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Adoptions - Legal Aid NSW

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Adoption
S 10A of the Children and Young Persons (care and Protection) ActS46(2)(B) of the Adoption Act
The new hierarchy in the care act
S10A Permanent Placement principles(1) In this actPermanent placementmeans a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person
S10A (2)
(2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.
S8 and S9 Amendments
S8(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and YP is by providing them with long term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles.S9(g) If a child .. is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative processes) regarding the permanent placement of the child or young person.
s10A(3)(a)
The permanent placement principles are as follows:(a) If it is practicable and in the best interests of the child, the first preference for permanent placement of the child is for the child to berestored to the care of his or her parentor parents so as to preserve the family relationship;
S10A(3)(b)
If it is not practicable for the child to be placed in accordance with paragraph (a), the second preference for permanent placement of the child isguardianship of a relative, kin or other suitable person.
S10A(3)(c)
If it is not practical or in the best interest of the child to be placed in accordance with paragraph (a) or (b), the next preference (except in the case of ATSI child) for the child is to beadopted.
S10A(3)(d)
If it is not practicable or in the best interests of the child to be placed in accordance with paragraph (a), (b) or (c) the last preference is for the child to be placed under theparental responsibility of the Ministerunder this or any other law.
S10A(3)(e)
If it is not practicable or in the best interests of anATSI childto be placed in accordance with paragraph (a), (b), or (d), the last preference is for the child to beadopted.
Permanent Placement Principles(is it practicable and in the best interests of the child?)
What does this mean
Permanency placement principles means that in the case of non- ATSI child adoption is preferred over parental responsibility to the Minister
What are the implications of the Permanent placement principles on adoptions proceedings?
Not talking about the numbers of potential adoptions.Not talking about assessment of proposed adoptive parents.Just talking about the issues the court needs to consider when making an adoption decision and even then, just one discrete issue
The Adoption Act (2000)Objects
The best interests of the child both in childhood and in later life, must be the paramount consideration in adoption law and practice (s7(a))Adoption is a service for the child s(7)(b)… the act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met –Brereton J in Adoption of NG [2014] NSWSC 608 at para 14.To ensure that adoption law and practice assists a child to know and have access to his or her birth family and cultural heritage s(7)(c)No adult has a right to adopt a child (principles s8(3)).
S90 of the Adoption act.
S90(1) of the adoption act provides that the Court must not make an adoption Order unless it is satisfied in relation to a range of matters – including best interests, suitability of adoptive parent and other issues.S90(2) provides that the court may not make an adoption order unless it is satisfied that any adoption plan agreed by the parties is in the best interests of the child and proper in the circumstance.
S90(3)
The Court may not make an adoption order unless it considers that the making of the order would clearly be preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
The cases suggest that s90(3) has been historically used by birth parents as an argument against the court making an adoption order.There is no typical case. The proposition sometimes put by the birth parents is that whilst they are not in a position to seek restoration, it clearly preferable that PR remains vested in the Minister. This is because it is a less intrusive intervention which preserves the status quo of the child but does not extinguish the parent’s capacity to make an application under s90 of the care act – see Adoption of BS (No 3) [2013] NSWSC 2033.
Impact of s10A
s10A (3)(c) suggests that the parliament has clearly determined that it is consistent with the best interests of a child for an adoption of a non-aboriginal child to be a preferred option to that of parental responsibility to the Minister.It is suggested that the Court in making a determination under s90(3) will be obliged to consider the new hierarchy and that this may close down arguments about whether PR to the Minister is preferable to an adoption. It does not prevent arguments being made about Guardianship or PR to the PAP.
Will adoptions be easier?
The hierarchy will probably make very little difference to outcomes in adoption cases.Where the argument has been run that PR is preferable to adoption it has generally been unsuccessfulRecalling the adoption is a service to the child the court has typically focused its consideration on the manifest benefit to the child in being provided with certainty whilst ensuring ongoing identification with the birth parents.
Adoption is also superior to all alternatives in respect of the provision of a sense of security and stability to the child, because it would provide what Ms Hogan described as “felt security” , and resolve any outstanding concerns that the child might not be a permanent member of the family. In doing that, it would also provide a sound and secure basis for the child to explore and develop his relationship with his birth parents.Brereton J in BS (No 3) [2013] NSWSC 2033 at 79
In thinking about the impact of the new hierarchy on adoption practice I think the real question is :Is there a realistic possibility of restoration of the child to the birth parentsIf yes – make an application to rescind or vary the orderIf no then - is the uncertainty of potential s90 application consistent with the best interests of the child?Other arguments can be made in adoption proceedings – re: suitability of cares, compliance with the legislation and consent issues.
Adoption plans
Adoption plans are like care plans and can make provision for contact with the birth parent, religion, exchange of information, change of name, etc.Birth parents can participate in Adoption plans and in some case mediations are held between the birth parents, the PAP and the DG or delegate regarding the content of the plan.
An adoption plan can be registered and if it is registered then a party to the plan can seek a review.It used to be the case that a birth parent could only be a party to an adoption plan if they consented to the adoption.
Amendments to the Adoption act
S46(2B) has been amended to provided thatA non-consenting birth parent who agrees to an adoption plan is for the purposes of sections 47, 48,50,51 and 90 to be treated as if the non-consenting birth parent were a party to the adoption of a child.
Conclusions
No real changes to adoptions decisions will arise from the permanent placement principlesIssues with adoption plans have been resolved providing birth parents with a greater voice in the open adoption of theirchild even when they donot consent to an adoption.

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Adoptions - Legal Aid NSW