The utmost priority in dealing with children in Family Law is the protection of the “best interests” of a child. New research debated in Parliament last month suggests that adoption processes in Australia fail to adequately do this.
Section 60CC of the Family Law Act 1975 (Cth) determines the best interests of the child by a number of considerations. Some of these include:
- The child’s relationship with both parents;
- How changes will affect the child;
- The child’s physical, intellectual and emotional needs, and the capacity of parents to provide for them;
- Child’s own views, weighted by their age and maturity; and
- Gender, maturity, lifestyle and cultural background of the child and parents.
In some cases, where it is not in the best interests of the child to live at home for safety reasons, they may enter out-of-home care. If they are never able to safely return home, they may gain some permanency through adoption.
Since the 1960s, adoption in all Australian states and territories has been “plenary adoption”, in which all legal ties between the child and their birth parents are cut. This process is contentious – some consider it to be outdated, detrimental to children for taking away their voice, and erasing their personal and legal identity.
The Australian legal system has indeed been accused of being slow to adapt and ineffective at reflecting the importance of the voice of children and young people in decisions that affect their lives. Plenary adoption may be another example of this.
Some may argue that plenary adoption does not protect the best interests of the children, failing to consider the relationship with the birth parents, their already existing identity, and their emotional and intellectual needs.
The alternative process, as described in this paper by Stacy Blythe and Karleen Gribble, is “simple adoption”, whereby the child still has legal ties to their birth parents, but is safest with their adoptive family, who has legal authority and decision-making responsibility.
The research suggests Australian law should be reformed to replace plenary adoption with simple adoption. It is an interesting suggestion, and one that is relevant to this issue of the child’s voice in Family Law.
Certainly, many participants in the research preferred the idea of simple adoption because it prevents children feeling displaced, protecting “the child’s right to identity [and] family.”
From a legal perspective, the change may cause issues in relation to succession law (which explicitly ignores the biological family relationships of adopted children, per s109 of the Succession Act 2006). It may also give rise to the challenging of adoptive parents by birth parents.
Here at Martin Bullock Lawyers, we enjoy considering how the law may be changed or improved, and we love hearing your opinions on it. Feel free to leave a comment on our Facebook page telling us what you think.
If you require legal assistance in relation to Family Law or another area of law, give Greg Martin or Jacqueline Wainwright a call on (02) 9687 9322.