Concerns regarding adoption provisions in the 2013 NSW child protection legislation amendment bill

The Child Protection Legislation Amendment Bill 2013 introduces a set of permanent placement principles (proposed section 10A) which would see adoption considered whenever a child or young person (other than children and young persons identified as Aboriginal and Torres Strait Islanders) cannot realistically be restored to his or her parents or placed in the guardianship of a relative, kin or suitable other.

Also, a proposed change to section 83(4) would require that the Director-General must consider whether adoption is appropriate any time it has been determined that restoration to the child’s parents is not realistic.

Concerns about this proposed approach to including adoption, which permanently severs the legal relationship between parents and child, include that:

Evidence does not establish that adoption produces better outcomes – instead, stability and quality of placements are important, which needs to be addressed by improving the management and resourcing of foster care placements:

“As Lahti found, the well-being of children in adoptive homes, in foster care or returned home was related to their sense of permanence in the placement, not to their legal status.” – A/Prof. Judy Cashmore, What can we learn from the US experience on permanency planning?, (2001) 15 Australian Journal of Family Law 215-229.

“NCOSS notes that data shows that children under the care of the Minister are more likely to have multiple placements and therefore poorer wellbeing outcomes than their peers. NCOSS does not support the argument that this is an inherent feature of such care and would argue that effort can, and should, be made to improve stability in placement in such care arrangements. In other words, NCOSS advocates that across all forms of care, steps must be taken to improve stability of placements. NCOSS is therefore not convinced that the proposed hierarchy of placement is necessary and that decisions should be made based on the best interests of the child or young person in their particular circumstances and context.” – NCOSS Submission on the Child Protection Discussion Paper.

Adoption in conjunction with legislative timeframes for decision-making about permanency risks unjustly terminating parents’ relationship with their children:

“There is a real risk that the proposed implementation of adoption will lead to poorer outcomes for children and/or unjust outcomes for their families. The following examples illustrate this point [see section 6.10 for detailed examples of unjust and permanent adoption outcomes]” – Bar Association Submission on the Child Protection Discussion Paper.

Adoption placements, particularly with children affected by a history of abuse and neglect, can break down in the same way as other placements, despite the supposed legal certainty and finality adoption provides:

“[Adoption] is not a panacea and is likely to be appropriate in only a small number of cases. It needs to be carefully considered because, as noted earlier, adoptions can also break down, and at rates that are not markedly different from long-term foster care when the age at which children are placed is taken into account.” – A/Prof. Judy Cashmore, What can we learn from the US experience on permanency planning?, (2001) 15 Australian Journal of Family Law 215-229.

Including adoption in a standard decision-making hierarchy risks leaving children cleared for adoption but without adoptive parents available:

“One such consequence is the possible creation of a pool of “adoption orphans” – children who have adoption orders but do not have any prospective adoptive parents. A review of research from the US by Judy Cashmore in 2001 describes the likely negative psychological impact of being an “adoption orphan”:

Being ‘freed’ for adoption but ‘not chosen’ is perhaps one of the worst possible outcomes for children; it leaves them in limbo without a legal parent and is more likely to undermine rather than increase any sense of permanence or security for these children.


– UnitingCare CYPF Submission on the Child Protection Discussion Paper.

Adoption of children from out-of-home care will require additional resources that are not built into the current system, for both the organisations working in the sector as well as adoptive families:

“The amount of hours of casework and administration that is required to process adoption orders is significant and currently there is no funding to cover the costs of additional work.

“While there are only a few agencies in NSW that are accredited to do adoption work for children and young people in OOHC, more training will be required for agencies that will now have to do this work as a result of this proposed hierarchy being accepted.” – Association of Children’s Welfare Agencies (ACWA) Submission on the Child Protection Discussion Paper.

“In relation to long-term guardianship orders and adoption, it is essential that ongoing financial and practical supports are available so that children and young people have access to opportunities that promote their social and emotional development as well as services to address the often complex needs.

“If the proposed hierarchy is adopted, the elevation of adoption means that non-government out-of-home care service providers will increasingly play a role in adoption. To do so they must be trained and resourced accordingly, including being able to access legal advice.” – Benevolent Society Submission on the Child Protection Discussion Paper.

If placement in out-of-home care creates a clear and direct risk that adoption could be pursued in relatively short timeframes, parents will have a disincentive to engage with child protection and support services and may be more likely to dispute placement in care:

“The privileging of adoption in the hierarchy … may lead to an increase in contested matters and longer court delays. Parents are more likely to contest the grounds for the orders and resist their children being placed in care if they are aware that this could result in their adoption, especially without their consent.” – A/Prof. Judy Cashmore’s Submission on the Child Protection Discussion Paper.

“There are other impacts of including adoption in the hierarchy that concern Legal Aid NSW. We are concerned that it would lead to an increase in contested matters. Presently few matters proportionally are litigated to the conclusion of a defended hearing. Many parents consent to a final order, advised that they still have open to them the option of returning to court by way of a section 90 Application some time in the future. A parent is unlikely to concede to a finding that there is no realistic possibility of restoration knowing that an adoption will result.” – Legal Aid NSW Submission on the Child Protection Discussion Paper.

Although labelled “open” adoption, limits and thresholds on contact arrangements risk undermining children’s opportunity to maintain connections with their family:

“The proposal that final contact orders will only be made for a period of 12 months is highly concerning. While flexibility may be important, a child has a right to maintain relationships and have contact with their family unless it is contrary to their best interests … The threshold test of ‘a significant change in any relevant circumstances’ is the current threshold to bring a section 90 application to rescind or vary court orders … It would be a significant denial of access to justice to impose such a high threshold on access to court regarding an issue of such a basic human right as the ability to maintain a relationship with one’s parents.” – Community Legal Centres NSW Issues Paper on the Child Protection Legislation Amendment Bill 2013.

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