In Australia adoptions are the responsibility of the State governments. In South Australia, the adoption process is governed by the Adoption Act 1988.

All adoptions of children by residents of South Australia are conducted through the Adoption and Family Information Service (AFIS) of the Department for Families and Communities.

Because very few babies and children are relinquished for adoption in South Australia there has been a marked increase in interest in adopting a child from overseas countries see Adopting an overseas child.

Adoption is a legal process where the rights and responsibilities of the birth parents are transferred to the adoptive parents. There are two types of adoption: local (i.e. from within Australia) and intercountry (i.e. from other countries).

Private adoptions (i.e. adoptions where a child is placed with adoptive parents without the involvement of an agency) are illegal in South Australia.

Only children up to 18 years of age may be adopted.

Where a person over 18 requires care and guardianship, a power of guardianship is the appropriate solution. This is an entirely different legal process and is not an adoption, nor can an adoption be undergone as an alternative.

Aboriginal children can only be adopted if, in the interests of the child, an adoption order is preferable to a guardianship order. This is because the legal process of adoption conflicts with Aboriginal culture, in particular, beliefs about family, kinship and the preservation of cultural ties. As a result there are strict rules governing the circumstances under which adoption of Aboriginal children can occur. An adoption order will only be granted where the applicant is a member of the child's Aboriginal community and where, by Aboriginal customary law, they have the correct relationship with the child. If there is no such person wanting to adopt the child, only another Aboriginal person[Adoption Act 1988 s 11].

Only those people who are listed on the Prospective Adopters Register are eligible to adopt a child. The Prospective Adopters Register lists all people who have expressed an interest in adoption and who have satisfied the requirements under the Adoption Act.

Normally only two people in a heterosexual relationship (either married or de-facto) who have lived together continuously for at least five years can adopt a child unless there are special circumstances [Adoption Act 1988 s 12]. Same sex relationships are not included in the definition of a marriage relationship.

An adoption order may be made in favour of two persons who have been cohabiting together in a marriage relationship for a continuous period of less than five years, if the Court is satisfied that there are special circumstances justifying the making of the order. Normally, the Chief Executive cannot select a person from the Adoption Register unless they have been cohabiting with another in a marriage relationship for a continuous period of at least 3 years [Adoption Regulations 2004 reg 19(3)(d)].

Adoption orders in favour of one person can only be made in the following circumstances:

Unless there are particular circumstances relating to the child to be placed and where those needs can be best met by other applicants, a person will not be considered as a suitable applicant for adoption if she or he:

An adoption order will only be made if each parent or guardian gives their consent.

The consent of the father of a child born outside of lawful marriage is required if his paternity is recognised under the law of South Australia, see: PATERNITY. If it appears that a particular person may be able to establish paternity of a child, the Court will not make an adoption order without allowing that person reasonable opportunity to establish paternity [Adoption Act 1988 s 15(7)].

The relinquishing parent must have been counselled at least three days before signing a consent to the adoption. Written information on the following must be provided to the relinquishing parent:

The consent must be in writing, be witnessed and endorsed by an authorised officer with a counsellor providing endorsement that counselling has occurred. The witness must also satisfy himself or herself that the relinquishing parent understands the nature of the consent they are giving.

The mother's consent can only be taken at least fourteen days after the birth of the child. The consent may be revoked within twenty five days although the Chief Executive may approve, during the twenty five day period, for this time to be extended by another fortnight [Adoption Act 1988 s 15].

The consent may be in general terms authorising the child to be adopted by anyone. If both parents consent in general terms, the Chief Executive becomes the child's guardian and must place the child for adoption with a couple previously placed on the Prospective Adopters Register [Adoption Act 1988 s 15].

When a limited consent is signed, the Chief Executive does not become the child's guardian and has no responsibility for placing the child. The consent may be limited authorising the adoption of the child by:

Adoptions of children over the age of 12 years cannot occur without the formal consent of the child to his or her own adoption. As with parents, the child must be counselled at least three days before consenting, must be given written information about counselling and support services available, about the implications of adoption and the consequences of consenting and the procedures and time limits for revocation of consent. The adoption application should not be heard until twenty five days have lapsed after the consent was given and can be revoked by the child at any time up until the making of an order.

The court must be satisfied after interviewing the child in private that the consent is genuine and that the child does not wish to revoke it.

Where a parent does not or cannot consent to an adoption the Chief Executive or the applicant for an adoption order may apply to the Youth Court to dispense with that parent's consent. The court may dispense with a parent's consent if there are other circumstances that allow the consent to be properly dispensed with or, if satisfied that the parent:

To protect the rights of a natural parent the Act provides that notice of the application must be given to a parent whose consent is required and who has not consented to the adoption. The court does not dispense lightly with the consent of a parent (or guardian) and will provide every opportunity to parents to present arguments why their consent should not be dispensed with.

Before a court considers the application for adoption by a step-parent, the Family Court must first give approval for the adoption to proceed under s 60G of the Family Law Act 1975 (Cth). Approval is rarely given therefore legal advice should be sought if intending to adopt in such circumstances.

Although the Adoption Act 1988 provides for the adoption of a child by a step-parent the legislation discourages inappropriate applications. A step-parent or relative can only adopt a child if, in the interests of the child, an adoption order is clearly preferable to a parenting order [s 10]. The child's parent and step-parent must have lived together for at least five years unless the court is satisfied there are special circumstances [Adoption Act 1988 s 12]. The relationship between a child and a parent whose spouse adopts the child is not affected by the adoption order.

Intercountry adoption is a very time consuming and complicated process. Due to the complexity of these matters a considerable amount of time can pass between making the application and the finalisation of the adoption.

Australia is a signatory to the Hague Convention with Respect to Intercountry Adoption, the purpose of which is to protect children against abduction and child trafficking. Under the Hague Convention all intercountry adoptions must be coordinated through a central government agency. In Australia this is the Commonwealth Attorney-Generals’ Department. However, as the processing of adoptions is done by the relevant state government authority, all intercountry adoptions in South Australia are administered by the Department of Families and Communities’ Adoption and Family Information Service (AFIS). As a result, privately arranged adoptions are not recognised under Australian law.

The only exception to this is for expatriate Australian citizens, residing and working in an overseas country, who are eligible to adopt a child under that country’s laws (see Intercountry adoptions not involving an Australian state adoption authority).

It is important to understand that the Department of Immigration and Citizenship will refuse a child an entry visa unless adoption arrangements meet migration requirements. This may be the case even if the adoption has been lawfully arranged in the overseas country. It is important to obtain legal advice both in Australia and in the overseas country before considering an adoption not involving the South Australian adoption authority (i.e. Adoption and Families Information Service).

The Adoption and Families Information Service will not normally give approval to adopt a relative or a child known to the prospective adoptive parents. In these cases there may be other options, such as applying for an orphan relative visa. For further information contact the Department of Immigration and Citizenship.

Step 1: Determining eligibility

After attending an information session conducted by the Adoption and Family Information Service prospective applicants lodge an Expression of Interest. An interview is then arranged with an AFIS worker to determine country eligibility and suitability.

Step 2: Orientation, Application and Assessment

Applicants will attend an Education workshop prior to being invited to lodge a formal application. After the application is received a Family Assessment will be conducted and a report prepared for the purpose of assessing the suitability of the applicants as prospective adoptive parents.

Applicants who are not approved will be advised of this and of their rights to appeal the decision. Those applicants who are approved are allocated an AFIS social worker who will be their contact point throughout the adoption process.

Step 3: Applying to the overseas country

The application is sent to the chosen overseas country where it is evaluated by the overseas adoption authority. At this stage nothing can happen until the overseas authority makes the decision that a child can be adopted to a foreign country.

Step 4: Matching and placement of child

The overseas adoption authority will make a determination about whether the applicants are suitable adoptive parents for the child. This decision will also be considered by AFIS before a formal allocation is approved.

After approval is given legal and administrative processes in the child’s country must be finalised. The child must also be medically examined and granted an Australian resident visa.

Step 5: Arriving home

After arriving home it may be necessary to apply for an adoption order if the adoption was not finalised overseas. In most cases the Department of Families and Communities will be the legal guardian until the adoption process has been finalised. Some countries require ongoing reports about the child’s progress until they legally become an adult. Families are allocated an AFIS worker to assist with providing progress reports.

Intercountry adoptions not involving an Australian state adoption authority

The Hague Convention prohibits privately arranged adoptions. However, the only exception to this is expatriate Australian citizens or permanent residents who are living and working in an overseas country. If they are eligible to adopt a child under the law of that country they may be eligible to apply for an adoption visa to bring the child back to Australia.

To be eligible for a visa for the adopted child the following criteria must be met:

Immigration issues to be aware of

When making an adoption order the court usually instructs the Registrar of Births, Deaths and Marriages to cancel the original birth registration and to issue a new registration, which names the applicants as parents as if the child had been born to them [Adoption Act 1988 s 41].

The applicants can ask the court not to cancel the original birth certificate but add their names to it. The child can then apply for a birth certificate with the names of the natural and adoptive parents recorded on it or a copy which only names the applicants as the lawful parents. However, if a natural parent is still alive the original birth registration must be cancelled unless the child knows the natural parents or the natural parents approve of the child having access to this information [Adoption Act 1988 s 41].

Once an adopted child turns 18, he or she is entitled to information concerning his/her birth parents held by the Department for Communities and Social Inclusion.

The information that can be released includes:

The information may be given to a lineal descendant of the adopted child if they consent or where they are deceased or cannot be located.

Similarly, where the adopted child has reached eighteen years, birth parents may also obtain any information, messages, or items held by Department of Human Services relating to the adoptive parents or the adopted child.

Adoptive parents may also obtain information, messages, or items held by Department of Human Services relating to the birth parent or the adopted child, provided the adopted child has reached eighteen years and consents.

Where an adoption occurred prior to the commencement of the Adoption Act 1988, an adopted child, adoptive parent or birth parent has the ability to veto the release of identifying information. It is necessary to renew the veto every five years [Adoption Act 1988 s 27B] if the person wishes the restriction to remain in place. Despite this veto power, the Minister may authorise the release of information (even if the necessary consents have not been given) if it is necessary for the welfare of an adopted person [Adoption Act 1988 s 27D].