Adopting a Child from Overseas: What Do I Need to Know

Adopting a child from overseas is known as an intercountry adoption. There are partner countries with Australia who assist in facilitating overseas adoptions under the Hague Convention, which aims to protect children from trafficking, and illegal and ill-prepared adoptions. It remains a foremost principle that the adoption of a child from overseas must be in the child’s best interests. Adoptions must also be approved by your state and territory central authority.

Currently, Australians can adopt within the following partner countries:

• Bulgaria

• Chile

• China

• Colombia

• Hong Kong

• India

• Latvia

• Poland

• South Africa

• South Korea

• Sri Lanka

• Taiwan

• Thailand

You must meet the eligible criteria of the state or territory you live in, together with the eligibility criteria of your chosen partner country. This includes whether you are married or single, same-sex, de facto and in some countries, whether you are male or female (as a single).

Other considerations are the ages of the children and the difference in age between you as the adoptor and the child and your mental and physical health. There are fees associated with intercountry adoption which vary from country to country. This can include program fees, translation fees, travel and accommodation and incidentals.

The adoption of a child or young person from overseas is recognised provided:

• The adoption is granted by the central authority of the convention country (the country from where the child is being adopted);

• Arrangements for the adoption of the child or young person have been made by the director-general or a private adoption agency; and

• An adoption compliance certificate issued in the convention country is in force for the adoption.

Having this recognition means that the legal relationship between the child or young person and the pre-adopted parents or legal guardians is now terminated provided the law of the convention country provides that. If the convention country declares that it does not recognise the adoption, it has no effect on the law of the state or territory in which you live. Should they not recognise the termination, you may be able to apply to the court to terminate the relationship between the child or young person and the pre-adoption parents or guardians.

It is dependent on the country as to who finalises the adoption order, whether it be in the country of birth or Australia. Should it be Australia, the adoption order will need to be finalised in an Australian court after your child arrives in Australia. If the above has been complied with, your child will be eligible to become an Australian citizen. You may also be able to register your adopted child’s birth through your local Registry of Births, Deaths and Marriages and then apply for the birth certificate.

If you or someone you know is considering overseas adoption, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Who Can Adopt?

If you are looking to adopt, you are required to be ordinarily resident in the ACT. You must also be on the register of suitable people. To be on the register, you must make an application in writing to the Director-General for approval to be registered as suitable for the placement of a child or young person for adoption.

If you are a couple, you need to have lived together in a domestic partnership for at least 3 years. If you are single or a step-parent, you can apply for an order to be made in your favour.

Consents to Adoptions

If you are wishing to adopt a child or young person, and they have not been previously adopted, you will be required to obtain the consent of each parent or guardian of the child or young person. If the child or young person has previously been adopted, you will need the consent of each adoptive parent or guardian. It is possible, however, to seek the requirement for consent to be removed.

Placement of a child or young person before adoption

During the adoption process, the child or young person will be placed in the care of a person with the Director-General as guardian, or to a person on the register of suitable people (intending to apply for an adoption order for the child).

The Director-General must if practical, provide the child or young person with information about the proposed placement. The child or young person will be allowed the opportunity to freely express their views about the proposed placement, be provided assistance in understanding the information and have counselling if required.

Guardianship before adoption

Prior to adoption, the Director-General is considered the guardian of a child or young person for all purposes except:

• If each person required to consent to the adoption has consented or if consent has been dispensed with; or

• If the application for adoption was made by a step-parent and the other parent of the child or young person has a continuing role as a parent; or

• The principal officer of a private adoption agency is the guardian where consent has been provided by the required persons and they have told the Director-General in writing that they are willing to assume the guardianship.

If you or someone you know is considering adoption, it is important to seek specialist advice from those best qualified to assist you. Robinson + McGuinness is available to provide you with advice about your family law matter, including adoption matters.

Contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Can I Adopt an Adult?

Adoption in the ACT is governed by the Adoption Act 1993. This deals with the adoption of children and young people. The adoption of a person who is 18 years old or older is permitted in the Australian Capital Territory under section 10 of the Act. There are certain requirements to be met prior to the adoption taking place. These are:

1. That the adoptor/s have been in a care-giving relationship with the person; and

2. The person has received physical, emotional, intellectual and educational support from the adoptor/s; and

3. The person, or at least 1 adoptor, is ordinarily resident in the ACT.

The Court will not make an adoption order for a person 18 years old or older unless the person consents to the adoption by the adoptor and the court is satisfied that the adoptor is of “good reputation”.

Further considerations for the adoption of an adult over the age of 18 include:

4. Consent by an adoptor for the adoption order is not required;

5. Consent must be signed and attested to under the appropriate form and prescribed regulations;

6. The court may refuse to make an adoption order if it appears that any required consent was:

a. Not given in accordance with the Act;

b. Obtained by fraud, duress or other improper means;

c. The form whereby consent was signed was altered without the authority of the person who gave the consent;

d. When signing, the person who gave the consent was not in a fit condition to give the consent or did not understand the nature of the consent;

7. An adoption order must not be made unless the applicant has, not later than 28 days before the return date for the application, been served written notice of the application and its return date on:

a. Anyone whose consent to the adoption is required but whose consent has not been given.

8. The court has the authority to remove the requirement to serve an application;

9. The court has the authority to direct the adoptor to serve the application on anyone it deems necessary;

10. The court may permit anyone it thinks fit to be joined as a party to a proceeding for the purpose of opposing the adoption application or opposing an application to remove a requirement for consent on a person; 

11. On application, the court may discharge an adoption order if the court considers that:

a. The adoption order or any consent to the adoption was obtained by fraud, duress or other improper means; or

b. Other circumstances that justify the discharging order;

c. Discharging orders must be served by written notice to the adopted person (if over 12 years), each adoptive parent and each person whose consent to the adoption was required.

If you or someone you know is considering adoption, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

If you would like advice in relation to your matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.