Adoption Act 1988

This Act may be cited as the Adoption

Act 1988.

The objects of this Act are—

to emphasise that the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration in adoption law and practice; and

to promote the principle that adoption is to be regarded as a service for the child concerned; and

to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage; and

to recognise the adoption of children from other jurisdictions and to endeavour to ensure that equivalent safeguards and standards to those that apply to children adopted in this State apply to children adopted from overseas; and

to endeavour to ensure that adoption law and practice complies with

Australia's obligations under treaties and other international agreements;

and

to encourage openness in adoption; and

to allow access to certain information relating to adoptions.

The Court, the Minister, the Chief Executive and other persons and bodies involved in the administration of this Act are to be guided by the following principles in the exercise of their powers or functions:

the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration;

adoption is to be regarded as a service for the child concerned;

adoption practices should reflect current community attitudes, best practice and values with respect to adoption;

no adult has a right to adopt a child;

if a child is able to form views on a matter concerning the child's adoption, the child 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;

the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

In addition to the principles set out in subsection (2), a person or body exercising a function or power under this Act in relation to an Aboriginal or Torres Strait

Islander child must observe the Aboriginal and Torres Strait Islander Child

Placement Principle.

In this Act, unless the contrary intention appears—

Aboriginal and Torres Strait Islander Child Placement

Principle means the Aboriginal and Torres Strait Islander Child

Placement Principle as set out in the regulations;

adoptive parent, of a child, means a person who has adopted the child in accordance with the provisions of this Act or who is recognised under this Act as having adopted the child;

Australian law means a law of the Commonwealth or of a State or Territory of the Commonwealth;

birth parent, of a child, means—

the woman who gave birth to the child; or

the man who—

acknowledges paternity of the child; or

where paternity has not been acknowledged by anyone or is in dispute—has been found to be the father by a court (whether of this or any other jurisdiction) or has been adjudged to be the father under the

Family Relationships Act 1975 or any corresponding law of another jurisdiction;

Chief Executive means the chief executive of the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

child includes—

a person who is less than 18 years of age; and

a person who is aged 18 years or more in respect of whom an order for adoption under this Act is sought or has been made;

child born outside lawful marriage includes a child born to a lawfully married woman of which her husband is not the father;

the Convention means the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption done at The Hague on 29 May

1993;

Convention country means a country outside

Australia in respect of which the Convention has entered into force, but does not include any country in respect of which Australia has raised an objection in accordance with Article 44 of the Convention;

the Court means the Youth Court of South

Australia;

domestic partner—a person is a domestic partner of another if they are in a qualifying relationship with each other;

Family Law Act 1975 means the

Family Law Act 1975 (Cwth), as amended from time to time;

guardian, of a child who is less than 18 years of age, means a person (other than the Chief Executive) who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time;

party to an adoption—each of the following persons is a party to an adoption:

the adopted person;

the adoptive parents;

the birth parents;

psychologist means a person registered under the

Health Practitioner Regulation National

Law to practise in the psychology profession (other than as a student);

publish means publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public;

qualifying relationship means the relationship between 2 persons who are living together in a marriage or marriage-like relationship (irrespective of their sex or gender identity);

Registrar means the Registrar of Births, Deaths and Marriages;

relative, of a person, means a grandparent, brother, sister, uncle or aunt of the person, whether the relationship is of the whole blood or half blood or by affinity;

statement of wishes means a written statement given to the Chief Executive by an adopted person, birth parent or adoptive parent in accordance with section 27B setting out the person's wishes in relation to contact by another party to the adoption.

For the purposes of this Act, the Court must be constituted of the

Judge of the Court or a magistrate.

For the purposes of this Act, a reference to an Aboriginal or Torres Strait Islander person or child is to be taken to be a reference to a person or child (as the case may be)—

who is of Aboriginal or Torres Strait Islander descent;

and

who—

identifies as being of Aboriginal or Torres Strait Islander origin;

or

in the case of a young child, is regarded by at least 1 of the child's parents as being of Aboriginal or Torres Strait Islander origin, and is accepted as such by the community with which the person or child associates.

If a man and woman are married according to Aboriginal or Torres

Strait Islander tradition, they will be regarded as husband and wife for the purposes of this Act.

The Minister must ensure that regular consultation is undertaken with representatives of organisations with a special interest in the adoption of children and any other interested persons in relation to the operation of this Act.

Subject to any law of the Commonwealth, the Court has power to make an order for the adoption of a child—

who is less than 18 years of age on the date on which the application for the order is made; or

who is aged 18 years or more on that date.

The Court cannot make an order for adoption except—

in relation to a child who is in the State; and

in favour of a person or persons who are resident or domiciled in the State.

If in proceedings for an adoption order the necessary territorial nexus with the State is established as at the date of commencement of the proceedings or some other date following within 21 days of that date, it will be presumed that the nexus continues in the absence of proof to the contrary.

Before making an order for the adoption of a child of or over 5 years of age, the Court must interview the child to determine what the child's opinion is in relation to the proposed order (unless satisfied that the child is intellectually incapable of expressing an opinion).

An interview under this section must not be conducted in the presence of any party to the adoption.

In determining whether to make an order for adoption of a child the

Court must take into account any opinion expressed by the child in an interview under this section.

The Court may determine the weight to be given to an opinion expressed by a child in an interview under this section, taking into account the age of the child and any other factors the Court considers relevant.

Subject to this section, where an adoption order is made, the adopted child becomes in contemplation of law the child of the adoptive parents and ceases to be the child of any previous birth or adoptive parents.

If an adoption order is made in favour of a person who is cohabiting with a birth or adoptive parent of the child in a qualifying relationship, the relationship of that parent to the child is not affected by the order.

Where—

one of the birth or adoptive parents of a child dies;

and

the surviving parent cohabits with another person in a qualifying relationship; and

the child is adopted by that other person, the adoption does not exclude rights of inheritance from or through the deceased parent.

The making of an adoption order in relation to a child does not affect any vested or contingent proprietary right acquired by the child before the making of the adoption order.

Where an order for the adoption of a child is made, any previous order for the adoption or guardianship of the child ceases to have effect.

The Court will not make an adoption order in relation to a child who is less than 18 years of age unless satisfied that adoption is in the best interests of the child and, taking into account the rights and welfare of the child, clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

The Court will not consider an application for adoption made by or on behalf of a person who is cohabiting with a birth or adoptive parent of a child who is less than 18 years of age in a qualifying relationship unless the

Family Court of Australia has given that person leave to proceed with the application for adoption under section 60G of the Family Law

Act 1975.

The Court will not make an adoption order in favour of a child who is aged 18 years or more on the date on which the application for the order is made unless the Court is satisfied—

that a significant parent to child relationship existed between the prospective adoptive parent or parents and the child before the child attained the age of 18 years; and

that the child appears to understand the consequences of adoption on the child's interests, rights and welfare.

In determining whether a significant parent to child relationship existed for the purposes of subsection (1), the Court may take into account the following:

whether the child was cared for by the prospective adoptive parent or parents, or by the prospective adoptive parent and their deceased spouse or domestic partner, as their child prior to reaching the age of 18 years;

whether the child was, under the Children's Protection Act 1993, placed in the care of the prospective adoptive parent or parents, or the prospective adoptive parent and their deceased spouse or domestic partner, prior to reaching the age of 18 years.

In proceedings for an adoption order relating to a child who is aged 18 years or more on the date on which the application for the order is made, a parent or guardian of the child, or any other person who has a proper interest in the application, may make submissions to the Court (either personally or through a representative).

The Court will not make an adoption order in relation to an

Aboriginal or Torres Strait Islander child unless satisfied that adoption is in the best interests of the child and, taking into account the rights and welfare of the child, clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

The Court must, before determining whether to make an order for the adoption of an Aboriginal or Torres Strait Islander child, consider—

a report from the Chief Executive setting out consultation that has occurred with a recognised Aboriginal organisation or recognised Torres Strait

Islander organisation (as the case requires); and

any submissions made by or on behalf of a recognised Aboriginal or

Torres Strait Islander organisation consulted in relation to the child.

In making an order for the adoption of an Aboriginal or Torres

Strait Islander child, the Court must apply the Aboriginal and Torres Strait

Islander Child Placement Principle.

Subject to subsection (3), an order for the adoption of an

Aboriginal or Torres Strait Islander child will not be made except in favour of a member of the child's Aboriginal or Torres Strait Islander community who has the correct relationship with the child in accordance with Aboriginal or Torres

Strait Islander customary law or, if there is no such person seeking to adopt the child, some other Aboriginal or Torres Strait Islander person.

An order for the adoption of an Aboriginal or Torres Strait

Islander child may be made in favour of a person who is not an Aboriginal or

Torres Strait Islander person if the Court is satisfied—

that there are special circumstances justifying the making of the order; and

that the child's cultural identity with the Aboriginal or Torres

Strait Islander people will not be lost in consequence of the adoption.

For the purposes of this section, a recognised Aboriginal or Torres

Strait Islander organisation is an organisation that the Minister, after consulting with—

the Aboriginal community or a section of the Aboriginal community;

or

the Torres Strait Islander community or a section of the Torres

Strait Islander community, (as the case requires) declares by notice in the Gazette to be a recognised Aboriginal organisation, or a recognised Torres Strait Islander organisation.

Subject to this section, an adoption order may only be made in favour of 2 persons if—

they are in a qualifying relationship and have been living together continuously for at least the prescribed period (irrespective, in the case of married persons, of the date on which the marriage occurred) before the making of the order; or

they are in a qualifying relationship and the Court is satisfied that there are special circumstances justifying the making of the order.

Subject to this section, an adoption order may only be made in favour of 1 person if—

the person is in a qualifying relationship with a birth or adoptive parent of the child and—

has been living together with that parent continuously for at least the prescribed period (irrespective, in the case of married persons, of the date on which the marriage occurred) before the making of the order;

or

the Court is satisfied that there are special circumstances justifying the making of the order; or

the person is not in a qualifying relationship and the Court is satisfied that there are special circumstances justifying the making of the order.

Where 2 persons are living together in a qualifying relationship, an adoption order will not be made except in favour of both or in the circumstances described in subsection (3)(a).

An adoption order will not be made in favour of a person who is lawfully married but not cohabiting with his or her spouse unless the Court is satisfied, after interviewing the spouse of the person in private, that the spouse consents to the adoption.

In this section—

prescribed period means—

if the regulations prescribe a period—the period so prescribed; or

if no period is prescribed under paragraph (a)—5 years.

An eligible person may apply to the Court for an order discharging an adoption order (a discharge order) on the grounds—

that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress or other improper means;

or

that it is in the best interests of the adopted person, taking into account the rights and welfare of the adopted person, for the discharge order to be made.

If an application is made under subsection (1), the Court must, if satisfied that there may be grounds on which a discharge order may be made, direct that an investigation be made into the circumstances relating to the application.

The Chief Executive and (if the Court so directs) a person nominated by the Attorney-General must conduct an investigation under subsection (2).

If, after consideration of a report of an investigation carried out under subsection (3), the Court is satisfied that a discharge order should be made, the Court will make the discharge order, unless it appears to the Court that to do so would be prejudicial to the rights, welfare and interests of the adopted person.

If the Court makes a discharge order under this section, any consent given under this Act for the purposes of the adoption of the person to whom the adoption order relates ceases to have effect, unless the Court otherwise orders.

The Court may, on making a discharge order relating to an adopted person, make any consequential or ancillary orders considered necessary by the

Court, taking into account the rights, welfare and interests of the adopted person, including orders relating to—

the name of the person; and

the ownership of property; and

the care, control, custody or guardianship of the person;

and

the domicile of the person; and

any changes to be made by the Registrar to the entry in the register of births relating to the person.

Subject to any order under subsection (6), on the making of a discharge order, the rights, privileges, duties, liabilities, and relationships of the person to whom the adoption order relates and of all other persons will be the same as if the adoption order had not been made.

Nothing in subsection (7) affects—

anything lawfully done; or

the consequences of anything unlawfully done; or

a proprietary right or interest that became vested in a person, while the relevant adoption order was in force.

In addition, nothing in subsection (7) affects the right of an adopted person in respect of whom a discharge order has been made to obtain information in accordance with Part

2A (as if the person were an adopted person).

In this section—

adoption order includes an adoption order made under the Adoption of Children

Act 1966 or any corresponding previous enactment;

eligible person means any of the following persons:

the adopted person to whom an adoption order relates;

a birth parent of the adopted person;

an adoptive parent of the adopted person;

the Chief Executive.