Whose consent is required?
Section 33 of the Adoption Act sets out the persons whose consent is required if a child is to be adopted:
1 Where the parents of the child were married to each other, the consents of both the mother and the father are required (s 33(2)).
2 Where the child is an ex-nuptial child (meaning that the child’s parents were not married), the consent of the mother and the father is required unless the father fails to establish paternity (s 33(3)).
3 Where a child had previously been adopted, the consent of any adoptive parent is required.
4 In inter-country adoptions where the child is a non-citizen, consent of the guardian of the child under the Immigration (Guardianship of Children) Act 1946 (Cth) is required (ss 33(6), 36 Adoption Act).
Any other legal guardian of the child is not eligible to give consent to adoption.
The consent form is schedule 9 of the Adoption Regulations (see also regs 20, 25(a)). Except where adoption is by a relative or step-parent, the consenting parent/parents cannot specify the prospective adoptive parents.
The court cannot make an adoption order where undue pressure has been applied to the parent who is signing the consent and, unless the court dispenses with the consent of a parent, a child cannot be placed for adoption without parental consent.
Single parents, no matter what their age, have the same rights as any parent and may keep their child. Even if a parent intends to have a baby adopted, they can see and care for the baby. Until all consents have been signed, the parents remain the child’s legal guardians and custodians.
Where the person to be adopted turns 18 before the adoption order is made, the consents listed above are not required (s 33(7) Adoption Act).
An adoption order cannot be made unless the wishes of the child have been considered. The child must receive counselling from an approved counsellor, who provides a written report to the court. Allowance is made for the age and understanding of the child (s 14).
1 Where a single mother of an ex-nuptial child marries a man other than the father of the child, her consent and the consent of the natural father are required if his name is on the birth certificate as the father of the child, or if he is otherwise identified as the father of the child in certain legal documents or orders (s 33(3) Adoption Act). If paternity has not been established, he has a right to establish this when adoption is being considered. This is usually through obtaining a declaration of paternity through the Supreme Court.
2 Where the spouse of a natural parent (step-parent) adopts a child of the husband or wife of the natural parent’s previous marriage, consent of both natural parents is required. An order dispensing with the need for a consent may sometimes be granted by the court (s 43).
3 Paragraph (1), above, applies in applications for adoption by a relative of the child where the parents were not married. Paragraph (2), above, applies where the parents of the child were married.
Adoption applications by relatives or step-parents are usually initiated through a solicitor.
However, the court requires a report from the Secretary of DHHS, or from the principal officer of an approved adoption agency, as to whether the adoption is in the best interests of the child. In addition, the child must receive counselling from an approved counsellor, who provides a written report to the court. Allowance is made for the age and understanding of the child (s 14).
A number of requirements must be met before consent to adoption can be given (s 35 Adoption Act; reg 17 Adoption Regulations). These requirements ensure that parents are adequately informed of the effect of adoption, and of other options, and of their rights if they change their minds after giving consent. The requirements are as follows.
1 The parent wishing to give consent must receive counselling from an approved counsellor.
2 The counsellor must provide the parent with written notices about alternatives to adoption, family support services that might prevent the need for adoption, the availability of the child’s original birth certificate both before and after adoption, procedures for giving consent, withdrawing consent, and extending the period for withdrawing consent. For more details, see Information for Parents Considering Adoption of their Child (2008), available from adoption and permanent care services (see “Adoption and permanent care services” for addresses and telephone numbers).
3 Consent cannot be given until the child is at least 16 days old. It must be given in the presence of an adoption counsellor and a court official (reg 22).
The parent of an Aboriginal child may sign an adoption consent that includes a condition that the child must be placed within the Aboriginal community or with a family approved by an Aboriginal agency. The consent can also specify conditions for access by the parent, relatives of the child, and members of the Aboriginal community (ss 50, 59 Adoption Act).
Counselling by an Aboriginal agency will be provided unless the parents state in writing that they do not wish to receive such counselling.
After consent is signed, parents have a period of 28 days in which they can withdraw their consent (s 41). A parent can extend this period for a further 14 days. The form in schedule 17 of the Adoption Regulations must be used.
Consent can be withdrawn by a notice in writing served on the registrar of the County Court. The parent can use the form in schedule 18 of the Adoption Regulations if they wish. Both these forms must be handed to a parent at the time they give consent to adoption. If parents have previously given consent and now intend to withdraw it, it is advisable to contact the adoption agency as soon as possible.
Once consent has been withdrawn, no adoption can proceed (unless a court has dispensed with the consent). If the period for withdrawing consent has ended and a parent does not want adoption to go ahead, an agency may be able to return the child to the parent and thus cancel the consent if no adoptive placement has been made. If no adoptive placement is possible, parents are given an opportunity to withdraw consent to adoption (ss 37, 38 Adoption Act).
If the Secretary of DHHS, or the principal officer of the adoption agency, has become guardian of the child and the child is not in an adoptive placement at the time, returning the child to one or both parents will cancel all consents (s 46(2)).
If a child is placed for adoption in another state, the Secretary of DHHS or principal officer is able to transfer guardianship of the child to the adoption authority in the other state by renouncing guardianship in Victoria. This does not cancel the adoption consents. Note that this process is unusual and would only occur after consultation with the natural parents.
In most situations, a child cannot be adopted unless consent has been given by all parents whose consent is required. However, if the welfare and interests of the child are at stake, a court may make an order dispensing with the requirement for a parent to give consent.
The application for a court order dispensing with consent is made by the Secretary of DHHS or the adoption agency in a non-relative situation. Dispensation is rarely used in Victoria. Permanent care orders under the CYFA are now used (see “Permanent care orders” in The Children’s Court).
The grounds on which consent can be dispensed with are:
1 that the person cannot, after reasonable enquiry, be found;
2 that the person’s mental or physical condition makes them incapable of properly considering the consent;
3 that the person has abandoned, deserted or persistently neglected or ill-treated the child;
4 that such ill-treatment of the child has occurred as to make it unlikely that the child would accept the family or would be accepted by the family;
5 that the person has for at least a year failed, without reasonable cause, to discharge parental obligations;
6 that the person has a mental or physical disability preventing the needs of the child from being met;
7 that for any reason the child is unlikely to accept or be accepted by the family; and
8 that there are any other special circumstances by reason of which the consent may be properly dispensed with (s 43 Adoption Act).
It is usual for an order dispensing with parental consent to be sought on more than one of the above grounds; the court requires substantial proof that the grounds apply in a particular case. Where an application is being made to the court for the order dispensing with parental consent, a copy of the application must be served on the Secretary of DHHS at least 30 days before the hearing, or at such other time as set by the judge, together with a copy of all documents proposed to be used in support of the application. An Affidavit of Service must also be filed. The Secretary of DHHS may apply to the court for leave to intervene in the proceedings (r 10(5) Adoption Rules).