creating conditions for trafficking in children Problems of ensuring voluntary relinquishment Creating conditions for abandonment Creating conditions to discourage local adoptions Bypassing needy Australian children Matching Arguments supporting intercountry adoption UNITED NATIONS CONVENTION ON THE