The Adoption Process
If the mother was married to the father at the time of the birth, or subsequently, both parents’ consent is required (s29(2), Adoption Act 1988). Where a child is born to a single woman, her consent is required to the child’s adoption. The father’s consent is also required if he has taken certain specified action to legally establish his paternity before or within 30 days of the day on which the mother signs consent, for example, he is named on the birth certificate or there is a declaration of parentage under the Status of Children Act 1974 (s29(3)).
The consent is in a prescribed form and the signature on it must be witnessed by two people authorised to witness consents (s30, Reg 24). Before a parent signs consent he or she must receive counselling and be given written information on the effect of adoption and alternatives to adoption, not less than 24 hours before signing consent (s31). The first witness must certify that the consenting parent received the counselling and written information. The consent may not be signed by the mother before the child is born or earlier than seven days after the birth, unless it is proved that the mother was in a fit condition to do so (s36). Normally the consent is taken by a Department of Health or approved agency worker seven clear days after the birth – that is, not earlier than the child’s ninth day of life.
Except in the case of adoption by a spouse of a natural parent or relative (see below), the consent must be a general consent to the child’s adoption by any persons in whose favour an adoption order may be made (s33). This enables the agency to select the adoptive parents it thinks appropriate. The parent may include in the consent any wishes about:
- the religious convictions;
- ethnic background;
- marital status;
- sexual orientation; or
of the adoptive parents (s24) and also ongoing contact or exchange of information about the child. The Secretary of the the Department of Health or principal officer are required to make reasonable efforts to place the child with an approved couple who would bring the child up in accordance with those wishes (Reg 29).
This is an obligation taken most seriously by the Secretary and principal officers and they are required, if they are unable to place the child in accordance with the wishes of the consenting parent, to justify that to the satisfaction of the court. However, there is no legal redress if the adoptive parents, after the order of adoption is made, change their mind or do not honour any undertaking or agreement that they have entered into to comply with the wishes of the consenting parent(s).
Once all the required consents are given, this has the effect of making the Secretary the child’s guardian who then has the power to make all decisions about the child until the adoption order is made (s40). The consent can be revoked within 30 days of its being given in which case the parent would normally be entitled to have custody of the child (s35).
Releasing a Child for Adoption
A parent or guardian who wishes to place a child for adoption must make arrangements through the Department of Health or an approved adoption agency. If the object is to place the child in the care of relatives, arrangements can be (but do not have to be) made through a solicitor for the completion of the appropriate formal documents, but the application to court can only be made by the Secretary.
Dispensing with Consent
Although the parents’ consent is normally required, in some circumstances the court may make the adoption order without it. This process is called dispensing with consent (s37).
The court may dispense with the consent of a person (other than the Secretary) to the adoption of a child where the court is satisfied:
- that a person whose consent to the adoption of a child is required cannot, after reasonable inquiry, be found;
- by a certificate signed by not less than two legally qualified medical practitioners, that any such person is incapable on psychiatric or other medical grounds of properly considering the question;
- that the person has abandoned, deserted, persistently neglected, or ill-treated the child;
- that the person has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within the family;
- that the person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent of the child;
- that the person is unable to meet the needs of the child due to the person’s physical or mental disability; or
- that there are any other special circumstances which justify dispensing with consent.
Who controls adoption?
Jurisdiction over the making of adoption orders in Tasmania is vested in the Magistrates Court (Children’s Division). Adoptions may be arranged by the Secretary of the Department of Health or by an approved adoption agency. An approved adoption agency is usually a non-profit, non-government organisation. In Tasmania, the only approved adoption agency is Centacare.
The Department of Health is the primary adoption agency in the state and is responsible for adoption of children the subject of general consents (referred to as ‘local adoptions’), relative or spouse of natural parent adoptions and intercountry adoptions. Other adoption agencies may only operate with the approval of the Minister (Part 2 of the Adoption Act and Part 2 of the Adoption Regulations set out the specific requirements affecting approved adoption agencies). The only approved agency in Tasmania is Centrecare which deals with local adoptions. The system prohibits private arrangements with a view to the adoption of a child except between relatives of the child as defined in the Act (s3, Adoption Act).
It is an offence to place a child for the purpose of adoption except through an approved adoption agency or with specific approval of the Secretary of the Department of Health (s110). Applications to the court for adoption orders can be made only by the Secretary or the principal officer of an adoption agency, on behalf of the prospective adoptive parents (s18). The consent of the original parent(s) must be a general consent, that is, they (or he or she) cannot nominate the person to adopt the child, unless they (or he or she) are relatives of the child as defined by the Act (s3).
These rules effectively mean that no one may adopt an unrelated child unless he or she has been assessed and approved by the Secretary of the Department of Health or the principal officer of an approved adoption agency as a suitable person to adopt the child and the placement of the particular child has also been approved. Finally the legal process for making application for an adoption order is subject to close scrutiny by the Magistrates Court.
It must be remembered that adoption relates to the welfare and interests of the child concerned (ss8 and 17). Adoption is, in essence, a legal action which dramatically changes the legal status of all the parties to the particular adoption — the adopted child, the original parent(s) and the adoptive parents.
While these principles apply to adoption generally, the process outlined above is somewhat different for the adoption of the child by the spouse of a natural parent or a relative. These adoptions will be dealt with separately.
Generally speaking, the children who are the subject of adoption arrangements are:
• ex-nuptial children born to a single mother;
• children who are in Departmental foster care where the parents and the Secretary have reached the conclusion that the child’s best interests will be served by it being adopted (that is, by foster parents).
• non-citizen children (children from overseas who have been placed for adoption with approved Tasmanian applicants).