Considering adoption and the alternatives
Exploring the possibility of a case plan of adoption for a child under the Parental Responsibility of the Minister for Community Services (‘PR of Minister”) may be placed on the agenda for discussion and consideration at the next annual review of the child’s case plan. This can be done by the carers, the Caseworker, the parents or the child.
When considering the most suitable case plan for a child, the alternatives to adoption (that will best meet the permanency needs of a particular child) must also be considered. The alternatives to adoption for a child in the PR of the Minister are most likely to be:
continued PR of the Minister & placement with present carers
Children’s Court orders for sole parental responsibility to present carers
Following case conference discussion the Manager OOHC may agree to assess the suitability of adoption for a child.
The assessment includes assessment of carer’s suitability to adopt the child in their care, their capacity to autonomously parent the child, without the continued involvement and support of DoCS or the NGO service, and their ability to support the child (by providing for the child’s social, cultural, educational, emotional and developmental needs) into adulthood.
As adoption is not an accepted practice in some cultures, the implication of adoption on the child’s future cultural identification is carefully considered during assessment.
The assessment also involves discussion with the child’s parents, including their views about the future. The parents’ willingness to consent to adoption is considered. If parents are unwilling to consent to adoption consideration is given to whether it is appropriate for adoption to be pursued and whether it would be in the best interests of the child to seek a court order dispensing with the consent of parents.
The assessment involves discussion with the child, at an age appropriate level. Their thoughts and wishes are respected, and they have a right to have a say about what they want for their future, without undue pressure from parents, carers or caseworkers. Children over the age of 12 years must consent to adoption (unless they do not have the capacity to understand what giving consent means)
Contact and Adoption Plans
Additional issues considered during assessment are how the child's carers presently assist the child with knowledge of and contact with his/her birthfamily members, and how the carers will support the child to have contact with birthfamily members over the years to come, as part of an 'open' Adoption Plan.
An Adoption Plan is a written document which sets out arrangements for post adoption contact, and includes information about how the child will be assisted to develop a healthy and positive cultural identity, as well as any supports required for this. Cultural support plans are developed where appropriate.
When filed with the Supreme Court as part of the adoption application, and endorsed by the Court, the particulars contained in the Adoption Plan have the same effect as ‘orders for contact’ made by the Family or Children’s Court.
Who prepares an adoption application?
If adoption becomes the approved case plan for a child in the PR of the Minister, the local DoCS Community Service Centre, DoCS Legal Services and the NGO service provider (if applicable) work together to prepare the information required for an adoption application. There are obviously a range of specific issues to consider in each individual child’s case. Generally there are no application fees, fees for legal services or court application fees payable by carers when a child is in the PR of the Minister, and adoption is part of the agreed case plan. If carers wish to have separate legal representation in an adoption application they would need to pay for this themselves.
DoCS support to progress adoption work
DoCS recently commenced a project to develop improved systems and support to assist Caseworkers with the work involved in assessing a child's readiness for adoption and the tasks involved in the preparation of an adoption application (for a child in the PR of the Minister).
Recently appointed Regional Adoption Caseworkers (5 across the state) are supporting Caseworkers and Managers to progress adoption for children in the PR of the Minister, where this is the agreed case plan. The Regional Adoption Caseworkers are a resource to Caseworkers who need more specialised information or support.
Children who are not in the PR of the Minister
If a child is not in the PR of the Minister and is cared for by relatives (defined in the Adoption Act 2000 as the aunt, uncle or grandparent of the child) the person/s caring for the child can seek independent legal advice and may decide to apply directly to the Supreme Court for an adoption order.
However, relative carers would be wise to consider both the costs of a Supreme Court application, legal representation and the legislative requirement that “the Court must not make an adoption order in favour of a relative of a child unless the Court is satisfied that the making of an adoption order is clearly preferable and in the best interests of the child to any other action that could be taken by law in relation to the child” (ref s29(c) Adoption Act 2000). When considering an adoption application relatives would need to take sound legal advice about how they would satisfy the Court that the current court orders in place for the child are insufficient to meet the child’s’ needs, as well as having all the relevant consents from the parents.
Some children are cared for by extended family members or unrelated persons. If this kind of carer is asking about adoption they should be referred to seek legal advice (at their own cost).
Financial matters and allowances
The Department first made provision for payment of Post Adoption Allowances in 1987. Where a child or family requested financial help, the need for continued
support after adoption was considered on a case by case basis. Often the children receiving post adoption allowance had significant developmental disabilities, medical needs, or had been in the parental responsibility of the Minister for Community Services.
New arrangements were recently put in place for authorised foster carers who adopt a child or young person in statutory out of home care, if the child has been in their care for at least two years. These adoptive parents will be eligible and continue to receive a payment equivalent to the statutory care allowance after adoption. The payment is called Post Adoption Allowance and will be automatically paid until the adopted child turns 18 years of age, provided the adopted child remains in the adoptive parents' care and the family remains in NSW (this will be subject to annual verification). The new arrangements apply to adoptions finalised from 1 July 2008. Recipients of the Post Adoption Allowance may have access to a limited range of contingencies, based on assessment of the needs of the child. There is a new fact sheet on DoCS website “Financial assistance for carers who adopt”.
Authorised carers who adopt and do not want a Post Adoption Allowance may decline to receive it.
These new arrangements do not apply to supported care placements. Supported care includes relative and kinship care where no Court order is in place, Family Court committed carers and relatives who have been granted Sole Parental Responsibility by the Children's Court or Family Court. This means that relative and kinship carers who receive the Supported Care Allowance are not automatically entitled to receive an allowance from the Department if they adopt a child in their care.
Where to go for more information
Carers wishing to discuss adoption of a child in their care should be referred to their DoCS or NGO Caseworker, or where they do not have an allocated Caseworker, to the Manager Out of Home Care at their Community Service Centre or NGO service.
IJennifer Ames & Melissa Bell OOHC Adoption Project
NSW Department of Community services
Changes from 07/06/07