INTRO: Adoption is the legal process which permanently transfers all the legal rights and responsibilities of being a parent from the child’s birth parents to the adoptive parents. As adoption is within state jurisdiction the governing legislation for Adoption in NSW is The Adoption act 2000 (NSW.) However, whilst there as has been positive reform toward ‘open adoption’ the current legal processes and legislation in NSW have not been effective in achieving justice for families in the adoption process, as they have not been accessible, flexible, and have not met society’s needs. Thus, the legal system is lacking responsiveness in this area of family law.
REFORM EFFECTIVENESS: Initially, the Adoption of Children Act 1965 (NSW) allowed for adoption however the focus was on ‘closed adoption’ and children often did not know they were adopted. As time progressed and social attitudes shifted, The Adoption Information Act 1990 (NSW) was passed and allowed for adopted people over 18 and their birth parents to gain information about one another from the department of births, deaths and marriages. This was effective as the law was responsive in reflecting changing social and moral ideologies. In 1995, amendments following a NSWLRC inquiry created an advance notice request system so that children and parents can be given up to three months notice in order for them to prepare themselves mentally, which is highly effective in terms of protection individual rights and meeting societal needs.
Moreover, as values progressed toward the acceptance of ‘open adoption’ the Adoption Act 2000 (NSW) was introduced, effectively embodying the principles of Hague Convention on the Protection of Children and Cooperation in respect of inter-country adoption 1993 and allowing for adoption plans to be created. This is a plan between the birth parents and the adoptive parents about a childs upbringing and must be approved by the NSW Federal Court, additionally, it embodies the same principle as The Adoption Information Act 1990 (NSW.) Under the act, consent is a large factor in grating adoption – adoptive parents cannot give consent to give their child up for adoption until at least 30 days after the child is born and the parents must first receive counselling. Whilst this effective in terms of protecting individual rights as it give birth parents a reconsideration period, it is ineffective in terms of meeting societal needs, that is the commissioning parents, as they may be adversely affected where they change their mind. However, children over the age of 12 must also give consent which is extremely effective in protecting the rights of children, and any potential psychological trauma which may ensue. In 2010, following the AHRC Same Sex: Same Entitlements report 2007, and the case of Re: Williams and Jane, The Adoption (Same Sex Couples) Act 2010 (NSW) was passed which gives same sex couples the exact same rights as normal couples in respect to adoption, which was effective in terms of responding to the rights of same-sex couples.
INEFFECTIVENESS: However, fewer and fewer children are available for adoption now than ever- there has been a 76% decline in the number of adoptions over the past 25 years in Australia. This is due to the increased availability of effective contraception and abortion, and because of the reduced social stigma surrounding unmarried mothers and ex-nuptial children. It is also due to the fact that there is a complex screening system for those who wish to adopt children, and even if an application is successful, they are place on a waiting list until a suitable child becomes available for adoption. This, combined with the costs involved and the fact that there are many new alternative birth technologies have resulted in the failing numbers of children being adopted in Australia. Thus, the resource inefficiency of time and hence inaccessibility of children available for adoption makes this area of family law inadequately effective.
Additionally, adoption both domestically and internationally is extremely expensive and is a lengthy, and arduous process. Overseas adoption is only available between nations who are a party to the Hague Convention on the Protection of Children and Cooperation in respect of inter-country adoption 1993. At present, Australian’s can only adopt from nine countries, making inter-country adoption inaccessible to many. This is ineffective as it creates large issues of inaccessibility across nations who are not party and may have many children desperate to be adopted due to poor living standards and is thus ineffective in the protection of individual rights.
CONCLUSION: There are many areas of the adoption process that are in need of reform, both domestically and internationally the process needs to become faster, and less expensive. Particularly as domestically thousands of children in NSW to do not have a permanent home.