Bills

Adoption (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 November 2016.)

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (12:29): I started my second reading explanation at the end of the previous session, when I sought leave to continue my remarks; I now continue them. I was thanking the people who had contributed to the discussion previously and saying that I had got an enormous amount out of hearing people's very considered thoughts about adoption. This is a government bill that seeks to make some reasonably significant amendments to the current practice of adoption.

There are really two halves of this bill. One is seeking to amend the way in which adoption is done in this state, and that is as a result of the very considered and thoughtful review done by Professor Lorna Hallahan. The other, which arises equally from Professor Hallahan's recommendations, sits within the realm of conscience votes and has therefore received the most interest, I believe, in the second reading speeches. They are, on the one hand, to define a qualifying relationship as being irrespective of the sex or gender identity of the people in that relationship, and the other is to allow greater access to adoption by people who are single, noting that there is already some access in the current act.

I would like to run through some of the points that have been made in order to assist, I hope, with the way in which we will conduct the committee stage. I note that a few members have raised concerns about the impact of the proposal to remove information vetoes so far as they are held by adopted persons. The member for Adelaide has filed an amendment—I am not sure if she will proceed with that, but she may well do so—and I have also filed an amendment in order to tighten up the way in which we are able to ensure that there are no perverse outcomes for people in that situation.

It is absolutely the government's intention—and I believe this has been acknowledged by the member for Adelaide and others who have spoken on this—that veto holders will be supported to prepare for the transitional period of removing the veto arrangements from the legislation. I am confident that most veto holders will benefit sufficiently from that support; however, I do acknowledge the concern of some adopted persons, who are worried about the release of identifying information to other parties to their adoption. I have therefore filed a government amendment to provide additional discretion to the chief executive to refuse access to the adoption information of an adopted person where the chief executive determines that it is not in the best interests of that adopted person, taking into account the adopted person's rights and welfare, for the information to be disclosed.

A further alteration to the bill, which will be moved by the government during the committee stage, is that we support the notion that an adopted person should be notified of the death of their birth parent, and provision for such notification is set out in clause 30 of the bill. I will also be moving an amendment to ensure that the CE is not prevented from doing this during the five-year expiry period of an existing veto. I think the bill may have covered that sufficiently, but we want to remove any ambiguity.

There is also now the question of the discharge of an adoption, which is one of the innovations in this bill. The member for Light sought clarification on the legal outcome of the discharge of an adoption and raised the potential that a person could be left parentless. Firstly, I note that the bill expands on the grounds upon which an order to discharge an adoption can be made to include the ground that it was in the best interests of the adopted person, taking into account the rights and welfare of the adopted person. The court should not make such an order if to do so would be prejudicial to the rights, welfare and interests of the person.

The member for Light, in his contribution, pointed out that discharge of an adoption order may contribute to the healing of an adopted person who has suffered abuse at the hands of an adoptive parent. I note that in some such cases a discharge may be sought by a person whose birth parents are deceased or whose birth parents' names were not recorded at the time of adoption. It is not uncommon, in respect of intercountry adoptions, that the birth parents' names have not been recorded. In such cases, the discharge of the adoption may still be in the person's best interests, as it will aid their healing despite the fact that they will be left without a parent in the eyes of the law.

Where an adopted person has suffered abuse at the hands of their adoptive parent, it might be the case that no parent is better than a legal parent who has inflicted great harm on them. It is worth remembering that most adopted persons do not have a say in their adoption. The government supports the notion that, where a person has suffered as a result of their adoption and discharge could contribute to their healing, it is important that the state support them if they wish to explore the option of discharge. The central point in such cases is that the court will only make an order to discharge where it is in the adopted person's best interests.

I note that the member for Adelaide and the member for Davenport have raised genuine concerns about the role of the department in investigating the circumstances relating to an application for discharge, and in particular concerns that an adopted person may be pathologised or subjected to a psychological assessment. I assure members that the purpose of such investigations will be used to provide the necessary support to the adopted person in considering this significant decision, to investigate the implications, including legal implications, of the discharge on the adopted person's welfare, interests and rights and to ensure they are fully aware of those implications and have appropriate support where necessary.

This process will be used to provide the court with the necessary background information to the application so that the court can weigh the issue of the best interests of the adoptive person. There will be no mandatory requirement for psychological assessments, but adequate support services would be provided as required. A decision to discharge an order for adoption is a significant one that has a range of legal consequences which affect the relationship, rights and responsibilities and legal entitlements of an adopted person. Some effects may be positive, others negative: for example, the adopted person may lose an entitlement to claim their adoptive parents' estate.

It is important to note that discharge also undoes or otherwise modifies the identity, family structure and legal relationships of not only the adopted person but others as well including, where relevant, the adopted person's children. Therefore, a decision to discharge an adoption order is not one that should be able to be made lightly without significant knowledge of the circumstances of the particular case and an understanding of the likely impacts that might flow from the adoptive person and other affected parties.

I now turn to the prescribed period, or five years, to be eligible to adopt. A number of members raised concerns about the prescribed period of time that a couple must have been in a qualifying relationship or, in the case of a single person, not have been in a qualifying relationship before an adoption order can be made in their favour. This is five years, or another period prescribed by the regulations referred to in the bill as 'the prescribed period'.

The main aim of the prescribed period is to ensure that adoptive children are entering into a home and family life where relationships are stable. Children need stability in their care. The prescribed period is just one of the ways used to determine relationship stability. More often than not under the current scheme, couples seeking to register as prospective adoptive parents have generally already been living together in a marriage-like relationship for five years or more. In addition, part of the prescribed period may be served while the applicants are being assessed and/or once registered while a prospective parent is on the register.

In respect of single persons, it is just as important that the department ensures that the person is stable in their relationship status. Leaving serious relationships can be traumatic and destabilising for any individual. It is important that we ensure that individuals seeking to adopt are in the best overall position to provide stable care for an adopted child. The bill continues current arrangements that allow an adoption order to be made in favour of a couple or a single person who have not met the prescribed period requirement where special circumstances exist.

Special circumstances could involve a range of different situations, including, for example, where the prospective adoptive parent is likely to provide the most culturally appropriate placement for a particular child, or where the child has a disability and the prospective parent is best placed to provide the care the child needs. I note that the prescribed period is just one of the mechanisms used to ensure stable family relationships. As outlined by the member for Schubert, the regulations set out an extensive list of factors against which prospective adoptive parents are assessed.

I now turn to adoption by same sex couples and single persons. A number of members have raised concerns about the proposal to provide same-sex couples the right to adopt on par with different sex couples, and there are some matters I wish to clarify in respect of those concerns. It was suggested during earlier debate that the wishes of a birth parent who had specifically indicated that they would like their child adopted by a heterosexual couple may not be respected. Regulation 19(2)(b)(i) of the Adoption Regulations provides:

(2) A person is excluded from selection as an applicant for an order of adoption of a particular child…if the Chief Executive is satisfied that—

(b) the adoption of the child would be contrary to—

(i) the wishes of the child's birth parents or guardian.

There is no intention to change this regulation. I also stress that the bill provides that the paramount consideration in adoption law and practice will be the best interests, rights and welfare of the child, and this includes in the placement of any child for adoption. Some members have suggested that one type of family unit provides the ideal environment for the care of a child.

An important finding of the adoption review was the need to change the law and practice of adoption in this state to focus on the best interests, rights and needs of the child. This is not about creating a single template of ideal parentage and fitting a child's adoption to that template. This is about considering what is in the best interests of each particular child and who is best placed to provide their care.

In addressing the relevant terms of reference, the adoption review set out to weigh the evidence for the impact of children being raised in same-sex couple and single person households. The review found that on the best available evidence:

Given certain other conditions that apply across all households, roughly that they display a set of protective behaviours that favour child development, such as an enduring positive parent bond, a persistent child focus, informal social support networks, stability of housing and adult relationships, nonviolence, a level of material comfort, a capacity to settle differences equably, and that certain other factors are not present, such as instability, substance abuse, violence and poverty, abuse and neglect of children, children can be expected to thrive in households headed by a same-sex couple or a single person.

As prescribed in the Adoption Regulations, every prospective adoptive family is subject to rigorous assessment against an extensive list of factors. These factors will include consideration of the broader relationships and supports that will be available to an adopted child or a prospective parent who is single that would include the broader family and support network of that prospective parent.

I now turn to the question of adoption and care. A number of members in their contributions to this debate outlined their views with respect to the adoption of children from out-of-home care. Some suggested that the state should be increasing the number of children in South Australia adopted from out-of-home care. It was further suggested that a child under the guardianship of the minister cannot be adopted from care.

It should be noted that the findings of both the independent review of the Adoption Act and the Nyland royal commission were that adoption should not be seen as a panacea for the current shortage of suitable care placements in the child protection system. Adoption should only occur where it is in the best interests of the child. Additionally, it is not the case that children in care cannot be adopted. As noted by the review and the royal commission, there is no legal impediment to the adoption of a child who is in care, even in the absence of parental consent.

The royal commission recommended that the government consider the question of adoption of a child in care where it is in the best interests of the child and an Other Person Guardianship order is not appropriate. The royal commission found that greater use should be made of other person Guardianship, and that is something to which the government has committed and has seen an increase in recent months.

Clause 9 of the bill implements the recommendations of the royal commission. Further work will be done at a practice level to ensure that adoption is considered as an option for ensuring the long-term care and stability of children in out-of-home care where it is in the best interests of the child and Other Person Guardianship is not appropriate.

I now turn to intercountry adoption. Some members opposite commented on the process involved with intercountry adoptions and the time that it takes to finalise such agreements. The government is attempting to make clear in this bill that the starting point for consideration of any adoption in this state is the best interests of the child, both in childhood and in later life, and therefore adoption should be a service for the child. The focus of adoption should not be on solving the family formation issues of adults, but on the need of the child for a safe and stable home.

The review of the Adoption Act considered the issue of the lengthy time it takes to facilitate intercountry adoption and recognises the need to support prospective adoptive parents through this difficult period. It needs to be noted that South Australia is efficient in processing applications to adopt an overseas child. The long waiting times often referred to are dictated by the various overseas authorities whose role it is to match a child to an applicant's file. This waiting time varies widely from country to country and is something over which Australian authorities have no control.

The review also noted the risks from poor adoption practices that may arise in some overseas countries. It found that the care the state brings to the process is vital in defending the rights of children in other countries. The review therefore recommended that the state continue its role in intercountry adoption, especially in the assessment of prospective adoptive parents. Further, it recommended that resources may be made available to support prospective adoptive parents and to provide improved post-adoption support to intercountry adoptees and their families.

The state remains committed to its role in ensuring the optimal conditions for intercountry adoption in South Australia focused on the best interest of the child. This is reflected in the objects of the act set out in clause 4 of the bill to ensure that equivalent safeguards and standards to those that apply to children adopted in this state apply to children adopted from overseas. The state and commonwealth, through their respective service providers, make available pre and post intercountry adoption support services to prospective adoptive parents and adoptive children and their families. The South Australian government remains committed to funding the post-adoption support services of Relationships Australia, which has a role in supporting intercountry adoptees and their families.

I have filed two sets of amendments to the bill. The first set makes three amendments to the bill. Amendment No. 1 is a technical amendment to support the new provisions of the discharge of adoption set out in clause 13 of the bill. It amends clause 13 to make it clear that the court can make orders in respect of necessary changes to the entry in the register of births in relation to the person granted the discharge. The regulations will provide for the court to notify the registrar of any such orders. Amendment No. 2 is also a technical amendment to clause 13 to clarify that the making of an order to discharge an adoption does not affect the right of the person granted the discharge to access information held by the chief executive about their past adoption.

Amendment No. 3 amends clause 19, as I mentioned earlier, to provide the chief executive with additional discretion to withhold information about an adopted person from another party to the adoption where it is in the best interest of the adopted person, taking into account their rights and welfare or any other prescribed matter. It is noted that the chief executive is required by section 27(6) of the act to establish and maintain written guidelines regarding exercise of this discretion. This amendment was prepared in response to concerns raised by many members, including those opposite and the member for Adelaide, about the impact of the removal of information vetoes on some adoptive people.

I have also lodged an amendment separately in the second set of amendments. It amends clause 30 of the bill to clarify that, if the chief executive informs the birth parent of the death of an adopted person or informs an adopted person of the death of their birth parents under new section 40A, the fact that the deceased adopted person or deceased birth parent held a current veto does not prevent the chief executive from disclosing information in the chief executive's possession relating to the deceased adopted person to the birth parent, or disclosing information in the chief executive's possession relating to the deceased birth parent to the adopted person. This amendment addresses concerns raised by members in respect of the fact that a veto does not end with the death of a veto holder.

With those clarifying and somewhat detailed comments, I wish again to thank everybody for their contributions and for the seriousness with which they have taken this piece of legislation. As a government, there is probably no more sensitive matter that we deal with—there may be some equally as sensitive but none more sensitive—than the allocation of parentage to a child other than to that of their birth parent, and I am grateful for the respect with which this has been treated to date.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mr PEDERICK: This clause seeks to amend the objects and guiding principles of the act. Amongst other provisions in proposed new section 3, paragraph (f) concerns encouraging openness in adoption and subsection (2)(b) states that 'adoption is to be regarded as a service to the child concerned'. My biggest concern with this legislation, which I outlined in my previous speech in regard to the adoption bill, is that we have very limited adoption in South Australia.

In fact, from my research, I noted that in 2014-15 there were only 17 adoptions and 14 of those were intercountry adoptions. Looking further back, between 1990 and 1991, 103 adoptions took place, which included all the international adoptions. I acknowledge amending the Adoption Act, but in my mind it does not seem to be working. Will the minister outline, for every year including this year, how many Australian adoptions we have had per year?

Members interjecting:

The CHAIR: Order!

The Hon. S.E. CLOSE: I thank the member for Hammond for the concern that sits behind his question—that we ensure that there is stable placement for children, particularly those in out-of-home care at present. I will have to take the numbers on notice and provide that between the houses for your information. If I talk to the larger question of adoption from the out-of-home care system, as I noted in my closing second reading speech that is in part a question of the culture and practice of the department responsible for child protection.

It is also a cultural question for South Australia about whether adoption is something that is looked to. It has changed over the years. There has been an absolute decline in in-country adoptions over the last 30 years. It has really been associated with an increase in women's capacity to control their pregnancies, resulting in fewer unwanted pregnancies, and also an increase in the technology that allows people who are finding it difficult to become pregnant to conceive their own children. That has had a marked impact on children available for adoption.

What we are seeing at present, certainly in the last year—and it has really proceeded apace in the last five or maybe 10 years—is an escalation in the number of children who are being removed from their biological parents and put into the child protection system. There will be consequences there, I imagine, by virtue of the number of children coming out of biological family homes. There might well be more who are considered for adoption. That requires no change to legislation: it will simply be partly a function of the increased number. In the time I have been the minister, it has increased by 25 per cent.

At the child protection ministers' ministerial council meeting last week, I saw that it has increased dramatically across the country. It requires no change in legislation. It is likely to occur more frequently simply because there are more children. It will also be part of the way in which children in the child protection system are considered by the authority, including by the court, as we seek to increase stability. I note that both in this review and also in the Nyland royal commission, a heavy emphasis was put on Other Person Guardianship and I think that is appropriate. As I said, we have increased the numbers, and I want to see a greater increase.

One of the things this bill does, which I think will be tremendously useful for children who are currently in Other Person Guardianship or come into that, is that they will be able to choose to be adopted into that family at the age of 18 with no involvement of the birth family because they are adults and they can choose to undertake that as long as the court signs off that they are able to do that. That means that Other Person Guardianship then becomes parenting for life, and I think that is what we all want to see.

Mr PEDERICK: I appreciate what the minister has done in her work with Other Person Guardianship and I certainly acknowledge working with her in regard to the issues around Finn's Law and Other Person Guardianship. We will get to this in clause 12 because it opens it up to more people who may be able to adopt children. You have indicated why numbers are not available, but to me it looks like numbers of local children available for adoption are very much in single figures. There needs to be, in my mind, significant change because I have met people who have tried hard to adopt locally. You talked about the issues with intercountry adoption, and they have gone down that path because it was far easier than local adoption. You may take that as a comment or question, either way.

The Hon. S.E. CLOSE: I will largely take it as a comment. I am sure that the member for Hammond would agree that, above all, adoption must be in the interests of the child. We are not seeking to create opportunities for family-making. We are making sure that a child who is in a position to be adopted has the best possible experience of that and that they have the best available pool of potential parents possible available to them. That is really what is being sought here. I will take the rest of what you said as a comment.

Ms SANDERSON: Can the minister let me know whether all foster carers are notified about how to apply for Other Person Guardianship or adoption and that it is available? Many of the foster carers I have spoken to are not aware that adoption is available to them. In fact, that is one of the reasons that many leave the system—because they are distraught about having children removed from their care.

The Hon. S.E. CLOSE: As the member for Adelaide would be very well aware, as she has taken such a close interest in child protection, we have been working to improve the way in which Other Person Guardianship is managed. One of those ways was that, early this year, we contacted the foster carers for all children below a certain age (I believe it was 10, but I may be corrected to it being eight) who had had the children for two years to invite them to engage in the process of finding out more about Other Person Guardianship. I do not rest on that. That is just an example of the way in which I signed all of the letters personally in order to convey my personal interest and concern that they feel that this was something available to them.

As we form the Department for Child Protection, Other Person Guardianship is one of the key features that the new chief executive is aware needs to be improved. As I say, we have seen an increase in recent times, but I believe there are many more relationships between foster parents and children that would benefit from becoming Other Person Guardianship, and we are not finished with the reform there.

Ms SANDERSON: I have a question relating to that. How many letters were sent out and how many people took up the opportunity to go further?

The Hon. S.E. CLOSE: I will take that on notice. I cannot recall how many I signed. I recall it was a lot.

The Hon. A. PICCOLO: In relation to clause 4(2)(f), I would like to clarify 'the child's given name or names, identity', etc. Does that mean we would record the child's full name—and their surname? Will that be kept or will it disappear from the record?

The Hon. S.E. CLOSE: If I understand the question to be relating to the surname, yes, the surname does go because it becomes the family name of the family into which they are adopted. The question is the maintenance of the given name, unless there is a particularly strong reason not to.

The Hon. A. PICCOLO: Given that these days it is not unusual to have parents and children with different names—a lot of couples keep what used to be traditionally a maiden name or pre-marriage name, whatever you like to call it—why is there a need to change a child's surname?

The Hon. S.E. CLOSE: The logic behind it is that names can be very powerful in denoting which group you belong to. In fact, I often have concerns raised by foster parents and children that they would like the surname to be the same so they do not feel different from their classmates, whose surnames are the same as at least one of their parents—frequently the father, but I am sure occasionally the mother in a heterosexual couple. It is a question that the predominant mode should be one which reinforces the feeling of belonging to the family that you are being adopted into, and names are significant for that.

As a child becomes older—when they become an adult—they could choose to insert a hyphen, if that is something they want to honour in their past. One of the principles behind adoption is that the child not be unduly different to children who are not adopted, recognising that they must know fully what their more complex family history is, and the surname falls on the former side rather than the latter.

Progress reported; committee to sit again.

Sitting suspended from 13:01 to 14:00.