ADOPTION

1. ADOPTION Helping birth parents before, during and after an adoption order is made

2. Open adoption in NSW • In NSW, adoption is prioritised over long term foster care for kids who can’t be restored, or placed with a suitable guardian or kin. • In NSW we practice “open adoption”, and recognise that there is a benefit for children whose birth families and adoptive families can stay in contact after an adoption order is made. In most cases, there will be a plan for children to have direct contact with their birth parents post adoption. In this way, we are different to countries like the US, where there is a very low rate of contact for children who are adopted from foster care, and the UK, where post adoption contact predominantly takes the form of “letterbox contact”. In both the US and UK children’s post adoption contact tends to decrease over time.

3. The benefits of post-adoption contact • Penny Haskins is an independent social worker and adoptions assessor. • I asked her to tell us about some of the benefits for children of having contact with their birth family post adoption, and this is what she said:

4. Post adoption contact • Once an adoption order is made, the proposed adoptive parents become the legal parents of the child. • In almost all cases, FACS or the designated agency will no longer have a role to play in organising, funding or supervising contact. • It also means that decisions about contact post adoption will ordinarily be made by the proposed adoptive parents. • In NSW, the plans for birth family contact are almost always set out in an adoption plan, and the plan is usually prepared before the proceedings commence. • There are a few ways to make sure that the arrangements for post adoption contact are enforceable. Whether or not it is best to have arrangements that can be enforced, and the best way to achieve this, will really depend on the individual case.

5. What works? • What are some of the preconditions for successful and beneficial birth family contact?

6. Best practice • What does best practice look like in order to put in place those preconditions?   

7. Adoption plans – who can be a party? • An adoption plan is a plan agreed by two or more parties to the adoption of a child, before an adoption order is made. • Parties to an adoption is a term defined in the Dictionary to the Adoption Act as meaning: • the child, • a birth parent who has consented to the child’s adoption, • a prospective adoptive parent, • the Secretary, • the appropriate Principal Officer. • Although a non-consenting birth parent is not otherwise a party to the adoption, a non-consenting birth parent who agrees to the adoption plan is to be treated as if he or she were a party to the adoption for the purposes of the making, registration and review of the adoption plan: s 46(2B). • Grandparents, siblings and other relatives or kin cannot be parties to an adoption plan.

8. Adoption plans – form and content • Adoption plans must be in writing: s 47(2). • A birth parent must, as far as possible, be given the opportunity to participate in the development of, and agree to, an adoption plan: s 46(2A). • Birth parents usually receive a copy of the adoption plan when they are notified that an application for an adoption order has been filed. • An adoption plan must be in writing, and include provisions about: • the nature, frequency and location of contact between a child and their family and siblings • the way in which the child is to be assisted to develop a healthy and positive cultural identity and ways in which links with the child’s cultural heritage are to be fostered • information about the exchange of information about medical issues, the child’s development and important events in their life • If the child is Aboriginal or a Torres Strait Islander, and neither of the proposed adoptive parents is an Aboriginal or Torres Strait Islander, the adoption plan must include a cultural plan, which has been developed following consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

9. Whether the adoption plan is in a child’s best interests • If the parties agree to an adoption plan, the court may not make an adoption order unless it is satisfied that the arrangement proposed in the plan is in the best interests of the child and proper in the circumstances. • In the Adoption of Taylor-Clay, his Honour Justice Brereton said: “ Whether the arrangements are proper in the circumstances requires consideration of all of the circumstances relevant to the arrangements, and in particular the purpose of an “open adoption” – being one in which the child will know and have contact with their birth family. And although it may be observed that if there is no adoption plan providing for contact there is no statutory hurdle, nonetheless the arrangements for birth parent contact are relevant to whether an adoption order should be made, regardless of whether or not there is an adoption plan, because they bear on whether the child’s identity needs will be adequately addressed, and thus whether adoption is in their best interests”.

10. Common issues • There has been a lack of casework to support “open adoption”. • The proposed adoptive parents and the birth parents haven’t met, or they have met but the relationship hasn’t had much time to develop. • Adoptions plans propose arrangements that haven’t already been put into practice. • Birth parents have to make lots of decisions about contact at a time when they are experiencing grief and loss and have had to read lots of material that brings up the past. • The adoption process has taken a long time and relationships between the carers and birth parents are fraught, or have broken down completely. • The birth parent(s) has mental health or cognitive impairment and really need support to continue with contact in the future – and this is not available. • There is a real push for the Court to hear matters quickly – which leaves little time to resolve some of the issues.

11. Mediation • Legal aid is available for mediation in adoption matters. • Mediation can take place before proceedings have been commenced, or at any stage whilst the proceedings are on foot. • Mediation can be a good forum to discuss the proposed adoption plan, and in particular issues around contact, culture and exchange of information. • Some things to consider: • If the plan is for the proposed adoptive parent to arrange, facilitate or supervise contact between the child and their birth parent(s) following the making of an adoption order, consider a face to face mediation with everyone in attendance, so that the arrangements for contact and any concerns can be fully discussed. • Ask for a draft adoption plan, or an outline of proposals, before mediation. Find out whether the adoption agency are open to discussing the proposals in the plan. • Find out who is going to attend the mediation. • If the proceedings are already on foot, consider whether to seek leave to provide some or all of the documents to the mediator, in particular the s 91 report.

12. Registering an adoption plan • The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the Plan: s 50. • The Court may register an adoption plan if it is satisfied that: • The plan does not contravene the adoption principles; • The parties to the adoption understand the provisions of the plan and have freely entered into it, and • The provisions of the plan are in the child’s best interests and are proper in the circumstances. • An adoption plan that is registered has effect, on the making of an adoption order, as if it were part of the order: s 50(4). For this reason, it is important that the provisions be drafted in precise and enforceable terms, and contain all the requisite particulars. • A birth parent, even though not a party to the plan, will have standing to enforce the deemed order in their favour: Director-General, NSW Department of Family and Community Services v JS [2013] NSWSC 306. • An adoption plan is registered when the court files the plan (and places the court seal on the plan) following the making of an order that it be registered: UCPR 56.13. • Usually, an order seeking that the plan be registered will be included in the Summons (if that order is sought by the Secretary or the adoption agency).

13. Registering an adoption plan • The UCPR sets out the evidence that must be filed in support of an application for an order that an adoption plan be registered (to the extent that the evidence in support of the application for an adoption order does not already do so), and includes: • A verified copy of the executed adoption plan, and • The facts, matters and circumstances relied upon to show that the plan does not contravene the adoption principles, and • The statement on affidavit of each party to the adoption plan that the party understands the provisions of the plan and has freely entered into it, and • The facts, matters and circumstances relied upon to show that the provisions of the plan are in the child’s best interests and proper in the circumstances.

14. Case study – Paul • Paul was the maternal grandfather of 7 kids, and authorised carer for 4 of the kids. • Adoption proceedings in relation to the third oldest child. The oldest and youngest kids were restored to the care of their parents. • Paul could not be a party to an adoption plan, but wanted to have some certainty around the arrangements for contact, particularly between all the kids. • Paul made an application to be joined as a party to the adoption proceedings. • He then asked the Supreme Court to cross-vest its powers under the Family Law Act to make spend time with orders. • He was successful in obtaining spend time with orders in relation to the third oldest child. Paul lives interstate, so having orders made under the FLA means that he can go to a family court in his home state if there are any problems post adoption.

15. Problems with post adoption contact? • If there are difficulties with the arrangements for contact, or the adoption plan, your client has the following options: • Contact the FACS Adoption Information Unit (details are usually included in the adoption plan), or the agency who supervised the placement if those details are included in the plan • Mediation • Ask the Supreme Court to review the adoption plan (but only if your client was a party to the plan) • Seek to enforce the plan • Make an application under the Family Law Act for spend time with orders

16. Reviewing an adoption plan • A party to an adoption plan can make an application to the Court to review the plan: s 51. • A birth parent who does not agree to the plan cannot apply to the court to review the plan. Likewise, biological grandparents and siblings cannot seek review of a plan. • Unless the Court determines otherwise, each party who agreed to the adoption plan will have an opportunity to make submissions concerning the application. • An application for review can be made by filing a notice of motion in the proceedings in which the adoption order was made: UCPR 56.14. Evidence in support of the application must include: • A verified copy of the executed adoption plan (or the registered plan) • The proposed changes to the adoption plan, and • The grounds on which the application is made, and • The facts, maters and circumstances relied on to show that it is in the best interests of the child and proper in the circumstances to change the adoption plan. • Unless the court orders otherwise, the notice of motion must be served on: • Each party to the adoption who has agreed to the adoption plan, and • Any other person (including non-consenting birth parent who has not agreed to the adoption plan) who has a sufficient interest in the adoption plan.

17. Reviewing an adoption plan • Following a review, the court may, by order: • Make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or • Revoke the plan, or • Confirm the plan. • The court may change the provisions, or revoke an adoption plan, only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so. • An adoption plan that is changed by an order of the court has effect as if it were the plan originally agreed to by the parties.

18. Enforcing an adoption plan • A birth parent who has not agreed to an adoption plan has no standing to seek a review of the plan. However, they could seek to enforce the provisions of a registered adoption plan. • In Director-General, NSW Department of Family and Community Services Re JS [2013] NSWSC 306, his Honour Justice Brereton said: “ … a person having the benefit of a deemed order, as the plan becomes upon registration, even though not a party to the plan, as a result of s 50(4) would have standing to apply for enforcement of the deemed order arising from registration of the adoption plan, even if not for its review”.

19. Applications under the Family Law Act • One option available to a birth parent, biological grandparent or sibling, where provisions of the adoption plan are not being followed, is to make an application under the FLA for parenting orders (including spend time with orders). • A birth parent of an adopted child is not considered to be a parent for the purpose of the FLA and so would need to demonstrate that they are concerned with the care, welfare or development of the child pursuant to s 65C of the FLA. • Likely that you would need to demonstrate a significant change in circumstances since the adoption order was made. • Section 69ZK does not operate to prohibit the exercise of jurisdiction under the FLA in respect of adoption children. • It may be possible for this kind of application to be filed in the Supreme Court by filing a Notice of Motion and asking the Court to cross-vest and exercise the power under the FLA.

20. The research • Professor Elspeth Neil from the School of Social Work at East Anglia has conducted some longitudinal research, talking to birth families before, during and after the adoption process. • I asked her to talk about her research, and some of the factors that she has found that have led to successful birth family contact.