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Adoption Bill 2009
Adoption Bill 2009
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Adoption Bill 2009.
Policy Objectives of the Legislation
The objective of the Bill is to provide for the adoption of children in
Queensland, and for access to information about parties to adoptions in
Queensland, in a way that
(a) promotes the wellbeing and best interests of adopted persons
throughout their lives; and
(b) supports efficient and accountable practice in the delivery of adoption
services; and
(c) complies with Australia's obligations under the Hague Convention on
Protection of Children and Cooperation in Respect of Intercountry
Adoption (the Hague convention).
Reasons for the Bill
The purpose of adoption is to provide a permanent legal family for children
who, for various reasons, cannot live with their family of birth. An
adoption order establishes a permanent relationship between a child and his
or her adoptive parents and removes the legal relationship between the
child and his or her birth parents and extended birth family.
The number of children who are adopted each year has been steadily
declining in all Australian jurisdictions over the last 30 years. In 2007-08,
90 adoption orders were made in Queensland. Of these orders, 18
concerned Queensland children placed with adoptive parents, 21 were for
children adopted by their step-parents and 51 were for children from
overseas adopted by Queensland families. An estimated 50,000 adoptions
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have been made in Queensland since the early 1900s, which directly affects
over 350,000 people.
Queensland's adoption legislation dates from the 1960s and is in urgent
need of reform to reflect contemporary community standards.
On 14 July 2008, the Premier and the Minister for Child Safety and
Minister for Women announced the government's proposals for significant
reform of Queensland's adoption laws through the release of the Future
Adoption Laws for Queensland policy paper. The reforms set out in that
policy paper, and now introduced by the Bill, are based on public
consultation, research about quality adoption practice and outcomes and
developments in other jurisdictions.
Adoption law also regulates parties' entitlement to access identifying
adoption information about a birth parent or child who was adopted.
Queensland is currently the only state that allows one person to block
another person's access to identifying adoption information indefinitely
(for adoptions that occurred before 1 June 1991), making it the most
restrictive regime of all Australian jurisdictions.
On 14 July 2008, the Premier and Minister also announced that laws
concerning the release of information about adoptions that occurred prior
to June 1991 would also be reviewed, with any reform to be informed by a
public consultation process based on the Balancing Privacy and Access:
Adoption Consultation Paper. The paper stated that the Government's goal
in reviewing the law is "to give all people the same access to information
about their family history, while maintaining the right to privacy". Reform
of this law, based on the results of the public consultation, is reflected in
part 11 of the Adoption Bill 2009.
Achieving the Objectives
The Bill achieves the policy objectives by repealing the Adoption of
Children Act 1964 and providing for an updated and more contemporary
process for adoption of children in Queensland; as well as for equal access
to information about parties to adoptions, irrespective of when the adoption
occurred. The Bill brings Queensland into line with other Australian
jurisdictions by introducing open adoption, improved birth parent consent
requirements, contemporary eligibility criteria and assessment processes,
and court ordered adoptions. The main themes of the Bill, including key
areas of reform, are discussed below.
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Adoption Bill 2009
Open adoptions and adoption plans
For the first time in Queensland, the Bill provides for the practice of open
adoption, which allows a child's birth and adoptive families to know each
other's identities from the time of the child's adoption. The chief executive
is required to act as an intermediary between the child's parents and the
prospective adoptive parents, to facilitate an agreement between them
about the degree of openness there will be in the adoption. The chief
executive is also required to facilitate the preparation of an adoption plan, if
this is proposed by any of the parties, or if it is mandatory under the Act.
An adoption plan is a written plan, agreed to by the parties to a proposed
adoption, or adoption, about anything relating to the adopted child's
wellbeing or interests. For example, it may address how and when the
parties propose to communicate with each other and, if they agree to
in-person contact, how and when the contact will happen.
The purpose of an adoption plan is to contribute to the success of an open
adoption arrangement by ensuring that all the parties properly consider the
matters that may affect the child's wellbeing and interests, as well as the
consequences of entering into the particular arrangement. The purpose of
an adoption plan is also to ensure that the parties commit themselves to
practical ways to address matters affecting the child.
Adoption plans will not be mandatory unless the parties wish there to be
in-person contact; or if a child protection order is, or has been, in force for
the child; or if the child to be adopted is an Aboriginal or Torres Strait
Islander child.
The parties may still choose to have a closed adoption arrangement if they
wish. Also, the Childrens Court will be able to make an order that an
adoption arrangement is to remain closed, by making an order that the chief
executive not exchange identifying information about the parties, where the
court is satisfied that providing this information presents an unacceptable
risk that a person will be harmed.
Consent to adoption
The United Nations Convention on the Rights of the Child and the Hague
Convention set out a range of principles and obligations that are relevant to
adoption consents. Most significantly, these include the obligation to
ensure that persons whose consent is required for adoption have been
counselled and properly informed of the effects of their consent, that they
have given their consent freely, that their consent has not been induced by
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Adoption Bill 2009
payment or other compensation, that their consent has not been withdrawn,
and that the consent of the mother has only been given after the birth of the
child. Current adoption practice in Queensland reflects these principles,
however the Bill's consent provisions make them clear in Queensland law.
If a child's parents are considering adoption for the long-term care of their
child, the Bill requires the chief executive to give the parents a range of
information about adoption, to ensure that they are fully informed prior to
making any decision. For instance, the Bill requires that the parents be
given information about
· options other than adoption for their child's long-term care;
· support that may be available to the parents, regardless of whether or
not the adoption proceeds;
· the possible psychological effects for the parent, both short and
long-term, of consenting to the adoption of their child;
· the possible psychological effects for their child, both short and
long-term, of being adopted;
· if they were to give consent to the adoption of their child, how and
when that consent may be revoked;
· how they may give the chief executive their preferences about the
child's adoption (e.g. preferences about the child's religious
upbringing, or characteristics about the child's adoptive family);
· the adoption process;
· the legal effect of adoption; and
· the rights and responsibilities of all the parties to an adoption.
The Bill also requires the chief executive to arrange for this information to
be explained to each parent and for the each parent to receive counselling
about the matters that are raised in the information. The counselling may
be provided by a qualified person who is an officer of the Department or, if
the parents prefer, by a qualified person who is not an officer of the
Department to allow them to explore the issues independently of the
Department.
The Bill requires a child's mother, father and any legal guardian to give
informed and voluntary consent to a child's adoption and for the
Department to be sure the parent has the capacity to give the consent. The
Bill also requires the chief executive to give a man thought to be a child's
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Adoption Bill 2009
father information about how his paternity can be determined, how he can
consent to the child's adoption and how he can seek a Family Court order
to permit him to parent the child, if he wishes to do so. Requiring a child's
father to consent to the child's adoption is an important reform to
Queensland's adoption law. Under the Adoption of Children Act 1964, a
father was only required to consent to his child's adoption if he was
married to the child's mother, either at the time the child was conceived or
at the time of adoption.
The Bill recognises that there will be some circumstances in which it is
necessary to dispense with the need for a parent's consent to the adoption
of their child in order for the child's adoption to proceed. For example, the
court will be able to dispense with a parent's consent if the parent's identity
cannot be established; if the child's conception was the result of an offence
committed by the parent (e.g. rape or incest); or if there would be an
unacceptable risk of harm to the child or mother if the other parent was
made aware of the child's birth or proposed adoption.
The court will also be able to dispense with a parent's consent if the parent
is found not to have capacity to be able to give the consent. In this case, the
chief executive must have arranged for a qualified person to assess the
parent (if the parent is not an adult) or the Guardianship and
Administration Tribunal must have made a declaration that the parent does
not have the capacity to consent (if the parent is an adult).
In all cases, the court will not be able to dispense with the need for a
parent's consent to the adoption unless it is satisfied that it would be in the
child's best interests for arrangements for the child's adoption to continue
to be made. In addition, the court will not be able to dispense with the need
for a parent's consent if there is a current application before another court
seeking a declaration of paternity for the child, or a parenting order for the
child under the Family Law Act 1975 (Cwlth).
Child's views
Article 12 of the United Nations Convention on the Rights of the Child
provides that a child who is capable of forming his or her own views has
the right to freely express those views, to have them considered and given
due weight in accordance with the child's age and maturity and to be given
the opportunity to participate in judicial and administrative proceedings
affecting him or her, either directly or through a representative.
Where a child to be adopted is old enough to be able to form and express
his or her own views about the adoption, then the Bill requires the chief
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executive to give information to the child before an application for an
adoption order is made. The information must be given in a way and to an
extent that is reasonable, having regard to the child's age and ability to
understand. The child must be kept informed of matters affecting him or
her in a way and to an extent that is appropriate, and the child's views must
be given consideration.
The Bill also requires the chief executive to ensure that the child receives
counselling about the proposed adoption, and again, this must be
conducted in such a way that is reasonable, having regard to the child's age
and ability to understand. The chief executive may also appoint a social
worker, lawyer or other person to support the child during the adoption
process.
When it comes time for the court to make an adoption order for the child,
the Bill requires the court to take the child's views into account. If the
court considers it necessary and in the child's best interests, the court may
order that the child be separately represented by a lawyer and make any
orders necessary to secure separate legal representation for the child. The
court may also order the chief executive to appoint a qualified person to
support the child if necessary.
These provisions that guarantee a child's right to participate in any
decision-making about his or her adoption replace the requirement in the
Adoption of Children Act 1964 for a child aged 12 years or over to consent
to his or her adoption. This is to ensure that the child does not feel
responsible for the decision and put him or herself under undue pressure,
particularly where the decision involves choosing between a birth parent
and the person who is caring for the child. (Adoption of older children is
generally by persons known to the child such as a step-parent.)
Recruitment and selection of prospective adoptive parents
If adoption has been identified as the best option for providing long-term
care to a child who cannot be cared for by his or her own parents, then the
Department of Child Safety must find the best possible adoptive parents for
the child. Also, under Australia's arrangements with other countries about
adoption, the Queensland Government has agreed to find suitable
prospective adoptive parents for children from those countries who require
the permanent care of a family.
To assist the Department to meet these obligations, the Adoption Bill is
designed to:
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· anticipate what are likely to be the placement needs of children
requiring adoption each year and to use this information to plan for
the future need for adoptive parents;
· recruit people who are interested in being assessed and considered by
the Department to be the adoptive parents of a child; and
· select from the large pool of interested people, those who are likely to
be required each year to meet the anticipated, or known, placement
needs of children requiring adoption.
This framework continues and builds on the expression of interest process
that was introduced in 2002. New elements are designed to ensure that the
expression of interest register accurately represents only the people who
are ready and willing to actively proceed through the assessment and
adoption process. In some instances, people have expressed an interest
before they are ready to commit to the adoption process because, for
example, they are still exploring other options for forming a family, such as
fertility treatment. By ensuring people are able to express an interest in
adoption only when they are ready to actively proceed through the process,
the Government believes waiting periods for people who have expressed
interest will be reduced.
Under the Adoption Bill 2009, expressions of interest can be lodged at any
time. This will create greater certainty for people who are interested in
adoption as a means of forming or adding to their family. People will be
able to lodge an expression of interest at the time they are ready, willing
and able to actively proceed through the adoption process (should they be
eligible and suitable to be prospective adoptive parents and have a child
placed with them).
The Bill also requires couples to lodge fresh expressions of interest after
two years, if they have not moved through to the assessment process. This
is to ensure that couples regularly reconsider their decision to pursue
adoption, and also to make certain that the expression of interest register
only contains the names of people who are currently committed to the
adoption process.
It will still be possible for the expression of interest register to be closed (or
partly closed), but only if the number of people listed in the register is
significantly higher than the number required to meet the anticipated need
for adoptive parents at a particular time, based on the profiles of the people
whose names are in the register. For instance, it may be necessary to close
part of the register relating to intercountry adoptions from a particular
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country because the overseas adoption program for that country has been
suspended, or the country is not taking any further applications from
Australian couples. If it is necessary to close (or partly close) the
expression of interest register, the Bill requires the chief executive to
review the decision to close the register at regular specified intervals to
determine whether it is appropriate to re-open the register.
Another area of reform is that eligibility to lodge expressions of interest
will no longer be limited only to married couples. The Bill provides that a
couple must have been spouses (either married or de facto) for at least two
years, must be currently living together and have lived together
continuously for at least 2 years, and may only express their interest jointly
as a couple. Same sex couples and single people will not be eligible to
lodge an expression of interest.
The Bill also requires the chief executive to decide, at least once each
financial year, the numbers of persons with different profiles that it would
be reasonable to assess for their suitability to be adoptive parents, to ensure
that there are enough suitable prospective adoptive parents to meet the
identified needs. The chief executive is not required to assess for suitability
any more than this reasonable number on the basis that assessing too many
persons:
· is an inefficient use of resources;
· may unnecessarily raise the expectations of some of the assessed
persons about the likelihood of their adopting a child; and
· may unnecessarily intrude on the privacy or personal affairs of the
persons assessed who are not likely to be required to meet the
adoptive needs of children.
The Bill requires the chief executive to consider a range of specified
matters about each person, when deciding whether a couple is suitable to
be adoptive parents.
Once a couple has been assessed as being suitable to be adoptive parents,
their names will be entered in the suitable adoptive parents register. The
chief executive must then select people from the suitable adoptive parents
register to be a child's prospective adoptive parents. The Bill requires that
the chief executive must make the selection that will best promote the
child's wellbeing and best interests. In doing this, the chief executive must
have regard to the needs of the child to be adopted, including needs relating
to the following matters
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· the child's age and gender;
· any Aboriginal, Torres Strait Islander or other cultural background of
the child;
· any existing or possible future medical condition or disability of the
child;
· the child's education;
· whether the child has a sibling who has been adopted or is proposed to
be adopted; and
· the child's social background.
The Bill also requires the chief executive to have regard to any preferences
of the child's parents, for example, preferences about the child's religious
upbringing; or the characteristics of the child's adoptive parents and
adoptive family; or the degree of openness in the adoption.
The Bill makes separate provision for step-parents to be able to apply to
adopt their step-child. Particular conditions are that the step-parent has
been living with their spouse and the child for at least 3 years up to the time
of the application, and that the child is at least 5 years old and not yet
turned 17 years of age, although the chief executive will have the discretion
to accept an application relating to a 17 year old in certain circumstances.
Aboriginal and Torres Strait Islander children
The Bill respects Aboriginal tradition and Torres Strait Island custom and
does not promote adoption as an appropriate option for the long-term care
of an Aboriginal or Torres Strait Islander child. However, if a parent or
guardian of an Aboriginal or a Torres Strait Islander child wishes to explore
adoption for the child's care, the Bill contains a range of safeguards to
ensure that the child's culture is respected and that adoption only proceeds
if there is no better option available to provide the child with long-term
stable care.
The guiding principles of the Bill recognise that it is in the best interests of
an Aboriginal or Torres Strait Islander child to be cared for within an
Aboriginal or Torres Strait Islander community and to maintain contact
with their community or language group. The Bill also recognises that it is
important for an Aboriginal or Torres Strait Islander child to develop and
maintain a connection with their Aboriginal tradition or Island custom, and
for their sense of Aboriginal or Torres Strait Islander identity to be
preserved and enhanced. The Bill states that the chief executive, and other
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officers of the Department, must try to conduct consultations, counselling,
negotiations and other proceedings in a way and in a place that is
appropriate to Aboriginal tradition or Island custom. The Bill also requires
the Childrens Court to have regard to the views of an appropriate
Aboriginal or Torres Strait Islander person, when exercising any powers in
relation to an Aboriginal or Torres Strait Islander child.
If a parent of an Aboriginal or Torres Strait Islander child is considering
adoption for their child, the Bill requires the chief executive to give the
parent information about options other than adoption for the child's long
term care in accordance with Aboriginal tradition or Island custom. To
help the parent understand this information, the person who explains it to
them must be an appropriate Aboriginal or Torres Strait Islander person.
Also, the counselling that is provided to the parent must be carried out in a
way and at a place that is appropriate to Aboriginal tradition or Island
custom, unless the parent declines to receive the counselling in this way or
from an appropriate Aboriginal or Torres Strait Islander person.
If the child is able to form and express their own views about their
situation, the Bill requires that they be given extra information such as
information about other options for their long term care in accordance with
Aboriginal tradition or Island custom; and the importance of being cared
for in a way that helps them to develop and maintain a connection with
their Aboriginal tradition or Island custom, and preserves and enhances
their sense of Aboriginal or Torres Strait Islander identity. The child must
also receive counselling in a way and at a place that is appropriate to
Aboriginal tradition or Island custom.
The Bill's process of assessing a couple for suitability to be the adoptive
parents of an Aboriginal or Torres Strait Islander child requires that the
chief executive must consult with an appropriate Aboriginal or Torres Strait
Islander person about Aboriginal tradition or Island custom relating to the
child; and about the couple's suitability to be the child's adoptive parents.
When deciding whether a couple is suitable, the chief executive must have
regard to the couple's links with, and standing in, the child's community or
language group, as well as their commitment to
· helping the child maintain contact with their community or language
group;
· helping the child develop and maintain a connection with their
Aboriginal tradition or island custom; and
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Adoption Bill 2009
· preserving and enhancing the child's sense of Aboriginal or Torres
Strait Islander identity.
The Aboriginal and Torres Strait Islander child placement principle is also
specifically enshrined in the Bill. When selecting adoptive parents for the
child, the chief executive must give proper consideration to selecting, in
order of priority
· a member of the child's community or language group; or
· another Aboriginal person or Torres Strait Islander who is compatible
with the child's community or language group; or
· another Aboriginal person or Torres Strait Islander.
A further safeguard in the Bill is that the development of an adoption plan
will be mandatory if an Aboriginal or Torres Strait Islander child is to be
adopted by a couple from outside of his or her community. The plan will
be required to set out how the adoptive parents will
· help the child maintain contact with their community or language
group; and
· help the child develop and maintain a connection with their
Aboriginal tradition or Island custom; and
· preserve and enhance the child's sense of Aboriginal or Torres Strait
Islander identity.
Adoption orders to be made by the court
Under the Adoption of Children Act 1964, adoption orders were made by
the chief executive, making Queensland the only Australian jurisdiction in
which adoption orders are made administratively by a public servant. The
chief executive made all decisions about the adoption of a child, including
the making of the adoption order. In all other states and territories and
most international jurisdictions, adoption orders are made by a court.
The adoption of a child has significant legal consequences because it
permanently changes a child's legal identity and legal relationship with his
or her birth parents and extended birth family. This makes the adoption of
a child an appropriate matter to be decided by a court rather than by a
government department. Therefore, the Bill provides that all adoption
orders must now be made by the Childrens Court.
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Adoption Bill 2009
Access to identifying information
Prior to June 1991, Queensland laws gave no right of access to identifying
adoption information and adopted people and their birth parents were
generally unknown to each other for life. In June 1991, the Adoption of
Children Act 1964 was amended to provide adopted people and birth
parents with an entitlement to access identifying information about a birth
parent or child who was adopted, once the adopted person turns 18 years of
age. However, in recognition of the expectations of anonymity that
resulted from the previous historical practices, for adoptions that occurred
before 1 June 1991, adopted people and birth parents were given the right
to lodge an objection to prevent information about their identity from being
released to another person associated with the same adoption.
The legislation concerning the release of information about adoptions that
occurred prior to June 1991 has now been reviewed and the Bill
incorporates the changes arising from that review. Consequently, the Bill
gives adopted people and birth parents equal access to identifying adoption
information, whether the adoption occurred before or after 1 June 1991.
This is achieved by removing the right for people to lodge an objection to
prevent another person from receiving identifying information about them.
Existing information objections will be transitioned so that they
automatically become a contact statement expressing the person's wish not
to be contacted by another person or persons.
The Bill further enhances access to information by
· defining an adopted person's `birth parent', for the purposes of access
to identifying adoption information, to include a man who did not
consent to the person's adoption in circumstances where he
acknowledged his paternity at the time of an adopted person's birth or
adoption or his paternity can otherwise be proven; and
· permitting the chief executive to contact a birth parent or adopted
person to ask for, and to pass on, up to date family medical
information, particularly when an objection prevents them from
seeking, or providing this information themselves. All information
will be collected and exchanged in a non-identifying way.
The Bill only prevents an adopted person or a birth parent from accessing
identifying information where the Childrens Court has made an order that
the information is not to be released to a stated person because there would
be an unacceptable risk of harm to another person if the information was
given.
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Adoption Bill 2009
Other mechanisms in the Bill to guard against people experiencing
unwanted contact include the following
· contact objections that are in place when the new Act commences will
continue to be effective, and an adopted person and a birth parent will
continue to be able to express their wish not to be contacted;
· a person's statement that they do not wish to be contacted (including a
contact objection made before the commencement of the new Act)
will not have to be renewed, but will stay in place until the person who
lodged it dies, or unless earlier withdrawn by the person who lodged
them;
· for an adoption that occurred prior to June 1991, the chief executive
will only be able to release identifying information about a person
who does express a wish not to be contacted if the chief executive has:
· ensured the person seeking the information has participated in an
interview (which may be in person or by telephone) with an
officer of the Department; and
· obtained a document signed by the person seeking the
information that acknowledges the other person does not want to
be contacted and it would be an offence to do so;
· for an adoption that occurred before 1 June 1991, it will continue to be
an offence carrying a maximum penalty of 100 penalty units (i.e.
$10,000 from 1 January 2009) or imprisonment for 2 years for a
person who knows another person has lodged an objection to contact
(or expressed a wish not to be contacted) to contact, or attempt to
contact, the person or a relative of the person; and
· the chief executive will be authorised to provide, both directly and
through the use of appropriately qualified service providers,
information, support and counselling to people who will be affected
by any of the changes in the law and, in particular, to outreach a
person who has lodged an objection to being contacted, prior to
releasing information about the person to another party to the
adoption, to offer the person information, support and counselling.
The Bill also enables any person, irrespective of when the adoption
occurred, to express their wish about being contacted, including that the
person does not wish to be contacted, and to specify arrangements that suit
their individual circumstances. The Bill obliges the chief executive to pass
on the person's wish to another person seeking information about the
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Adoption Bill 2009
person who expressed the wish. This signals a clear end to the restrictive
regime contained in part 4A of the Adoption of Children Act 1964 and
marks the introduction of new legislation that strikes a fairer balance
between the interests of those people who wish to access information and
those who do not wish to be contacted.
Administrative costs
The Bill introduces a number of reforms and new processes which will
place additional requirements on existing resources, and consequently
incur additional administrative costs (both immediate and ongoing).
The most significant cost impact arises from the need to substantially
modify the Adoption Case Management System (ACMS). This is the
electronic information system that creates and stores information about the
adoption services provided by the Department and supports the efficient
delivery of services by managing workflow, automatically generating
documents and discharging the legislative obligations to maintain registers
and other records. The ACMS provides sophisticated management
reporting and facilitates the efficient collection of adoption data that is
reported annually by the Australian Institute of Health and Welfare.
Other significant reforms that will incur additional administrative costs
include
· the introduction of open adoption practices, which will require the
conduct of extensive case work by experienced, professional staff to
enhance the success of open adoption arrangements and the opening
of `closed' adoption arrangements made prior to the commencement
of the new Act;
· changes to the expression of interest system (that is, opening up of
eligibility to de facto couples, changes to other eligibility criteria, and
the requirement to manage the expression of interest register in an
ongoing way, rather than opening and closing it as was previously the
case);
· court ordered adoptions, resulting in an additional requirement for
court applications and affidavit material to be prepared, as well as the
employment of at least two court coordinators to guide and assist in
the preparation of applications and affidavits and to appear in court;
· expanding the ability to access identifying information about any
adoption, whether it occurred before or after 1 June 1991; and
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Adoption Bill 2009
· converting information objections to contact objections, and the
consequent necessity to provide post-adoption services to people
affected by the change in the law.
Fundamental Legislative Principles
The following aspects of the Bill raise fundamental legislative principles
issues.
· Exemption from operation of Anti-Discrimination Act 1991
Clause 8 of the Bill exempts adoption processes from the operation of the
Anti-Discrimination Act 1991, the effect being that discrimination on the
basis of the attributes in that Act will be lawful, particularly in relation to
recruitment and selection of prospective adoptive parents. For instance,
clause 76 prevents pregnant women and people participating in fertility
treatment from being eligible from expressing an interest in adopting a
child. Additionally, the process for selecting adoptive parents for a
particular child may discriminate against people on the basis of other
characteristics such as age, race, religion and other grounds, on the basis of
the birth parent's preferences (see clause 157).
Overriding the Anti-Discrimination Act 1991 in this way clearly breaches
fundamental legislative principles. However, the breach is justified
because the imposition of discriminatory processes, particularly in relation
to the recruitment and selection of prospective adoptive parents, is essential
to safeguard the wellbeing and best interests of children who need adoptive
placements. This paramount principle must be complied with above the
rights of any person wishing to adopt a child, including any rights they may
otherwise have under the Anti-Discrimination Act 1991 not to experience
discrimination.
· Dispensation of parent's consent to adoption of their child
Clause 175 of the Bill provides the court must not make an adoption order
for a child unless satisfied each of a child's parents have given their consent
to the adoption, at least 30 days before the making of the order. However,
there are circumstances in which a parent's consent may not be able to be
obtained and, for the child's adoption to proceed, it is necessary to dispense
with the requirement for the parent to consent.
Clause 39 of the Bill enables the Childrens Court to make an order
dispensing with the need for a parent's consent to the adoption of their
child in circumstances including: if it is not possible to establish the
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Adoption Bill 2009
parent's identity, or to locate the parent, after making all reasonable
enquiries; or the parent is a lineal relative of the child's mother; or the
child's conception was a result of an offence committed by the parent (e.g.
rape); or there would be an unacceptable risk of harm to the child or mother
if the parent were made aware of the child's birth or proposed adoption; or
the parent does not have the capacity to give consent to the adoption; or
there are other special circumstances.
The court may also dispense with a parent's consent to the adoption of his
or her child where the court is satisfied the parent is not, and will not be,
willing and able to protect the child from harm and meet the child's need
for long-term stable care where the parent is unreasonably withholding
consent or refusing to engage with the chief executive about giving the
consent.
However, the court will only be able to dispense with a parent's consent if
satisfied that it would be in the child's best interests for arrangements for
his or her adoption to continue to be made. Also, the court will not be able
to make a dispensation order if there is reason to believe there is a current
application before another court seeking a declaration of paternity for the
child, or a parenting order for the child under the Family Law Act 1975
(Cwth).
The Bill sets out processes for determining whether a parent has capacity to
consent to their child's adoption, including requiring the chief executive to
apply to the Guardianship and Administration Tribunal for a declaration
about an adult parent's capacity to consent to their child's adoption.
The dispensation of a parent's consent overrides their ordinary right to
make decisions about arrangements for their child's future care and
upbringing. However, there is a need to balance the wellbeing and best
interests of the child with any right of the child's parent to make decisions
about the child's long-term care. Given this, and given the limits within
which the court must exercise its power, the provision enabling the court to
make an order dispensing with the need for a parent's consent is considered
to be justified.
· Dispensation of requirement to serve parent with copy of application
for an order dispensing with the need for that parent's consent.
Clause 36 of the Bill enables the court to dispense with the requirement to
serve a copy of the application for a dispensation order on the relevant
parent, if the court is satisfied
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Adoption Bill 2009
(a) the applicant can not establish the relevant parent's identity, after
making all reasonable enquiries; or
(b) the applicant can not locate the relevant parent, after making all
reasonable enquiries; or
(c) the relevant parent is a lineal relative of the child's mother [that is, the
child's conception was the result of incest]; or
(d) the child's conception was a result of an offence committed by the
relevant parent; or
(e) there would be an unacceptable risk of harm to the child or mother if
the relevant parent were made aware of the child's birth or proposed
adoption; or
(f) there are other special circumstances.
Dispensing with this requirement to serve the relevant parent with a copy of
the application has the effect of not making them a respondent in the
proceeding. Consequently, the parent is denied the opportunity to contest
the application for the court to make an order dispensing with their consent.
However, this is considered necessary and reasonable to protect the
interests of the child and the child's other parent's right to make decisions
about the child's long-term care in the circumstances stated above. In
addition, after the court has made a dispensation order, clause 41 of the Bill
enables the relevant parent to apply to the court for a discharge of that
order.
· Right to privacy of information
When deciding whether a person is suitable to be an adoptive parent, clause
121 of the Bill requires the chief executive to decide whether the person, or
any member of their household, would pose an unacceptable risk of
harming a child adopted by the person. As part of this decision, the chief
executive must particularly take into account the criminal, domestic
violence and traffic history of the person or of an adult member of their
household.
Therefore, to assess the suitability of persons wishing to become adoptive
parents, clause 116 of the Bill will enable the chief executive to obtain a
range of police information about them and about adult members of their
household. This will include the person's criminal and domestic violence
history, and investigative information about the person. Clause 117 of the
Bill will enable the chief executive to obtain information about the person's
traffic history. The criminal history information able to be obtained under
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Adoption Bill 2009
clause 116 will include charges and convictions spent under the Criminal
Law (Rehabilitation of Offenders) Act 1986.
The disclosure of information about charges and spent convictions is
generally objectionable on the basis that is infringes a person's rights given
the presumption of innocence and desirability for the rehabilitation of
offenders. However, the proposal is considered reasonable in that it
provides an appropriate balance between a person's right to privacy and the
need to ensure the lifelong care environment selected by the Department of
Child Safety ensures children who require an adoptive placement are kept
safe from risks that can be ascertained.
The chief executive (transport) must comply with a request to provide
traffic information about a person, despite section 77 of the Transport
Operations (Road Use Management) Act 1995 which would otherwise
prevent the release of the information to the Department of Child Safety.
However, the information relates to a person's attitudes towards road safety
and is therefore vital for the chief executive's deliberations about whether a
person is suitable to be an adoptive parent. Note that a person's traffic
history may also be obtained under the Child Protection Act 1999.
It should also be noted that the Bill allows for a review of decisions by the
Children Services Tribunal about a person's suitability to be an adoptive
parent that were made based on a person's police information or traffic
information.
· Conversion of information objections to a statement of a person's
wish not to be contacted
In relation to persons who were adopted prior to 1 June 1991, section
39AA of the Adoption of Children Act 1964 enables the birth parent of an
adopted person, or an adopted person who is at least 17 years and 6 months
old, to object in writing to contact being made and also to the disclosure of
identifying information about themselves to other parties to the same
adoption. This type of objection will continue to have effect, but only as an
expression of the person's wish not to be contacted as if it had been given
as a contact statement under part 11. That is, the objection will no longer
prevent the release of identifying information.
The Bill therefore proposes to retrospectively alter a person's expressed
objection to the release of identifying information to another person
associated with the same adoption that occurred before 1 June 1991. This
will adversely affect the person's right (as expressed in their objection) to
preserve their anonymity from others associated with the same adoption, by
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Adoption Bill 2009
keeping their identifying information confidential. This is necessary to
promote the rights of adopted people to obtain information about the
identity of their birth parents and for birth parents to obtain information
about the post-adoption identity of their child who was adopted, which was
previously denied to them by another person's information objection.
The consultation conducted about this proposed reform demonstrated that
the concerns of people who have lodged objections relate to being
contacted by another person associated with the adoption and the
consequences of such contact if it results in their family and friends
learning of the adoption. However, people were generally not concerned
that the person receiving the information would behave in a criminal or
problematic way.
A range of measures have been included in the Adoption Bill to reduce the
likelihood that a person who lodged an objection to the release of
information under part 4A of the Adoption of Children Act 1964 will
experience unwanted contact by another person associated with the same
adoption. These measures were described above under the heading
`Achieving the Objectives' in relation to access to identifying information.
The proposal to retrospectively remove a person's previous objection to the
release of identifying information is considered reasonable in light of the
fundamental right of other parties to an adoption to know their family
history and heritage. The proposal also ensures all adopted people and
birth parents have the same right of access to identifying adoption
information, regardless of whether a person was adopted before or after 1
June 1991. In addition, converting information objections to expressions of
a person's wish not to be contacted, coupled with the safeguards described
above will ensure respect for the privacy of a person who had previously
lodged an objection to the release of identifying information.
· Removal of capacity to object to release of identifying information
In relation to persons who were adopted prior to 1 June 1991, the Adoption
of Children Act 1964 enables the adopted person (who is at least 17 years
and 6 months old) and the person's birth parent to object in writing to
contact being made and also to the disclosure of identifying information
about themselves to other parties to the same adoption. The Adoption of
Children Act 1964 does not permit, and has never permitted, such
objections to be lodged in relation to adoptions that occurred after 1 June
1991.
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Adoption Bill 2009
The Bill no longer includes capacity for persons who are parties to an
adoption that occurred prior to 1 June 1991, to lodge an objection to
prevent identifying information about them from being disclosed to other
parties to the same adoption. This adversely affects the rights of all
adopted people and birth parents associated with pre-1 June 1991
adoptions, to prevent others from accessing identifying information about
them. However, this retrospective removal of their rights must be balanced
with the benefits that arise by allowing other parties to those adoptions
access to information about their identity, family and heritage. The change
in the law also ensures that parties to adoptions are treated equally,
regardless of when the adoption occurred, as there is no longer any
entitlement to object to the release of identifying information.
However, as the Bill is removing the expectation that these people would
have had to be able to lodge an objection to the release of identifying
information about themselves, the other measures explained above are
included to ensure special regard is had for their privacy and that the
release of identifying information will be managed sensitively.
Consultation
Community
The review of Queensland's adoption laws was commenced in 2001. A
comprehensive, statewide public consultation strategy was implemented
from July to November 2002, including calls for responses to the
consultation paper and participation at public forums and focus groups.
During 2004-2005, the then Minister for Child Safety established an
Adoption Consultative Forum with membership drawn from organisations
that represent the various adopted person, adoptive parent and birth parent
stakeholder groups in the adoption community.
The Future Adoption Laws for Queensland policy paper was released on 14
July 2008 to provide the community with information about the
Government's proposals for the significant reform of Queensland's
adoption laws. The reforms set out in that policy paper, and now
introduced by the Bill, are based on public consultation, research about
quality adoption practice and outcomes and developments in other
jurisdictions.
Public consultation about the possible reform of the law about access to
identifying adoption information and the right to lodge objections was
conducted from 14 July to 19 September 2008. The consultation was
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Adoption Bill 2009
informed by the Balancing Privacy and Access: Adoption Consultation
Paper which asked whether the current laws about access to identifying
adoption information continue to appropriately protect the rights and
balance the best interests of all parties to Queensland adoptions.
In particular, the paper focussed on the current law which applies in the
case of adoptions that occurred prior to 1 June 1991 and allows adopted
people and birth parents to lodge objections to prevent information about
them from being released to another person associated with the same
adoption. People who have been affected by this law were also asked to
share their experiences of accessing information, being refused information
and engaging in contact to provide some qualitative information about the
effect the current law has had on individuals.
A total of 452 responses to the Balancing Privacy and Access: Adoption
Consultation Paper were received, comprising 422 feedback forms
completed by individuals, 17 written submissions from individuals and 13
submissions from organisations.
In particular, 223 people identified as people who are subject to the law
currently set out in part 4A of the Adoption of Children Act 1964, either as
adults who were adopted in Queensland (156 people) or birth parents
whose adult children were adopted in Queensland (67 people). The views
of people who had received identifying information, been refused
identifying information, lodged objections to the release of identifying
information and revoked an objection have also been identified.
The organisations who provided submissions were (in alphabetical order):
the Aboriginal and Torres Strait Islander Legal Service, the Adoption
Privacy Protection Group, the Australian Association of Social Workers
(Queensland Branch), the Australian Council for Adoption, the CREATE
Foundation, Family Voice Australia, Jigsaw Queensland Inc, Link-Up
Aboriginal Corporation Inc, Monash University, the National Alliance of
Natural Parent Groups, the New South Wales Committee on Adoption and
Permanent Care, Origins Inc (Queensland) and the Queensland Law
Society.
Government
Consultation on the Bill has been undertaken with all relevant Government
departments including the Departments of the Premier and Cabinet; the
Department of Justice and Attorney-General; the Department of
Communities; the Queensland Police Service and Queensland Transport.
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Adoption Bill 2009
Notes on Provisions
Part 1 Preliminary
Division 1 Introduction
Short title
Clause 1 establishes the short title of the Act as the Adoption Act 2009.
Commencement
Clause 2 provides that the Act, other than part 17, division 1, commences
on a day to be fixed by proclamation.
Part 17, division 1 provides for amendments to the Adoption of Children
Act 1964, which commence on assent.
Dictionary
Clause 3 states that the dictionary in schedule 3 of the Act defines
particular words used in the Act.
Division 2 Application, object and guiding
principles
Act binds all persons
Clause 4 specifies that the Act binds all persons including the State and, as
far as the legislative power of the Parliament permits, the Commonwealth
and all the other States. However, this does not make the State, the
Commonwealth or another State liable for an offence.
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Adoption Bill 2009
Main object of Act
Clause 5 sets out the main object of the Act, which is to provide for the
adoption of children in Queensland, and for access to information about
parties to adoptions in Queensland, in a way that
(a) promotes the wellbeing and best interests of adopted persons
throughout their lives; and
(b) supports efficient and accountable practice in the delivery of adoption
services; and
(c) complies with Australia's obligations under the Hague convention.
The Hague convention is defined in the Act's dictionary to mean the
Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption, made at the Hague on 29 May 1993. A copy of the
English text of the Hague convention can be found in schedule 1 of the Act.
Guiding principles
Clause 6 provides that the Act must be administered under the principle
that the wellbeing and best interests of an adopted child, both through
childhood and for the rest of his or her life, are paramount. Therefore, this
principle underpins the way in which every other provision of the Act must
be read and administered. The operation of this paramount principle means
that if the wellbeing and interests of a child to be adopted, an adopted child,
or an adopted adult, conflict with those of another person (e.g. a birth
parent), the conflict must be resolved in favour of the proposed adopted
child's or adopted person's wellbeing and best interests.
The clause then sets out a range of further, more detailed principles that
apply to the administration of the Act. These principles reflect:
· the purpose of adoption
· the likely benefit to an adopted child of maintaining on ongoing
relationship with his or her birth family
· the participation of the parties to the adoption in the process,
including regard being had to the birth parents' views about the
child's adoption and the child's right to be involved in
decision-making about him or her.
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Adoption Bill 2009
Additional principles concerning Aboriginal and Torres Strait
Islander persons
In order to ensure that the operation of the Act specifically respects
Aboriginal tradition and Torres Strait Island custom, clause 7 states that it
must be administered under specific principles.
Firstly, these principles recognise that adoption (in the way provided for in
the Act) is not part of Aboriginal tradition or Island custom. Although the
principles note that Torres Strait Island custom does include a customary
child-rearing practice that is similar to adoption, in so far as parental
responsibility for a child is permanently transferred to someone other than
the child's parents. This practice is sometimes referred to as either
`customary adoption' or `traditional adoption'.
Following on from this main premise, the principles go on to state:
(a) adoption of an Aboriginal or Torres Strait Islander child should be
considered as a way of meeting the child's need for long-term stable
care only if there is no better option available; and
(b) it is in the best interests of an Aboriginal or Torres Strait Islander
child
(i) to be cared for within an Aboriginal or Torres Strait Islander
community; and
(ii) to maintain contact with the child's community or language
group; and
(iii) to develop and maintain a connection with the child's Aboriginal
tradition or Island custom; and
(iv) for the child's sense of Aboriginal or Torres Strait Islander
identity to be preserved and enhanced.
Subsection (2) places specific obligations on the Childrens Court when it
exercises a power under the Act in relation to an Aboriginal or Torres Strait
Islander child. The court must have regard to the views, about the child and
about Aboriginal tradition or Island custom relating to the child, of an
appropriate Aboriginal or Torres Strait Islander person. See clause 318 for
who is meant by an `appropriate Aboriginal or Torres Strait Islander
person'.
Subsection (3) provides that the chief executive and other officers of the
department must try to conduct consultations, counselling, negotiations and
other proceedings involving an Aboriginal person or Torres Strait Islander
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Adoption Bill 2009
in a way and in a place that is appropriate to Aboriginal tradition or Island
custom.
Act applies despite Anti-Discrimination Act 1991
Clause 8 overrides the Anti-Discrimination Act 1991 to provide that a
person may make a decision or do another act that is necessary to comply
with, or is specifically authorised by, the Act. This includes making a
decision or doing another act to comply with the main guiding principle,
which is that the wellbeing and best interests of the adopted child are
paramount.
Discrimination on the basis of things such as the state of a person's health,
their relationship status, pregnancy, parental status, age, race and sexuality
are also likely in relation to decisions required to be made or actions
required to be taken under the Act.
For example, when the chief executive is selecting a couple to be the
adoptive parents of a child, consideration must be given to any preferences
expressed by the child's birth parents for the child's upbringing. If the
child's birth parents have expressed a preference for the child to be brought
up in a particular religious faith or by adoptive parents of a particular
age-range, the chief executive must have regard to that preference when
selecting the child's adoptive parents, unless the selection is likely to be
contrary to the child's wellbeing and best interests. Discriminating
between people in this way is otherwise unlawful under the
Anti-Discrimination Act 1991. However, in this case the discrimination
must be allowed to occur because the chief executive must respect the birth
parent's wishes about the child's upbringing as far as possible.
A further example relates to the chief executive's obligation to have regard
to the child's particular needs in selecting prospective adoptive parents for
a child. If a child has a particular ethnic or cultural background, the chief
executive may give preference to selecting prospective adoptive parents
who have a similar background or who have previously adopted a child
from a similar background. This would also be unlawful discrimination,
either direct or indirect, under the Anti-Discrimination Act 1991.
Therefore, the Anti-Discrimination Act 1991 must be overridden to enable
many of the requirements of the adoption laws to be correctly fulfilled and
administered in a way that gives paramouncy to the wellbeing and best
interests of the child.
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Adoption Bill 2009
References to child's wellbeing or best interests
Clause 9 states that unless a contrary intention appears, a reference in the
Act to a child's wellbeing or best interests is a reference to the child's
wellbeing or best interests through both childhood and the rest of his or her
life.
This clause recognises that the adoption of a child is lifelong and that, for
some actions and decisions under the Act, it is important to consider the
child's wellbeing and best interests throughout the rest of his or her life.
Division 3 Adoptions under this Act
Who may be adopted
Clause 10 provides that only children, and not adults, may be adopted and
this will happen by an order of the Childrens Court under the Act. Also, a
child may be adopted whether or not the child has previously been adopted.
Rules of private international law not relevant
Clause 11 states that the power to make an adoption order under the Act
does not depend on any fact or circumstance not expressly stated in the
Act. This makes it clear that the operation of the rules of private
international law do not have any effect on how adoption orders are made
under the Act. For instance, if a child to be adopted in Queensland is
domiciled in a country other than Australia, then under the rules of private
international law there may be a question about which country has
jurisdiction to give effect to the proposed adoption. Clause 11 prevents the
question from arising, because it states that the power to make the adoption
order does not depend on anything outside of the Act.
Division 4 Custody and guardianship
What is the effect of custody
Clause 12 states that, for the Act, a person who has custody of a child has
(a) the right to have the child's daily care; and
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Adoption Bill 2009
(b) the right and responsibility to make decisions about the child's daily
care.
What is the effect of guardianship
Clause 13 states that, for the Act, a person who has guardianship of a child
has
(a) the right to have the child's daily care; and
(b) the right and responsibility to make decisions about the child's daily
care; and
(c) all the powers, rights and responsibilities in relation to the child that
would otherwise have been vested in the person having parental
responsibility for making decisions about the long-term care,
wellbeing and development of the child.
Part 2 Consent to adoption and related
matters
Division 1 Preliminary
Non-application to intercountry adoptions
Clause 14 provides that part 2 applies to the proposed adoption of a child
other than by an intercountry adoption. This is because, for an intercountry
adoption, the consents necessary for a child's adoption are determined by
the law of the child's country of origin and obtaining the consents is the
responsibility of the competent authority in that country.
References to parent in pt 2
Clause 15 specifies that a reference in part 2, other than division 6, to a
parent of the child does not include a person if, under section 39, a court
has dispensed with the need the person's consent to the child's adoption.
This is because part 2, other that division 6, sets out the things that must
happen in order for a parent to give consent to the adoption of the person's
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Adoption Bill 2009
child. Once the court has dispensed with the need for the parent's consent
to the adoption under division 6, these things are no longer required to
happen.
Requirement for consent
Clause 16 notes that section 175 states the requirement for a child's parents
to consent to the adoption under part 2, before the Childrens Court may
make an adoption order for the child.
Sections 175(1) and (2) establish that, for the Childrens Court to make an
adoption order for a child, each of the child's parents must have given
consent to the child's adoption or the need for the parent's consent must
have been dispensed with the child court under section 39.
The dictionary in schedule 3 defines parent to include a child's mother,
father and another person who has the right to the child's daily care and the
right and responsibility to make decisions about the child's daily care under
a law or order of a court (other than under this Act). However, if the chief
executive responsible for the administration of the Child Protection Act
1999 (referred to in the Act as the chief executive (child safety)) or a
corresponding officer of another jurisdiction is the guardian of the child,
that person's consent for the child's adoption is not required. Although,
section 178 requires the views of chief executive (child safety) to be put
before the court prior to an adoption order being made in certain
circumstances.
References to consent
Clause 17 defines what is meant by the term consent when used in part 2 of
the Act. Consent means consent freely and voluntarily given by a person
with capacity to give the consent. When the court, under section 175, must
be satisfied each parent has given consent to a child's adoption under part
2, in addition to the other requirements set out in part 2, the court must be
satisfied the person gave the consent freely and voluntarily and that the
person had capacity to give the consent.
Subsection (2) recognises that consent for a child to be adopted by a person
who is the child's step-parent under part 9, division 4 can be consent for the
child to be adopted by the step-parent only and not by any other person.
Otherwise, a consent to the child's adoption is consent to the child's
adoption generally, and not to the child's adoption by any particular person
or persons.
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Adoption Bill 2009
Division 2 Requirements about consent
Form of consent
Clause 18 sets out the way in which a parent's consent must be given and
the form it must take for the consent to be given validly under this part. The
consent must be in the approved form, must be signed by the parent and
witnessed by an authorised person.
Subsection (5) defines the term authorised person to mean a public service
employee, or other appropriate person in Queensland or elsewhere,
authorised by the chief executive to witness a consent for the Act. This
definition allows the chief executive to authorise a person who is not in
Queensland to witness a consent as it may be the case that, while a child to
be adopted is in Queensland, a parent whose consent for the child's
adoption is required is somewhere else in Australia or is in another country.
Generally, the chief executive will make arrangements with a child welfare
authority in another state, territory or country to nominate an appropriate
person to be authorised to witness the parent's consent.
Subsections (2) and (3) set out matters that must and may be included in
the approved form of consent. Subsection (4) states that a single document
may only contain the consent of one parent to the adoption of one child.
Time of consent
Clause 19 provides that a parent's consent to their child's adoption may not
be given
(a) less than 30 days after the child's birth; or
(b) less than 14 days after the parent is given the documents under section
22; or
(c) less than 14 days after the parent is given the prescribed information
under section 23; or
(d) less than 14 days after the day the counsellor swears the statement
mentioned in section 175(3)(b).
The Hague convention sets out a range of principles and obligations about
consents for adoption, one of which is that the consent of the mother has
only been given after the birth of the child. Therefore, clause 19 ensures
that the Act complies with the Hague convention in this regard, and builds
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Adoption Bill 2009
in further safeguards to ensure a parent's consent is fully informed by
providing the parent with a minimum period of time in which to consider
whether to consent to the adoption of their child, including time to consider
information given to them by the chief executive and time to consider the
matters discussed with a counsellor.
This is part of a range of measures designed to ensure a parent's consent to
their child's adoption is fully informed and given voluntarily. Other
measures are that the chief executive must give the parent particular
information about adoption (see clause 23) and provide the parent with
pre-consent counselling (see clause 24).
Revocation of consent
Clause 20 provides that a parent may revoke their consent to their child's
adoption by giving the chief executive a signed notice within 30 days after
the parent gave their consent.
The only requirement for the form of the revocation is that it is a signed
notice. However, to assist the parent, clause 22 (Parents to be given consent
forms) requires the chief executive to give the parent a document that they
may complete and use to revoke their consent.
Division 3 Giving forms, information and
counselling to parents
Obligation to enable understanding
Clause 21 places an obligation on the chief executive to ensure that
information is given to each parent as required under division 3, and
counselling of each parent is carried out as required under division 3, in a
way that enables the parent to understand. To discharge this obligation, the
chief executive must consider matters such as the degree to which the
person reads, speaks, hears and comprehends English and whether the
person's ability to understand the information will be enhanced if the
information is written in another language or provided through the use of
an interpreter or in another way.
See clauses 23, 24 and 25 which set out the requirements for what
information must be given to parents, and for counselling to be provided to
them.
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Adoption Bill 2009
Parents to be given consent documents
Clause 22 requires the chief executive to give each of the child's parents
the following documents
(a) a document showing the contents of the approved form for section 18;
and
(b) a document that the parent may use to revoke consent given by the
parent to the child's adoption.
This clause ensures the parent does not see the form they must use to
consent to their child's adoption for the first time when they are giving the
consent, but instead that the parent has had an opportunity to consider the
form before giving the consent.
A document that the parent may use to revoke the consent is also given to
the parent to assist the parent if the parent decides to revoke his or her
consent.
Parents to be given prescribed information
Clause 23 requires the chief executive to give each of a child's parents a
document containing information about the range of matters relating to
adoption listed in subsection (1), referred to in the section as the prescribed
information. Subsection (2) requires the chief executive to arrange for the
prescribed information to be explained to each of the child's parents.
The purpose of requiring the chief executive to give and explain the
prescribed information to each parent is to ensure the parent has, and
understands, the information that is necessary to make a fully informed
decision about whether or not consent to their child's adoption.
Parents to be given pre-consent counselling
Clause 24 states that the chief executive must arrange for each of the
child's parents to receive counselling about the prescribed information
given under section 23.
Subsection (2) provides that the counselling must be carried out by a
counsellor nominated by the chief executive, and subsection (3) provides
that the counsellor may be an officer of the department. However,
subsection (4) provides that if the nominated counsellor is an officer of the
department, the chief executive is required to advise the parent that he or
she may ask for further counselling by someone who is not an officer of the
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Adoption Bill 2009
department. If the parent requests this, the chief executive must nominate
another counsellor who is not an officer of the department to carry out the
further counselling. This guarantees the parent's right to have further
counselling, and to consider the matters raised in the prescribed
information, with someone who is independent of the chief executive. If the
parent is not in Queensland, the person would be another person with the
appropriate qualifications or experience in the state, territory or country the
parent is in.
Subsection (5) provides that the counselling must be carried out in a way
that allows the parent to ask questions and discuss the prescribed
information and matters arising from the information. In this way, the
counselling is another way of ensuring a parent who decides to proceed to
consent to the adoption of his or her child is fully informed and freely and
voluntarily gives the consent.
Subsection (6) specifies that if the counsellor reasonably suspects that the
parent does not have capacity to consent to their child's adoption, the
counsellor must notify the chief executive. Part 2, division 4 sets out the
chief executive's obligations to take steps to ensure a parent has capacity to
give consent to adoption if a counsellor advises the chief executive under
this section of the counsellor's suspicions that the parent does not have
capacity.
Subsection (7) states that the counsellor can offer to meet with persons
other than the parent (for example other family members who may help the
parent to consider other options for the child's long term care).
Subsection (8) states that the counselling may be carried out in one or more
sessions and by one or more counsellors.
Subsection (9) defines the term counsellor for this section as a person who
the chief executive is satisfied has the appropriate qualifications or
experience to carry out the counselling.
Pre-consent information and counselling for Aboriginal or
Torres Strait Islander child
Clause 25 applies if the child who is proposed to be adopted is an
Aboriginal person or a Torres Strait Islander and requires the counselling
given to each of the child's parents to be carried out in a way and at a place
that is appropriate to Aboriginal tradition or Island custom. This includes a
parent who is not also an Aboriginal person or Torres Strait Islander. As
part of the counselling, the person who explains to the parent the prescribed
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Adoption Bill 2009
information given to them under section 23(1)(k), need not be a counsellor
under section 24, but must be an appropriate Aboriginal or Torres Strait
Islander person.
Subsections (4) and (5) allow a parent to decline to receive the counselling
in a way and at a place that is appropriate to Aboriginal tradition or Island
custom or in part by an appropriate Aboriginal or Torres Strait Islander
person. The parent declines by giving the chief executive a signed notice in
the approved form that states the counselling was offered to the parent in
the way, or by a person, required by this section, the extent to which the
counselling is declined and that the chief executive has given the parent a
document containing the information mentioned in subsection (3) relating
to the care of an Aboriginal or Torres Strait Islander child in accordance
with Aboriginal tradition or Island custom.
The purpose of this section is to ensure each of the child's parents,
including a parent who is not Indigenous, considers matters relating to the
importance of the child's Aboriginal tradition or Island custom for the
child's care and wellbeing when making a decision about whether or not to
consent to the child's adoption.
Parents' access to legal advice
Clause 26 requires the chief executive to ensure that each of the child's
parents is told that they may wish to seek legal advice and that they are
given the details of at least 1 entity that generally provides free legal
services. This acknowledges that adoption has legal consequences and that
a parent should be given an opportunity to explore these consequences with
the advice of a lawyer.
Division 4 Ensuring parents have capacity to
consent
Meaning of qualified person for div 4
Clause 27 defines the term qualified person for the purposes of division 4
as a person who, if called as a witness in a proceeding, would be qualified
to give expert evidence on the issue whether a parent has capacity to give
consent to an adoption of the child.
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Adoption Bill 2009
Assessing whether a non-adult parent has capacity to consent
Clause 28 applies if a parent of the child is not an adult. The clause
requires the chief executive to have a qualified person assess whether the
parent has capacity to give the consent before the parent gives consent to
the adoption. Subsection (3) states that the qualified person must not be the
same person who counsels the parent under section 24.
Declaration of tribunal whether an adult parent has capacity to
consent
Clause 29 applies to an adult parent of the child if a counsellor under
section 24 notifies the chief executive that the counsellor reasonably
suspects the parent does not have capacity to consent to the adoption or the
chief executive otherwise knows or reasonably suspects the parent does not
have capacity to consent to the adoption.
Subsection (2) requires the chief executive to apply to the Guardianship
and Administration Tribunal for a declaration about the parent's capacity to
give the consent before the parent may consent to the adoption. (See
section 146 of the Guardianship and Administration Act 2000). The parent
may then only give the consent if the tribunal declares the parent does have
the requisite capacity (see section 17(1) for the requirement for a person
giving consent to have the capacity to give the consent.).
However, if the parent is not in Queensland at the time the parent's consent
is proposed to be given, subsection (3) requires the chief executive to take
the following steps--
(a) if it is possible for the chief executive to make an application,
equivalent to an application mentioned in subsection (2), in the
jurisdiction where the parent is, the chief executive must make that
application;
(b) otherwise, the chief executive must ensure a qualified person assesses
whether the parent has capacity to give the consent.
Appointment of guardian for adult parent without capacity to
consent
Clause 30 applies if the Guardianship and Administration Tribunal makes a
declaration that the parent does not have capacity to give the consent and
the parent does not have a guardian under the Guardianship and
Administration Act 2000 for the matter of dispensation.
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Adoption Bill 2009
Subsection (2) requires the chief executive, before making an application
under division 6 for an order for dispensation, to apply to the Guardianship
and Administration Tribunal for an order appointing a guardian for the
matter of the dispensation. This will enable the guardian to act in the
parent's interests in relation to a proceeding for the dispensation by, for
example, engaging a lawyer to represent the parent in the proceeding.
Division 5 Identifying child's father and related
matters
Application of div 5
Clause 31 provides that division 5 applies in relation to a child if, so far as
the chief executive is aware, every consent required for the child's adoption
has been given other than the consent of the child's father.
Establishing father's identity and location
Clause 32 requires the chief executive to take reasonable steps to establish
the identity and location of the child's father.
Article 18 of the United Nations Convention on the Rights of the Child
provides that governments should, as far as possible, ensure that both
parents have common responsibilities for the upbringing and development
of a child. Clause 32 contributes to the Act's compliance with this article
of the Convention by requiring that every reasonable effort is made to
identify and locate a child's father. The objective being that if the father
can be identified and located, he can be given the opportunity to participate
in decisions about the child's adoption or other long-term care
arrangements, where this is appropriate.
Giving notice to father or person suspected to be father
If the chief executive knows or reasonably suspects a person is the child's
father, clause 33 requires the chief executive to give him a notice stating
(a) the other consent or consents to the child's adoption have been given;
and
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Adoption Bill 2009
(b) how he may give his consent; or take steps to establish whether he is
the child's father; or apply under the Family Law Act 1975 (Cwlth) for
a parenting order for the child.
However, it is acknowledged that there are some circumstances in which it
would not be appropriate to have a child's father involved in any
considerations about the child's adoption or long-term care, and that the
decisions about this should be made only by the child's mother and/or
another guardian. Therefore, subsection (2) states that the requirement to
give the notice to the person does not apply if the chief executive is
satisfied
(a) the person is a lineal relative of the child's mother (that is, the child
was conceived as a result of incest); or
(b) the child was conceived as a result of a criminal offence committed by
the person (for example, rape); or
(c) there would be an unacceptable risk of harm to the child or the mother
if the person were made aware of the child's birth or proposed
adoption.
Under clause 39, the court may not dispense with the consent of a man
believed to be a child's father within 30 days of the notice required by this
clause or if the court has reason to believe there is a current application in a
court for a declaration about paternity of for a parenting order for the child.
Chief executive may apply for declaration of paternity
Clause 34 provides that for the Status of Children Act 1978, section
10(1)(c), the chief executive is a person having a proper interest in the
result of the question whether the relationship of father and child exists
between the child and another person. This enables the chief executive to
apply to the Supreme Court under section 10(1) of the Status of Children
Act 1978 for a declaration about the paternity of a child. This course of
action may become necessary for example, in circumstances where the
chief executive suspects a man of being a child's father but the man denies
this and refuses to submit to a testing procedure to determine whether he is,
or is not, the child's father.
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Adoption Bill 2009
Division 6 Dispensing with requirement for
parent's consent
Application for dispensation
Where necessary and appropriate, it will be possible for the Childrens
Court to make an order dispensing with the need for the consent of a stated
parent to a child's adoption (the relevant parent). Clause 35 initiates this
process by allowing the chief executive, or a person who has made an
application to the chief executive under part 5 to adopt a stepchild, to apply
to the Childrens Court for an order dispensing with the need for the consent
of the relevant parent to the child's adoption. The application must state
the grounds on which it is made.
Notice of application
Clause 36 requires the applicant to serve a copy of the application on the
relevant parent and, if the applicant is not the chief executive, on the chief
executive as soon as practicable after filing the application in the court.
The clause provides that a served copy must state where and when the
application is to be heard and a copy served on the relevant parent must
also state that the application may be heard and decided even though the
relevant parent does not appear in court.
However, subsection (4) provides that the court may dispense with the
requirement to serve a copy of the application on the relevant parent if the
court is satisfied that
(a) the applicant can not establish the relevant parent's identity, after
making all reasonable enquiries; or
(b) the applicant can not locate the relevant parent, after making all
reasonable enquiries; or
(c) the relevant parent is a lineal relative of the child's mother; or
(d) the child's conception was a result of an offence committed by the
relevant parent; or
(e) there would be an unacceptable risk of harm to the child or mother if
the relevant parent were made aware of the child's birth or proposed
adoption; or
(f) there are other special circumstances for giving the dispensation.
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Adoption Bill 2009
For paragraph (4)(d), the court can be satisfied that the child's conception
resulted from an offence committed by the relevant parent, irrespective of
whether the parent has been charged with, or convicted of, an offence.
Clause 226(2) provides that, if the Childrens Court is to be satisfied of a
matter on an application for an order, the court need only be satisfied of the
matter on the balance of probabilities. In this circumstance, the court need
only be satisfied that the child's conception was the result of an offence
committee by the relevant parent on the balance of probabilities.
Respondent
Clause 37 makes a relevant parent served with a copy of the application a
respondent in the proceeding for an order dispensing with the need for his
or her consent. Also, if the chief executive is not the applicant, the chief
executive may apply to the court to be included as a respondent in the
proceeding.
Hearing of application in absence of relevant parent
Clause 38 provides that the court may hear and decide the application in
the absence of the relevant parent only if the relevant parent has been given
reasonable notice of the hearing and failed to attend or continue to attend
the hearing or the court dispenses with the requirement to serve a copy of
the application on the relevant parent.
However, this does not limit the court's jurisdiction to exclude a person
from a proceeding.
Court may dispense with need for consent
Clause 39 allows the court to make an order dispensing with the need for
the relevant parent's consent to the adoption of their child. Subsection (1)
sets out the range of bases on which the court may make the order, which
relate to the relevant parent not being able to be identified or found, the
child's conception resulting from the commission of an offence, the risk of
harm to the mother or child and the relevant parent's capacity to give the
consent and the existence of other special circumstances.
Subsection (1)(e) allows the court to make the order dispensing with the
need for the relevant parent's consent where the parent is not, and will not
be within a time frame appropriate to the child's age and circumstances,
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Adoption Bill 2009
willing and able to protect the child from harm and meet the child's need
for long-term stable care and is also unreasonably:
· withholding his or her consent to the adoption; or
· refusing to engage with the chief executive in relation to the issue of
whether to give consent to the adoption.
However, subsection (2) provides that if the relevant parent is or is believed
to be the child's father, the court may not give the dispensation within 30
days after notice is given to the relevant parent under section 33 there is
reason to believe there is
(i) a current application under section 10 of the Status of Children Act
1978 for a declaration of paternity for the child; or
(ii) a current application under the Family Law Act 1975 (Cwlth) by the
relevant parent for a parenting order for the child.
Subsection (3) provides that the court must not give the dispensation unless
satisfied it would be in the child's best interests for arrangements for the
child's adoption to continue to be made.
Subsection (4) sets out further matters the court must take into account to
determine whether it would be in a child's best interests for arrangements
for the child's adoption to continue to be made. Where the application for
dispensation relates to an application by a person to adopt the person's
step-child, the court must be satisfied the grounds for making an adoption
order in favour of the applicant are likely to exist. These grounds are set out
in clause 208.
Where the application relates to a child who is in the custody or
guardianship of the chief executive (child safety) or someone else under the
Child Protection Act 1999 the court must consider anything in a case plan
in force for the child under that Act about adoption as a way of meeting the
child's need for long-term stable care or re-uniting the child with the
child's family. The court must also consider whether there is another way
of meeting the child's need for long-term stable care that would better
promote the child's wellbeing and best interests.
There will be some circumstances in which the child to be adopted is old
enough to be able to form their own views about the adoption. This is
likely where a step-parent has applied to adopt the child, or where the child
has been in the child protection system and the proposed adoption is a way
of securing a permanent family environment for the child. If it is the case
that the child has views about the adoption, subsection (5) requires the
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Adoption Bill 2009
court to consider the child's views about the relevant parent, having regard
to the child's age and ability to understand.
Notice of court order
Clause 40 provides that if the court makes an order dispensing with the
need for the relevant parent's consent, and the chief executive was not the
person who applied for the order, the person who was the applicant must
give the chief executive a copy of the order.
Discharge of dispensation order if relevant parent not served
with application
Clause 41 allows a relevant parent or the chief executive to apply to the
court for a discharge of an order dispensing with the need for the relevant
parent's consent if a copy of the application for the dispensation order was
not served on the relevant parent.
In this case, subsection (3) requires the person applying for the discharge of
the dispensation order (i.e. the chief executive or the relevant parent) to
serve a copy of the application on each party to the proceeding for the
dispensation order.
Subsection (4) allows the court to discharge the dispensation order if an
adoption order for the child has not been made and the court is satisfied the
ground on which the dispensation order was made does not apply.
To remove doubt, subsection (5) provides that the discharge of a
dispensation order does not affect a consent given by anyone else to the
child's adoption, unless the court decides otherwise.
Division 7 Complying interstate consents
Consent given under a law of another State
Clause 42 states that a complying interstate consent has effect for the Act
as if it were a consent given under this part.
A person's consent is a complying interstate consent if an authorised
officer for another State has given the chief executive a notice stating that
the consent was given, by signed writing, under a law of the other State and
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Adoption Bill 2009
it has not been revoked under that law and a written authorisation to make
arrangements for the adoption of the child in Queensland.
For the purposes of this clause, subsection (3) defines authorised person
for another State as means an officer who, under the law of the State, is
authorised to make arrangements for the adoption of children in the State.
Division 8 Giving information, counselling and
support to child
Application of div 8
Clause 43 specifies that this division applies if the child is able to form and
express views about the adoption.
Child must be given information
Clause 44 requires the chief executive to ensure the child is given the
prescribed information before an application for an adoption order for the
child is made. The information must be given in a way and to an extent that
is reasonable, having regard to the child's age and ability to understand.
Subsection (3) defines the prescribed information that must be given to the
child.
Child must be given counselling
Clause 45 states that the chief executive must ensure the child receives
counselling about the proposed adoption, from a counsellor nominated by
the chief executive, before an application for an adoption order is made.
Subsections (2) and (3) provide that the counselling must be carried out in
a way and to an extent that is reasonable, having regard to the child's age
and ability to understand and that it may be carried out in one or more
sessions and by one or more counsellors.
The clause defines a counsellor for this section as a person who the chief
executive is satisfied has the appropriate qualifications or experience to
carry out the counselling.
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Adoption Bill 2009
Counselling for Aboriginal or Torres Strait Islander child
Clause 46 applies if the child who is proposed to be adopted is an
Aboriginal person or a Torres Strait Islander. The clause provides that the
counselling must be carried out in a way and at a place that is appropriate
to Aboriginal tradition or Island custom. As part of the counselling, the
person who explains to the child the prescribed information given to them
under section 44(3), need not be a counsellor, but must be an appropriate
Aboriginal or Torres Strait Islander person.
However, this requirement does not apply to the extent the child declines to
receive counselling in a way, or by an appropriate Aboriginal or Torres
Strait Islander person.
Child may be given other support
Clause 47 states that the chief executive may appoint a qualified person to
support the child during the adoption process. The clause defines a
qualified person for this section as a social worker, a lawyer or other
person who the chief executive is satisfied has the necessary expertise or
experience to give the relevant support and who is not an employee of the
department.
Part 3 Custody and guardianship of a
child awaiting adoption
Division 1 Custody of child under care
agreement
References to parent in div 1
Clause 48 provides that a reference in part 3, division 1 to a parent of a
child does not include a person if, under section 39, a court has dispensed
with the need for the person's consent to the child's adoption.
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Adoption Bill 2009
Meaning of care agreement
Clause 49 provides that for part 3, division 1, a care agreement means an
agreement under the division between a child's parent and the chief
executive for the short-term placement of the child in care while consents
for the child's adoption are obtained.
Entering into care agreements
If a parent has indicated to the chief executive that they may consider
adoption for the long-term care of their child, clause 50 provides that the
chief executive (child safety) may enter into a care agreement with a parent
who has custody of the child. Note that the chief executive (child safety) is
defined in the Act's dictionary as the chief executive of the department in
which the Child Protection Act 1999 is administered.
The agreement must be in the approved form, signed by the parties and
state:
(a) arrangements for contact between the child and the parents; and
(b) the type of decisions relating to the child for which the parents must
be consulted.
Subsection (4) provides that the child may also be a party to the agreement
if the chief executive (child safety) considers it appropriate, having regard
to the child's age and ability to understand.
Effect of care agreement
Clause 51 provides that while a care agreement is in force, the chief
executive (child safety) has custody of the child and may place the child in
care under the Child Protection Act 1999, chapter 2, part 6 division. 4.
Subsection (2) provides that the Child Protection Act 1999, sections 74
(Charter of rights for a child in care), 90 (Notice of removal from care) and
162 (Offence to remove child from custody or guardianship) apply as if a
reference in those sections to a care agreement included a care agreement
under this Act.
No agreement against the wishes of a parent
Clause 52 provides that a parent of a child may give the chief executive
(child safety) notice that the parent does not wish the child to be placed in
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Adoption Bill 2009
care under a care agreement. If the chief executive receives such a notice
from the parent the chief executive (child safety) must not enter a care
agreement for the child with another parent of the child or, if a care
agreement is in force for the child with another parent of the child, the chief
executive (child safety) must end the agreement under section 54.
Maximum period of care agreement
Clause 53 states that a care agreement may not be entered into for a child if
one or more care agreements have already been in force for the child for a
total period of 1 year. A care agreement expires if the total period for which
the care agreement, and any other care agreement entered into for the child
under this division, have been in force is 1 year.
Ending of care agreement
Clause 54 provides that a care agreement has effect until the chief
executive becomes a guardian of the child under section 57 unless it ends
earlier under this division. The chief executive becomes the child's
guardian under clause 57 when the child's parents have given their consent
to the child's adoption, or the need for their consent has been dispensed
with.
Subsection (2) provides that a care agreement may be ended at any time
with the agreement of the chief executive and each parent who is a party to
the agreement or, under subsection (3), by one party by giving at least two
days notice to the other parties.
Subsection (4) states that a care agreement ends if the chief executive (child
safety) obtains custody or guardianship of the child under the Child
Protection Act 1999. In circumstances where a care agreement ends and the
child is a child in need of protection under the Child Protection Act 1999,
the chief executive (child safety) may take the action under that Act that the
chief executive (child safety) considers appropriate.
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Adoption Bill 2009
Division 2 Guardianship of child after consent is
given to local adoption
Application of div 2
Clause 55 provides that division 2 applies to the proposed adoption of a
child by a local adoption.
Definitions for div 2
Clause 56 defines the terms consent and dispense with, in relation to the
need for a parent's consent, for the purposes of this division.
Chief executive becomes guardian when consent is given or
dispensed with
Clause 57 applies when a parent consents to their child's adoption, or when
the need for a parent's consent to the child's adoption is dispensed with.
Subsections (2) and (3) provide that the parent stops having guardianship
of the child and the chief executive becomes a guardian of the child.
Subsection (4) provides that no-one else's guardianship of the child is
affected by this. This means the chief executive could have guardianship of
the child at the same time that another parent or guardian also has
guardianship of the child.
Child may be placed in care
If the chief executive becomes a child's guardian under the previous
section, clause 58 enables the chief executive to place the child in care
under the Child Protection Act 1999, chapter 2, part 6, division 4.
Effect of consent or dispensation ending
Clause 59 applies if a parent revokes his or her consent to the child's
adoption under section 20 or an order dispensing with the need for a
parent's consent is overturned on appeal or discharged.
Subsections (2) and (3) provide that the parent's guardianship of the child
resumes and the chief executive's guardianship under section 57, because
of the consent or dispensation, ends. However, subsection (4) provides that
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Adoption Bill 2009
the chief executive's guardianship under section 57, because of another
parent's consent or another dispensation, is not affected.
Chief executive may place child in parents' care
Clause 60 applies if:
(a) the chief executive is the child's guardian under section 57; and
(b) it is at least 30 days since, for each of the child's parents, his or her
consent was given or the need for his or her consent was dispensed
with; and
(c) the chief executive is satisfied one or more of the child's parents are
willing and able to protect the child from harm and meet the child's
need for long-term stable care and it would otherwise be in the child's
best interests to be placed in the care of one or more of the parents;
and
(d) an interim order is not in force for the child.
Subsection (2) allows the chief executive to place the child in the care of
one or more of the parents by giving each of them a signed notice. On
placement of the child with one or more of the parents, subsection (3)
provides that the chief executive's guardianship of the child under section
57 ends and a consent to the child's adoption given by a parent of the child
stops having effect.
Other ending of chief executive's guardianship
Clause 61 provides that the chief executive's guardianship of the child
under section 57 ends if
(a) a final adoption order for the child is made; or
(b) a court makes an order ending the chief executive's guardianship of
the child; or
(c) under a law of another jurisdiction, the chief executive agrees to
someone else having guardianship of the child for the purpose of the
child's adoption under that law.
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Adoption Bill 2009
Guardianship under Child Protection Act not affected
Clause 62 provides that nothing in the division affects the chief executive
(child safety)'s guardianship of a child under the Child Protection Act
1999.
Division 3 Transfer of guardianship between
chief executive and corresponding
officer for another State
Corresponding officers
Clause 63 defines the term corresponding officer for another State to mean
an officer with powers and functions substantially corresponding to the
chief executive's powers and functions under the Act.
Chief executive may renounce guardianship
Clause 64 applies if
(a) the chief executive is a guardian of a child under section 57; and
(b) it is at least 30 days since the last consent required for the adoption
was given; and
(c) the chief executive has received a notice from a corresponding officer
for another State stating that the corresponding officer wishes to
arrange for the child's adoption in the other State and asking the chief
executive to renounce the chief executive's guardianship of the child.
Subsection (2) provides that if the chief executive is satisfied it would be in
the child's best interests, the chief executive may, by a signed document,
renounce the chief executive's guardianship of the child.
Subsection (3) provides that immediately after signing the document in
subsection (2), the chief executive must give to the corresponding officer
the document and all consents to the adoption of the child held by the chief
executive.
Subsection (4) provides that when the chief executive gives the documents
to the corresponding officer, the chief executive stops having guardianship
of the child.
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Adoption Bill 2009
Chief executive may ask corresponding officer to renounce
guardianship
Clause 65 applies if the chief executive wishes to arrange for a child's
adoption and a corresponding officer for another State has guardianship of
the child under a law of the other State substantially corresponding to
section 57.
Subsection (2) allows the chief executive to ask the corresponding officer
to give the chief executive a document under which the officer renounces
the officer's guardianship of the child. If the chief executive receives such a
document, the chief executive becomes the guardian of the child. This
subsection also contains a note to explain that the chief executive may also
ask the corresponding officer to give the chief executive any of the
following documents
· a consent to the adoption of the child given under the law of the other
State, that is held by the officer.
· a document mentioned in section 42.
Part 4 Recruitment and selection of
prospective adoptive parents
Division 1 Planning
Chief executive must plan for future need
The chief executive has an obligation to find suitable prospective adoptive
parents to care for children from Queensland who require an adoptive
placement. Also, under arrangements that Australia has entered into with
other countries about adoption, the Queensland Government has agreed to
find suitable prospective adoptive parents for children from overseas who
require the permanent care of a family.
Clause 66 assists in meeting the chief executive's obligation to children
who require adoptive families by requiring the chief executive to plan
continually for the future need for adoptive parents by
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Adoption Bill 2009
(a) anticipating the numbers and characteristics of children likely to need
an adoptive placement by local adoption; and
(b) anticipating the numbers and characteristics of children likely to be
placed for an intercountry adoption from each country with which
arrangements have been made or with which it is anticipated
arrangements will be made; and
(c) anticipating what are likely to be the placement needs of the children;
and
(d) identifying the numbers and profiles of prospective adoptive parents
likely to be needed, having regard to the matters mentioned in
paragraphs (a) to (c).
The purpose of the planning phase is to anticipate the likely needs of
children who will require adoption and to identify the number and profile
of prospective adoptive parents likely to be required to meet the placement
needs of these children.
Deciding number of parents to be assessed
Clause 67 requires the chief executive to, at least once in each financial
year, decide the numbers of persons with different profiles that it would be
reasonable to assess for suitability to ensure there are enough suitable
prospective adoptive parents to meet the needs identified under section 66,
paragraph (d).
For the purpose of deciding the number of persons it would be reasonable
to assess for suitability, subsection (2) requires the chief executive to have
regard to the numbers and profiles of persons currently listed in the suitable
adoptive parents register, and to the considerations that
(a) if too few persons with appropriate profiles are assessed, the need for
adoptive parents may not be met within a reasonable time; and
(b) if too many persons with appropriate profiles are assessed, this--
(i) may be an inefficient use of resources; and
(ii) may unnecessarily raise the expectations of some of the assessed
persons about the likelihood of their adopting a child; and
(iii) may unnecessarily intrude on the privacy or personal affairs of
the persons assessed who are not likely to be required.
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Adoption Bill 2009
This process allows the chief executive to limit the number of people on the
expression of interest register who are assessed to determine their
suitability to be an adoptive parent.
Division 2 Making expressions of interest
Who may make an expression of interest
Clause 68 states that a couple may make an expression of interest in being
assessed for suitability to be adoptive parents. Subsection (2) clarifies that
an expression of interest may only be made by a couple, by stating that a
person may not make an expression of interest unless the person has a
spouse and makes the expression of interest jointly with their spouse.
Subsection (3) provides that a person may not express an interest if the
person's name is already in the expression of interest register or the suitable
adoptive parents register or if the person has custody of a child under an
interim order. This is because the chief executive would not generally invite
a couple to begin the assessment process if any of these circumstances
existed.
Form
Clause 69 explains that a couple must make an expression of interest by
giving the chief executive a notice in the approved form. Subsection (2)
requires the form to be signed by the couple and by each person who is, at
the time the form is given to the chief executive, an adult member of the
couple's household.
Subsection (3) stipulates that the information required by the approved
form may include the following for each member of the couple
(a) information demonstrating the person's eligibility to have his or her
name entered in the expression of interest register;
(b) information demonstrating the person's compliance with a
requirement prescribed under section 71 or another requirement under
the division;
(c) information relating to the person's profile, including--
(i) any preferences of the person relating to the characteristics of a
child whom the person is willing to adopt; and
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Adoption Bill 2009
(ii) other information relevant to whether the person would meet the
anticipated placement needs of children relevant to the
expression of interest;
(d) information relevant to the person's suitability, including information
about the person's health and personal history;
(e) membership of the person's household;
(f) information of which the person is aware, or that the person
reasonably suspects, about the personal history of each adult member
of the person's household.
Note that the term personal history is defined in the Act's dictionary to
mean criminal history, domestic violence history and traffic history.
To ensure that the couple is provided with information about the
assessment process, subsection (4) provides that the approved form must
include information about the assessment that will be carried out under part
6 if the couple is selected for assessment under division 5.
Nomination relating to local or intercountry adoption
Clause 70 provides that an expression of interest must state whether it
relates to a local adoption, an intercountry adoption or both. In addition, if
the expression of interest relates to an intercountry adoption, it must state
each country for which the couple wish to be considered.
Other requirements for expressing an interest
Clause 71 provides power for a regulation to be made to prescribe
requirements a couple must comply with before or when expressing an
interest. For example, a regulation may prescribe that the couple must
(a) attend a departmental information session within a stated time before
expressing an interest; or
(b) when expressing an interest, be able to demonstrate that one or both of
them has the ability to personally care for a child full-time for a stated
period after the child is placed with them; or for an intercountry
adoption that the couple has an ability to meet the full costs involved
in completing the adoption process within a stated period.
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In addition, subsection (3) provides that a regulation may prescribe a fee
payable for an information session or other thing relating to a requirement
under the section.
Person may express an interest despite previous expressions
Clause 72 clarifies that a person may express an interest even though they
have previously expressed an interest, or purported to express an interest,
and either
(a) the person was not eligible or, for another reason, their expression of
interest or purported expression of interest did not comply with the
requirements of the division; or
(b) the person's name was removed from the expression of interest
register.
Changes to current expression of interest or relevant
information
Clause 73 provides that a couple with a current expression of interest may
change their preferences relating to the characteristics of a child who they
are willing to adopt or a country for which they wish to be considered for
an intercountry adoption. They make the change by giving a notice to the
chief executive.
Subsection (2) states that a couple with a current expression of interest may
also notify the chief executive of any other new information or changes in
information previously given to the chief executive.
No expressions of interest while register is closed
Clause 74 explains that an expression of interest may not be made while
the expression of interest register, or a part of it to which the expression of
interest relates, is closed. Division 4 provides for the closing and
re-opening of the expression of interest register.
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Division 3 Expression of interest register
Expression of interest register
Clause 75 requires the chief executive to keep a register of persons who
have made an expression of interest. The register will be the expression of
interest register.
Subsection (2) stipulates that the chief executive may only, and must, enter
a person's name in the expression of interest register if
(a) the person and the person's spouse make an expression of interest
under division 2; and
(b) the chief executive is satisfied the person and the person's spouse are
both eligible to have their names entered in the expression of interest
register (see clause 76).
Eligibility for inclusion in register
Clause 76 sets out the criteria that a person must meet to be eligible to have
his or her name entered or remain in the expression of interest register.
Under clause 80(1)(a), the person's name must be removed from the
register if he or she is not eligible to have his or her name remain in the
register under this section.
Notice and information to persons entered in register
Clause 77 places a requirement on the chief executive to give a couple a
notice after entering their names in the expression of interest register. The
notice must state that the couple's names have been entered in the register,
explain the selection and assessment processes and contain information
about fees and other costs associated with the adoption process.
The reason for giving the notice is to let the couple know that their names
are now listed in the register, and to alert them about what to expect with
regards to the next stages of the adoption process.
Notice to persons not entered in register
If a person has made, or purported to make, an expression of interest under
division 2, and the chief executive considers that their name may not be
entered in the expression of interest register (see clause 75(2)), then clause
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78 requires the chief executive to give the person a show cause notice.
This notice must state
(a) that the person's name has not been entered in the register; and
(b) why the person's name has not been entered in the register; and
(c) that the person may, within a stated time of at least 28 days, give the
chief executive a written response about entering the person's name in
the register.
Subsection (3) requires the chief executive to consider any response given
by the person within the time stated in the show cause notice before
deciding whether the person's name may be entered in the register.
Subsection (4) provides that if the chief executive subsequently decides the
person's name may not be entered in the register, the chief executive must
give the person an information notice for the decision.
The dictionary in schedule 3 explains that an information notice, for a
decision, means a written notice stating the reasons for the decision, that
the person to whom the notice is given may apply to the tribunal to have the
decision reviewed and how the person may apply for the review, including
the time by which the application must be made.
Automatic removal from register
Clause 79 sets out the circumstances in which the chief executive must
remove a person's name from the expression of interest register, that is, if
(a) it is 2 years since the person's name was entered in the register and the
person has not been given a notice under section 91 stating that the
person and the person's spouse have been selected for assessment; or
(b) the person has given the chief executive a written request to remove
the person's name from the register; or
(c) the name of the person's spouse is not in the register.
Subsection (2) provides that after removing the person's name from the
expression of interest register in accordance with this section, the chief
executive must give the person a notice stating that the person's name has
been removed from the register, and the reason for the removal.
The effect of clause 79(1)(a) is to require a couple to lodge a new
expression of interest after two years, if they have not been assessed for
suitability to be adoptive parents. This is to ensure that people reconsider
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their decision to pursue adoptive parenthood at regular intervals and ensure
that the expression of interest register only contains the names of people
who are currently committed to the adoption process. A couple will be
able to lodge a new expression of interest at any time and, in doing so, will
demonstrate their ongoing commitment to adoption. Note that there is no
fee payable for lodging an expression of interest.
Other removal from register
People who lodge expressions of interest must maintain their eligibility and
must participate in the adoption process honestly and in good faith.
Therefore, clause 80 sets out other reasons for removing a person's name
from the expression of interest register.
Subsection (1) states that the chief executive must remove a person's name
from the register if
(a) the person or person's spouse is not eligible to have his or her name
remain in the register; or
(b) the person has not complied with a requirement under section 112 to
pay a prescribed fee or part of a prescribed fee relating to an
assessment of the person.
Subsection (2) states that the chief executive may remove a person's name
from the register if
(a) the person does not comply with a notice under section 81 or 114,
under which the chief executive may give a notice requiring the
person to give any relevant information, by the due day for the notice;
or
(b) the person contravenes section 82 or 115, which requires a person to
notify the chief executive of changed or new information in relation to
a matter; or
(c) the person gives information to the chief executive for the Act that is
false or misleading in a material particular.
Subsection (3) provides that before removing a person's name from the
register under this section, the chief executive must give the person a show
cause notice stating
(a) that the chief executive proposes to remove the name; and
(b) the reason for the proposed removal; and
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(c) that the person may, within a stated time of at least 28 days, give the
chief executive a written response to the proposed removal.
Subsection (4) requires the chief executive to consider any response given
by the person within the time stated in the show cause notice before
deciding whether to remove the person's name from the register.
Subsection (5) states that if the chief executive decides not to remove the
person's name from the register, the chief executive must give the person
notice of this decision. Subsection (6) provides that if the chief executive
subsequently decides to remove the person's name from the register, the
chief executive must give the person an information notice for the decision.
The dictionary in schedule 3 explains that an information notice, for a
decision, means a written notice stating the reasons for the decision, that
the person to whom the notice is given may apply to the tribunal to have the
decision reviewed and how the person may apply for the review, including
the time by which the application must be made.
Subsection (7) provides that for the requirement in subsection (1)(a) to
remove a person's name from the register if the person is not eligible to
have his or her name remain in the register, a woman does not become
ineligible to have her name remain in the register on the ground of being
pregnant unless she is at least 14 weeks pregnant.
Chief executive may require further information
Clause 81 states that a person with a current expression of interest must
give the chief executive any relevant information that the chief executive
reasonably requires to decide whether the person is eligible to have his or
her name remain in the expression of interest register, or whether the
person has complied with division 2.
Subsection (3) states that the chief executive may seek the information by
giving the person a notice stating the information that the chief executive
requires, the day by which the person must give the information to the chief
executive and the consequence under subsection (7) if the information is
not given to the chief executive by the due day.
Subsection (4) provides that the due day for giving the information must be
reasonable and must be at least 14 days after the notice is given. Subsection
(6) enables a later due day to be set for giving the information. On or
before the due day, the chief executive may give the person a further notice
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substituting a later due day if satisfied it would be reasonable in all
circumstances to do so.
Subsection (5) allows the chief executive to withdraw the requirement, or
part of the requirement, at any time.
If the person does not give the chief executive the required information by
the due day, subsection (7) states that
(a) if the person's name has not been entered in the expression of interest
register, the person's expression of interest lapses;
(b) if the person's name is in the expression of interest register, the chief
executive may remove the name under section 80(2)(a);
(c) if the person's name is in the suitable adoptive parents register, the
chief executive may remove the name under section 146(2)(b).
Subsection (8) defines the terms due day and information as they apply for
the section.
Obligation to notify chief executive of changed or new
information relevant to eligibility
Clause 82 applies if
(a) the person has given information about a matter to the chief executive
under this part or part 6; and
(b) the person becomes aware that the information has changed or
becomes aware of new information relating to the matter; and
(c) the changed or new information is relevant to whether the person is
eligible to have his or her name entered or remain in the expression of
interest register.
Subsection (2) requires the person to immediately give the chief executive
a notice of the changed or new information.
Inclusion in register does not confer entitlement
Clause 83 explains that inclusion of a person's name in the expression of
interest register does not confer an entitlement on that person to be
assessed, or to be selected for assessment, for suitability to be an adoptive
parent. This is to reinforce that adoption is about the needs of children who
require an adoptive family and that no person has a right to adopt a child.
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Division 4 Closing and re-opening expression of
interest register
Chief executive may close register
Clause 84 provides that the chief executive may close the expression of
interest register, or part of it, if satisfied the number of persons listed in the
register, having regard to their profiles, is significantly higher than the
number needed to meet the anticipated need for adoptive parents. This is
can occur because there are significantly more people who express an
interest in adoption each year, than there are children who are adopted.
Also, it is not uncommon for intercountry adoption programs to slow
down, or to close altogether, particularly as countries develop their own
local adoption programs and are able to find local families to care for
children.
A decision to close the register, or a part of it, as necessary, will reduce the
likelihood of unnecessarily raising the expectations of some people that
they will be able to adopt a child. In addition, it will mean that the privacy
and personal affairs of people who are not likely to be required to meet the
needs of children requiring adoption, would not be intruded upon
unnecessarily.
Subsection (1) states that the chief executive may act under subsection (1)
in relation to
(a) the whole of the register; or
(b) a part of the register relating to--
(i) local adoptions; or
(ii) intercountry adoptions; or
(iii) intercountry adoptions from a stated country; or
(iv) adoptions of children with stated characteristics.
Subsection (3) explains that the reference in subsection (1) to the
anticipated need for adoptive parents includes, for intercountry adoptions
from a particular country, the extent to which applications or expressions of
interest from Australian couples are being received at the relevant time by
the country's competent authority.
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Notice of closure
Clause 85 requires the chief executive to publish, at least 30 days before
closing the expression of interest register or a part of it, in a newspaper
circulating throughout the State, notice of the extent of the closure, the
reason for the closure and the last day for giving an expression of interest to
the chief executive before the closure.
Subsection (2) provides that the notice may include any other information
the chief executive considers appropriate. For example, if there is a time
when the chief executive anticipates the register or part of it will be
re-opened, the notice may state that time.
Subsection (3) provides that the notice may also be published in other ways
the chief executive considers appropriate.
Periodic review of closure
Clause 86 provides that, at intervals of not more than 6 months after the
expression of interest register, or part of it, is closed the chief executive
must consider whether the closure remains appropriate .
Re-opening the register
Clause 87 states that the chief executive may re-open the expression of
interest register, or part of it, if satisfied it would be appropriate to do so,
having regard to the matters stated in section 84.
Subsection (2) states that the chief executive must publish notice of the
re-opening in a newspaper circulating throughout the State and in any other
way the chief executive considers appropriate.
Division 5 Selections for assessment
Selection to meet anticipated future need
Clause 88 provides that from time to time, the chief executive must select
persons from the expression of interest register to be assessed for suitability
to be an adoptive parent. The purpose of these selections is to ensure the
likely future need for adoptive parents that are identified in planning under
division 1 may be met.
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Subsection (3) provides that the chief executive must select appropriate
numbers of persons, with appropriate profiles, according to the likely need
relating to local adoptions and the likely need relating to intercountry
adoptions for each relevant country.
Subsection (4) provides that the chief executive must be satisfied the
persons selected are, based on their profiles, likely to meet the anticipated
placement needs of children to be adopted. The placement needs of
children to be adopted by an intercountry adoption are determined having
regard to matters that include the requirements of the competent authority
for the country, that apply to prospective adoptive parents of children from
the country. See schedule 3, definition placement needs, paragraph (c).
To ensure fairness in the selection process, subsection (5) allows the chief
executive, in deciding whom to select, to give priority to
(a) a person with the same ethnic background as children to be adopted;
or
(b) a person who has previously adopted a child with similar placement
needs as children to be adopted; or
(c) a person with the earliest relevant expression of interest.
Selection to meet needs of particular child
Clause 89 applies to the selection process if the chief executive anticipates
a particular child will need an adoptive placement. To find the best
possible adoptive placement for a child where the child's particular needs
are known, the chief executive may select one or persons under this section
to be assessed for suitability to be an adoptive parent of the child.
Subsection (3) provides that if the child has an approved carer, the chief
executive may select that person for assessment. Subsection (4) provides
that if the child has a sibling who has already been adopted, the chief
executive may select the person who adopted the child's sibling.
Subsection (5) provides that if the chief executive considers there is no-one
listed in the suitable adoptive parents register who is likely to meet the
anticipated placement needs of the child, the chief executive may select
anyone who the chief executive considers is likely to meet the anticipated
placement needs of the child. For example, if the child has a disability, the
chief executive may select for assessment a person who has expressed an
interest in adopting a child with the disability. Likewise, if the child is an
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Aboriginal person or a Torres Strait Islander, the chief executive may select
for assessment a person from the child's community or language group.
The purpose of this selection process is to choose a person for assessment
who is most likely to be the best person to be the adoptive parent of a child
with particular needs. Therefore, subsection (6) explains that a person may
be selected under this section even if the person
(a) does not have a conforming expression of interest; or
(b) is not listed in the expression of interest register; or
(c) does not have a spouse.
However, a person listed in the expression of interest register who does not
have a conforming expression of interest may only be selected if the person
agrees to being selected. Where the person the chief executive is
considering for assessment is not listed in the expression of interest
register, the chief executive may only select the person if
(i) the person agrees to being selected; and
(ii) the person is an adult; and
(iii) the person is an Australian citizen or has a spouse who is an
Australian citizen; and
(iv) the person is resident or domiciled in Queensland; and
(v) for a person who has a spouse--
(A) the spouse is not the same gender as the person; and
(B) the person and the spouse are living together.
A conforming expression of interest, in relation to a child, is a current
expression of interest that relates to a local adoption or an intercountry
adoption from a particular country, whichever is relevant to the child and
contains preferences that are consistent with the child's characteristics.
Joint selection of spouses
Clause 90 states that if a person has a spouse, the chief executive must only
select the person for assessment jointly with the person's spouse.
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Notice of selection and fees
Clause 91 provides that immediately after selecting a person for
assessment, the chief executive must give the person a notice of the
selection, and the notice must include information about the fees payable
under section 112 that is, the fees payable for an assessment.
Part 5 Application by a person wishing
to adopt a stepchild
Division 1 Making an application
Who may apply
Clause 92 allows a person to apply to the chief executive to arrange an
adoption by the person of a stated child if--
(a) for a continuous period of at least 3 years up to the time of the
application, the person is the spouse of a parent of the child (and not
of the same gender) and the person, the person's spouse and the child
are living together; and
(b) the person has been granted leave under the Family Law Act 1975
(Cwlth), section 60G(1); and
(c) the person is an adult who is resident or domiciled in Queensland and
the person or the person's spouse is an Australian citizen; and
(d) the child is at least 5 years old and has not yet turned 17 years of age.
In relation to criterion (d) above, under the Family Law Act 1975 (Cwlth),
the making of an adoption order in respect of a child extinguishes the
parental responsibilities of a person who was the child's parent before the
order was made. The exception is where a child has been adopted by his or
her step-parent. In that case, the adoption order will only extinguish the
parental responsibilities of the child's non-custodial parent if the Family
Court first gave leave for adoption proceedings to be commenced under
section 60G of that Act.
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The child must be at least 5 years old so the child's relationship with the
step-parent can be assessed and the child's views about the step-parent can
be ascertained.
Despite the requirement for the child to have not turned 17 years of age at
the time of the application, the chief executive may accept an application
relating to a child who has turned 17 if the chief executive considers
(a) there is enough time to complete the adoption process before the child
turns 18; and
(b) the grounds for making an adoption order in favour of the applicant
are likely to exist.
Subsection (3) clarifies that in this section, a reference to a parent does not
include a guardian.
Requirements for application
Clause 93 sets out the requirements for an application by a step-parent.
The application must be in the approved form; and be signed by the
applicant, the applicant's spouse, and each adult member of the applicant's
household. In addition, the application must be accompanied by the fee
prescribed under a regulation.
Refusal of application
Clause 94 provides that the chief executive must refuse an application
made, or purportedly made, by a person under section 92 if the chief
executive is satisfied
(a) the person may not make the application under that section; or
(b) if relevant, the application should not be accepted under section 92(2).
Subsection (2) provides that if the chief executive proposes to refuse the
application, the chief executive must give the person a notice (a show cause
notice) stating--
(a) why it is proposed to refuse the application; and
(b) that the person may give the chief executive a written response within
a stated time of at least 28 days.
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Subsection (3) requires the chief executive to consider any response given
by the person within the time stated in the show cause notice before
deciding whether to refuse the application.
Subsection (4) states that if the chief executive decides to refuse the
application, the chief executive must give the person an information notice
for the decision. The dictionary in schedule 3 explains that an information
notice, for a decision, means a written notice stating the reasons for the
decision, that the person to whom the notice is given may apply to the
tribunal to have the decision reviewed and how the person may apply for
the review, including the time by which the application must be made.
Obligation to notify chief executive of changed or new
information relevant to application
Clause 95 applies if
(a) the person has given information about a matter to the chief executive
under this part or part 6; and
(b) the person becomes aware that the information has changed or
becomes aware of new information relating to the matter; and
(c) the changed or new information is relevant to a matter stated in section
92(1).
Subsection (2) states that the person must immediately give the chief
executive a notice of the changed or new information.
Division 2 How chief executive must deal with
accepted application
Definitions for div 2
Clause 96 defines the terms consent, dispensation application and parent
as they apply for the division.
Application of div 2
Clause 97 provides that division 2 applies to an application made under
division 1 unless the chief executive decides under section 94 to refuse the
application.
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Obtaining consents
Clause 98 provides that the chief executive must take steps to obtain the
consent of each parent. If the chief executive obtains the consent of each
parent, the chief executive must assess the applicant under part 6.
All consents not obtained
Clause 99 applies if the chief executive
(a) becomes aware that a parent does not wish to give his or her consent;
or
(b) can not establish the identity of a parent after making all reasonable
enquiries; or
(c) can not locate a parent after making all reasonable enquiries.
Subsection (2) provides that the chief executive must notify the applicant
that, for the relevant reason mentioned above (in subsection (1)(a) to (c)),
the chief executive has not obtained the consent of each parent.
Subsection (3) provides that the chief executive must not deal further with
the application unless
(a) the chief executive becomes aware that the parent wishes to give the
consent, or identifies the parent, or locates the parent, whichever is
relevant; or
(b) the applicant makes a dispensation application.
If the applicant makes a dispensation application, then subsection (4)
enables the chief executive to proceed to assess the applicant under part 6
(i.e. to have the applicant assessed to decide if he or she is suitable to be the
child's adoptive parent), pending the result of the dispensation application,
as if each consent had been obtained.
Lapsing of application
Clause 100 states that if an application under this part has been inactive for
6 months, the application lapses. An application is inactive if the chief
executive is not dealing with it and, under section 99 must not deal further
with it, or under section 114(6)(b), is not required to deal further with it.
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Part 6 Assessment of prospective
adoptive parents
Division 1 Preliminary
Who is assessed
Clause 101 provides that the chief executive must assess a person under
this part if the person is selected for assessment under part 4, division 5 (i.e.
as a consequence of submitting an expression of interest or being selected
for assessment in relation to a particular child); or the assessment is
required under section 98(2) (i.e. as a consequence of applying to adopt a
child who is a step-child of the applicant).
However, subsection (2) provides that this section applies subject to section
112(4) (i.e. the chief executive need not assess the person if the person has
not paid a fee that is required to be paid).
Subsection (3) states that the chief executive must not assess a person under
this part unless the assessment is required under subsection (1) or allowed
under section 99(4) (i.e. because the applicant has made a dispensation
application) or division 8 (i.e. reassessment of a person listed in the suitable
adoptive parents register).
Suitable adoptive parents register
Clause 102 requires the chief executive to keep a register (the suitable
adoptive parents register) for this part.
This part applies despite the Criminal Law (Rehabilitation of
Offenders) Act 1986
Clause 103 provides that part 6 applies to a person despite anything in the
Criminal Law (Rehabilitation of Offenders) Act 1986.
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Division 2 Purpose and scope of assessment
Purpose of assessment
Clause 104 explains that the purpose of assessing a person is to decide if he
or she is suitable to be an adoptive parent.
Scope of assessment persons selected to meet anticipated
future need
Clause 105 applies to a person selected for assessment under section 88 to
meet the anticipated future need for adoptive parents.
Subsection (2) requires the chief executive to decide the person's suitability
to be an adoptive parent generally.
In addition, subsection (3) provides that if the chief executive considers it
appropriate, the chief executive may also decide the person's suitability to
be an adoptive parent of a child with particular characteristics. In deciding
whether this decision would be appropriate, subsection (4) states that the
chief executive must consider the person's current expression of interest;
and the likely future need for adoptive parents.
Scope of assessment persons selected to meet needs of
particular child
Clause 106 applies to a person selected for assessment under section 89 in
relation to the anticipated placement needs of a particular child (the
relevant child).
Subsection (2) requires the chief executive to decide the person's suitability
to be an adoptive parent of the relevant child.
Subsection (3) states that if the chief executive considers it appropriate, the
chief executive may also decide
(a) the person's suitability to be an adoptive parent of a child with
particular characteristics other than those of the relevant child; or
(b) the person's suitability to be an adoptive parent generally.
Subsection (4) provides that in deciding whether it would be appropriate to
make a decision mentioned in subsection (3), the chief executive must
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consider the person's current expression of interest, if any and the likely
future need for adoptive parents.
Scope of assessment persons wishing to adopt stepchild
Clause 107 applies to the assessment of a person who has made an
application under part 5 (i.e. an application to adopt a child who is the
person's step-child).
Subsection (2) requires the chief executive to decide the person's suitability
to be an adoptive parent of the child who the person wishes to adopt.
Division 3 Assessment process
Joint assessment of a couple
Clause 108 provides that if a person being assessed has a spouse, the
assessment must be made of the person and the person's spouse jointly.
However, subsection (2) explains that this does not apply to a person being
assessed after making an application under part 5 (i.e. an application by a
step-parent to adopt their step-child).
Assessment process
Clause 109 states that to assess a person, the chief executive must obtain
relevant information under division 4 and assess the person's suitability on
the bases stated in division 5. The clause affords natural justice to a person
being assessed by requiring the chief executive to give the person a
preliminary report about the person's suitability and inviting the person to
give the chief executive, within a stated period of at least 28 days, a written
response to the report, including corrections or comments about the matters
stated in the report. The chief executive must decide whether the person is
suitable after considering the person's response to the preliminary report, if
any.
Subsection (2) provides that if, in the course of carrying out the assessment
of the person's suitability, the chief executive is satisfied there is an
unacceptable risk mentioned in section 121 (i.e. an unacceptable risk of
harm) the chief executive must prepare a preliminary report stating that the
person is unsuitable without any further assessment under division 5.
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Likewise, subsection (3) provides that if, in the course of carrying out the
assessment of the person's suitability, the chief executive is satisfied the
person is unsuitable on any of the other bases stated in division 5 (for
example, because the person does not have the health required under
section 122), the chief executive may prepare a preliminary report stating
that the person is unsuitable without any further assessment under division
5.
Subsection (4) requires the chief executive to comply with the natural
justice process described above, even if the scope of the assessment is
limited under this section.
Timing and pace of assessment
Assessment is a comprehensive and complex process that involves
information being gathered from a variety of sources and analysed.
Therefore, clause 110 allows the chief executive to assess a person over the
period, and at the rate of progress, that the chief executive considers
appropriate, having regard to--
(a) the need to carry out the assessment efficiently, thoroughly, to a high
standard and in compliance with the Act; and
(b) the need to be fair to the person; and
(c) whether it would be appropriate to repeat a stage of the assessment
process; and
(d) the timing of a possible application for an adoption order in favour of
the person if the person is decided to be suitable.
Consent of household members to assessment
Clause 111 states that the assessment of a person under this part includes
an assessment of certain matters relating to members of the person's
household. Note that under section 121, a person may be unsuitable
because of the risk posed by a member of the person's household.
Subsection (2) provides that an adult member of the person's household
may give written consent to being assessed under this part by signing the
person's expression of interest or by signing the person's application under
part 5 (i.e. an application by a step-parent to adopt their step-child) or in
another way.
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Subsection (3) provides that if an adult member of the person's household
has not given written consent to being assessed under this part--
(a) the chief executive may not ask the police commissioner under section
116 for information, or access the police commissioner's records,
relating to the household member; and
(b) the chief executive may not ask the chief executive (transport) under
section 117 for a written report about the household member's traffic
history.
Subsection (4) provides that if an adult member of the person's household
refuses to give written consent to being assessed under this part, section
114(6) applies as if the person had failed to give information required
under that section within the required time.
Fees
Clause 112 provides that a regulation may prescribe fees for an assessment
under this part.
Subsection (2) states that a person being, or to be, assessed under this part
must pay a prescribed fee, or part of a prescribed fee, (the required
amount) when required by the chief executive.
Subsection (3) provides that the requirement to the required amount must
be written and must state the reasonable time within which the required
amount must be paid and the consequences of non-payment under this
section and section 80(1)(b).
Subsections (4) and (5) provide that the chief executive need not assess the
person, or continue assessing the person, until the required amount is paid
and must not enter the person's name in the suitable adoptive parents
register if the required amount is not paid.
Subsection (6) states that an amount stops being a required amount to the
extent the chief executive waives payment of it.
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Division 4 Information to assess suitability
Application of div 4
Clause 113 states that division 4 applies to a person being assessed under
this part; or whose name is in the suitable adoptive parents register; or for
whom an interim order is in force.
Chief executive may require information
Clause 114 requires the person to give the chief executive any relevant
information that the chief executive reasonably requires to assess the
person's suitability. For example, the chief executive may require
· a report about the person's health, in the approved form, completed by
a doctor who has examined the person;
· a further report or opinion, from a specialist or other doctor, about a
stated medical condition or other stated aspect of the person's health;
· a copy of a bench charge sheet, trial transcript or other document
containing information relating to a charge or conviction of the person
or a member of the person's household.
Subsection (2) provides that the chief executive may give the person a
notice stating
(a) the information that the chief executive requires; and
(b) the day by which the person must give the information to the chief
executive; and
(c) the consequence under subsection (6) if the person does not give the
information to the chief executive by the due day.
Subsection (3) provides that the due day must be reasonable and, in any
case, at least 14 days after the requirement is made. Subsection (5) states
that, on or before the due day for giving particular information, the chief
executive may give the person a further notice substituting a later due day
for giving the information, if the chief executive is satisfied it would be
reasonable in all the circumstances to do so.
Subsection (4) enables the chief executive to withdraw the requirement, or
part of the requirement, at any time.
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Subsection (6) provides that if the person does not give the required
information by its due day
(a) if the person's name is in the expression of interest register--the chief
executive may revoke the selection of the person for assessment and
remove the name from the register under section 80(2)(a);
(b) if the person is an applicant under part 5--the chief executive is not
required to deal further with the application;
(c) if the person's name is in the suitable adoptive persons register--the
chief executive may remove the name from the register under section
146(2)(b);
(d) if an interim order for the person is in force--the chief executive may
have regard to the non-compliance in making a decision about an
application to the court relating to the interim order or a final adoption
order.
Subsection (7) defines the terms due day and information for the section.
Obligation to notify chief executive of changed or new
information relevant to suitability
Clause 115 applies if
(a) the person has given information about a matter to the chief executive
under this part or part 4 or 5; and
(b) the person becomes aware that the information has changed or
becomes aware of new information relating to the matter; and
(c) the changed or new information is relevant to the person's suitability
to be an adoptive parent.
The person must immediately give the chief executive a notice of the
changed or new information. This includes notice of a change in
(a) the person's personal history; or
(b) the membership of the person's household; or
(c) information of which the person is aware, or that the person
reasonably suspects, about the personal history of an adult member of
the person's household.
Note that the term personal history is defined in the Act's dictionary to
mean criminal history, domestic violence history and traffic history.
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Subsection (4) clarifies that there is a change in a person's personal history
if a person with no personal history acquires a personal history.
Police information
Clause 116 states that the chief executive may ask the police commissioner
for information, or for access to the police commissioner's records, to
enable the chief executive to learn what police information exists, if any, in
relation to the person or an adult member of the person's household.
Subsection (2) provides that if there is police information about the person
or household member, the chief executive may ask the police commissioner
for a brief description of the circumstances of a conviction, charge or order,
or a brief description of the investigative information mentioned in the
police information.
The police commissioner must comply with a request under subsection (1)
or (2), but only in relation to information in the police commissioner's
possession or to which the police commissioner has access.
The police commissioner need not give investigative information, or access
to a record containing investigative information, if the commissioner is
satisfied that doing so would prejudice the investigation, enable the
existence or identity of a confidential source of information to be
determined, endanger a person's life or physical safety, or prejudice the
effectiveness of a lawful method or procedure for preventing, detecting,
investigating or dealing with a contravention or possible contravention of
the law.
Subsection (6) states that in this section police information, about a
person, means the following--
(a) the person's criminal history;
(b) investigative information about the person;
(c) the person's domestic violence history;
(d) information as to whether the person is or has been
(i) the subject of a disqualification order; or
(ii) the respondent for an offender prohibition order.
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Traffic information
Clause 117 provides that the chief executive may ask the chief executive
(transport) for a written report about the traffic history of the person or an
adult member of the person's household.
The chief executive (transport) must comply with the request despite the
Transport Operations (Road Use Management) Act 1995, section 77
which restricts the release of Queensland driver licence and traffic history
information.
The chief executive (transport) is defined in the Act's dictionary to mean
the chief executive of the department in which the Transport Operations
(Road Use Management) Act 1995 is administered.
Consultation with appropriate Aboriginal or Torres Strait
Islander person
Clause 118 applies if the person is being assessed for suitability to be an
adoptive parent of a child who is, or children who include, an Aboriginal or
Torres Strait Islander child.
The chief executive is required to consult with an appropriate Aboriginal or
Torres Strait Islander person about Aboriginal tradition or Island custom
relating to the child; and about the person's suitability.
Other information gathering
Clause 119 provides that the chief executive may make enquiries and
gather information in other ways the chief executive considers appropriate,
including any of the following
(a) talking with the person;
(b) asking the person to attend and participate in a workshop or similar
educational activity conducted by the department;
(c) visiting the person's home;
(d) talking with members of the person's family or household;
(e) talking with referees nominated by the person;
(f) talking with anyone else with information relevant to the person's
suitability;
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(g) obtaining expert advice about relevant health, psychological or social
matters (this includes a psychosocial assessment conducted by an
adoption contract worker);
(h) asking the person to prepare documents, for example, a profile of the
person's family;
(i) lawfully obtaining information from the department or other
departments.
Division 5 Bases for deciding suitability
Application of div 5
Clause 120 states that division 5 states how the chief executive must decide
whether a person is suitable to be an adoptive parent. In making this
decision, the chief executive must have regard to a range of matters as set
out in division 5.
Unacceptable risk of harm
Clause 121 provides that the chief executive must decide if the person or
any member of the person's household would pose an unacceptable risk of
harming a child adopted by the person. Subsection (2) provides that the
chief executive must consider, in particular, any personal history of the
person or of an adult member of the person's household.
Note that the term personal history is defined in the Act's dictionary to
mean criminal history, domestic violence history and traffic history.
Subsection (3) requires the chief executive to decide that there is an
unacceptable risk of harm if the person, or an adult member of their
household
(a) has been convicted of a disqualifying offence for which an
imprisonment order was imposed; or
(b) is subject to
(i) reporting obligations under the Child Protection (Offender
Prohibition Order) Act 2008; or
(ii) an offender prohibition order; or
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(iii) a disqualification order; or
(c) has been convicted of a serious offence.
However, subsection (3)(c) does not apply if the chief executive is satisfied
it is an exceptional case in which it would not harm the best interests of a
child to be adopted by the person. Therefore, the chief executive is not
obliged to decide that there is an unacceptable risk of harm if satisfied there
is an exceptional case in relation to that particular person.
Subsection (5) provides that, subject to subsection (3), if the chief
executive is aware that the person or a member of the person's household
has been convicted of, or charged with, an offence, the chief executive must
have regard to a range of matters as follows
(a) in relation to the commission, or alleged commission, of an offence by
the person or household member
(i) whether it is a conviction or a charge; and
(ii) whether the offence is a serious offence and, if it is, whether it is
a disqualifying offence; and
(iii) when the offence was committed or is alleged to have been
committed; and
(iv) the nature of the offence and its relevance to adopting children;
and
(v) in the case of a conviction the penalty imposed by the court and
if it decided not to impose an imprisonment order for the offence,
or decided not to make a disqualification order, the court's
reasons for its decision;
(b) anything else relating to the commission, or alleged commission, of
the offence that the chief executive reasonably considers to be relevant
to the assessment of the risk mentioned in subsection (1).
Subsection (6) states that if the chief executive is aware of investigative
information about the person or a member of the person's household, the
chief executive must have regard to the following
(a) when the acts or omissions constituting the alleged offence to which
the investigative information relates were committed;
(b) anything else relating to the commission of the acts or omissions that
the chief executive reasonably considers relevant to the assessment of
the risk mentioned in subsection (1).
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Health
Clause 122 requires the chief executive to be satisfied the person has good
health to provide stable, high level care for a child until adulthood. Health
is defined broadly to capture any aspect of a person's physical,
psychological or mental health, and to ensure the chief executive can give
consideration to any condition that may adversely impact a person's health
and therefore their capacity to be an adoptive parent. For example, if the
person has a particular psychological condition, as opposed to being
diagnosed with a mental illness, the chief executive will be able to consider
the person's psychological condition and its impact on the person's health.
Subsection (2) provides that the person being assessed does not have the
requisite good health if they have a disqualifying condition as prescribed
under a regulation.
If the person has a condition (other than a disqualifying condition), the
chief executive is to have regard to
(a) its effect on the level of care the person will be able to provide to an
adopted child, without help from someone else, and the time for
which the person is likely to be able to provide the care; and
(b) whether the person needs a carer or is likely to need a carer in the
future; and
(c) whether the condition is likely to have an adverse impact on an
adopted child's wellbeing or best interests.
Condition is defined to mean a disability, impairment, illness or anything
else that affects a person's health.
Guiding principles
Clause 123 requires the chief executive to have regard to the guiding
principles in section 6. Note the guiding principles include that an adopted
child should be cared for in a way that:
· ensures a safe, stable and nurturing family and home life;
· promotes openness and honesty about the child's adoption; and
· promotes the development of the child's emotional, mental, physical
and social wellbeing.
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Capacity to be adoptive parent generally
Clause 124 states that the chief executive must have regard to the person's
capacity to be an adoptive parent, including
(a) the person's psychological capacity and other personal qualities; and
(b) the person's financial stability and other financial capacity; and
(c) the person's willingness and ability to ensure a child's safety and
wellbeing; and
(d) anything else relevant to the person's capacity to provide for a child's
emotional, physical, educational, recreational and social needs.
Good character
Clause 125 provides that the chief executive must be satisfied the person is
of good character.
Attitudes to children and parenting
Clause 126 requires the chief executive to have regard to the person's
attitudes to, and understanding of children and their physical and emotional
development, and the responsibilities and duties of parenthood.
Adoptive parenting
More particularly, clause 127 requires the chief executive to have regard to
the person's attitudes to, and understanding of, the issues relevant to
adoptive parenting, including
(a) issues about informing a child of his or her adoption; and
(b) the significance to an adopted child of his or her birth parents and their
families; and
(c) the importance of developing and maintaining relationships with an
adopted child's birth parents and their families, through an open
adoption arrangement, so far as this is possible and in the child's best
interests.
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Quality of relationship with spouse
If the person has a spouse, clause 128 provides that the chief executive
must have regard to the quality of the person's relationship with his or her
spouse, including the duration and stability of the relationship.
Infertility
If the person is infertile or has a spouse who is infertile, clause 129
provides that the chief executive must have regard to the person's
adjustment to, and acceptance of, the infertility. (See the dictionary in
schedule 1 for the meaning of infertility.)
Matters relating to step-parent
Clause 130 applies if the person is being assessed because the person has
made an application under part 5 relating to the proposed adoption of a
child of whom the person is a step-parent. The chief executive must have
regard to the nature, closeness and quality of the child's relationship with
the person and members of the person's household.
Aboriginal or Torres Strait Islander children
Clause 131 applies if the chief executive is making a decision about the
person's suitability to be an adoptive parent of a child who is, or children
who include, an Aboriginal or Torres Strait Islander child. Subsection (2)
provides that the chief executive must have regard to the person's ability
and willingness to
(a) help the child to maintain contact with the child's community or
language group; and
(b) help the child to develop and maintain a connection with the child's
Aboriginal tradition or Island custom; and
(c) preserve and enhance the child's sense of Aboriginal or Torres Strait
Islander identity.
Subsection (3) provides that if the chief executive is making a decision
about the person's suitability to be an adoptive parent of a particular
Aboriginal or Torres Strait Islander child, the chief executive must have
regard to the person's links with, and standing in, the child's community or
language group.
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Other cultural matters
Clause 132 applies if the chief executive is making a decision about the
person's suitability to be an adoptive parent of a child who is, or children
who include, a child of a particular ethnic or cultural background.
Subsection (2) requires the chief executive to have regard to the person's
ability and willingness to -
(a) understand the child's background; and
(b) help the child to maintain contact with the child's community or
language group; and
(c) help the child to develop and maintain a connection with the child's
ethnicity or culture; and
(d) preserve and enhance the child's sense of ethnic or cultural identity.
Subsection (3) provides that if the person has a current expression of
interest that relates to an intercountry adoption from a particular country,
the chief executive must have regard to--
(a) the person's attitudes to, and understanding of, the country and its
culture; and
(b) the person's ability and willingness, if the person adopted a child from
the country, to--
(i) continue to learn about the country and its culture; and
(ii) help the child learn about the country and its culture.
Other prescribed matters
Clause 133 provides that the chief executive must have regard to any other
matters prescribed under a regulation.
Division 6 Action following decision
Application of div 6
Clause 134 states that division 6 applies after the chief executive decides
whether a person is suitable to be an adoptive parent.
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Chief executive must give notice of decision
Clause 135 requires the chief executive to give the person a notice of the
decision. Subsection (2) provides that the notice must state the reasons for
the decision and the information on which it is based. Subsection (3)
provides that for a person assessed jointly with the person's spouse, the
notice must include the decisions for both the person and the person's
spouse.
Subsection (4) provides that if the chief executive decides the person is not
suitable to be an adoptive parent, the chief executive must give the person
an information notice for the decision. The dictionary in schedule 3
explains that an information notice, for a decision, means a written notice
stating the reasons for the decision, that the person to whom the notice is
given may apply to the tribunal to have the decision reviewed and how the
person may apply for the review, including the time by which the
application must be made.
Removal from expression of interest register
Clause 136 provides that if the person's name is in the expression of
interest register, the chief executive must remove the name from that
register.
Entry in suitable adoptive parents register
Clause 137 requires the chief executive to enter the person's name in the
suitable adoptive parents register if
(a) the person was assessed after being selected under part 4, division 5;
and
(b) the decision is that the person is suitable; and
(c) for a person assessed jointly with the person's spouse, the decision is
that the person's spouse is suitable.
The chief executive will look to the pool of people whose names have been
entered in the suitable adoptive parents register when it is necessary to
select a couple to be the prospective adoptive parents for a child.
Preparation of report
Clause 138 applies if
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(a) the person was assessed after making an application under part 5 (i.e.
an application by a person wishing to adopt a stepchild); and
(b) the decision is that the person is suitable to be an adoptive parent of
the child whom the person wishes to adopt.
Subsection (2) provides that the chief executive must prepare a report for
the Childrens Court stating that the person has been assessed as suitable
and whether the chief executive considers--
(a) an order for the child's adoption by the person would better serve the
child's interests than an order under the Family Law Act 1975 (Cwlth),
any other court order or no court order; and
(b) there are exceptional circumstances that warrant the making of the
order.
Subsection (3) provides that in deciding a matter under subsection (2)(b),
the chief executive must consider
(a) the circumstances in which the child came to be living with the
person; and
(b) the likely effect on the child, both through childhood and the rest of
his or her life, of permanently ending the parent-child relationship
between the child's biological parents and the child (even if the
biological parents are no longer living) or another parent-child
relationship that would be ended by the making of an adoption order.
Subsection (4) requires the chief executive to give the person a copy of the
report.
Division 7 Interstate register
Registration of person on interstate register
Clause 139 applies if
(a) a person gives the chief executive a signed application in the approved
form to have the person's name entered in the suitable adoptive
parents register; and
(b) at the time the application is given, the person's name is in an
interstate register that substantially corresponds to the suitable
adoptive parents register; and
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(c) the person is eligible under section 76 to have his or her name entered
in the expression of interest register.
Subsection (2) requires the chief executive to enter the person's name in the
suitable adoptive parents register. Subsection (3) sets out how the Act
applies in relation to the person.
Division 8 Re-assessment of person listed in
suitable adoptive parents register
When a person may be re-assessed
Clause 140 applies to a person listed in the suitable adoptive parents
register.
Subsection (2) provides that the chief executive may re-assess the person
if
(a) the chief executive becomes aware of further information about the
person, or a member of the person's household, or of a change in the
person's circumstances, that may be relevant to the person's
suitability; or
(b) because of the time that has passed since the person's assessment, the
chief executive considers it would be appropriate to re-assess the
person; or
(c) the re-assessment is required to meet the requirements for an
intercountry adoption from a country to which the person's current
expression of interest relates; or
(d) the chief executive is considering selecting the person under part 7 as
a child's prospective adoptive parent but considers it would be
appropriate to first assess the person's suitability to be an adoptive
parent of a child with particular characteristics.
Conduct of re-assessment
Clause 141 provides that subject to this division, this part applies to the
re-assessment as if it were an original assessment of the person.
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Re-assessment may be limited
Clause 142 provides that, having regard to the reason for the re-assessment,
the chief executive must decide whether the matters relating to the person's
suitability that are to be considered in the re-assessment are
(a) all matters that would be considered if the re-assessment were an
original assessment of the person; or
(b) only particular matters relevant to the reason for the re-assessment.
Notice of re-assessment
Clause 143 provides that before starting the re-assessment, the chief
executive must give the person a notice stating that the person is being
re-assessed, the reasons for the re-assessment and the matters relating to
the person's suitability that are to be considered in the re-assessment.
Division 9 Removal from suitable adoptive
parents register
Automatic removal from register
Clause 144 requires the chief executive to remove a person's name from
the suitable adoptive parents register if
(a) a final adoption order is made in favour of the person under the Act; or
(b) the person is selected from the suitable adoptive parents register as a
prospective adoptive parent by the competent authority for another
country, under arrangements made between the chief executive and
the competent authority, and an adoption order is made in favour of
the person in the other country; or
(c) the person gives the chief executive a written request to remove the
person's name from the register.
Removal after re-assessment
Clause 145 requires the chief executive to remove a person's name from
the suitable adoptive parents register if, on a re-assessment under division
8, the chief executive decides the person is unsuitable.
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Other grounds for removal
Clause 146 requires the chief executive to remove a person's name from
the suitable adoptive parents register if
(a) for a person who was selected for assessment from the expression of
interest register--the person is not eligible to have his or her name
remain in the expression of interest register under section 76; or
(b) for a person selected for assessment under section 89--the person is
not a person mentioned in section 89(7)(b)(ii) to (v).
Subsection (2) states that the chief executive may remove a person's name
from the suitable adoptive parents register if
(a) the person gives information to the chief executive for this Act that is
false or misleading in a material particular; or
(b) the person does not comply with a notice under section 114 by the due
day for the notice; or
(c) the person contravenes section 115.
However, before removing a person's name from the register under this
section, subsection (3) states that the chief executive must give the person a
notice (a show cause notice) stating
(a) that the chief executive proposes to remove the name; and
(b) the reason for the proposed removal; and
(c) that the person may, within a stated time of at least 28 days, give the
chief executive a written response to the proposed removal.
Subsection (4) requires the chief executive to consider any response given
by the person within the time stated in the show cause notice before
deciding whether to remove the person's name.
Subsection (5) states that if the chief executive decides not to remove the
person's name, the chief executive must give the person notice of the
decision.
Subsection (6) states that if the chief executive decides to remove the
person's name, the chief executive must give the person an information
notice for the decision. The dictionary in schedule 3 explains what an
information notice for a decision is.
Subsection (7) provides that for the requirement in subsection (1)(a) to
remove a person's name from the register if the person is not eligible to
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have his or her name remain in the register, a woman does not become
ineligible to have her name remain in the register on the ground of being
pregnant unless she is at least 14 weeks pregnant.
Division 10 Investigative information
Police commissioner may decide that information about a
person is investigative information
Clause 147 provides power for the police commissioner to make a decision
about whether information about a person who is being investigated is
investigative information. The commissioner can decide that the
information is investigative information if -
(a) there is or was evidence of acts or omissions that, at the time of the
acts or omissions, constituted a disqualifying offence (the alleged
offence) by the investigated person against a child or a person who
was a child at the time of the offence (each of whom is a
complainant); and
(b) the police investigated the alleged offence and the investigated person
was formally notified about the investigation; and
(c) there was sufficient evidence available that was capable of
establishing each element of the alleged offence but a decision was
made not to charge the investigated person because the complainant
died before the charge was brought; or the complainant was unwilling
to proceed, or an adult who was the complainant's parent decided that,
in the interests of the complainant, the matter should not proceed.
Subsection (4) makes it clear that the police commissioner can not delegate
this power to anyone other than a police officer of at least the rank of
superintendent.
Appeal from decision that information is investigative
information
Clause 148 requires the police commissioner to notify the investigated
person that the commissioner has decided the information about the person
is investigative information and has been given to the chief executive.
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The person may appeal this decision to a Magistrates Court within 28 days
of having been given the notice from the police commissioner.
Subsection (5) explains that the tribunal does not have power to review the
police commissioner's decision that the information is investigative
information, or that the information may be given to the chief executive.
Court to decide matters afresh
Clause 149 provides that a Magistrates Court hearing an appeal under
section 148 may decide afresh whether the information about the person is
investigative information. The court must have regard to the same matters
that the police commissioner had regard to when making the original
decision. However, the investigated person can not ask, or call upon, the
relevant complainant to give evidence in person before the court. This does
not prevent documentary evidence being tendered and received in evidence
by the court.
After hearing the appeal, the court may confirm or set aside the police
commissioner's decision. Subsection (6) provides that the clerk of the
court must give notice of the court's decision to the investigated person and
also to the chief executive.
Consequence of successful appeal
Clause 150 provides that if the Magistrates Court sets aside the police
commissioner's decision under section 147, and if the chief executive has
decided the person is not suitable, then the chief executive must set aside
that decision and must re-assess the person. The assessment must then be
carried out without regard to the relevant information.
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Part 7 Selection of prospective
adoptive parents
Division 1 Requirement to select persons as
prospective adoptive parents
Application of div 1 for initial selection for local adoptions
Clause 151 provides that this division applies if the chief executive is the
child's guardian under section 57 and all consents required for the child's
adoption have been given.
Application of div 1 when further selection required
Clause 152 sets out the further circumstances, other than a child's initial
placement with prospective adoptive parents, in which the chief executive
is required to select prospective adoptive parents for a child. These
circumstances relate to where the initial placement for a child, whether for
a local adoption or an intercountry adoption after the child has arrived in
Queensland, has broken down and will not result in a final adoption order
being made for the child in relation to the initial prospective adoptive
parents.
Subsection (1) states that division 1 applies to a child (whether or not the
child is an intercountry adoption child) if the chief executive selects the
child's prospective adoptive parents, an interim order is made in favour of
the prospective adoptive parents and the interim order is discharged.
Subsection (2) provides that this division applies to an intercountry
adoption child if the persons who were the child's prospective adoptive
parents stop having custody of the child, either because -
(a) the chief executive, as the child's guardian under a delegation from the
responsible Minister under the Immigration (Guardianship of
Children) Act 1946 (Cwlth), removes the child from their custody; or
(b) the Childrens Court makes an order under section 194(1)(a).
Subsection (3) provides that a reference in this section to a child's
prospective adoptive parents includes, for a proposed adoption by a single
person, that person.
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Chief executive must select prospective adoptive parents
Clause 153 requires that the chief executive must select a couple or single
person from the suitable adoptive parents register to be the child's
prospective adoptive parents or parent.
However, subsection (1) states that the chief executive must select a couple
unless satisfied that, in the particular circumstances, it would best promote
the child's wellbeing and best interests to select a particular person from
the suitable adoptive parents register who is a single person. It should be
noted that a single person may be selected for assessment under section 89
and subsequently entered in the suitable adoptive parents register.
Division 2 How selection must be made
Application of div 2
Clause 154 specifies that division 2 states how the chief executive must
decide who to select to be the prospective adoptive parents for a child.
Child's wellbeing and best interests generally
Clause 155 provides that the chief executive must make the selection that
will best promote the child's wellbeing and best interests.
Child's particular needs
Clause 156 states that the chief executive must have regard to the needs of
the child to be adopted. This includes, for instance any needs relating to
the following matters --
(a) the child's age and gender;
(b) any Aboriginal, Torres Strait Islander or other cultural background of
the child;
(c) any existing or possible future medical condition or disability of the
child;
(d) the child's education;
(e) whether the child has a sibling who has been adopted or is proposed to
be adopted;
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(f) the child's social background.
Preferences of parents
Clause 157 requires the chief executive to have regard to any preferences of
the child's parents including, for example, preferences about
(a) the child's religious upbringing; or
(b) the characteristics of the child's adoptive parents and adoptive family;
or
(c) the degree of openness in the adoption.
However, subsection (2) makes it clear that the chief executive is not
required to have regard to a preference expressed by a birth parent where
the chief executive considers is likely to be contrary to the child's
wellbeing or best interests.
Characteristics of persons who may be selected
Clause 158 requires that the chief executive is to have regard to any of the
characteristics of the persons the chief executive is considering selecting
that are relevant to their willingness and ability to parent a child with the
needs of the child to be adopted, or the extent to which they meet the
preferences expressed by the child's parents.
Considering the characteristics of a person includes considering the
matters relating to the person's suitability decided by the chief executive on
an assessment under part 6.
Eligibility
Clause 159 states that the chief executive must be satisfied a person to be
selected as a prospective adoptive parent is still eligible.
Subsection (2) explains how it is to be determined whether a person is still
eligible.
Subsection (3) provides that for the requirement in subsection (2)(a) for a
person to remain eligible to have his or her name remain in the expression
of interest register, a woman does not become ineligible to have her name
remain in the register on the ground of being pregnant unless she is at least
14 weeks pregnant.
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Placement with sibling
Clause 160 provides that the chief executive must have regard to the
consideration that it would ordinarily be in a child's best interests to be
placed with the same family as any sibling of the child who is also to be
adopted or has previously been adopted.
Other children in adoptive family
Clause 161 states that the chief executive must have regard to the
considerations that it would ordinarily be in a child's best interests
(a) to be the youngest child in the adoptive family, by at least 2 years, at
the time of the placement; and
(b) for no other children to join the adoptive family for at least 1 year after
the placement, whether by birth, adoption, placement under the Child
Protection Act 1999 or in another way.
However, this consideration does not apply to a sibling of the child placed
with the same family.
Initial period of full-time personal care by adoptive parents
Clause 162 specifies that the chief executive must have regard to the
consideration that it would ordinarily be in a child's best interests to receive
full-time care, provided personally by one or both of the persons with
whom the child is placed, for at least 1 year after the placement.
Additional provisions relating to Aboriginal or Torres Strait
Islander children
Clause 163 is the provision that will enshrine the Aboriginal and Torres
Strait Islander child placement principle into Queensland adoption law. It
provides that, if the child to be adopted is an Aboriginal person or Torres
Strait Islander, the chief executive must consult with an appropriate
Aboriginal or Torres Strait Islander person when deciding who to select as
prospective adoptive parents for a child and must give proper consideration
to selecting, in order of priority
(a) a member of the child's community or language group; or
(b) another Aboriginal person or Torres Strait Islander who is compatible
with the child's community or language group; or
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(c) another Aboriginal person or Torres Strait Islander.
Subsection (3) clarifies that this section does not limit the application of the
other provisions of the division to the selection of prospective adoptive
parents for the child.
Division 3 Facilitating matters between parents
and selected persons
Facilitating agreement or adoption plan
Clause 164 applies after the chief executive has selected the child's
prospective adoptive parents under division 2. Subsection (2) states that
the chief executive must act as intermediary between the child's parents
and the prospective adoptive parents to
(a) facilitate an agreement between them about the degree of openness
there will be in the adoption; and
(b) facilitate preparation of an adoption plan, if a plan is required under
the Act or is proposed by any of them.
It should be noted that open adoption does not mean any single type of
practice, nor does it refer to only one part of the adoption process. Instead,
it recognises that
· adopted children have birth parents and adoptive parents, whose
interests deserve equal respect in the adoption process;
· adoption does not remove the existence of children's birth parents
from their lives;
· children benefit from knowing about their birth parents and the
circumstances of their adoption; and
· adoption results in children having one set of legal parents who are
their adoptive parents. Importantly, open adoption does not create a
joint care arrangement between adoptive parents and birth parents.
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Part 8 Adoption plans
Division 1 General
What is an adoption plan
The nature of an open adoption arrangement, and the parties' agreement
about the extent of the relationship they wish to develop, or contact they
wish to have, can be set out in an adoption plan. Therefore, clause 165
states that an adoption plan is a written plan, agreed to by parties to the
plan, about anything relating to the adopted child's wellbeing or interests.
Subsection (2) provides further detail to explain that an adoption plan may
for example, address any of the following matters
(a) the degree of openness there will be in the adoption, including--
(i) when a party will communicate with another party; and
(ii) how a party will communicate with another party, including
whether the communication will be through the mailbox service
or in another way that does not identify the first party; and
(iii) the matters about which information will be exchanged such as
information about the child's development, important events in
the child's life, a medical condition of the child or the medical
history of the child's biological family.
(b) the adoptive parents' commitment to telling the child about the
adoption and helping the child understand the circumstances of the
adoption;
(c) if the child is an Aboriginal or Torres Strait Islander child, how the
adoptive parents will
(i) help the child to maintain contact with the child's community or
language group; and
(ii) help the child to develop and maintain a connection with the
child's Aboriginal tradition or Island custom; and
(iii) preserve and enhance the child's sense of Aboriginal or Torres
Strait Islander identity;
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(d) if the child has a particular ethnic or other cultural background, how
the adoptive parents will
(i) help the child to maintain contact with the child's community or
language group; and
(ii) help the child to develop and maintain a connection with the
child's ethnicity or culture; and
(iii) preserve and enhance the child's sense of ethnic or cultural
identity.
Parties
Clause 166 states that the parties to an adoption plan are the prospective
adoptive parents or adoptive parents and any birth parent who wishes to be
a party.
Subsection (2) states that the parties to an adoption plan may also include
(a) the child, if the chief executive considers it would be appropriate
having regard to all the circumstances including the child's age and
maturity; or
(b) a representative for the child; or
(c) for an intercountry adoption-the competent authority for the relevant
country, the chief executive or another appropriate entity.
Subsection (3) specifies that the chief executive (child safety) must be a
party to an adoption plan required under section 171.
Subsection (4) specifies that if no birth parent wishes to be a party to an
adoption plan required under section 172, the chief executive must be a
party to the plan.
Purpose
Clause 167 provides that the purpose of an adoption plan is to contribute to
the success of the adoption by ensuring parties to the adoption
(a) properly consider
(i) the matters that may affect the child's wellbeing and interests;
and
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(ii) the consequences of entering into the particular arrangements for
the adoption (e.g. the degree of openness); and
(b) commit to practical ways to address the matters mentioned in
paragraph (a).
Nature of plan and limitations on operation
Clause 168 explains that an adoption plan
(a) is not enforceable; and
(b) does not limit the primary responsibility of the adoptive parents for
the child's upbringing; and
(c) does not entitle a member of the child's birth family or anyone else to
interfere in the child's upbringing or the relationship between the
child and adoptive parents.
Subsection (2) states that an adoption plan may not include anything that
purports to prevent, restrict or otherwise control the movement of a party.
Subsection (3) provides that an adoption plan has no effect once the child
becomes an adult.
Chief executive to help
Clause 169 provides that on request by the parties to a proposed adoption
or adoption, the chief executive must help them to prepare an adoption
plan, for example, by making an officer of the department available to act
as an intermediary.
Subsection (2) states that if an adoption plan is required under section 172,
the chief executive must arrange for an appropriate Aboriginal or Torres
Strait Islander person to be available to help the parties to prepare the plan.
Division 2 When is plan required
In-person contact between child and birth family
Clause 170 applies if a birth parent and a prospective adoptive parent have
advised the chief executive that they wish there to be in-person contact,
after the adoption, between the child and the child's birth family.
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Subsection (2) states that an adoption plan must be agreed, between the
birth parent and the prospective adoptive parents, that addresses how the
contact will happen and the nature and frequency of the contact. Therefore,
in this circumstance, the preparation of an agreement to an adoption plan is
compulsory.
Child protection order
Clause 171 applies if a child protection order is, or has been, in force for
the child. Subsection (2) provides that an adoption plan must be agreed to
that addresses the matters stated in section 165(2)(c), which relate to the
degree of openness there will be in the adoption. These matters include
how and when the parties will communicate with each other and the
matters about which information will be exchanged.
Particular Aboriginal or Torres Strait Islander placements
Clause 172 applies if the child is an Aboriginal or Torres Strait Islander
child and the prospective adoptive parents are not from the child's
community or language group.
Subsection (2) specifies that an adoption plan must be agreed to that
addresses the matters stated in section 165(2)(c). These matters relate to
how the adoptive parents will
(i) help the child to maintain contact with the child's community or
language group; and
(ii) help the child to develop and maintain a connection with the child's
Aboriginal tradition or Island custom; and
(iii) preserve and enhance the child's sense of Aboriginal or Torres Strait
Islander identity.
Adoption plans otherwise not compulsory
Clause 173 states that unless required under sections 170 to 172, an
adoption plan need not be prepared that is, it is not compulsory.
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Part 9 Adoption orders
Division 1 General matters
Court may make adoption orders
Clause 174 provides that on an application under part 9, the Childrens
Court may make an adoption order for the adoption of a child by the person
or persons named in the application.
Consents and pre-consent counselling and information
Clause 175 does not apply to a parent if the need for the parent's consent to
the child's adoption has been dispensed with under section 39.
Subsection (2) provides that the court must not make an adoption order
unless it is satisfied each parent has given consent to the adoption, under
part 2, at least 30 days before the making of the order. This is the provision
that establishes the requirement for whose consent is required for a child to
be adopted.
Subsection (3) states that the court must not make an adoption order unless
the documents specified in the subsection for each parent are produced to
the court. These documents are to assist the court to determine whether the
requirements of part 2 have been met in relation to each parent who has
given consent to the child's adoption.
Subsection (4) makes it clear that the court only need be satisfied once that
the consents required for a child's adoption have been given. If an interim
order is in force for the child, the court must have been satisfied the
required consents have all been given, so the court is not required to
reconsider these matters a second time when considering making a final
adoption order for the child.
In addition, subsection (5) states that subsection (3) does not apply to a
parent for whom a complying interstate consent under section 42 is in
force. Subsection (6) states that this section does not apply to an
intercountry adoption.
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Particular documents not to be served on prospective adoptive
parents
Clause 176 provides that in a proceeding under this part
(a) the chief executive must not serve, on a prospective adoptive parent, a
copy of a document mentioned in section 175(3); and
(b) a party must not serve, on a prospective adoptive parent, a copy of a
document relating to the giving of consent by a parent of the child.
This clause is to preserve the privacy of the child's parents in relation to
giving their consent to their child's adoption, particularly if there are
sensitive matters relating to as assessment of the parent's capacity to give
the consent.
Subsection (2) clarifies that this applies despite a rule of court or other law.
Proceedings about whether parents have consented
Clause 177 provides that the chief executive may apply to the Childrens
Court for a declaration that a parent (the relevant parent) of a child has
given consent to the child's adoption. The application may be made before,
or at the same time, as an application is made for an adoption order for the
child.
Subsection (3) provides that if the court is hearing an application for an
interim adoption order under division 2, or for a final adoption order under
section 188, and the court considers a proceeding about the issue of consent
should first be heard and decided under this section, the court may direct
the chief executive to make an application under this section.
Subsection (4) requires the chief executive to serve a copy of the
application on the relevant parent. However, subsection (5) provides that
the court may dispense with the requirement to serve a copy of the
application on the relevant parent if the court is satisfied the chief executive
can not locate the relevant parent after making all reasonable enquiries.
Subsection (6) provides that a copy of the application served on the
relevant parent must state that the application may be heard and decided
even though the relevant parent does not appear in court.
Subsections (7) and (8) state that the prospective adoptive parents are not
respondents in the proceeding, they must not be served with a copy of the
application and the court must hear and decide the application, in the
absence of the prospective adoptive parents, separately to a proceeding in
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which the court hears and decides an application for an adoption order for
the child. This is a further measure to preserve the privacy of child's
parents in relation to giving their consent.
Subsection (9) states the circumstances in which the court may hear and
decide the application in the absence of the relevant parent. Subsections (8)
and (9) do not limit the court's jurisdiction to exclude a person from a
proceeding.
Child subject to child protection order
Clause 178 applies if the child is in the custody or guardianship of the chief
executive (child safety) or someone else under the Child Protection Act
1999.
Subsection (2) provides the court must not make an adoption order unless a
document, signed by the chief executive (child safety), is produced to the
court stating that the chief executive (child safety) considers the adoption is
an appropriate way of meeting the child's need for long-term stable care.
Child able to form and express views
Clause 179 requires the court to consider the views of a child who is able to
form and express views about his or her adoption before deciding whether
to make an adoption order for the child.
It should be noted that under sections 235 and 236, someone may be
appointed to give separate legal representation or support to the child.
Subsection (3) provides that for an adoption other than an intercountry
adoption, the court may make an adoption order only if the following
documents have been produced to the court
(a) a document, sworn by an officer of the department, stating that the
officer gave the information under section 44 to the child on a stated
day;
(b) a document, sworn by a counsellor under section 45, stating that the
counsellor counselled the child under that section on a stated day or
days.
Subsection (4) clarifies that subsection (3) does not apply to the making of
a final adoption order if an interim order is already in force for the child.
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References to prospective adoptive parents
Clause 180 states that a reference in this part to a child's prospective
adoptive parents includes, for a proposed adoption by a single person, that
person.
Division 2 Local adoptions
Application of div 2
Clause 181 provides that division 2 applies if the chief executive is a
child's guardian under section 57 and has selected the child's prospective
adoptive parents under part 7.
Application for interim order
Clause 182 provides that the chief executive may apply to the Childrens
Court for an interim order for the adoption of the child by the prospective
adoptive parents.
The chief executive must serve a copy of the application on the prospective
adoptive parents and the prospective adoptive parents are respondents in
the proceeding.
Subsections (3) and (4) require the chief executive to give notice of the
application to each person who has given consent to the child's adoption
under part 2, unless the chief executive cannot locate the person after
making all reasonable enquiries.
Subsection (6) provides that a person who has given consent to the child's
adoption but wishes to contest the application may apply to the court to be
included as a respondent in the proceeding.
Requirements for making interim order
Clause 183 sets out the matters the court must be satisfied about before the
court may make an interim order.
Subsection (2) provides that this section does not apply if the prospective
adoptive parents are habitually resident in a convention country. See
section 213 for the matters applying if the prospective adoptive parents are
habitually resident in a convention country.
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Period of operation of interim order
Clause 184 states that an interim order remains in force until the Childrens
Court discharges it or makes a final adoption order for the child.
Effect of interim order
Clause 185 provides that while an interim order is in force for the adoption
of a child by a person, the person has custody of the child and the chief
executive must supervise the child's wellbeing and interests.
The chief executive continues to be the child's guardian because the interim
order does not affect the chief executive's guardianship.
Discharge of interim order
Clause 186 provides that the chief executive may apply to the Childrens
Court to discharge an interim order and the court may discharge the interim
order if satisfied it would be contrary to the child's wellbeing or best
interests to be adopted by the prospective adoptive parents. In making this
decision, the court is to have regard to the matters of which the court must
be satisfied before it may make a final adoption order.
Subsection (2) requires the chief executive to serve a copy of the
application on the prospective adoptive parents.
The court may discharge an interim order for a child on the application of
the chief executive or when considering an application under section 187
for a final adoption order for the child if the court is not satisfied of the
matters of which the court must be satisfied before it may make a final
adoption order and considers these matters are not likely to be satisfied
within an appropriate time.
Subsection (6) states that the discharge of an interim order does not affect
the chief executive's guardianship of the child.
Application for final adoption order if interim order is in force
Clause 187 applies if an interim order is in force and the child has been in
the custody of the prospective adoptive parents under the order for at least 1
year.
The chief executive may apply to the Childrens Court for a final adoption
order for the adoption of the child by the prospective adoptive parents. The
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chief executive must serve a copy of the application on the prospective
adoptive parents.
If the chief executive has not applied for a final adoption order or for a
discharge of the interim order, and the child has been in the custody of the
prospective parents under the interim order for at least 1 year and 30 days,
then subsection (4) enables the prospective adoptive parents to apply to the
court for a final adoption order. If they make this application, the
prospective adoptive parents must serve a copy of the application on the
chief executive.
Subsection (6) states that a person served with a copy of the application
under subsection (3) or (5) (i.e. either the prospective adoptive parents or
the chief executive as the case may be) is a respondent in the proceeding.
Application for final adoption order in favour of approved
carers
Clause 188 applies if the child's prospective adoptive parents are, and have
been for at least 1 year, approved carers of the child.
Subsection (2) provides that the chief executive may apply to the Childrens
Court for a final adoption order for the adoption of the child by the
prospective adoptive parents. As the child has been in the prospective
adoptive parents' care for at least 1 year as approved carers of the child,
there is no requirement for an interim order to have been in place before the
chief executive can apply for a final adoption order.
The chief executive must serve a copy of the application on the prospective
adoptive parents and the prospective adoptive parents are respondents in
the proceeding.
Subsections (4) and (5) provide that the chief executive must give notice of
the application to each person who has given consent to the child's
adoption under part 2, unless the chief executive can not locate the person
after making all reasonable enquiries.
Subsection (7) provides that if no interim order is in force, a person who
has given consent to the child's adoption but wishes to contest the
application may apply to the court to be included as a respondent in the
proceeding.
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Requirements for making final adoption order
Clause 189 sets out the matters the court must be satisfied about in order to
make a final adoption order for the child.
Subsection (2) also provides that if an interim order is not in force for the
child, the court must be satisfied that the chief executive selected the
prospective adoptive parents in compliance with part 7, division 2.
Subsection (3) states that this section does not apply if the prospective
adoptive parent is a person habitually resident in a convention country. See
section 213 for the matters applying if the prospective adoptive parents are
habitually resident in a convention country.
Notice of order
Clause 190 provides that as soon as practicable after an adoption order is
made, the chief executive must
(a) give to the parties to the proceeding a copy of the order; and a notice
explaining its terms and effect; and
(b) give to each person who consented to the adoption under part 2 a
notice stating that the order has been made and explaining its terms
and effect.
Subsection (2) states that subsection (1)(b) does not apply to a person
whom the chief executive can not locate after making all reasonable
enquiries.
Division 3 Intercountry adoptions
Application of div 3
Clause 191 provides that division 3 applies if
(a) a child is brought to Queensland from another country to be adopted
under arrangements made between the chief executive and the
competent authority for the other country; and
(b) the child's prospective adoptive parents, whose names were on the
suitable adoptive parents register, were selected
(i) by the competent authority, under the arrangements; or
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(ii) by the chief executive, in the circumstances mentioned in section
152(2).
Custody and guardianship if no guardian under Cwlth Act
Clause 192 provides that this section applies if there is no guardian of the
child under the Immigration (Guardianship of Children) Act 1946 (Cwlth).
From the child's arrival in Queensland, the law operates to automatically
vest guardianship of the child and custody of the child in the prospective
adoptive parents. The prospective adoptive parent's custody continues
subject to an order under section 190.
If the Immigration (Guardianship of Children) Act 1946 (Cwlth) does
provide that the child is in the guardianship of the Minister responsible for
that Act, then the Immigration (Guardianship of Children) Act 1946 makes
provision for the guardian to place the child in a person's custody. The
Minister for the Immigration (Guardianship of Children) Act 1946 has
delegated the responsibilities of guardianship to the chief executive, which
allows the chief executive to place the child in the custody of the
prospective adoptive parents.
Custody and guardianship if interim order in force
Clause 193 provides that this section applies if an interim order is made in
favour of the prospective adoptive parents under this division. See clause
191 for the circumstances in which an application would be made for an
interim order for an intercountry adoption.
Subsection (2) provides that while the interim order is in force, the
prospective adoptive parents have custody of the child. However,
subsection (3) specifies that the interim order does not affect the chief
executive's guardianship of the child.
Order ending custody or discharging interim order
Clause 194 provides that the chief executive may apply to the Childrens
Court for either of the following orders
(a) if the child is in the custody of the prospective adoptive parents under
section 192 an order ending their custody of the child; or
(b) if an interim order in favour of the prospective adoptive parents is in
force under this division an order discharging the interim order.
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Subsection (2) requires that the chief executive must serve a copy of the
application on the prospective adoptive parents.
Subsection (3) specifies that the court may make the relevant order if
satisfied it would be contrary to the child's wellbeing or best interests to be
adopted by the prospective adoptive parents, having regard to the matters
under section 200 of which the court must be satisfied before it may make a
final adoption order. Note the court may also make an order discharging
the interim order under section 201.
Subsection (4) provides that an order under this section does not affect the
chief executive's guardianship of the child.
Application for interim order
Clause 195 provides that this section applies if the Childrens Court makes
an order under section 194 ending the prospective adoptive parent's
custody that was automatically conferred by section 192; and the chief
executive selects new prospective adoptive parents from the suitable
adoptive parents register. Note - see section 152(2).
Subsection (2) specifies that the chief executive may apply to the Childrens
Court for an interim order for the adoption of the child by the prospective
adoptive parents.
Subsection (3) requires the chief executive to serve a copy of the
application on the prospective adoptive parents and the competent
authority. The prospective adoptive parents are respondents in the
proceeding.
Requirements for making interim order
Clause 196 sets out the matters of which the court must be satisfied to
make an interim order.
Period of operation of interim order
Clause 197 provides that an interim order remains in force until the
Childrens Court discharges it or makes a final adoption order for the child.
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Chief executive to supervise the child's wellbeing and best
interests
Clause 198 requires the chief executive to supervise the child's wellbeing
and interests while the child is in the custody of the prospective adoptive
parents-
(a) under section 192; or
(b) if because an interim order in favour of the prospective adoptive
parents is in force under this division; or
(c) because the chief executive, as the child's guardian under a delegation
from the responsible Minister under the Immigration (Guardianship
of Children) Act 1946 (Cwlth), placed the child in their custody.
Application for final adoption order
Clause 199 applies if the child has been in the custody of the prospective
adoptive parents, for at least 1 year for the reasons mentioned in the
previous section.
Subsection (2) provides that the chief executive may apply to the Childrens
Court for a final adoption order for the adoption of the child by the
prospective adoptive parents.
Subsection (3) requires the chief executive to serve a copy of the
application on the prospective adoptive parents.
Subsection (4) provides that the prospective adoptive parents may apply to
the court for a final adoption order if-
(a) the child has been in their custody, as mentioned in section 198(1), for
at least 1 year and 30 days; and
(b) the chief executive has neither applied for a final adoption order nor
applied for an order under section 194.
Subsection (5) provides that if the prospective adoptive parents apply for a
final adoption order, they must serve a copy of the application on the chief
executive.
Subsection (6) states that a person served with a copy of the application
under subsection (3) or (5) is a respondent in the proceeding.
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Requirements for making final adoption order
Clause 200 sets out the matters of which the court must be satisfied to
make a final adoption order for an intercountry adoption.
Discharge of interim order on application for final order
Clause 201 applies if, on an application for a final adoption order, the court
is not satisfied of the matters under section 200 of which the court must be
satisfied before it may make a final adoption order and considers these
matters are not likely to be satisfied within an appropriate time. In these
circumstances, the court may make an order discharging the interim order
in favour of the prospective adoptive parents.
Notice of order
Clause 202 provides that as soon as practicable after an adoption order is
made, the chief executive must
(a) give to the parties to the proceeding
(i) a copy of the order; and
(ii) a notice explaining the terms and effect of the order; and
(b) give a copy of the order to the competent authority.
Division 4 Adoptions by step-parent
Meaning of suitability report
Clause 203 provides that in division 4, suitability report means a report
prepared for the Childrens Court by the chief executive under section
138(2).
Application by step-parent
Clause 204 allows a person (the step-parent) to apply to the Childrens
Court for a final adoption order in relation to the person's step-child if the
step-parent has
(a) has made an application under part 5, division 1; and
(b) has been assessed as suitable under part 6; and
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(c) has received, from the chief executive, a suitability report for the
proposed adoption.
Subsection (3) states that the application must be made jointly with the
step-parent's spouse. It should be noted that the spouse (i.e. the child's
natural parent) is not applying to adopt the child, but is applying that the
child be adopted by the step-parent. This requirement for the application to
be made jointly provides a further assurance to the court that the spouse of
the step-parent continues to support the proposed adoption of their child by
the step-parent.
Notice of application
Clause 205 provides that after making an application under section 204, the
applicant must
(a) serve a copy of the application on the chief executive; and
(b) give notice of the application to each parent of the child who has given
consent to the proposed adoption under part 2.
However, subsection (2) states that subsection (1)(b) does not apply to a
parent whom the applicant can not locate after making all reasonable
enquiries.
Respondents
Clause 206 provides that the chief executive is a respondent in the
proceeding. Subsection (2) provides that a person who has given consent
to a proposed adoption under part 2 but wishes to contest the application
may apply to the court to be included as a respondent in the proceeding.
Chief executive must file report
Clause 207 provides that after being served with a copy of the application,
the chief executive must file the relevant suitability report in the court. This
is the way that the court is informed of the matters considered by the chief
executive in assessing the step-parent's suitability to adopt the child and the
chief executive's view about the necessity for the order.
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Requirements for making final adoption order
Clause 208 sets out the matters of which the court must be satisfied before
making a final adoption order for the step-parent to adopt the child of his or
her spouse.
The matters the court must be satisfied of that are specific to the adoption
of a child by a step parent are:
· an order for the child's adoption by the step-parent would better
promote the child's wellbeing and best interest than an order under the
Family law Act 1975 (Cwth), any other court order or not court order;
and
· there are exceptional circumstances that warrant the making of the
order.
These grounds reinforce that the adoption of a child by a step-parent is not
a routine matter, but an exceptional matter.
Notice of order
Clause 209 provides that as soon as practicable after a final adoption order
is made, the chief executive must
(a) give to the parties to the proceeding
(i) a copy of the order; and
(ii) a notice explaining the terms and effect of the order; and
(b) give a notice explaining the terms and effect of the order to each
person who has given consent to the adoption under part 2.
Division 5 Adoptions by residents of a
convention country
Application of div 5
Clause 210 provides that division 5 applies to an adoption order under
division 2 if the prospective adoptive parents are habitually resident in a
convention country
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Selection of prospective adoptive parents
Clause 211 provides that, despite section 181, an adoption order may be
made under division 2 even if the prospective adoptive parents are not
selected under part 7.
Application for final adoption order
Clause 212 provides that, despite section 187(1), an application for a final
adoption order may be made under that section whether or not an interim
order is in force and whether or not the child has been in the custody of the
prospective adoptive parents for at least 1 year.
Requirements for making adoption order
Clause 213 sets out the matters of which the court must be satisfied to
make an adoption order under this division.
Division 6 Effect of a final adoption order
Effect on relationships
Clause 214 provides that the effect of a final adoption order for the
adoption of a child (the adopted child) by a person (the adoptive parent) is:
· the adopted child becomes a child of the adoptive parent and the
adoptive parent becomes a parent of the adopted child;
· the adopted child stops being a child of a former parent and a former
parent stops being a parent of the adopted child;
· other relationships, such as grandparent-child and aunt-niece, are
determined in accordance with the above;
· a former guardian stops being a guardian of the adopted child; and
· a former adoption order stops having effect.
Subsection (7) explains that in the case of step-parent adoptions, the final
adoption order for the adopted child's adoption by the spouse of the child's
parent does not affect the relationship between the adopted child and that
parent.
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Also, subsection (8) provides that, despite the final adoption order, a
former relationship continues in addition to other relationships created by
the order, for the purpose of a law relating to a sexual offence for which
relationships are relevant. An example of such an offence is the offence of
incest.
Subsection (9) states that this section applies subject to another law that
expressly distinguishes between adopted children and other children.
Subsection (10) defines particular terms used in the section.
It should be noted that this section deals with the legal effect of a final
adoption order on an adopted child's relationship to other persons. See
section 6(2)(i) for a guiding principle about the continuance of emotional
connections and interactions with birth family members.
Child's name
Clause 215 provides that a final adoption order for a child may include
(a) an order that the child keep the child's existing surname or have the
same surname as an adoptive parent; and
(b) an order that the child
(i) keep an existing given name; or
(ii) have another given name agreed by the child's adoptive parents
as well as an existing given name; or
(iii) have another given name agreed by the child's adoptive parents
instead of an existing given name.
The court is required to make the order that will best promote the child's
wellbeing and best interests and, in doing so, must have regard to the
child's right to preserve his or her identity and whether the child is
generally known by, or identifies with, any of the child's existing names.
Subsection (5) states that the court must not make an order under
subsection (1)(b)(iii) unless satisfied it would harm the child's wellbeing or
best interests to keep the existing given name. For example, the child's
name, while common in the child's own language, may have offensive or
negative connotations in the English language.
Subsection (6) provides that this section does not prevent a change of the
child's name under another law after the final adoption order is made. The
benefit of requiring the court to consider the child's best interests and right
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to preserve his or her identity, even though the child's name can be changed
in another way, is that the adoption order including the child's name will be
registered and create a record that the child will be able to search at a later
time.
Effect of adoption orders in relation to property
Clause 216 provides that section 214 has effect in relation to
(a) dispositions of property whether by will or otherwise; and
(b) devolutions of property in respect of which a person dies intestate.
However, subsection (2) states that section 214 does not affect the
operation of a will or other instrument that distinguishes between adopted
children and children other than adopted children.
Subsection (3) provides that this section applies subject to section 346; that
is, it does not affect the disposition of property in relation to a death that
occurred prior to the commencement of the Adoption of Children Act 1964.
Bequest by will to an unascertained adopted person
Clause 217 applies if
(a) under a will, the testator makes a disposition of property to a person
who is described
(i) as being a child of the testator or of another person; and
(ii) as having been adopted by another person; and
(b) the personal representative of the testator is unable to find out the
name and address of the adopted person.
Subsection (2) requires the personal representative to give the public
trustee a copy of the will and a notice stating that the personal
representative is unable to find out the name and address of the adopted
person.
Subsection (3) provides that on receipt of the copy of the will, the public
trustee must give the chief executive a notice asking the chief executive to
take steps to find out the name and address of the adopted person.
Subsection (4) provides that on receipt of the request, the chief executive
must take steps to find out the name and address of the adopted person and,
if the adopted person has died, the date of the death by
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(a) checking the chief executive's records; and
(b) asking the registrar.
Subsection (5) provides that if the chief executive finds out the name,
address or date of death, the chief executive must give the information to
the public trustee.
Subsection (6) provides that if the chief executive is unable to find out the
name, address or date of death, the chief executive must advise the public
trustee.
Subsection (7) provides that on receiving information or advice from the
chief executive under subsection (5) or (6), the public trustee must give a
notice to the personal representative stating
(a) whether the name or address has been ascertained; or
(b) if it has been ascertained that the adopted person has died, the date of
death.
Subsection (8) provides that the public trustee is a trustee for the adopted
person on the trusts stated in, or arising under, the will.
Subsection (9) provides that if the personal representative transfers
property to the public trustee as trustee for the adopted person, the personal
representative is taken to have transferred the property to the adopted
person.
Subsection (10) states that subsections (8) and (9) do not apply if the
adopted person died before the testator or, for another reason, is not entitled
to an interest under the will.
Subsection (11) states that if the public trustee gives the personal
representative a notice that the adopted person has disclaimed property to
which the adopted person was entitled under the will, the notice is, for the
purpose of administering the estate, sufficient evidence that the adopted
person has disclaimed the property.
Subsection (12) states that this section applies only to a will made after the
commencement of the repealed Act, section 29A.
Transfer or distribution of property by trustee or personal
representative
Clause 218 provides that, subject to this section, a trustee may transfer or
distribute property to persons who appear entitled to it without finding out
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whether or not an adoption has happened because of which a person is or is
not entitled to an interest in the property.
Subsection (2) provides that a trustee who transfers or distributes property
under subsection (1) is not liable to a person claiming directly or indirectly
because of an adoption unless the trustee has notice of the claim before the
transfer or distribution.
Subsection (3) states that this section does not affect a person's right to
follow property into the hands of a person, other than a purchaser for value,
who has received it.
Division 6 Discharge of final adoption order
Grounds for discharge
Clause 219 provides that a final adoption order may be discharged on any
of the following grounds
(a) the order was made or something was done for the purpose of making
the order
(i) because of a false or misleading document or representation; or
(ii) because a person acted fraudulently or used undue influence on
another person; or
(iii) in another improper way;
(b) a consent required for the adoption was not given freely and
voluntarily by a person with capacity to give the consent;
(c) there are other exceptional circumstances that warrant the discharge.
Who may apply
Clause 220 provides that any of the following persons may apply for a final
adoption order to be discharged
(a) the adopted person, if he or she is an adult;
(b) a birth parent of the adopted person;
(c) an adoptive parent of the adopted person;
(d) the chief executive.
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How to apply
Clause 221 provides that an application for the discharge of a final
adoption order must be made to the Supreme Court and must state the
ground on which it is made.
Subsection (3) provides that as soon as practicable after filing the
application in the court, the applicant must serve a copy of it on each party
to the adoption and, if the applicant is not the chief executive, on the chief
executive. A served copy must state where and when the application is to
be heard.
Subsection (5) requires that a copy served on a person who is a party to the
adoption, other than the adopted person, must also state that the application
may be heard and decided even though the person does not appear in court.
Subsection (6) provides that the court may dispense with the requirement to
serve a copy of the application on a person who is a party to the adoption,
other than the adopted person, if the court is satisfied that the applicant can
not establish the person's identity or location after making all reasonable
enquiries.
Respondent
Clause 222 provides that a person, other than the chief executive, served
with a copy of the application is a respondent in the proceeding. Subsection
(2) states that if the chief executive is not the applicant, the chief executive
may apply to the court to be included as a respondent in the proceeding.
Hearing not to be in public
Clause 223 provides that the hearing for the proceeding is not open to the
public. However, subsection (2) provides that the court may permit a
person to be present during the hearing if the court is satisfied it is in the
interests of justice.
Hearing of application in absence of a party
Clause 224 provides that the court may not hear or decide the application
unless the adopted person, or a lawyer representing the adopted person,
appears in the proceeding.
Otherwise, the court may hear and decide the application in the absence of
a person who is a party to the adoption only if
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(a) the person has been given reasonable notice of the hearing and failed
to attend or continue to attend the hearing; or
(b) the court dispenses with the requirement to serve a copy of the
application on the person under section 221(6).
Subsection (3) states that subsection (1) does not limit the court's
jurisdiction to exclude a person from a proceeding.
Court orders
Clause 225 provides that the court may discharge the final adoption order
only if satisfied of a ground mentioned in section 219.
Subsection (2) states that if the applicant is not the adopted person, the
court must not discharge the order if it considers the discharge is likely to
be contrary to the adopted person's wellbeing and best interests. Subsection
(3) provides that the order may be discharged even if the adopted person is
an adult.
Subsection (4) provides that if the adopted person is a child and has any
views about the proposed discharge and is able to express the views, having
regard to the child's age or ability to understand, the court must consider
the views.
Subsection (5) states that if the court makes an order discharging the final
adoption order, it may also make any other order it considers appropriate in
the interests of justice or to ensure the adopted person's wellbeing and best
interests including, for example, an order about
(a) the ownership of property; or
(b) the adopted person's name; or
(c) if the adopted person is a child, custody or guardianship of the child.
Effect of discharge
Clause 226 provides that on the making of an order discharging the final
adoption order (the discharge order), the rights, privileges, duties,
liabilities and relationships of the child and all other persons are the same
as if the final adoption order had not been made.
However, subsection(2) provides that the making of the discharge order
does not affect
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(a) anything lawfully done, or the consequences of anything lawfully
done, while the final adoption order was in force; or
(b) a right, privilege or liability acquired, accrued or incurred while the
final adoption order was in force.
Subsection (3) provides that the discharge order does not affect a consent
given to the child's adoption unless the court decides otherwise.
Subsection (4) provides that for the purpose of a law relating to a sexual
offence for which relationships are relevant, a relationship between a child
and another person that existed immediately before the making of the
discharge order continues, despite the discharge order, in addition to other
relationships that exist because of the discharge order.
Subsection (5) states that this section applies subject to an order under
section 225(5).
Part 10 Court Proceedings
Division 1 Preliminary
Application of pt 10
Clause 227 states that part 10 applies to a proceeding under the Act.
Division 2 Constitution of court and procedural
provisions
Court's constitution
Clause 228 provides that when exercising its jurisdiction under the Act the
Childrens Court may not be constituted under the Childrens Court Act
1992, section 5(3)(c). That is, it may not be constituted by 2 justices of the
peace.
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Court's paramount consideration
Clause 229 provides that the Childrens Court's paramount consideration in
exercising its jurisdiction or powers must be to have regard to the wellbeing
and best interests of the child. This means having regard to the child's
wellbeing and best interests for the rest of his or her life (as stated in
section 9).
Evidence
Clause 230 provides detail of how evidence is to be treated in proceedings
before the Childrens Court and to what degree the Childrens Court need
satisfy itself of a matter when considering an application for an order.
Specifically, subsection (1) stipulates that in a proceeding the Childrens
Court is not bound by the rules of evidence, but may inform itself in any
way it thinks appropriate. Subsection (2) stipulates that if, on application
for an order, the Childrens Court is to be satisfied of a matter, the court
need only be satisfied of the matter on the balance of probabilities.
Court to ensure parties understand proceeding
Clause 231 specifies the efforts which the Childrens Court must make to
ensure that parties to a proceeding understand the nature, purpose and legal
implications of the proceeding and of any order or ruling made by the
court. Specifically, subsection (2) states that where a party may have
difficulty communicating, either through language difficulties or because
of a disability, the Childrens Court must not hear the proceeding without
making the necessary arrangements, such as having an interpreter to
translate things that are said, or having a person to facilitate so that the
party may communicate and participate adequately in the proceeding.
Expert help
Clause 232 provides that a person having special knowledge or skill may
be appointed by the Childrens Court in a proceeding, either on the court's
own initiative or on application of a party to the proceeding, so as to assist
the court.
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Right of appearance and representation
Clause 233 provides that a party to a proceeding, including the child where
the proceeding is on an application for an adoption order, may appear in
person or be represented by a lawyer.
Subsection (2) specifies that if the there is any reason that the child's
parents can not appear in person in a proceeding concerning the child then
another person appointed in writing by the parents may, with the leave of
the court, present the child's parents view and wishes.
Right of appearance of departmental co-ordinators
Clause 234 specifies that a co-ordinator may appear in a proceeding and
subsection (2) specifies that a co-ordinator means an officer or employee of
the department who is authorised in writing by the chief executive to
appear in proceedings under the Act.
Separate legal representation of child
Clause 235 applies in a proceeding on an application for an order under the
Act. If the Childrens Court considers it is in the child's best interests for
the child, whether the child is the child to be adopted or a birth parent who
is not an adult, to be separately represented by a lawyer, subsection (2)
provides that the court may order that the child be separately represented
by a lawyer; and make the other orders it considers necessary to secure the
child's separate legal representation.
Without limiting subsection (2), subsection (3) states that the court must
consider making orders about the child's separate legal representation for
the following matters
(a) the application for the order is contested by a birth parent; or
(b) the child opposes the application; or
(c) the application for the order is made under part 9, division 4
(adoptions by step-parent); or
(d) the child is or was a child in the child safety system within the
meaning given by the Commission for Children Act, section 11A.
Subsection (4) states that the lawyer must act in the child's best interests
regardless of any instructions from the child and as far as possible, present
the child's views and wishes to the court.
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Support for child
Clause 236 specifies that in a proceeding on an application for an adoption
order, if the Childrens Court considers it is necessary in the child's best
interests, the court may order the chief executive to appoint a qualified
person to support the child.
For this section, subsection (2) refers to section 47(2) for the meaning of
qualified person, which states that this means a social worker, lawyer or
other person who the chief executive is satisfied has the necessary expertise
or experience to give the relevant support and who is not an employee of
the department.
Legal representation of more than 1 child
Clause 237 provides that a lawyer may represent more than 1 child in the
same proceeding. However, subsection (2) clarifies that if the court
considers there is a conflict of interest and as such the lawyer should not
represent more than 1 child, then the court may order that a child be
represented by another lawyer.
Child can not be compelled to give evidence
Clause 238 specifies that in a proceeding a child may only be called to give
evidence with the leave of the Childrens Court.
Subsection (2) clarifies that the court may grant such leave only if the child
is at least 12 years of age; is represented by a lawyer and agrees to give
evidence.
Subsection (3) provides that if the child gives evidence then he or she may
be cross examined only with the leave of the court.
Court may hear submissions from non-parties to proceeding
Clause 239 provides that in a proceeding the Childrens Court may hear
submissions from a member of the family of the child to whom the
proceeding relates; and anyone else the court considers is able to inform it
on any matter relevant to the proceeding. Subsection (2) specifies that such
a submission may be made by a person's lawyer.
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Transfer of proceedings
Clause 240 provides that if a magistrate constituting the Childrens Court is
of the opinion a proceeding before the magistrate should be heard by the
court constituted by a magistrate at another place, the magistrate may order
that the proceeding be transferred to the court constituted by a magistrate at
the other place. Subsection (2) provides that a magistrate may act under
subsection (1) on the magistrate's own initiative or on the application of a
party to the proceeding.
Hearing of applications together
Clause 241 provides that the Childrens Court may hear 2 or more
applications for orders together if, before any of the applications are
decided, a party to the proceeding for any of the applications asks that the
applications be heard together and the court considers it is in the interests
of justice that the applications be heard together. Subsection (2) states that
this applies even though the parties, or all of the parties, to the proceedings
are not the same.
Costs
Clause 242 stipulates that the parties to a proceeding in the Childrens Court
for an order must pay their own costs of the proceeding.
Division 3 Appeals
Who may appeal
Clause 243 specifies that a party to the proceeding for an application for
any of the orders listed in the provision may appeal to the appellate court
against a decision on an application listed in the section.
Significantly, a decision on an application for a final adoption order can
only be appealed if the decision is to refuse the application. A decision to
make a final adoption order cannot be appealed.
How to start appeal
Clause 244 provides that an appeal is started by filing a notice of appeal
with the registrar of the appellate court within 28 days after the decision is
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made. Subsection (2) requires the appellant to serve a copy of the notice of
appeal on the other persons entitled to appeal against the decision.
Subsection (4) provides that the court may at any time extend the period for
filing the notice of appeal. Subsection (5) states that the notice of appeal
must state fully the grounds of the appeal and the facts relied on.
Stay of operation of decisions
Clause 245 provides that if a person appeals against a decision under this
division, the decision is stayed until the end of the appeal.
Hearing procedures
Clause 246 provides that an appeal must be decided on the evidence and
proceedings before the Childrens Court, however the appellate court may
order that the appeal be heard afresh, in whole or part.
Powers of appellate court
Clause 247 provides those powers that the appellant court may exercise in
deciding an appeal. The appellate court may
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision appealed against and remit the matter to the
Childrens Court that made the decision.
Part 11 Access to adoption information
Division 1 Preliminary
Identifying information
Clause 248 provides that a reference in this part to information that
identifies a person includes information that is likely to lead to the
identification of the person. Subsection (2) specifies that information may
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identify a person, if given to another person, because of other information
that the other person has or is able to obtain.
Meaning of relative
Clause 249 provides that in part 11, relative means a spouse, parent, sibling
or child.
To remove any doubt, subsection (2) declares that a reference in part 11 to a
relative of an adopted person or birth parent does not include a person who
was his or her parent, sibling or child before the adoption but is not his or
her parent, sibling or child after the adoption.
References to birth parent who is a biological father
Clause 250 states that for the purpose of a reference in part 11 to a birth
parent of an adopted person, a man is the adopted person's biological father
only if
(a) the man is shown as the adopted person's father in the register of
births under the Births, Deaths and Marriages Registration Act 2003;
or
(b) the man consented to the adoption, or the need for his consent was
dispensed with under the law in force at the relevant time; or
(c) the chief executive holds a record or other sufficient evidence that the
man accepted paternity of the adopted person before or at the time of
the adoption; or
(d) the chief executive is otherwise satisfied, on the balance of
probabilities, the man is the adopted person's biological father.
Application to persons who have died
Clause 251 sets out how part 11 applies in relation to a person who has
died.
Prescribed documents
Clause 252 provides that a prescribed document, relating to an adoption, is
a copy of any of the following
(a) a parent's consent to the adoption;
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(b) an order dispensing with the need for a parent's consent to the
adoption;
(c) an adoption order made under this Act, the repealed Act or an Act
repealed by the repealed Act .
Release of altered documents
Clause 253 applies if
(a) the chief executive is required to give a particular document to a
person in response to a request under division 2 or 3; and
(b) the document contains information (restricted information) that the
chief executive must not give the person because of another provision
of this Act to which division 2 or 3 is subject.
Subsection (2) provides that the chief executive may give the document
after altering it so the restricted information can not be read.
How request for information is made
Clause 254 provides that a request for information under division 2 or 3
must be made by
(a) giving the chief executive a signed request in the approved form; and
(b) producing for the chief executive's inspection the documents
prescribed under a regulation relating to the person's identity.
Subsection (2) provides that before granting a person's request for
information about another person, the chief executive may also require the
first person to produce reasonable proof of his or her relationship to the
other person by giving the chief executive particular information or
producing a particular document for the chief executive's inspection.
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Division 2 Access to particular identifying
information while adopted person is a
child
Application of div 2
Clause 255 provides that division 2 applies in relation to an adopted person
who is a child.
Request by, or on behalf of, adopted child
Clause 256 provides that either of the following persons (the applicant)
may ask the chief executive for pre-adoption information about the adopted
child
(a) an adoptive parent of the adopted child; or
(b) the adopted child, but only with the consent of an adoptive parent.
Subsection (2) provides that the chief executive may give information in
compliance with the request only if written consent is given by each birth
parent who is identified by the information.
However, subsection (3) provides that a birth parent is taken to have given
consent for subsection (2), if the birth parent has asked for, and received,
information about the adopted child under section 257.
Subsection (4) provides that subject to subsection (2), the chief executive
must comply with the request by giving the applicant any of the following
held by the chief executive
(a) the adopted child's name before the adoption;
(b) a prescribed document;
(c) in relation to a birth parent of the adopted child
(i) the birth parent's name at the time of the adoption;
(ii) the birth parent's date of birth;
(iii) the birth parent's last known name and address.
(d) in relation to any other adopted person who is an adult and who has at
least 1 birth parent who is also a birth parent of the adopted child
(i) the person's date of birth;
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(ii) the person's name immediately after the person's adoption;
(iii) the person's last known name and address, but only with the
person's written consent.
Subsection (5) provides that if a birth parent gives consent, it may relate to
all the information under subsection (4) or to all the information other than
the birth parent's last known name and address.
Subsection (6) provides that if a person's consent is required under
subsection (2) or (4)(d)(iii), but the person has died, an adult relative of the
person may give consent.
Subsection (7) provides that if a person's consent is required under
subsection (2) or (4)(d)(iii), but the person does not have capacity to
consent, a guardian or adult relative of the person may give the consent.
Request by birth parent
Clause 257 provides that a birth parent of the adopted child may ask the
chief executive for information about the adopted child.
Subsection (2) states that the chief executive may give information in
compliance with the request only if -
(a) written consent is given by an adoptive parent of the child; and
(b) the chief executive has considered the adopted child's views, if the
child is able to form and express views; and
(c) the chief executive is satisfied that giving the information is not likely
to be contrary to the child's wellbeing and best interests.
Subsection (3) provides that an adoptive parent is taken to have given
consent for subsection (2) if the adoptive parent has asked for, or given
consent for the adopted child to ask for, information about the birth parent
under section 256 and information was given under that section.
Subsection (4) provides that subject to subsection (2), the chief executive
must comply with the request by giving the birth parent any of the
following held by the chief executive
(a) in relation to the adopted child
(i) his or her name immediately after the adoption;
(ii) his or her last known name and address;
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(b) the name, at the time of the adoption, of an adoptive parent of the
adopted child;
(c) a prescribed document.
Subsection (5) provides that if an adoptive parent gives consent, it may
relate to all the information under subsection (4) or to all the information
other than the adopted child's last known named and address.
Subsection (6) provides that if the adopted child no longer has an adoptive
parent, a parent of the child at the time the request is made may give the
consent.
Subsection (7) provides that if an adoptive parent of the child does not have
capacity to consent to the information being given, a guardian of the
adoptive parent or a parent of the child at the time the request is made may
give the consent.
Subsection (8) provides that if a birth parent has died, an adult relative of
the birth parent may make a request under subsection (1) in place of the
birth parent.
Subsection (9) provides that if a birth parent does not have capacity to ask
for information, a guardian or adult relative of the birth parent may make a
request under subsection (1) in place of the birth parent.
Subsection (10) provides that in this section, parent, of a child, includes the
chief executive (child safety), or a corresponding officer in another
jurisdiction, who is a guardian of the child.
Taking steps to obtain consent to disclosure
Clause 258 provides that this section applies if a person's consent is
required under this division.
Subsection (2) provides that the chief executive must take steps to contact
the person and ask if the person wishes to give the consent. However,
subsection (3) specifies that subsection (2) does not apply to a person who
the chief executive is aware does not wish to give the consent or to be
contacted for the purpose of asking for the consent.
Support for persons involved in disclosure of information
Clause 259 provides that the chief executive must provide the information,
support or counselling that the chief executive considers appropriate to
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persons seeking information and persons whose consent to the disclosure
of information is sought.
The purpose of providing the information, support or counselling is to help
the person decide whether to seek the information, or consent to the
disclosure of the information, at that time.
Subsection (3) states that the information that the chief executive may give
to a person making a decision mentioned in subsection (2) includes
personal information about another person that may influence the decision.
Adoption plan may include consent or request not to be asked
for consent
Clause 260 provides that a person may give an information consent or
non-contact request to the chief executive by signing an adoption plan that
includes the consent or request and giving a copy of the plan to the chief
executive. However, subclause (2) states that this does not limit the ways a
person may give an information consent or non-contact request to the chief
executive.
Subsection (3) specifies meaning of the terms information consent and
non-contact request for this section.
Access to information is subject to court order
Clause 261 provides that this division applies subject to section 275.
Division 3 Access to particular information
when adopted person is an adult
Application of div 3
Clause 262 provides that division 3 applies in relation to an adopted person
who is an adult.
Request by adopted person
Clause 263 provides that the adopted person may ask the chief executive
for pre-adoption information about the person.
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The chief executive must comply with the request by giving the person any
of the following held by the chief executive
(a) the person's name before the adoption;
(b) a prescribed document;
(c) in relation to a birth parent of the person
(i) the birth parent's name at the time of the adoption;
(ii) the birth parent's date of birth;
(iii) the birth parent's last known name and address, but only with his
or her written consent;
(d) in relation to any other adopted person who is an adult and who has at
least 1 parent who is also a birth parent of the first adopted person
(i) the person's date of birth;
(ii) the person's name immediately after the person's adoption;
(iii) the person's last known name and address, but only with the
person's written consent.
Subsection (3) provides that if a person whose consent is required under
subsection (2)(c)(iii) or (d)(iii) has died, an adult relative of the person may
give the consent.
Subsection (4) provides that if a person whose consent is required under
subsection (2)(c)(iii) or (d)(iii) does not have capacity to consent, a
guardian or adult relative of the person may give the consent.
Request by adult relative in place of adopted person
Clause 264 applies if the adopted person has died or does not have capacity
to ask for information. An adult relative of the adopted person may make a
request under section 263 for pre-adoption information about the adopted
person.
Request by birth parent
Clause 265 provides that a birth parent of the adopted person may ask the
chief executive for information about the adopted person.
The chief executive must comply with the request by giving the birth parent
any of the following held by the chief executive
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(a) in relation to the adopted person
(i) the person's name immediately after the adoption;
(ii) the person's last known name and address, but only with the
person's written consent;
(b) the name, at the time of the adoption, of an adoptive parent of the
adopted person;
(c) a prescribed document.
Subsection (3) provides that if the adopted person has died, an adult
relative of the person may give the consent required under subsection
(2)(a)(ii).
Subsection (4) provides that if the adopted person does not have capacity to
consent, a guardian or adult relative of the person may give the consent
required under subsection (2)(a)(ii).
Request by adult relative in place of birth parent
Clause 266 applies if a birth parent of an adopted person has died or does
not have capacity to ask for information. An adult relative of the birth
parent may make a request under section 265 for information about the
adopted person.
Request by pre-adoption sibling
Clause 267 provides that an adult person (the applicant) may ask the chief
executive for information about the adopted person if
(a) the applicant would be a sibling of the adopted person if the adoption
had not happened; and
(b) the applicant is not also an adopted person.
The chief executive may give information in compliance with the request
only if written consent is given by the adopted person.
However, subsection (3) provides that the chief executive must not give
information in compliance with the request if -
(a) the adoption happened before 1 June 1991; and
(b) a birth parent of the adopted person has made a contact statement that
the birth parent does not wish to be contacted by the adopted person.
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Subsection (4) provides that, subject to subsections (2) and (3), the chief
executive must comply with the request by giving the person any of the
following held by the chief executive
(a) the adopted person's date of birth;
(b) the adopted person's last known name and address;
(c) a prescribed document.
Subsection (5) provides that if an adopted person gives consent, it may
relate to all information under subsection (4) or to all the information other
than the adopted person's last known name and address.
Subsections (6) and (7) provide that if an adopted person has died, an adult
relative of the person may give the consent; or if an adopted person does
not have capacity to consent, a guardian or adult relative of the person may
give the consent.
Limitations on access to information
Clause 268 specifies that this division applies subject to division 4 and
section 275.
Division 4 Contact statements and related
matters
Contact statements
Clause 269 provides that an adopted person who is at least 17 years and 6
months old, or a birth parent of an adopted person, may give the chief
executive a signed document in the approved form (a contact statement)
stating the person's wish about being contacted by another stated person
who may ask for information about the person under division 3.
Subsection (2) specifies that a contact statement may state that-
(a) the adopted person does not wish to be contacted by another stated
person; or
(b) the person wishes any contact by another stated person to happen only
in a stated way.
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For example contact is to happen only by telephone; in-person contact is to
happen only at a neutral place in the presence of a mediator.
Subsection (3) specifies that a contact statement may also state the person's
wishes about being contacted by the chief executive in relation to giving
consent to the disclosure of information about the person under division 2
or 3.
Contact statement obligations for post-June 1991 adoptions
Clause 270 provides that this section applies if -
(a) a person (the applicant) asks the chief executive, under division 3, for
information about another person (the second person) who is an
adopted person or a birth parent of an adopted person; and
(b) the second person has given the chief executive a contact statement
concerning contact with the applicant; and
(c) the adoption happened on or after 1 June 1991.
Subsection (2) provides that before giving any of the requested information
to the applicant, the chief executive must pass on to the applicant-
(a) the contents of the contact statement; and
(b) if the contact statement is that the second person does not wish to be
contacted by the applicant
(i) the explanation for that wish (except to the extent that the chief
executive knows the second person does not want the explanation
to be passed on); or
(ii) if the chief executive is not aware of the explanation, reasons that
are typically given by persons who do not wish to be contacted.
Contact statement obligations for pre-June 1991 adoptions
Clause 271 provides for contact statement obligations for pre-June 1991
adoptions as follows -
Subsection (1) states that this section applies if -
(a) a person (the applicant) asks the chief executive, under division 3, for
information about another person (the second person) who is an
adopted person or a birth parent of an adopted person; and
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(b) the second person has given the chief executive a contact statement
concerning contact with the applicant; and
(c) the adoption happened before 1 June 1991.
Subsection (2) specifies that before giving any of the requested information
to the applicant, the chief executive must pass on the contents of the contact
statement to the applicant.
Subsection (3) specifies that if the contact statement is that the second
person does not wish to be contacted by the applicant, the chief executive
must not give any of the requested information about the second person to
the applicant unless -
(a) a qualified officer speaks with the applicant, in person or by
telephone, to
(i) advise of the second person's wish not to be contacted; and
(ii) pass on the explanation for the second person's wish not to be
contacted (except to the extent that the chief executive knows the
second person does not want the explanation to be passed on) or,
if the chief executive is not aware of the explanation, reasons that
are typically given by persons who do not wish to be contacted;
and
(iii) explain the offence under section 272; and
(b) the applicant gives the chief executive a signed statement, in the
approved form, that
(i) on a stated day, a qualified officer spoke with the applicant about
the matters stated in paragraph (a); and
(ii) the applicant acknowledges
(A) the second person's wish not to be contacted; and
(B) that it is an offence for the applicant to do a thing stated in
section 272(1)(d) in the circumstances stated in that section.
Subsection (4) provides that if the chief executive considers it appropriate,
the chief executive may delay giving the applicant the requested
information for the reasonable period required for the chief executive to
(a) advise the second person that the applicant has asked the chief
executive for the information; and
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(b) offer the second person an opportunity to give the chief executive
information, or further information, about why the second person does
not wish to be contacted by the applicant; and
(c) if information is given under paragraph (b), pass it on to the applicant
to help the applicant better understand the second person's wishes
about contact.
Subsection (5) provides that the chief executive may offer the applicant
other information, counselling or support that the chief executive considers
appropriate (before or after the chief executive discloses the information).
Subsection (6) provides defines the terms qualified officer and telephone
for the section.
Offence about contact for pre-June 1991 adoptions
Clause 272 provides that a person (the first person) commits an offence if -
(a) the first person knows that another person (the second person) has
given the chief executive a contact statement stating that the second
person does not wish to be contacted by the first person; and
(b) the contact statement is current; and
(c) the second person is an adopted person, or a birth parent of an adopted
person, for an adoption that happened before 1 June 1991; and
(d) the first person does any of the following in relation to another person,
knowing that the other person is the second person or a relative of the
second person-
(i) contacts or attempt to contact the person; or
(ii) arranges or attempts to arrange contact with the other person; or
(iii) procures someone else to contact or arrange contact with the
other person.
Maximum penalty--100 penalty units or 2 years imprisonment.
Subsection (2) provides that it is a defence for a person charged with an
offence against subsection (1), in relation to contact with another person to
prove -
(a) the person had contact with the other person (the previous contact)
before the person acquired the knowledge mentioned in subsection
(1)(a) and (d); and
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(Examples of this are as follows
1. The person had contact with the other person in the course
of the person's employment before knowing the other
person was the second person or a relative of the second
person.
2. The person had contact with the other person before the
contact wish mentioned in subsection (1)(a) was given to
the chief executive.)
(b) the contact is a continuation of, or equivalent to, the previous contact.
Currency and revocation of contact statements
Clause 273 provides that the contact statement continues in force until it is
revoked by the person or the person dies. The person may revoke the
contact statement by giving the chief executive a signed notice of
revocation in the approved form.
Persons making contact statements presumed to be living
Clause 274 applies if a person has given the chief executive a contact
statement and has not revoked it. In the absence of evidence to the
contrary, the chief executive must presume the person is still alive.
The chief executive is not required to take steps to determine whether the
person is still alive unless
(a) the chief executive receives a request from someone (the applicant)
for information about the person under division 3; and
(b) the contact statement is that the person does not wish to be contacted
by the applicant; and
(c) the chief executive is aware of information indicating the person has
died or may have died.
It should be noted that under section 48D of the Births, Deaths and
Marriages Registration Act 2003, the chief executive and the registrar may
enter into an arrangement for giving information about whether a person
giving a contact statement has died.
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Division 5 Miscellaneous
Court order restricting access to information
Clause 275 provides that an adopted person, a birth parent or adoptive
parent of an adopted person or the chief executive may apply to the
Childrens Court for an order that the chief executive must not give stated
information to a stated person (the relevant person) under division 2 or 3.
The applicant must serve a copy of the application on the relevant person
and also on the chief executive (if the chief executive is not the applicant).
This must state where and when the application is to be heard by the court.
However, subsection (5) provides that the court may dispense with this
requirement to serve a copy of the application on the relevant person,
where it is satisfied of any of the following matters
(a) the applicant can not locate the relevant person after making all
reasonable enquiries;
(b) there would be an unacceptable risk of harm to the applicant
(other than the chief executive) or someone else, if the relevant
person were made aware of the application;
(c) there are other special circumstances for giving the dispensation.
Subsection (6) provides that the court may make the order if satisfied there
would be an unacceptable risk of harm to the applicant (other than the chief
executive) or someone else if the information were given.
Subsection (7) provides that the application may be made and dealt with
during proceedings for an adoption order or after an adoption order is
made.
Subsection (8) provides that while the application for the order is pending,
the chief executive may withhold the information from release under
division 2 or 3.
Chief executive may obtain or disclose medical information
Clause 276 provides that the chief executive may obtain or disclose
non-identifying medical information as follows -
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Subsection (1) specifies that the chief executive may contact a biological
parent of an adopted person for the purpose of obtaining information about
the medical history of a biological relative of the adopted person.
Subsection (2) specifies that the chief executive may disclose, to an
adopted person, information about the medical history of a biological
relative of the adopted person.
Subsection (3) provides that the chief executive may disclose, to a
biological relative of an adopted person, information about the adopted
person's medical history that relates to a condition that may have been
inherited from a biological relative.
Subsection (4) provides that the chief executive may disclose information
to a person under subsection (2) or (3) that is likely to identify an adopted
person or biological relative only if -
(a) the chief executive could give the information to the person on a
request under this part, and the chief executive has not been asked by
the biological relative or adopted person not to disclose the
information; or
(b) the chief executive is satisfied there is an unacceptable risk that a
person's health may be significantly adversely affected if the
information is not given or there are other exceptional circumstances
in which the disclosure of the information is justified.
Subsection (5) specifies that it does not matter for this section whether a
person who is contacted, or to whom information is given, or to whom
information relates, is a person who has made a contact statement not to be
contacted.
Subsection (6) enables a person who is an adopted person or biological
relative of an adopted person, to request the chief executive to give the
information to a medical practitioner nominated by the person, instead of
giving the information to the person.
Subsection (7) enables the information to be given to a parent of the
adopted person, if the adopted person is a child. This will enable the
child's parent to give the information to the child and explain it to them in a
way and at a time that is appropriate to the child's age and ability to
understand.
Subsection (8) explains that a person is not obliged to give or receive
information under this section.
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Subsection (9) defines the term biological relative, of an adopted person,
for purposes of the section.
Intercountry adoption
Clause 277 applies to an intercountry adoption if the relevant competent
authority or a birth family member has given information or a document to
the chief executive for the purpose of giving it to the adopted person or his
or her adoptive parents.
If the information or document is for the adoptive parents, the chief
executive must give it to the adoptive parents.
If the information or document is for the adopted person, the chief
executive must, subject to any instructions from the competent authority or
birth family member, give the information or document -
(a) if the adopted person is a child - to adoptive parents; or
(b) if the adopted person is an adult - to the adopted person.
Division 6 Mailbox service
What is the mailbox service
Clause 278 provides that the mailbox service is a service conducted by the
chief executive to enable parties to an adoption and other particular persons
to exchange information.
The information that can be exchanged may be -
(a) non-identifying, where the persons -
(i) would not otherwise be able to exchange the information because
of part 11; or
(ii) are able to obtain identifying information about each other but
choose to communicate on a non-identifying basis; or
(b) identifying, where the persons have identifying information about
each other and choose to use the service to exchange information.
Other definitions for div 6
Clause 279 defines particular terms used in division 6.
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Who is eligible to take part
Clause 280 provides that a party to an adoption may take part in the
mailbox service. However, subsection (2) specifies that while an adopted
person is a child, he or she may take part only with the written consent of
an adoptive parent.
In addition to parties to the adoption being eligible to take part in the
mailbox service, an adult relative of a birth parent who is not a party to the
adoption may also take part if the birth parent gives consent, does not have
capacity to consent or has died.
Subsection (4) explains that a consent given under this section may be
limited to exchanging non-identifying information.
Exchanging non-identifying information
Clause 281 provides that a participant in the mailbox service may exchange
non-identifying information with another participant.
Exchanging identifying information
Clause 282 provides participants may exchange identifying information
only if--
(a) either--
(i) the chief executive has given identifying information to each
participant on an application under division 2 or 3; or
(ii) the participants are parties to an intercountry adoption or their
participation relates to an intercountry adoption; and
(b) each participant has given a notice of intention stating that he or she
wishes to exchange identifying information.
Subsection (2) provides that for an adult relative of a birth parent who is a
participant under section 280(3), subsection (1)(a) applies as if the birth
parent were the participant instead of the adult relative.
Notice of intention to take part
Clause 283 provides that a person who wishes to take part in the mailbox
service, and who is eligible to take part, must give the chief executive a
signed notice in the approved form and produce for the chief executive's
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inspection the documents prescribed under a regulation relating to the
person's identity.
The notice must state whether the person wishes to exchange identifying
information. The notice may also include other information necessary or
convenient to enable the person's participation. For example -
1. If the person wishes to exchange only non-identifying
information, the person may state a name that he or she
would like to use in correspondence.
2. The person may state whether the person wishes the chief
executive to forward letters to the person as soon as they are
received or to hold any letters until the person asks for them
to be forwarded or collects them in person.
Receipt and review of documents
Clause 284 provides that a participant (the sender) may give a document to
the chief executive to pass on to another participant (the addressee).
Subsection (2) specifies that unless, under section 282, the sender may
exchange identifying information about the addressee, the chief executive
must review the document to ensure it contains only non-identifying
information. The chief executive must also review the document to ensure
it does not contain anything the chief executive considers -
(a) may be distressing for the addressee; or
(b) is abusive, offensive or intended to intimidate, harass or threaten the
addressee (this would be a concerning matter).
Document with no identifying information or concerning matter
Clause 285 applies if the chief executive is satisfied a document received
under section 284 does not contain
(a) identifying information that it may not contain; or
(b) any concerning matter.
Subject to subsection (3), if the chief executive is able to pass it on as
requested, the chief executive must do so and then notify the sender that it
has been passed on.
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Subsection (3) specifies that if the document contains information that may
be distressing for the addressee (for example, news of someone's death),
the chief executive may pass on the document in a way, and at a time, that
the chief executive considers may minimise the possible distress. For
example, the chief executive may arrange for an officer of the department
to pass on the document personally and give support to the addressee.
Subsection (4) provides that if the chief executive is not able to pass a
document on as requested, the chief executive must
(a) notify the sender that it is not currently possible to pass on the
document; and
(b) hold the document until it is possible to pass it on, subject to any other
request from the sender.
Document with identifying information or concerning matter
Clause 286 applies if the chief executive considers a document received
under section 284 contains
(a) identifying information that it may not contain;
(b) or any concerning matter.
The chief executive must notify the sender why the document may not be
passed on in that form. On request by the sender under subsection (3), the
chief executive must
(a) pass on a part of the document that does not contain the identifying
information or concerning matter; or
(b) pass on the document after altering it so it does not contain the
identifying information or concerning matter; (e.g. blocking out parts
of a letter containing identifying information so those parts cannot be
read); or
(c) return the document to the sender; or
(d) destroy or otherwise deal with the document.
Subsection (4) states that if the sender does not make a request under
subsection (3), the chief executive may keep the document or return it to
the sender.
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Photographs of persons more than 2 years old
Clause 287 provides that a photograph of a person aged more than 2 years,
and exchanged between participants through the mailbox service, is taken
to be information that identifies the person in the photograph unless the
chief executive has given an approval for the participants to exchange the
photograph, or exchange photographs generally.
Subsection (2) provides that a participant may make application to the chief
executive for approval to exchange a stated photograph, or exchange
photographs generally with another stated participant. If the chief
executive gives the approval, it must state each of the participants (the
relevant participants) who are approved to exchange the photograph or
exchange photographs generally.
Subsection (4) provides that the chief executive may give approval if -
(a) the chief executive is satisfied an exchange of the particular
photograph, or of photographs generally, is unlikely to -
(i) harm the relevant adopted person's wellbeing or best interests; or
(ii) enable a relevant participant to identify or locate another relevant
participant or party to the adoption; and
(b) each relevant participant has given to the chief executive a signed
notice by which the participant agrees not to use, or attempt to use, a
photograph to which the approval relates, to identify or locate another
relevant participant or party to the adoption.
Subsection (5) provides that if a person gives the chief executive a notice
under subsection (4)(b) and is given, through the mailbox service, a
photograph to which the approval relates, the person must not use, or
attempt to use, the photograph to identify or locate another relevant
participant or party to the adoption.
Maximum penalty--40 penalty units.
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Part 12 Registration of adoptions
Definitions for pt 12
Clause 288 defines the terms adopted children register, closed entry and
entry for the purposes of part 12.
Chief executive must notify registrar
Clause 289 applies if the Childrens Court makes a final adoption order, or
if the Supreme Court makes an order discharging a final adoption order.
The clause provides that as soon as practicable after the order is made, the
chief executive must give notice of the order to the registrar.
Entitlement to certificate, information or source document
relating to particular entries
Clause 290 applies to a person who has been given information under part
11, division 2 or 3 about another person; or a birth parent of an adopted
person; or another person prescribed under a regulation. On request by the
person, the chief executive must give the person an authorisation to obtain a
certificate, information or a document under this section.
However, subsection (3) specifies that, the authorisation -
(a) must not relate to any information that the chief executive may not
disclose to the person on a request under part 11; and
(b) may exclude information if the chief executive is satisfied that
allowing access to the information would be an unreasonable invasion
of a person's privacy or otherwise unreasonably harm a person's
interests.
Example-
The authorisation may exclude a part of a document showing the
adopted person's birth was the result of a sexual offence.
Subsection (4) enables the person to make an application under section 44
of the Births, Deaths and Marriages Registration Act 2003, accompanied
by an authorisation from the chief executive, for a certificate, information
or copy of a source document mentioned in that section to which the
authorisation relates.
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Subsection (5) requires the registrar to grant the application if it relates to
an entry for the adopted person in the register of births.
Also, subsection (6) states that the registrar must grant the application if
(a) it relates to an entry for the adopted person in the adopted children
register; and
(b) the applicant is a birth parent or a relative of a birth parent.
Subsection (7) requires that if a certificate or copy of a source document is
given under subsection (6), or given under this section and relating to a
closed entry, it must be endorsed `Not to be used for official purposes'.
Part 13 Recognition of adoptions and
related matters
Division 1 Recognition of interstate and
overseas adoptions
Recognition of Australian and New Zealand adoptions
Clause 291 provides that adoption of a person in another State (State
includes New Zealand) under the law of that State, unless rescinded under
the law of that State, has the same effect as an adoption order made in
Queensland under the Adoption Act 2009 and has no other effect.
Recognition of adoptions granted in convention countries
Clause 292 provides recognition of adoptions granted in convention
countries as if they were adoption orders made under the Adoption Act
2009 if, when the adoption is granted the adopted child is habitually
resident in a convention country and the adoptive parent is habitually
resident in a convention country, Australia or New Zealand and an adoption
compliance certificate, issued in the convention country in which the
adoption is granted, is in force for the adoption. However, the adoption is
not effective for the purposes of the Adoption Act 2009 if the Childrens
Court makes a declaration of non-recognition.
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Subsection (4) specifies that if the Childrens Court is satisfied the adoption,
taking into account the child's wellbeing and best interests, is manifestly
contrary to public policy the Court may make a declaration of
non-recognition of the adoption.
Subsection (5) states that an interested person may apply to the Childrens
Court for a declaration of non-recognition of the adoption. Subsection (11)
provides that in this section declaration of non-recognition, of an
adoption granted in a convention country, means a declaration that the
adoption does not have effect as if it were an adoption order made under
the Adoption Act 2009 and that interested person, for an adoption, means
(a) the chief executive; or (b) an adoptive parent; or (c) the adopted child.
Therefore, the chief executive, or the adoptive parent, or the adopted child
may apply to the Supreme Court for a declaration of non-recognition of the
adoption.
Subsection (6) states that before applying for the declaration, the person
must give written notice to the Commonwealth central authority if the
person is the chief executive, or otherwise the person must give written
notice to the chief executive.
Subsection (7) provides that the notice must state the person proposes to
apply for the declaration and the reasons for the proposed application.
Subsection (8) provides that if the chief executive is given a notice under
subsection (6)(b), the chief executive must give a copy of the notice to the
Commonwealth central authority.
Subsection (9) states that if the applicant is not the chief executive, the
chief executive is entitled to be joined as a party to the proceedings
concerning the application.
Subsection (10) states that this section is subject to division 2 (Simple
adoptions).
Recognition of adoptions granted in non-convention countries
Clause 293 provides for recognition of adoptions granted in
non-convention countries if
(a) the adoption was effective according to the law of that country; and
(b) at the time at which the legal steps that resulted in the adoption were
commenced, the adoptive parent, or each of the adoptive parents, was
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resident or domiciled in that country and had been resident or
domiciled in that country for at least 1 year; and
(c) in consequence of the adoption, the adoptive parent or adoptive
parents had, or would (if the adopted person had been a young child)
have had, immediately following the adoption, according to the law of
that country, a right superior to that of any biological parent of the
adopted person in respect of the custody of the adopted person; and
(d) under the law of that country the adoptive parent or adoptive parents
were, by the adoption, placed generally in relation to the adopted
person in the position of a parent or parents; and
(e) the adoption has not been rescinded under the law of that country.
Subsection (2) provides that for the purposes of the laws of Queensland,
the adoption has the same effect as an adoption order under the Adoption
Act 2009.
Subsection (3) specifies that if an issue relating to an adoption in a
non-convention country arises in a proceeding before a court, it must be
presumed, in the absence of evidence to the contrary, that the adoption is
one to which this section applies. However, subsection (4) provides that a
court may refuse to recognise an adoption as being an adoption to which
this section applies if it appears to the court that the procedure followed, or
the law applied, in connection with the adoption involved a denial of
natural justice or did not comply with the requirements of substantial
justice.
Subsection (5) specifies that a document purporting to be the original or a
certified copy of an order or record of adoption made by a court or a
judicial or public authority in a non-convention country is, in the absence
of proof to the contrary sufficient evidence that the adoption was made in
that country and is effective under the law of that country; and sufficient
evidence that the adoption has not been rescinded.
Subsection (6) clarifies that except as provided in this section, the adoption
of a person in a non-convention country does not have effect for the
purposes of the laws of Queensland.
Subsection (7) clarifies that nothing in this section affects any right that
was acquired by, or became vested in, a person before the commencement
of the repealed Act.
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Division 2 Simple adoptions
Definitions for div 2
Clause 294 defines particular terms used in division 2.
Simple adoption does not end parent-child relationship
Clause 295 provides that despite section 292(2) (Recognition of adoptions
granted in convention countries), a simple adoption does not end the legal
relationship between the adopted child and the individuals who were,
immediately before the adoption, the child's parents.
Conversion of simple adoption in convention country
Clause 296 provides that if a simple adoption is converted in a convention
country, the adoption is taken to be a full adoption unless the Childrens
Court makes a declaration of non-recognition of the conversion.
Subsection (3) provides that the Childrens Court may make a declaration of
non-recognition of the conversion if it is satisfied the conversion is
manifestly contrary to public policy, taking into account the child's best
interests.
Subsection (4) specifies that an interested person may apply to the
Childrens Court for a declaration of non-recognition of the conversion.
Subsection (5) states that before applying for the declaration, the person
must give notice to the Commonwealth central authority if the person is the
chief executive, or otherwise the person must give notice to the chief
executive.
Subsection (6) provides that the notice must state the person proposes to
apply for the declaration and the reasons for the proposed application.
Subsection (7) provides that if the chief executive is given a notice under
subsection (5)(b), the chief executive must give a copy of the notice to the
Commonwealth central authority.
Subsection (8) states that if the applicant is not the chief executive, the
chief executive is entitled to be joined as a party to the proceedings
concerning the application.
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Conversion of simple adoption by Childrens Court
Clause 297 provides that an adoptive parent of a child under a simple
adoption may apply to the Childrens Court for an order declaring the
adoption to have effect as a full adoption.
Subsections (2) and (3) provide that the applicant must serve a copy of the
application on the chief executive, stating the applicant's reasons for the
application. The chief executive must give a copy of the application to the
Commonwealth central authority.
Subsection (5) specifies that the chief executive is entitled to be joined as a
party to the proceedings concerning the application.
Subsection (6) provides that the Childrens Court may make the order only
if satisfied
(a) an adoption compliance certificate, issued in the convention country
in which the adoption was granted, is in force for the adoption; and
(b) the adoptive parent is habitually resident in Queensland; and
(c) when the adoption was granted, the adopted child was habitually
resident in the convention country; and
(d) if the adopted child is not in Australia when the court proposes to
make the declaration the child is not prevented from entering
Australia
(i) under a law of the Commonwealth or a State; or
(ii) by an order of a court of the Commonwealth or a State; and
(e) the child is not prevented from residing permanently in Australia-
(i) under a law of the Commonwealth or a State; or
(ii) by an order of a court of the Commonwealth or a State.
Subsection (7) provides that if the court makes the order, the adoption has
effect as a full adoption.
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Division 3 Other matters concerning overseas
adoptions
Chief executive to have limited supervision of adopted children
Clause 298 applies if
(a) a child is adopted in a country other than Australia or New Zealand,
under arrangements made between the chief executive and the
competent authority for the other country; and
(b) the adoption has been in force for less than 1 year; and
(c) the child is present in Queensland.
The clause provides that the chief executive may supervise the wellbeing
and interests of the child for the prescribed period, starting on the day the
child arrives in Queensland. A person must allow an authorised officer
reasonable access to the child to carry out the supervision.
Subsection (4) provides that it does not matter for subsection (1)(a)
whether the adoption is one that, under this Act, has the same effect as an
adoption order under this Act.
Subsection (5) defines the terms authorised officer and prescribed period
for the section.
Declarations of validity of overseas adoptions
Clause 299 provides for declarations of validity of foreign adoptions.
Subsection (1) provides that on application made by a person mentioned in
subsection (2), the Childrens Court may make an order declaring that an
adoption is one to which section 292 or 293 applies.
Subsection (2) states that any of the following persons may make the
application
(a) the adopted child;
(b) an adoptive parent;
(c) a person tracing a relationship because of the adoption, through or to
the adopted child.
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Subsection (3) provides that the applicant must serve a copy of the
application on the chief executive at least 21 days before the day fixed for
hearing of the application.
Subsection (4) provides that the chief executive is entitled to be joined as a
party to the proceedings.
Subsection (5) provides that the court may -
(a) direct that notice of the application be given to the Attorney-General
or any other person the court considers appropriate; or
(b) direct that a person be made a party to the application; or
(c) permit a person having an interest in the matter to be joined as a party
to the proceedings.
If the court grants the application, it may include in the order any
particulars relating to the adoption, the adopted child or an adoptive parent
as the court finds to be established. The court may also make the orders
about costs and security for costs, whether by way of interlocutory order or
otherwise, as the court thinks just.
Subsection (8) provides that for the purposes of the laws of Queensland, an
order under this section binds the State, whether or not notice was given to
the Attorney-General, but, except as provided in subsection (7), does not
affect
(a) the rights of a person other than
(i) a party to the proceedings for the order; and
(ii) a person to whom notice of the application for the order was
given; and
(iii) a person claiming through a person mentioned in subparagraph
(i) or (ii); or
(b) an earlier judgment, order or decree of a court of competent
jurisdiction.
Subsection (9) provides that in proceedings in a court in Queensland
relating to the rights of a person other than a person mentioned in
subsection (6)(a)(i) to (iii), a copy of an order made under this section,
certified by the registrar of the Supreme Court to be a true copy, is evidence
that an adoption
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(a) was effected in accordance with the particulars contained in the order;
and
(b) is an adoption to which section 292 or 293 applies.
Part 14 Offences
Definitions for part 14 Offences
Clause 300 defines particular terms for the purposes of part 14.
Territorial application
Clause 301 provides that the offences in part 14 apply in relation to the
adoption of children in Queensland or children adopted in Queensland and
acts done in Queensland relating to the adoption of children outside
Queensland or children adopted outside Queensland.
False representation about arranging adoption
Clause 302 makes it an offence for a person (the first person) who is not
performing a function under or relating to the Act to represent to another
person that they are arranging, or able to arrange, the adoption of a child by
the other person, or the adoption by someone else of a child of the other
person.
The maximum penalty for this offence is 150 penalty units or 18 months
imprisonment for an individual or 1000 penalty units for a corporation.
Giving or receiving consideration
Clause 303 specifies that it is an offence for a person to give or receive, or
agree to give or receive, a payment or other reward in consideration of
(a) the adoption or proposed adoption of a child; or
(b) the giving of consent to the adoption of a child; or
(c) the transfer of a child's care or custody with a view to the child's
adoption; or
(d) a negotiation or arrangement for a child's adoption.
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An offence will occur whether the action mentioned in subsection (1)
happens before or after the birth of the relevant child and whether the
adoption happens or may lawfully happen.
The maximum penalty for this offence is 150 penalty units or 18 months
imprisonment for an individual or 1000 penalty units for a corporation.
Advertisements and other published matters
Clause 304 creates an offence if a person publishes an advertisement, news
item or other material stating that
(a) a parent of a child wishes to have the child adopted; or
(b) a person wishes to adopt a child; or
(c) a person is willing to negotiate, or make an arrangement, for the
adoption of the child.
Subsection (2) clarifies that the offence is created irrespective of whether or
not the published statement relates to a particular child and whether or not
the statement relates to a child who has been born.
The maximum penalty for this offence is 150 penalty units or 18 months
imprisonment for an individual or 1000 penalty units for a corporation.
False or misleading information
Clause 305 specifies that it is an offence for a person to provide
information to another person under the Act which is false or misleading in
a material particular (that is, such that it unduly influences the outcome).
However, the offence does not apply to information given in a document if
the person, when giving the document
(a) informs the person being given the document, to the best of the first
person's ability, how the information is false or misleading; and
(b) if the first person has, or can reasonably obtain, the correct
information gives the correct information.
The maximum penalty for an offence under this section is 40 penalty units.
Improperly witnessing a consent
Clause 306 provides that a person (the witness) must not witness a person's
form of consent to the adoption of a child if
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(a) the form of consent is in the approved form under section 18 and the
witness has not sighted the documents prescribed for section 18(2)(c);
or
(b) the witness knows, or ought to know, the other person
(i) is not the person named in the form of consent; or
(ii) is not a parent of the child; or
(iii) does not understand the effect of giving consent and effect of
adoption; or
(iv) does not have capacity to give the consent; or
(v) is not giving consent freely and voluntarily; or
(c) the witness is not present when the other person signs the form of
consent; or
(d) the form of consent does not show the correct date for the day on
which the consent is given.
The maximum penalty for an offence under this section is 40 penalty units.
Fraud or undue influence
Clause 307 provides that a person must not act fraudulently or use undue
influence on another person to
(a) induce a parent of a child to offer or refrain from offering the child for
adoption, give or revoke the parent's consent to the adoption of the
child, or transfer a child's care or custody with a view to the child's
adoption; or
(b) influence the preferences expressed by a parent of a child relating to
the adoptive placement of the child.
The maximum penalty is 150 penalty units or 18 months imprisonment.
Subsection (2) provides that a person uses undue influence on another
person for this section if the first person
(a) uses or threatens to use force or restraint against the other person; or
(b) causes or threatens to cause injury or another detriment to the other
person.
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Subsection (3) provides that it is immaterial whether the adoption happens
or may lawfully happen.
Part 15 General
Division 1 Matters about offences and
proceedings
Types of offences
Clause 308 specifies that an offence against the Act for which the
maximum penalty of imprisonment is 2 years is an indictable offence that
is a misdemeanour, otherwise an offence against the Act is a summary
offence.
Proceedings for indictable offence
Clause 309 provides that a proceeding for an indictable offence against the
Act may be taken, at the election of the prosecution, by way of summary
proceeding under the Justices Act 1886 or on indictment.
Subsection (2) provides that a magistrate must not hear an indictable
offence summarily if the defendant asks at the start of the hearing that the
charge be prosecuted on indictment or the magistrate believes the charge
should be prosecuted on indictment. In these circumstances, subsection (3)
provides that -
(a) the magistrate must proceed by way of an examination of witnesses
for an indictable offence; and
(b) a plea of the person charged at the start of the proceeding must be
disregarded; and
(c) evidence brought in the proceeding before the magistrate decided to
act under subsection (2) is taken to be evidence in the proceeding for
the committal of the person for trial or sentence; and
(d) before committing the person for trial or sentence, the magistrate must
make a statement to the person as required by the Justices Act 1886,
section 104(2)(b).
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Limitation on who may summarily hear indictable offence
Clause 310 provides that a proceeding for the summary conviction of a
person on a charge for an indictable offence; or an examination of
witnesses for a charge for an indictable offence, must be before a
magistrate. However, if the proceeding is brought before a justice who is
not a magistrate, jurisdiction is limited to taking or making a procedural
action or order within the meaning of the Justices of the Peace and
Commissioners for Declarations Act 1991.
Limitation on time for starting summary proceeding
Clause 311 provides that a proceeding for a summary offence against the
Act by way of summary proceeding under the Justices Act 1886 must start
within 1 year after the commission of the offence; or within 1 year after the
offence comes to the complainant's knowledge, but within 2 years after the
commission of the offence.
Evidentiary provisions for proceedings under this Act
Clause 312 provides that for a proceeding under the Act there are certain
evidentiary provisions to be met. These evidentiary provisions are
specified in subsections (2) and (3).
Subsection (2) provides the evidentiary requirements of a signature, in
particular that evidence of a signature purporting to be the signature of any
of the persons listed in the subsection is evidence of the signature it
purports to be.
Subsection (3) provides that the matters listed can be evidenced by a
certificate purporting to be signed by the chief executive stating any of
those matters.
Proof of adoptions
Clause 313 provides that, for a proceeding in a court of Queensland, there
are certain certificates which will be accepted as evidence for proof of
adoptions.
Subsection (2) provides that a certificate purporting to be signed by a
registrar of a court in Queensland or elsewhere stating that a stated
document is an adoption order of the court, or a copy of or extract from an
adoption order of the court, is evidence of the matter.
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Subsection (3) provides that a certificate purporting to be signed by an
appropriate officer stating that a stated document is a copy of an entry in a
register relating to adoptions under a law of another jurisdiction, or an
extract from the register or statement of information recorded in the
register, is evidence of the matter.
Subsection (4) specifies the meaning of the terms adoption order and
appropriate officer for the section.
Division 2 Confidentiality
Confidentiality of information obtained by persons involved in
administration of Act
Clause 314 provides for the confidential treatment of protected information
obtained by persons involved in the administration of the Act. The section
applies to a person who is, or has been, any of the following persons
performing functions under or relating to the administration of the Act or
the repealed Act
(a) a public service employee;
(b) an adoption contract worker, counsellor or other person engaged by
the chief executive;
(c) an approved carer;
(d) an appropriate Aboriginal or Torres Strait Islander person;
(e) a recognised entity or member of a recognised entity; and
(f) a person authorised to use information for research under section 324.
The section further applies if any of the above persons acquired, or have
access to or custody of, protected information about another person.
It is an offence for the person to use the information, or disclose it, to
anyone else except to the extent necessary to perform the person's
functions under or relating to the Act.
A maximum penalty of 100 penalty units or 2 years imprisonment applies.
However, subsection (3) specifies that the information may be used or
disclosed if this is otherwise required or permitted under another law.
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Subsection (4) provides that to the extent to which the information is about
a person, it may be disclosed to that person or another person (with the first
person's consent). However, if the information can be requested from the
chief executive under part 11, then subsection (4) only permits the
information to be disclosed to the extent that it may be disclosed under part
11.
The chief executive may also disclose non-identifying information about an
adopted person, adoptive parent, birth parent or relative, if satisfied it
would not be an unreasonable breach of privacy.
Subsection (7) enables the chief executive to disclose information to the
police commissioner or public trustee if it is for a reasonable purpose, or if
doing so is not likely to allow the identification of a party to an adoption by
another party to the adoption.
Subsection (8) provides for situations where the person has a current
expression of interest made jointly with the person's spouse, or is being
assessed under part 6 (Assessment of prospective adoptive parents) jointly
with the person's spouse. In this situation the information may be
disclosed to the person's spouse.
Subsection (9) explains that a reference in subsection (1)(a)(ii) to a person
engaged by the chief executive includes an employee or contractor of a
person engaged by the chief executive.
Subsection (10) provides the meaning of the terms disclose, information
and protected information.
Publishing identifying material
Clause 315 prohibits the publication of identifying material without the
consent of the chief executive or every person, or on behalf of every person
who is a child, who is identified by the material. Subsection (1) specifies
that this section applies to material (identifying material) that identifies, or
is likely to lead to the identification of, a person as
(a) a party, or relative of a party, to an adoption; or
(b) a party, or relative of a party, to a court proceeding relating to an
adoption; or
(c) a person whose consent to an adoption is or was required.
Subsection (2)(b) specifies who must give written consent to the
publication for each person identified, including who must give the consent
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for a proposed adoptee, if the publication is not made with the written
approval of the chief executive.
The maximum penalty for an offence under this section is 100 penalty units
or 2 years imprisonment for an individual, or 1000 penalty units for a
corporation.
Subsection (3) defines the term proposed adoptee for this section. A child
is a proposed adoptee if consent to the child's adoption has been given by
each person whose consent is required before the proposed adoption order
may be made.
Subsection (4) defines further terms used in this section, namely adoption,
identified person and publish. Publish is defined broadly to mean publish
to the public by television, radio, the Internet, newspaper, periodical,
notice, circular or other form of communication.
Disclosure to other jurisdictions
For the purpose of facilitating the adoption under the Act of children from
another country, clause 316 makes provision for the chief executive to enter
into an arrangement with an appropriate entity of another country with
responsibility under the law of that country for adoptions. The clause
further provides that under the arrangement the chief executive may
disclose information obtained under the Act or the repealed Act to the
entity.
Division 3 Miscellaneous
Adoption contract workers
Clause 317 states that the chief executive may engage a person as an
adoption contract worker for any of the following purposes, if the chief
executive is satisfied the person has the necessary expertise or experience -
(a) to help the chief executive assess a person under part 6;
(b) to supervise a child's wellbeing and interests while an interim order
for the adoption of the child is in force;
(c) to help the chief executive provide information, support or counselling
to persons seeking information, or about whom information is sought,
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or whose consent to the disclosure of information is sought, under part
11.
Meaning of appropriate Aboriginal or Torres Strait islander
person
Clause 318 states that an Aboriginal or Torres Strait Islander person is an
appropriate Aboriginal or Torres Strait Islander person, in relation to a
particular Aboriginal or Torres Strait Islander child, if the chief executive
considers the person to have appropriate knowledge about the child's
community or language group, and Aboriginal tradition or Island custom
relating to the child.
It should also be noted that sections 7(2), 25(3), 46(3), 118, 163 and 169(2)
of the Act contain obligations involving an appropriate Aboriginal or
Torres Strait Islander person.
In deciding who is an appropriate Aboriginal or Torres Strait Islander
person for a child, subsection (2) obliges the chief executive to consult
with
(a) an elder or other respected person of the child's community; or
(b) a recognised entity or a member of a recognised entity; or
(c) an entity that has a function of providing services to Aboriginal or
Torres Strait Islander persons or a member of the entity.
The child's parent's privacy is to be respected in the consultation process
and obligations under this Act are to be complied with in any such
consultation process. As such, subsection (3) specifies that subsection (2)
applies to the chief executive only to the extent the chief executive is able
to carry out the consultation while respecting the privacy of the child's
parents and complying with obligations under the Act about confidentiality.
Right of review against particular decisions
Clause 319 specifies the decisions that a person may apply to the tribunal
to have reviewed.
Delegation
Clause 320 provides that chief executive's power under the Act may be
delegated to an appropriately qualified officer or employee of the
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department. Subsection (2) clarifies that appropriately qualified includes
having the qualifications or experience or standing appropriate to exercise
the power.
Protection from liability
Clause 321 provides for protection of an official from civil liability for an
act done, or omission made, honestly and without negligence under the
Act. Subsection (2) specifies that instead of civil liability attaching to the
official in such circumstances the liability attaches to the State.
Subsection (3) defines the term official for the purposes of the section.
Convention countries
Clause 322 defines what is meant by the term convention country as used
in the Act.
State central authority
Clause 323 provides that the Minister is the central authority for the State
for the purposes of the Hague convention, article 6.2. Note that this
designation is made for the Family Law (Hague Convention on
Intercountry Adoption) Regulations 1998 (Cwlth), section 8(1).
Research
Clause 324 allows the chief executive to authorise a qualified person to use
information obtained under the Act for approved research. Subsection (2)
provides that if a qualified person is authorised to use information under
subsection (1), the information must be collected for the research in a way
that could not reasonably be expected to result in the identification of any
individuals to whom it relates.
Subsection (3) permits the chief executive to contact persons affected by
adoption to ask if they would like to participate in approved research being
conducted by a qualified person.
Subsection (4) defines the terms approved research and qualified person
as they are used in this section.
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Assistance to adoptive parents and others
Clause 325 provides that the chief executive may make payments, or give
other assistance, to an adoptive parent or another person if the chief
executive considers it is necessary to do so to ensure the wellbeing and best
interests of an adopted child. However, subsection (2) specifies that this
has effect, in relation to paying an amount, subject to appropriation by
Parliament of an amount for the purpose.
Approved forms
Clause 326 provides power for the chief executive to approve forms for use
under the Act.
Review of Act
Clause 327 provides that the Minister must ensure the operation of the Act
is reviewed as soon as practicable after the day that is 5 years after the
commencement of this section. The review must include a review of the
effect of the Act on the parties to adoptions and their families, and the
Minister must table a report on the outcome of the review in the Legislative
Assembly.
Regulation-making power
Clause 328 provides that the Governor in Council may make regulations
under the Act, including a regulation about fees.
Part 16 Repeal, savings and transitional
provisions
Division 1 Repeal
Repeal of Adoption of Children Act 1964
Clause 329 provides for the repeal of the Adoption of Children Act 1964
No. 54.
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Division 2 Savings and transitional
Meaning of commencement day
Clause 330 provides that, for division 2, commencement day means the
day on which the provision in which the term is used commences.
Adoption orders
Clause 331 specifies that an adoption order in force under the repealed Act
immediately before the commencement day continues to have effect as if it
were a final adoption order made under this Act and that without limiting
this, the order may be discharged under part 9, division 7.
Correction of adoption orders
Clause 332 provides that the chief executive may amend an adoption order
continued in force under section 331 in order to correct the name, date of
birth or another particular of a person mentioned in the order.
Application by step-parent
Clause 333 provides for the transition of an application by a step-parent.
Subsection (1) specifies that this section applies if
(a) immediately before the commencement day
(i) an application under the repealed Act, section 13AA, to have a
person's name entered in the Relative Children's Adoption List
had not been finally dealt with; or
(ii) a person's name was in the Relative Children's Adoption List;
and
(b) the person is a person who may apply to adopt the relevant child under
section 92.
Subsection (2) specifies that the person is taken to have made an
application under that section to the chief executive to arrange an adoption
by the person of the child.
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Special Needs Children's Adoption List
Clause 334 applies to a person whose name was in the Special Needs
Children's Adoption List immediately before the commencement day.
Subsection (2) provides that if there was a notation in the list, made under
the repealed Act, section 13D(3)(a), stating the person is a prospective
adopter, the person's name must be listed in the suitable adoptive parents
register. Subsection (3) specifies that otherwise, the person's name must be
listed in the expression of interest register.
Subsection (4) specifies that for section 79(1)(a), a name listed in the
expression of interest register under subsection (3) is taken to have been
entered in that register on the later of the following days
(a) the day the name was entered in the Special Needs Children's
Adoption list under the repealed Act;
(b) 1 year before the commencement day.
Review of decision to remove name from adoption list
Clause 335 applies if
(a) under the repealed Act, section 13AA(4), the chief executive removed
a person's name from an adoption list (i.e. because the person was
ineligible to have the person's name entered in the adoption list or
because the person did not comply with a requirement prescribed
under a regulation); and
(b) a person applied to the tribunal for a review of the decision to remove
the person's name; and
(c) immediately before the commencement day, the application for the
review of the decision had not been finally dealt with.
Subsection (2) provides that the tribunal must decide the application under
the repealed Act.
Subsection (3) provides that if the tribunal decides the person's name
should not be removed from the adoption list, the person's name is, for
section 333 (Application by step-parent) or 334 (Special Needs Children's
Adoption List), taken to have been in the adoption list immediately before
the commencement day.
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Expression of interest register
Clause 336 applies to a person whose name was listed in the expression of
interest register under the repealed Act immediately before the
commencement day. Subsection (2) provides that person's name must be
listed in the expression of interest under the Adoption Act 2009.
Subsection (3) specifies that for section 79(1)(a) (Automatic removal from
register), the person's name is taken to have been entered in the register on
the later of the following days
(a) the day the name was entered in the expression of interest register
under the repealed Act;
(b) 1 year before the commencement day.
Uncompleted review of decision to remove persons from
expression of interest register
Clause 337 applies if a person applied to the tribunal for a review of a
decision under the repealed Act, section 13AC, to remove the person's
name from the expression of interest register and immediately before the
commencement day, the application had not been finally dealt with.
Subsection (2) provides that the application has no further effect, and
subsection (3) states that the person's name must be listed in the expression
of interest register under this Act.
Subsection (4) provides that, for section 79(1)(a) (Automatic removal from
register), the person's name is taken to have been entered in the register on
the later of the following days
(a) the day the name was entered in the expression of interest register
under the repealed Act (before the removal mentioned in subsection
(1));
(b) 1 year before the commencement day.
Suitable adoptive parents register
Clause 338 provides that if a person who, immediately before the
commencement day, was a prospective adopter under the repealed Act,
section 13D then the person's name must be listed in the suitable adoptive
parents register under the Adoption Act 2009.
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Current applications to Supreme Court or Childrens Court
Clause 339 provides how applications to the Supreme Court or Childrens
Court, commenced under various provisions of the repealed Act, and not
finally dealt with immediately before the commencement day, are to be
dealt with.
Consents to adoption
Clause 340 provides that if a person had given their consent to the adoption
of a child under the repealed Act, and that consent was still in force
immediately before the commencement day, the consent continues in force
as if it had been given under part 2 of the Adoption Act 2009.
Chief executive's guardianship
Clause 341 provides that if, immediately before the commencement day,
the chief executive was a child's guardian under section 27 or 27B
respectively of the repealed Act, the chief executive's guardianship
continues in force under section 57 or 65 respectively of this Act.
Current applications to chief executive to convert simple
adoption
Clause 342 provides how applications to the chief executive, commenced
under the repealed Act, section 38AD(1) and not finally dealt with
immediately before the commencement day, are to be dealt with.
Subsection (2) specifies that the chief executive may decide the application
under that section, despite the repeal.
Particular objections continue in force as contact statements
for pt 11
Clause 343 applies to a current objection to the extent it relates to contact
being made with the objector by a stated person or class of persons.
Subsection (2) provides that the objection continues in force as a contact
statement for part 11, that the person does not wish to contacted by the
stated person or class of person, until it is withdrawn or otherwise ends
under this Act.
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Subsection (3) defines current objection to mean an objection in force
under the repealed Act, section 39AA immediately before the
commencement day.
Current application to chief executive to disclose particular
information
Clause 344 provides how applications to the chief executive under the
repealed Act, section 39B, to disclose particular information, are to be dealt
with if they had not been finally dealt with before the commencement day.
To the extent that the application could have been made after the
commencement as a request under a provision of part 11, division 3, it is
taken to be a request under that provision.
Entitlement to particular records
Clause 345 provides that an authorisation from the chief executive in force
under the repealed Act, section 39C immediately before the
commencement day continues to have effect as if it were an authorisation
under the section 290.
Transitional-effect of adoption orders in relation to property
Clause 346 provides that section 216 (Effect of adoption orders in relation
to property) does not affect a disposition of property by a person who, or by
persons any of whom, died before the commencement of the repealed Act.
Subsection (2) specifies that section 216 does not affect a disposition of
property that took effect in possession before the commencement of the
repealed Act.
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Part 17 Amendments
Division 1 Amendment of Adoption of Children
Act 1964
Act amended
Clause 347 provides that division 1 amends the Adoption of Children Act
1964. The amendments in this division will take effect when the Adoption
Act 2009 receives Assent (see section 2) and will continue in effect until
the Adoption of Children Act 1964 is repealed by section 329.
Amendment of s 19 (Consents of parents and guardians
required to adoptions)
Clause 348 amends section 19 of the Adoption of Children Act 1964 to
provide that, in the case of a child who has not previously been adopted, the
appropriate persons whose consents are required before the chief executive
can make an adoption order for a child under section 19(1) of that Act are
every person who is a parent or guardian of the child.
This amendment removes the requirement for a child's father to be married
to the child's mother at the time of the child's conception, or subsequently,
for the father to be an appropriate person whose consent for the child's
adoption is required for subsection 19(1) of the Adoption of Children Act
1964.
Amendment of s 29A (Bequest by will to unascertained
adopted persons)
Clause 349 makes a technical amendment to section 29A(1)(a) of the
Adoption of Children Act 1964.
Insertion of new s 59D
Clause 350 inserts a new section 59D (Chief executive may obtain or
disclose non-identifying medical information) into the Adoption of
Children Act 1964 which allows the chief executive to contact a natural
parent of an adopted person for the purpose of obtaining information about
the medical history of a natural relative of the adopted person. The new
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section also allows the chief executive to disclose information about the
natural relative's medical history to the adopted person and information
about a medical condition an adopted person may have inherited from a
natural relative to a natural relative.
The information must be provided in a non-identifying way and whether or
not a person contacted, or to whom information is given, or to whom
information relates, is a person who has made an objection under part 4A.
Subsection (7) of the new section 59D makes it clear that a person is not
required to give or receive information under the section.
Insertion of new pt 7, div 4
Clause 351 inserts a new part 7, division 4 into the Adoption of Children
Act 1964. The new division contains new section 76 (Who is a birth parent
for pt 4A), which applies in relation to a father's consent that was
purportedly given or dispensed with under the Adoption of Children Act
1964, even though the child's parents were not married to each other at the
time of the child's conception or when the consent was purportedly given
or dispensed with.
In the circumstances in which the section applies, the consent is taken to
have been validly given or dispensed with as though the consent was
required for the child's adoption, for the purpose of determining whether
the child's father falls within the definition of birth parent in section
section 39A of the Adoption of Children Act 1964. Section 39A defines
who is an adopted person's birth parent for part 4A, which provides for
access to certain adoption information and related matters.
Division 2 Amendment of Births, Deaths and
Marriages Registration Act 2003
Act amended in div 2
Clause 352 provides that division 2 amends the Births, Deaths and
Marriages Registration Act 2003.
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Amendment of s 3 (Objects)
Clause 353 amends section 3 of the Births, Deaths and Marriages
Registration Act 2003 to update references in the objects for that Act to
reflect the repeal of the Adoption of Children Act 1964.
Amendment of s 14 (Reregistering a birth or adoption)
Clause 354 amends section 14 of the Births, Deaths and Marriages
Registration Act 2003 to replace references to the Adoption of Children Act
1964 with references to the Adoption Act 2009.
Amendment of s 41 (Registering events in register)
Clause 355 amends section 41 of the Births, Deaths and Marriages
Registration Act 2003 so section 41 of that Act no longer applies the
registration of adoptions.
Insertion of new ss 41A-41C
Clause 356 inserts new sections 41A-41C into the Births, Deaths and
Marriages Registration Act 2003.
New section 41A sets out what the registrar must do to register an adoption
after receiving notice of the making of a final adoption order from the chief
executive (child safety) under section 289 of the Adoption Act 2009. The
registrar must also register an adoption made in another jurisdiction, where
the birth or previous adoption of the person adopted is registered in
Queensland, in the same way after receiving an original or other copy, or
notice, of the order mentioned in subsection (2)(a).
The registrar registers the adoption by incorporating the notice or copy of
the order of the adoption into the adopted children register. The registrar
must also close the adopted person's birth entry and any previous adoption
entry by making appropriate notations on the previous entry and the new
adoption entry.
New section 41B sets out how the registrar must amend the birth and
adoption orders on receiving notice of the making of an order of the
Supreme Court discharging a final adoption order. The obligations in
section 41B also apply where the registrar receives notice that a similar
order has been made in another jurisdiction in relation to a person with an
entry in the adopted children register.
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New section 41C applies where the registrar receives notice of a final
adoption order or an order discharging a final adoption order under the
Adoption Act 2009 and knows, or reasonably suspects there is an entry of
the adopted person's birth or adoption in a register kept under the law of
another state (including New Zealand). The registrar must give a notice of
the making of the order to the appropriate office in that state with
responsibility for keeping the register.
Amendment of s 44 (Obtaining information from the registrar)
Clause 357 amends section 44 (Obtaining information from the registrar)
to provide that, in relation to an application made under that section, the
registrar may only give information requested relating to a closed entry
under section 41A to the extent allowed under the Adoption Act 2009,
section 290. An entry about a person in the birth register or adopted
children register is closed under section 41A when the registrar registers an
adoption.
Insertion of new s 48D
Clause 358 inserts a new section 48D (Arrangement for giving information
about persons making contact statements under Adoption Act 2009) into
the Births, Deaths and Marriages Registration Act 2003 to allow the chief
executive and the registrar to exchange information to establish whether
certain persons referred to in the section have died. The new section 48D
also allows the chief executive and the registrar to enter into a written
arrangement for giving information under the section.
Insertion of new s 57B
Clause 359 inserts a new section 57B into the Births, Deaths and
Marriages Registration Act 2003 to continue the Adopted Child Register,
provided for in section 55 of the to-be-repealed Adoption of Children Act
1964 as the adopted children register under the Births, Deaths and
Marriages Registration Act 2003.
Amendment of sch 2 (Dictionary)
Clause 360 amends the dictionary in schedule 2 of the Births, Deaths and
Marriages Registration Act 2003 to update the meaning of certain words
used in that Act.
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Division 3 Amendment of Child Protection Act
1999
Act Amended in div 3
Clause 361 provides that division 3 amends the Child Protection Act 1999.
Amendment of s 51ZI (Ending an agreement)
Clause 362 amends section 51ZI of that Act to provide for a care
agreement referred to in the section to end if the chief executive otherwise
gains custody of the child under the Adoption Act 2009.
Amendment of s 186 (Confidentiality of notifiers of harm or risk
of harm)
Clause 363 amends section 186 of the Child Protection Act 1999 to
acknowledge the disclosure of the identify of a notifier referred to in that
section is lawful if the disclosure is made for the performance by the chief
executive (adoptions) of his or her functions under the Adoption Act 2009.
Amendment of s 187 (Confidentiality of information obtained by
persons involved in administration of Act)
Clause 364 amends section 187 of the Child Protection Act 1999 to
authorise people the use, disclosure or giving of access under that section
where it is for the performance by the chief executive (adoptions) of his or
her functions under the Adoption Act 2009.
Amendment of sch 3 (Dictionary)
Clause 365 amends the dictionary in schedule 3 of the Child Protection Act
1999 to include a definition of chief executive (adoptions), which is
defined to mean the chief executive of the department in which the
Adoption Act 2009 is administered.
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Division 4 Amendment of Childrens Court Act
1992
Act amended
Clause 366 states that division 4 amends the Childrens Court Act 1992.
Amendment of s 20 (Who may be present at a proceeding)
Clause 367 makes a consequential amendment to section 20 of the
Childrens Court Act 1992 to insert a reference to the Adoption Act 2009.
Division 5 Amendment of other Acts
Consequential amendments
Clause 368 makes consequential amendments to other Acts as mentioned
in Schedule 2.
Schedule 1 Hague Convention
Schedule 1 sets out the English text of the Hague convention, for the
purposes of the definition of the term Hague convention in schedule 3 of
the Act.
Schedule 2 Consequential amendments
Schedule 2 provides for consequential amendments to be made to a number
of Acts to replace references to the Adoption of Children Act 1964, which
is to be repealed by section 329, with references to the Adoption Act 2009.
Where necessary, the consequential amendments also include replace
reference to sections of the Act to be repealed with references to the
corresponding sections of the Adoption Act 2009.
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Schedule 3 Dictionary
Schedule 3 defines particular words used in the Act.
© State of Queensland 2009
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