Advice Leaflet 6: Developments in adoption legislation and changes in Family and Community Services practice
In November 2008 the NSW Parliament passed an Adoption Amendment Bill. This Bill inserted into the NSW Adoption Act 2000 at section 67 a new clause (d).
Before the amendment, section 67 of the Adoption Act 2000 read as follows.
67. When can Court dispense with consent of persons other than child? (1) (a) - (d) (i) - (iii) ...
Then clause 67 (1) (c) was altered by omitting 'the parent or guardian' and inserting instead 'the parent or person who has parental responsibility for'. More importantly, clause (d) was inserted into section 67 and is as follows:
(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers of the child;
(i) the child has established a stable relationship with those carers, and
(ii) the adoption of the child by those cares will promote the child's welfare.
(iii) in the case of an Aboriginal child, alternative to placement for adoption have been considered in accordance with s36.
What was unclear when this legislation was passed was what the phrase 'has established a stable relationship' would mean in practice. Since that time it has become clear that FaCS have defined the period as two years.
The implication for parents of children in care
The implication is that a foster carer who has cared for a child for two years is now able to apply to the Supreme Court to adopt the child. Importantly, the court has the power to approve an application against the wishes of the child's parents. A surname change to that of the adoptive parents can also approved by the court against the wishes of the birth parents.
Developments in FaCS Care Plans
It is becoming routine practice to insert into a Care Plan an indication that FaCS will or may consider at some time in the future adoption. The Care Plan is a document for the Children's Court filed before final orders are made.
This is particularly true where the child has been removed at birth from a mother under section 106A of the Children and Young Persons (Care and Protection) Act 1998.
In that respect it is clear that the FaCS will support an application from a foster carer, if they seek to adopt a foster child. FaCS see this as providing the child with long term security and as preferable to long term foster care. FaCS also knows that it is much easier to find adoptive parents for babies and very young children, than it is for older children.
For birth parents this means that if they are unable to resolve the issues that caused their child to be removed fron their care in under two years they may lose their child permanently to adoption.
Parents have no time to lose if this outcome is to be avoided.