ACT Introduces Bill To Make Changes to Requirements For Parental Consent In Adoption

Thursday 30 July 2020 @ 3.00 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

The Adoption Amendment Bill 2020 (“the Bill”) was presented to the ACT’s Legislative Assembly on 23 July 2020 by Rachel Stephen-Smith MLA, Minister for Children, Youth and Families and is currently before the Assembly. The Bill is proposed to amend the Adoption Act 1993 (“the Act”).

Overview

According to the Bill’s Explanatory Statement, the object of the Bill is to:

  • change current provisions that are used by the Court when considering whether to dispense with the requirement for parental consent for an adoption;
  • place the best interests of the child or young person at the centre of decision-making about dispensing with parental consent; and
  • change the residency requirement that is currently set out in section 13 for adoption orders that relate to an adult prospective adoptee.

The Consultation Process

As noted in the Explanatory Statement, in mid-2016 the Domestic Adoptions Taskforce (“the Taskforce”) was established to identify issues related to domestic adoption in the ACT. The Taskforce made six recommendations about the timely and appropriate completion of the adoption process. In 2017, the ACT Government agreed to implement all six recommendations developed by the Taskforce.

During November 2018, the Community Services Directorate (“the Directorate”) commenced consultation to explore the dispensing with parental consent provisions in the Adoption Act 1993 (ACT) to respond to out of home care circumstances, as part of Recommendation 3 from the Taskforce.

Extensive consultation on dispensing with parental consent was undertaken during 2019, through a discussion paper and targeted interviews. Children, young people, families, relevant organisations and professionals were invited to make written and verbal submissions to the Directorate on issues raised in the discussion paper between 19 December 2018 and 31 March 2019.

Many people shared their views on the provisions that guide the Court when it makes decisions about dispensing with parental consent. There was strong agreement from the community that the provisions guiding decisions about dispensing with consent should prioritise the best interests of children and young people.

The 2017 Taskforce recommendations were:

Recommendation 1. That the Directorate establishes a communication plan to identify key stages where communication with all parties should be supported. Government response: Agreed.

Recommendation 2. That the Directorate improves the availability of information online about the domestic adoption process. Government response:  Agreed.

Recommendation 3. That the Directorate, with the support of the Justice and Community Safety Directorate, explore dispensation of consent provisions in the Act to allow the ACT to better respond to the complexity of out of home care circumstances. Government response: Agreed.

Recommendation 4. That the Directorate supports the provision of specialist resources within Child and Youth Protection Services to improve the assessment process and delivery of adoption services and support with, and between, government directorates and the community sector. Government response: Agreed in principle.

Recommendation 5. That the Directorate continues to transition the delivery of permanency support services to the community sector, as outlined under A Step Up for Our Kids: One Step Can Make a Lifetime of Difference (Out of Home Care Strategy 2015-2020). Government response: Agreed.

Recommendation 6. That the Justice and Community Safety Directorate, with the support of Access Canberra and the [Community Services] Directorate, explore integrated birth certificates to better support the recognition of both birth parents and adoptive parents and maintain the identity and heritage of children who are adopted. Government response: Agreed.

Effect of the Proposed Amendments

The key changes proposed to the Act are detailed below, they relate primarily to dispensing with parental consent and the residency requirements for adult adoptions.

Dispensing with parental consent - Dispensing with parental consent is a mechanism found in section 35 (“Dispensing with consent”) of the Act, it allows the Court to determine that the consent of a parent or guardian is not required to proceed with a domestic adoption.

The Bill makes changes to dispensing with parental consent in domestic adoption to make a shift from adult-centric grounds to a strong “best interests” focus that places the child at the centre of decision-making. Specifically, the proposed amendments will reflect best practice to uphold the best interests of the child or young person as the paramount consideration in dispensing with consent decisions. The Bill does not relate to inter-country adoption. The Bill maintains limited discretion for the Court to dispense with consent, with guidance regarding determining the child's best interests.

Residency requirements for adult adoptions - The Bill amends residency requirements for adult adoptions to remove historic jurisdictional requirements that do not reflect the circumstances of adult adoptions and requires that the person or at least one applicant must live in the ACT and acknowledges that an adult prospective adoptee may not necessarily live in the same jurisdiction as the person who is seeking an adoption order.

The Bill also updates the original language contained in section 13 (“Residency requirement”), to more clearly convey a contemporary understanding of the ways in which the applicant is likely to have supported the prospective adoptee’s growth and development.

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