The
report by the Queensland Department of Communities, Child Safety and Disability Services of the
Review of the operation of the Adoption Act 2009 provides
an overview of the review of the operation of the Adoption Act 2009 (the review) and outlines the results of the public consultation process that may inform proposals to amend adoption legislation, policies and practices in Queensland.
The report states
Section 327 of the Adoption Act 2009 (the Act) requires the Minister administering the Act to review its operation, as soon as practicable, five years from commencement of the Act. The review must examine the effect of the Act on parties to adoption and their families.
The review comprised a range of information sources, including adoption statistics, community correspondence, advice from Queensland Government departments on the day-to-day practical application of the Act and approaches in other states and territories. The review was supported by a comprehensive public consultation that enabled individuals and stakeholders to provide feedback through an online survey, written submissions, interviews and focus groups.
A total of 356 individuals and organisations participated in the public consultation, including:
- 216 individuals who responded to an online survey
- 77 written submissions, provided by:
46 individuals
31 organisations
- 63 individuals who participated in interviews or focus groups.
Participants included individuals from a range of age groups and geographic locations, and with varying adoption experiences. Of the total number of participants, 12 per cent identified as an adopted person, 16 per cent identified as an adoptive parent and 3 per cent identified as a birth parent affected by the repealed Adoption of Children Act 1964.
The most common issues raised during the public consultation were suitability and assessment of applicants, consent and dispensation requirements, timeframes in administering adoption processes and eligibility criteria.
The results of the review indicate that the Act is operating as intended. However, some aspects of the Act could be enhanced to ensure Queensland is doing its best to promote the wellbeing and best interests of adopted persons throughout their lives. A small number of operational improvements have also been identified to strengthen Queensland’s adoption practices, ensuring that the needs of children requiring adoption continue to be met now and into the future.
The Department states that
Responses received from consultation on the review indicate that the Act is operating as intended. However, there is an opportunity to enhance aspects of the legislation to allow for a contemporary and flexible legal framework for adoption in Queensland.
A small number of operational improvements have also been identified, which have the potential to further develop Queensland’s adoption practices, to ensure that they continue to meet the needs of children requiring adoption now and into the future.
Changes are proposed to:
- broaden eligibility criteria to enable single persons, same-sex couples and persons undergoing fertility treatment to have their names placed on the expression of interest register
- remove the offence for a breach of contact statement for adoptions that occurred before 1991 while retaining departmental obligations as a safeguard
- enable the chief executive to consider the release of identifying information to persons under 18 years of age in exceptional circumstances, without consent from adoptive or birth parents, and broaden the definition of ‘relative’ to include future generations of kin
- require the court to be satisfied that exceptional circumstances apply to allow a change of a child’s first name in a final adoption order
- enable the chief executive to facilitate contact between parties to an adoption, during interim orders
- streamline processes for adoption by step-parents
- make minor technical amendments to clarify the intent of existing provisions and make consequential amendments based on the endorsed policy objectives
- require a further review of the Act in five years’ time.
In discussing adoption contact the report states
A total of 105 individuals and stakeholders who contributed to the review through the Get Involved survey or a written submission provided feedback on adoption information and contact. Of these, the majority (80 per cent or 84 respondents) provided feedback regarding contact, breaches (59 per cent or 62 respondents), access to information (27 per cent or 28 respondents) and open adoption (14 per cent or 15 respondents).
Contact statements
The review examined if there should continue to be restrictions on how parties to the same adoption make contact with each other and, if so, whether those restrictions should have penalties attached for a breach.
There were mixed responses to this issue, with many individuals expressing a preference for continuing to have some way to record their preferences for contact. Of the 216 individuals who responded through the Get Involved survey, approximately 50 per cent (102 respondents) believe there should be restrictions in how people involved in an adoption make contact with each other, approximately 35 per cent believe there should be no restrictions, while 15 per cent did not respond.
Participants of the targeted consultation sessions with the external specialist expressed strong views about contact statements. Participants reported that the offence provision and its penalties cause considerable trauma and fear, because they imply individuals cannot be trusted and would not do the right thing. Having penalties in the legislation is felt by some to be another rejection and inappropriate state intervention in the life of adoptees and birth families.
Feedback from targeted consultation sessions also revealed that other legal avenues, such as offences for stalking and provisions in privacy legislation, are adequate to avoid unwanted contact, and that specific offence provisions about adoption are unnecessary and traumatising.
According to the Australian Institute of Health and Welfare, there were 2970 contact statements in place in Queensland, as of 30 June 2015. Of these, 1708 contact statements were put in place by adoptees and 1249 by birth mothers. Birth fathers have lodged 11 contact statements. The overall number has reduced by 19 contact statements since the previous year.
Penalties for breaches of contact statements
Approximately 55 per cent of respondents from the Get Involved online survey supported penalties for breaching contact statements, with 25 per cent not supporting the penalties. Two stakeholder groups and an individual provided written submissions in support of removing the penalty for a breach of contact statement.
In Queensland, if a person makes contact with the person who put in place a contact statement relating to a pre-June 1991 adoption, in a way that breaches the contact statement, the person may be charged with an offence.
In discussing access to adoption information the report comments
Access to adoption information was a common theme in the views expressed by individuals and stakeholders who participated in the consultation.
There were 105 responses, including written submissions and comments on the Get Involved survey, and six written submissions from stakeholder groups, that emphasised the importance of access to adoption information.
Participants of targeted sessions with the external specialist supported open adoption as a way of maintaining a child’s access to their identity. In at least seven interviews, there was specific reference to wanting improved access to information and support about birth fathers.
There was broad agreement that accessing information had improved since the repealed Adoption of Children Act 1964, but more could be done to further support people to gain as much information as possible about their identity and circumstances surrounding an adoption. Comments regarding specific changes to access to adoption information varied greatly. However, suggestions were made about extending the provisions to include family members more broadly.
There was a focus on the need for improving provisions to enable the timely release of medical information, and routine practices of seeking medical information on behalf of adoptees at the time of birth. This is viewed as a natural extension of focusing on, and prioritising, the needs of the child.
Adoption legislation in all state and territories of Australia contain provisions for access to pre-adoption and/or identifying information. According to the Australian Institute of Health and Welfare 2014–15, 2602 applications for information were made in Australia between 2014 and 2015, of which 414 were made in Queensland.
All states except South Australia allow for adoptees under the age of 18 years to apply for this information in varying degrees. However, each state also requires consent to be obtained from the adoptive parent/s and/or birth parents. Unlike the Australian Capital Territory, New South Wales and Western Australia, there is no discretionary power in Queensland to release information to an adopted person under the age of 18 years if a person required to give consent under the Act cannot be located.
New South Wales, Victoria, the Northern Territory, South Australia and the Australian Capital Territory have legislative provisions that regulate access to information and apply similar definitions for the term ‘relative’. All definitions include grandparents, sons, daughters, brothers, sisters, aunts and uncles. Western Australia includes ‘descendants’, ‘siblings’ and ‘grandparents’, but makes no reference to aunts and uncles, while Tasmania does not explicitly define the term ‘natural relative’. No state or territory specifically allows cousins, relatives under traditional Aboriginal and Torres Strait Islander custom or other significant persons in their definition. However, New South Wales does allow a person who had a close personal relationship with the birth parents or adopted person to apply for adoption information, after the death of that birth parent or adopted person. Queensland is the only state to exclude grandparents and include spouses in its definition of ‘relative’.
Under access to information provisions in the Queensland legislation, a man is an adopted person’s biological father if:
- he is shown as such on the birth register
- the man consented to the adoption
- the chief executive holds a record or sufficient evidence that the man accepted paternity of the adopted person before or at the time of the adoption
- the chief executive is otherwise satisfied on the balance of probabilities that the man is the adopted person’s father.
This allows a man, determined to be the birth father under these provisions, to apply for the release of pre-adoption information about other parties.
The most comparable definition and process for determining a ‘biological father’ is applied by New South Wales, who use the term ‘presumptive father’. Victoria and South Australia use similar processes, however each also make use of definitions or provisions in other legislation, to establish the birth father. The Australian Capital Territory, Tasmania and the Northern Territory do not specifically define a birth father or biological father, making reference only to ‘natural parents’ or ‘relinquishing parents’. Western Australia does not specify who is a biological father in access to information provisions, however, does so in provisions relevant to consent to adoption, and this definition and process is similar to that of Queensland.
