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Has the introduction of adult adoption in South Australia been a success? By Eva Bailey
EVA BAILEY, PARTNER, ANDERSONS SOLICITORS
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In December, 2016 the South Australian Parliament enacted legislation that changed the Adoption Act 1988 (SA) (“the Adoption Act”) to enable adults to be adopted. In December, 2018 the Adoption (General) Regulations 2018 came into effect, enabling adult adoptions to proceed. The process permitting applications for the adoption of adults in South Australia has now been in place for approximately two years but has the change been a success?
WHY WAS THE ADOPTION ACT CHANGED?
Since the changes to the Adoption Act have come into force I have been asked by a number of people as to why on earth an adult would want to be adopted? At first the idea sounds a little silly, however, when considered more closely the answer becomes clear...
The South Australian Parliament’s review of the Adoption Act was conducted in 2014 and 2015. Through this review they found that: 1. There were adults who had lived their lives in foster care or under the guidance of a parental figure that was not their biological parent and, that; 2. Ultimately those adults wanted to legalise their relationship with the people in their lives who had in fact done the job of raising them.
As we all know there are many instances in life when for some reason or another a biological parent is unable to properly care for a child or their circumstances are such that it is impractical or perhaps impossible for them to do so. As a result of this in some cases the child in question is fortunate enough to have someone else that steps in to take over the role of that important parental figure and they find themselves growing up with someone other than their biological parent. It is this quasi-parent who then provides them with the love and emotional support that should have been afforded to them by their biological parent. In many cases they also provide them with financial and other forms of support.
In the last two years since the legislation came into effect, I have assisted families to achieve successful adult adoptions and I have found that the most common case where this has occurred is where the role of a parent has been undertaken by a foster parent or by a stepparent.
HOW DOES ADULT ADOPTION WORK?
In order for an adult person to be adopted under the Adoption Act 1988 (SA) there must be a connection between the person wanting to adopt that person, and the person seeking to be adopted, to the State of South Australia. This is due to the fact that the legislation is state based and each state has its own legislation relating to adoption in general. Some of the other states in Australia also allow adult adoption (not all of them) and the legislative requirements differ from state to state.
There must also be a pre-existing parental relationship between the adopting parent and the adoptee adult child. In accordance with the terms of the Adoption Act the person being adopted is still referred to under that Act as a child despite the fact that the person may be an adult who has attained the age of 18 many years prior.
In order for an adoption to be successful the applicant must apply to the Youth Court of South Australia (despite the fact that the subject of the adoption is an adult) and must supply supporting information to the Court to satisfy the legislative requirements of the Adoption Act.
Under the Adoption Act the consent of the adult child and the adult child’s biological parents must be formally obtained by Adoptive Services and recorded in writing before the application can be granted.
WHAT HAPPENS IF SOMEONE DOESN’T CONSENT?
As you can imagine there are situations when a biological parent does not consent to the adult adoptee child being adopted
by the person making the application to adopt them. Understandably it is not an easy decision to make to consent to giving up a legal parental connection with your biological child. However, in most cases any real connection between the biological parent and the adult child seeking to be adopted has been lost many years before the legal proceedings take place.
The reluctance of a biological parent to provide consent to the court for the adoption of their adult child places the court in a difficult position as the court does not, without significant care and consideration, seek to sever the legal relationship between a biological parent and their child. Nevertheless, ultimately the object and guiding principles of the Adoption Act are “to emphasise that the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration in adoption law and practice”.
The best interests of the child must take into account the child’s wishes and it is difficult to see how, in the face of clear and reasonable wishes by an adult child to be adopted by someone who has acted in the stead of their biological parent, a court would not allow the adoption. The legislation does allow the court to dispense with the consent of a biological parent however it is not something that is done lightly.
Having practised in this area, it is my view that the introduction of adult adoption in South Australia has been a success. I understand that there have been a number of applications granted by the Youth Court over the last two years since the legislation has been in place. Having said this, it is my view that the legislation has been amended possibly without due consideration for the impact that the changes would have or should have on the legislative process.
For example, one might question why an adult child wanting to be adopted by someone who has fulfilled the role of a parent should need to go through the formal process of Adoptive Services obtaining their written consent when they could present at Court and directly inform the Court of their consent to the application. Obviously, such requirements are necessary when we are talking about the adoption of minor children (those under the age of 18 years). However, it does not appear necessary for someone who is an adult and who shows that they have given proper and due consideration to the nature and legal consequences of the application.
I am pleased to see applicants and the Court coming to terms with the new legislation and applications being granted for adult adoption. It has been some of the most rewarding work of my legal career to assist families to achieve the legal recognition of a significant parental relationship in a person’s life through this new process. I only hope that in the future the parliament may revisit the legislation once again and consider whether or not there could be some additional changes made such that the process may become simpler and clearer for adults wanting to achieve legal adoption. B
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