Adoption is the legal process where a child joins and becomes a recognised member of a family. In these circumstances, adoptive parents assume all legal rights and responsibilities of biological parents, and this has the effect of severing the legal rights and responsibilities between the child and their birth parent and relatives.
Australia now has the second-lowest adoption rate in the developed world. This would be unsurprising to many individuals and families who have endured the long and expensive process of adopting a child (both within and outside Australia). The Herald Sun reported that in 2011/12 there were only 333 adoptions in Australia. Of these adoptions 149 were overseas adoptions and 129 were "known' adoptions (when the adoption formalises a pre-existing parental relationship) and a mere 55 were local adoptions. This represents a 78% drop in the number of adoptions since 1987.
The current waiting list for inter-country adoption can be anything between three to five years with costs as high as $30,000. The waiting period for local adoptions isn’t much shorter, stretching anywhere from 18 to 24 months.
However, although adoption rates are at an all-time low, and despite the associated delay and cost, there is still a significant number of Australian families wishing to adopt. Adoption is becoming more prevalent with the increase in blended families and second marriages and relationships. However, the Supreme Court adoption Orders are becoming harder and harder to obtain as in many instances it is considered that parenting Orders from the Family Court of Australia or Federal Circuit Court of Australia better serve the children’s interests.
What is the difference between a Parenting Order and Adoption?
The primary consideration of the Court when making an Order in relation to children, either an Adoption order or a Parenting Order is the best interests of the child. However there are several differences between a parenting Order and a formal adoption. The main differences are that:
An adoption Order is permanent, whereas a Parenting Order can be changed (either by agreement between parents or further court Order);
An adoption Order means that one or both of the child’s biological/birth parents cease to be the child’s legal parent and the adoptive parent becomes the child’s legal parent. Therefore the adoption Order severs the legal relationship between the birth parent’s extended family and the child.
In the absence of exceptional circumstances warranting an adoption order being made, the Court may instead grant parenting orders, which can include arrangements about where and with whom a child lives, and with whom a child spend times with and communicates.
In order for an adoption order to be made by a Court, a Judge must be satisfied that:
- A parenting order made by the Family Court would not adequately provide for the welfare and interests of the child;
- Exceptional circumstances exist to justify an adoption order being made. An example of this may be where a biological parent has died or has been totally absent from the child’s life for many years. Usually a combination of major circumstances is required to meet this requirement; or
- An adoption order would make better provision for the welfare and interests of the child than a parenting order made by the Family Court.
It is also important to understand that there are different ‘types’ of adoption.
Intra-family adoption (adopting a step child)
With the increasing number of ‘blended families’ and second relationships/marriages, many people are opting to adopt their stepchildren or a relative child such as a niece or nephew.
Intercountry adoptions (adopting a child from overseas)
Many families explore the option of adopting a child from another country. This type of adoption is handled through a Community Services program and there are many support agencies that provide assistance and information throughout the process. Waiting periods for intercountry adoption have increased in recent years due to improved local adoption systems and increased government regulations in many countries. However, for those willing to put time and effort into the process, this is a good option for many families.
One of the most common misconceptions that I’ve come across in adoption matters is the belief that any child can be adopted from any country provided the birth parents consent to the adoption. In fact, only certain countries are signatory to the ‘Hague Adoption Convention’. Further, even if the child is adopted from a Hague Convention Country you need to ensure that the adoption is carried out in strict compliance with the Convention and all the necessary paperwork is prepared and provided.
I’ve had clients face the heartache of not being able to adopt a child they’ve grown to love as the country they are in has not signed the convention or alternatively while the country was a signatory to the Convention, they did not prepare the appropriate paperwork and the parents have been unable (or faced significant difficulties) returning to Australia with the child as they have been unable to obtain an Adoption Visa is the adoption is not recognized by Australia.
If you‘re thinking about international adoption then plan ahead – make sure that the country is a signatory to the convention. View a list of countries. Once you’ve established that the child you are seeking to adopt is from a country that is signatory to the Convention, you will then need to get in contact with their state’s respective central authority. View list of the state central state authorities in Australia.
Very few children adopted within NSW are adopted to someone outside of their family. As such, there are extensive requirements and often a very long waiting period. The biological parents are able to specify the type of family they wish the child to be placed with. The preference is usually for a mother and a father so single parents and same sex couples can have increased difficulties adopting through this process.
What is commonly known as a ‘closed adoption’ is very uncommon in Australia. Families seeking to adopt must enter into the process with awareness that the biological parents may wish to maintain contact with their child.
Some families caring for a child for an extended period of time may consider adopting the child to provide more permanency and stability for both themselves and more importantly, the child. This takes place through the local adoption process. View more information on becoming a foster carer.
Family and Community Services, as with many government departments and organisations, are woefully underfunded. Consequently, there are significant delays in this process.
Adoption is a wonderful and rewarding process, for you and the child. It cements arrangements and relationships that are already in place and also creates new relationships and identities which increase individuals’ and families’ wellbeing. It is therefore important that you’re well prepared so that the complexity of the process and inevitable delays, don’t take away from the end goal of adopting a child.
If you have any questions or are thinking about adopting a child, please do not hesitate to contact our Sydney Family Lawyers we are experts in Adoption and Surrogacy and have a specialist International Family Law team 02 9633 1088