Whose consent is required?
Section 33 of the Adoption Act sets out whose consent is required if a child is to be adopted:
1 Where the parents of the child were married to each other before or at the time of the child’s birth, the consent of both the birth parents is required (s 33(2)).
2 If the parents of the child were not married, the consent of the mother(s), or any man who meets the requirements of section 33(3)(a)-(e) of the Adoption Act, is required.
3 Where a child had previously been adopted, the consent of any adoptive parent is required (s 33(5)).
4 In inter-country adoptions where the child is not an Australian citizen, consent of the child’s guardian 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 included in schedule 1 of the Adoption Regulations. Until all consents have been signed, the parents remain the child’s legal guardians and custodians.
Except where adoption is by a relative or step-parent, the consenting parent(s) cannot specify who adopts the child.
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.
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 shall not be made by the court unless the wishes of the child have been considered, as far as practicable (s 14). The child must receive counselling from an approved counsellor at least 28 days before an adoption order is made; the counsellor provides a written report to the court. These requirements do not apply if the court is satisfied that counselling is inappropriate, considering the child’s age and understanding.
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 A parent wishing to give consent to relinquish their child for adoption must receive counselling from an approved counsellor (as defined by s 5 Adoption Act).
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 “Contacts”).
3 Consent cannot be given until a child is at least 14 days old (s 42 Adoption Act). Consent must be given in the presence of an adoption counsellor and witnessed by a prescribed official of the court (reg 15 Adoption Regulations).
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 the consent form is signed, parents have 28 days to withdraw their consent (s 41 Adoption Act; form 14 sch 1 Adoption Regulations). Parents can extend this period for a further 14 days (to do this, use form 15 in schedule 1 of the Adoption Regulations).
Consent can be withdrawn by a notice in writing served on the County Court registrar. The parents can use the forms in schedule 1 of the Adoption Regulations if they wish. Both these forms must be handed to the parents at the time they give consent to adoption. If parents have previously given consent and now intend to withdraw it, they should 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 the parents do not want adoption to go ahead, an agency may be able to return the child to the parents 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 their consent to adoption (ss 37, 38 Adoption Act).
If the Secretary of the DHHS, or the principal officer of the adoption agency, has become the child’s guardian 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 the 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.
Where a child is not being adopted by a relative, the application for a court order dispensing with consent is made by the Secretary of the DHHS or by the adoption agency. Dispensation is rarely used in Victoria. Permanent care orders under the CYF Act are now used (see “Permanent care orders” in The Children’s Court).
Consent can be dispensed with in a number of situations, including when:
1 the person, after reasonable enquiry, cannot be found;
2 the person’s mental or physical condition makes them incapable of properly considering the consent;
3 the person has abandoned, deserted or persistently neglected or ill-treated the child;
4 such ill-treatment of the child has occurred as to make it unlikely that the child would accept the person or the family of the person;
5 the person has for at least a year failed, without a reasonable cause, to discharge their parental obligations;
6 the person has a mental or physical disability that prevents them from being able to meet the needs of the child;
7 the child is unlikely to be accepted into that family or to accept a family relationship with that person, for any reason;
8 there are any other special circumstances by reason of which the consent may be properly dispensed with (s 43 Adoption Act).
In the first situation, where the person whose consent is required cannot be found, to dispense with consent, the court must be satisfied (under s 43(2) Adoption Act) that:
1 a letter seeking the person’s consent has been sent by certified mail, addressed to that person, and sent to their address and to the address of another person (if any) who the Secretary of the DHHS or the principal officer of an approved agency believes may know where the first person can be found;
2 the Secretary of the DHHS or the principal officer of an approved agency is satisfied that the person’s address is not on the electoral roll;
3 a notice stating that the person’s consent is sought has been published in a newspaper that circulates generally in the area where the person was last known to live; and
4 enquiries have been made to the people, bodies, agencies and government departments that might reasonably be expected to know where the person may be found.
In order for adoption arrangements to proceed, the Secretary of the DHHS, or the principal officer of an approved agency, can apply to the court for an order to dispense with the consent of a person whose consent must be received before the child can be adopted (s 43(4) Adoption Act).
This request for a court order to dispense with consent can also be made by other people via a summons in form 4 (Adoption Regulations). A summons is not required if the judge determines that reasonable inquiry has been made for the person whose consent is required and that person cannot be found (s 43(2)).
The summons must be served personally on the person whose consent is sought, unless the judge orders otherwise (reg 15(2)). The person applying to dispense with consent must also serve a copy of the summons (and any other document that supports the application) on the Secretary of the DHHS not less than 30 days before the application hearing, or within another time frame fixed by a judge (reg 15(3)).
The Secretary of the DHHS may apply to the judge for leave to intervene in the proceedings (reg 15(5)).
Where each person who needs to consent to a child’s adoption (under s 33 Adoption Act) has either given their consent, or their consent has been dispensed with, the child’s guardian is the Secretary of the DHHS or the principal officer of an approved agency (where the agency has been authorised to make arrangements for the child’s adoption).
The Secretary of the DHHS or the principal officer of an approved agency remains the child’s guardian until:
• an adoption order for the child is made;
• the secretary or principal officer renounces guardianship of the child;
• the secretary or principal officer releases the child to their parent(s);
• any consent is lawfully revoked;
• a court makes an order about the guardianship of the child.
Note that there are time limits for revoking consent (s 41 Adoption Act).