Adoption Act 1993

The Executive may make regulations for this Act.

A regulation may make provision in relation to—

the keeping of lists by the director‑general and by private adoption agencies of people approved for the placement of a child or young person for adoption; and

access to the register of adoptions; and

the giving of copies of, or extracts from, entries included in the register of adoptions; and

the making, correction or cancellation of entries about adopted people in the register of births.

A regulation may also prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.

to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law,

to establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children,

to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

The Convention shall apply where a child habitually resident in one Contracting State (‘ "the State of origin" ’) has been, is being, or is to be moved to another Contracting State (‘ "the receiving State" ’) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

The Convention covers only adoptions which create a permanent parent-child relationship.

have established that the child is adoptable,

have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests,

have ensured that

the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

the consent of the mother, where required, has been given only after the birth of the child, and

have ensured, having regard to the age and degree of maturity of the child, that

he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

consideration has been given to the child’s wishes and opinions,

the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

such consent has not been induced by payment or compensation of any kind.

have determined that the prospective adoptive parents are eligible and suited to adopt,

have ensured that the prospective adoptive parents have been counselled as may be necessary, and

have determined that the child is or will be authorised to enter and reside permanently in that State.

A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.

Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.

They shall take directly all appropriate measures to—

provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms,

keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.

collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption,

facilitate, follow and expedite proceedings with a view to obtaining the adoption,

promote the development of adoption counselling and post‑adoption services in their States,

provide each other with general evaluation reports about experience with intercountry adoption,

reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.

pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation,

be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption, and

be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.

If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.

It shall transmit the report to the Central Authority of the State of origin.

If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall—

prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child’s family, and any special needs of the child,

give due consideration to the child’s upbringing and to his or her ethnic, religious and cultural background,

ensure that consents have been obtained in accordance with Article 4, and

determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

the Central Authority of that State has ensured that the prospective adoptive parents agree,

the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin,

the Central Authorities of both States have agreed that the adoption may proceed, and

it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.

The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.

If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child’s best interests, such Central Authority shall take the measures necessary to protect the child, in particular—

to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care,

in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care, an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents,

as a last resort, to arrange the return of the child, if his or her interests so require.

Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.

The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.

Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or person who—

meet the requirements of integrity, professional competence, experience and accountability of that State, and

are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

A Contracting State which makes the declaration provided for in paragraph (2) shall keep the Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.

Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph (1).

Notwithstanding any declaration made under paragraph (2), the reports provided for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph (1).

An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph (c), were given.

Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.

The recognition of an adoption includes recognition of—

the legal parent-child relationship between the child and his or her adoptive parents,

parental responsibility of the adoptive parents for the child,

the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

In the case of an adoption having the effect of terminating a pre‑existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised, rights equivalent to those resulting from adoptions having this effect in each such State.

The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognises the adoption.

Where an adoption granted in the State of origin does not have the effect of terminating a pre-existing legal parent-child relationship, it may, in the receiving State which recognises the adoption under the Convention, be converted into an adoption having such an effect—

if the law of the receiving State so permits, and

if the consent referred to in Article 4, sub-paragraphs (c) and (d) have been or are given for the purpose of such an adoption.

Article 23 applies to the decision converting the adoption.

The competent Authorities of a Contracting State shall ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.

They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.

No one shall derive improper financial or other gain from an activity related to an intercountry adoption.

Only costs and expenses, including reasonable professional fees of person involved in the adoption, may be charged or paid.

The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.

any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State,

any reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit,

any reference to the competent authorities or to the public authorities of that State shall be construed as referring to those authorised to act in the relevant territorial unit,

any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.

The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.

It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph (1).

The instrument of accession shall be deposited with the depositary.

Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph (b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.

The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.

Thereafter the Convention shall enter into force—

for each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession,

for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.

A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.

The denunciation takes effect on the first day of the month following the expirations of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.

the signatures, ratifications, acceptances and approvals referred to in Article 43,

the accessions and objections raised to accessions referred to in Article 44,

the date on which the Convention enters into force in accordance with Article 46,

the declarations and designations referred to in Articles 22, 23, 25 and 45,

the agreements referred to in Article 39,

the denunciations referred to in Article 47.

The Legislation Act contains definitions and other provisions relevant to this Act.

For example, the Legislation Act, dict, pt 1, defines the following terms:

is a descendant of an Aboriginal person or a Torres Strait Islander person; and

identifies as an Aboriginal person or a Torres Strait Islander person; and

is accepted as an Aboriginal person or a Torres Strait Islander person by an Aboriginal community or Torres Strait Islander community.

in division 4A.2—a certification (however described) issued in accordance with the Convention, article 23; or

in division 4A.3—a document issued in accordance with the Commonwealth Bilateral Arrangements Regulations.

for a prescribed overseas jurisdiction—an entity in that country responsible for approving the adoption of children or young people; and

for the ACT—the director‑general.

For the purposes of reg 4 Australia is not a Convention country.

a person having the custody of the child or young person under an order of a court; and

a person who is the guardian of the child or young person (whether to the exclusion of, or in addition to, a parent or other guardian) under a law of the Territory, the Commonwealth, a State or another Territory; and

someone with parental responsibility for the long-term care, wellbeing and development of the child or young person, whether by order of a court or otherwise.

by a person habitually resident in the ACT of a non-citizen child or young person from a country outside Australia; or

by a person habitually resident in a country outside Australia of a child or young person habitually resident in the ACT.

its application for approval under section 81; or

its latest notification to the director‑general under section 83.

traced through birth or depends on adoption; or

for a brother or sister—of the whole blood or half-blood.

a person who, in accordance with the traditions and customs of the Aboriginal or Torres Strait Islander community of which the child or young person is a member, has responsibility for, or an interest in, the wellbeing of the child or young person; or

if the child or young person is not in the custody of any person or is in the custody of a person who is not either a parent of the child or young person or a member of an Aboriginal or Torres Strait Islander community—a person who, in accordance with the traditions and customs of the Aboriginal or Torres Strait Islander community of which a parent of the child or young person is or was a member, has responsibility for, or an interest in, the wellbeing of the child or young person.

is not a parent of the child or young person; and

whether married or not, has lived in a domestic partnership for not less than 3 years with a parent of the child or young person.

a person who is 12 years old or older, but not yet an adult; and

in relation to an application for an adoption order—a person who is an adult but for whom the application for an adoption order was filed in the court before the person became an adult.

Adult is defined in the Legislation Act, dict, pt 1.