Access to information and privacy safeguards

Access to identifying information before an adopted person is 18 years of age

The new Adoption Act 2009 allows a child's adoptive and birth families to explore the option of 'opening' the adoption before the child's 18th birthday. An adoption would be 'opened' by the birth and adoptive families being given information about each other's identities, which will allow them to begin corresponding and, perhaps, to decide to meet.

This process can be started by an adoptive parent, an adopted child (with his or her adoptive(?) parents' agreement) or a birth parent asking the department for information about another party to the adoption. The department then contacts the other party to discuss their interest in exchanging identifying information. Only when the child's adoptive parents and birth parent have each given their written agreement, can the department then give them information about the identity of the other.

The Adoption Act 2009 includes additional safeguards to protect the interests of all of the parties, in particular the adopted child, in this process. The department is obliged to consider how an open adoption arrangement may affect the adopted child's wellbeing and best interests. The department must consider:

• any views that the adopted child may have about possible contact with his or her birth parents, if they are old enough to form and express views
• whether there is any reason why giving the information could be harmful to the child.

However, the department must not contact one party on behalf of another party to discuss the party's interest in opening up the adoption if:

• there is a court order restricting the release of identifying information
• making such contact is inconsistent with an (existing) adoption plan
• the person has previously given the department instructions not to contact them for this purpose.

Adoption Services Queensland may provide information, support or counselling to people who seek information, and people whose consent to the disclosure of information is needed, to help them decide whether to seek the information, or consent to the disclosure of the information.

There is no provision for a party to appeal another party's decision not to consent to the disclosure of identifying information.

Access to identifying information - adoption orders made after 1 June 1991

The Adoption Act 2009 enables identifying adoption information to be provided to an adopted person or birth parent when the person who was adopted on, or after, 1 June 1991 is 18 years of age. In addition, an adopted person or birth parent will be entitled to receive copies of some documents, such as a parent's consent to the adoption and the adoption order.

The Adoption Act 2009 enables information to be released to relatives of an adopted person, or relatives of a birth parent, only if the adopted person or birth parent has died or is permanently incapable of applying for information. A relative is defined as the spouse, parent, sibling or child of an adopted person or the spouse, parent, sibling or child of a birth parent.

Access to identifying information - adoption orders made before 1 June 1991

Where an adoption order was made before 1 June 1991, the Adoption Act 2009 no longer allows adopted people and birth parents to lodge an objection to permanently prevent identifying information about them from being released to another party to the adoption.

However, adopted people and birth parents will still have the right to say they do not want to be contacted which, for pre-1991 adoptions, will be legally enforceable.

The Adoption Act 2009 enables identifying adoption information to be provided to an adopted person or a birth parent when the person who was adopted is 18 years of age, regardless of whether the adoption order was made before or after 1 June 1991. In addition, an adopted person or birth parent will be entitled to receive copies of some documents, such as a parent's consent to the adoption and the adoption order.

The Adoption Act 2009 enables information to be released to relatives of an adopted person or relatives of a birth parent only if the adopted person or birth parent has died or is permanently incapable of applying for information. A relative is defined as the spouse, parent, sibling or child of an adopted person or the spouse, parent, sibling or child of a birth parent.

To safeguard the privacy of people who have previously lodged objections, and people who, after the commencement of the new Act, express a wish not to be contacted in a contact statement, the Adoption Act 2009 only allows identifying information about them to be given to another person if:

• the other person has participated in an interview (which may be in person or by telephone) with an officer of the department, and
• they have signed a document acknowledging they have been told that the other person does not want to be contacted and it would be an offence to do so.

What identifying information will be provided?

After an adopted person provides the department with a signed request for information (in the approved form) and documents that establish his or her identity, the department will give the person identifying information about:

• the person, by giving the person the full name he or she was given before the adoption.
• his or her birth mother and, if known, his or her birth father, that is, their:
  • name at the time of the adoption
  • date of birth
  • if the birth parent has agreed in writing, his or her last known name and address.
• any adopted siblings - if there is another adopted person who has a birth parent in common with the adopted person, he or she will be given their name, immediately after adoption, date of birth and, with the adopted sibling's written agreement, the person will also be given the sibling's last known name and address.

After a birth parent gives the department a signed request for information in the approved form and provides documents that establish his or her identity, the department will give the person:

• the full name his or her child was given immediately after the adoption and, if the adopted person has agreed in writing, the birth parent will also be given their child's last known name and address
• the names, at the time of adoption, of the adopted person's adoptive parents.

In addition, the department will provide the adopted person or birth parent with copies of the following documents, where available:

• a birth parent's consent to the adoption
• a court order dispensing with the need for a birth parent's consent
• the adoption order.

If an adopted person, or birth parent, has died or is not capable of applying for identifying information, the person's spouse, parent, sibling or adult child can apply for the information in their place.

Authority to obtain a copy of an adopted person's birth certificate

The Adoption Act 2009 allows adopted people who have received identifying information about a birth parent to receive an authority to obtain a copy of their original birth certificate from the Registry of Births, Deaths and Marriages. The certificate will be endorsed 'not to be used for official purposes'.

Birth parents, regardless of whether they have received identifying information about an adopted person, will be able to receive an authorisation from the department to obtain a copy of the original birth certificate, marked 'not to be used for official purposes'.

Birth parents will also be entitled to an authorisation from the department to obtain a copy of the amended birth certificate from the Registry of Births, Deaths and Marriages. This certificate will also be marked 'not to be used for official purposes'.

The authorisation to obtain a copy of a birth certificate can specify that details on a certificate (other than identifying information that must be provided under the Act) are to be excluded if the department is satisfied that allowing access to the information would be an unreasonable invasion of a person's privacy or otherwise unreasonably harm a person's interests.

When can information be provided to, or about, an adopted person's birth father?

The Adoption Act 2009 recognises a man as an adopted person's birth father if:

• he consented to the adoption or the need for his consent was dispensed with
• he is recorded on the birth certificate as the person's father
• Adoption Services Queensland's records demonstrate he accepted paternity of the adopted person before or at the time of the adoption
• there is otherwise sufficient evidence to satisfy the chief executive that the man is the adopted person's biological father.

This will enable identifying information to be provided to birth fathers about, and about birth fathers to, their son or daughter who was adopted, in more circumstances than under the current adoption law.

What is a contact statement?

An adopted person who is at least 17 years and 6 months old, or a birth parent of an adopted person, may give the department a signed contact statement. The contact statement must be in the approved form that will be available from the department.

A contact statement is a document that sets out a person's wishes about being contacted by another party, or parties, to the same adoption who may ask for information about the person.

For example, a contact statement may state the person's wish for contact to happen only by telephone; or for in-person contact to happen only at a neutral place in the presence of a mediator; or the person's wish not to be contacted in any manner.

A contact statement remains in force until it is revoked by the person who lodged it, or until that person dies. A contact statement is revoked by giving the department a notice in the approved form.

Contact statements operate differently depending on whether the relevant adoption order was made before or after June 1991.

If an adoption occurred before 1 June 1991, the Adoption Act 2009 allows Adoption Services Queensland to provide identifying information about one person to another person only if they:

• have participated in an interview (in person or by telephone) with an officer of Adoption Services Queensland
• have signed a document acknowledging they have been told the other person does not want to be contacted and it would be an offence to do so
• have been given the contents of the other person's contact statement, if applicable.

It will be an offence, carrying a maximum penalty of $10,000 or imprisonment for 2 years (100 penalty units), for a person to contact, or try to contact, another person who he or she knows has registered a contact statement expressing a wish not to be contacted.

The Adoption Act 2009 recognises an objection that was in place under the Adoption of Children Act 1964 before the new Act commences. Under the new Act, it automatically becomes as a contact statement expressing a wish not to be contacted.

If a contact statement relates to an adoption that occurred after 1 June 1991, the new Act requires the department to give the contents of the contact statement to a person who asks for information, and to explain the other party's wish not to be contacted before providing the person with identifying information.

A contact statement will not have to be renewed. However, a person can update, revoke or replace their contact statement at any time.

Adoption Services Queensland may offer a person seeking identifying information, and/or the person who has a contact statement in place other information, counselling or support considered appropriate (before or after the information is provided).

Court order restricting access to information

The Adoption Act 2009 enables the Childrens Court to make an order preventing the release of someone's identifying information to another person, if doing so would pose an unacceptable risk of harm.

For example, if a person who is seeking identifying information about another person is known to be violent, and previous comments or actions suggest he or she is likely to harm that other person in some way, then an application could be made to seek an order from the court to prevent the release of the identifying information.

An application for an order to restrict access to identifying information can be made by an adopted person, a birth parent, an adoptive parent or by Adoption Services Queensland.

The person who makes the application has to provide evidence to the Childrens Court that demonstrates there would be an unacceptable risk of harm to the applicant (other than the department) or to someone else, if the information were given.

An application for an order can be made and dealt with during court proceedings for a child's adoption or any time after an adoption order is made.

Medical information

Adopted people often say that they would like to have more information about the medical history of their biological family.

Under the Adoption Act 2009, Adoption Services Queensland will be able to contact an adopted person's birth parent or other biological relative to ask them to provide up-to-date family medical information to be passed on to the adopted person.

A birth parent may also provide Adoption Services Queensland with up-to-date family medical information to be passed onto the person's son or daughter who was adopted. Adoption Services Queensland will be able to contact the adopted person to see if he or she would like to receive the information.

Adoption Services Queensland will be allowed to approach people regardless of whether a contact statement prevents these people from asking for, or providing, the information themselves.

At the request of the adopted person or their biological relative, the department may give the information to their nominated medical practitioner, instead of directly to the person.

Birth parents and adopted people will not be obliged to provide, or to accept, up-to-date family medical information if they do not wish to do so.

How the Adoption Act 2009 will protect the privacy of people who currently have an objection in place

The Adoption Act 2009 includes a range of provisions which acknowledge and respect the wishes of adopted people and birth parents affected by an adoption order made before 1 June 1991 who do not want their privacy to be compromised.

When the new Act commences on 1 February 2010, information and contact objections that were in place under the Adoption of Children Act 1964 will automatically become a contact statement expressing the person's preference not to be contacted. Objections which become contact statements expressing a wish for no contact will remain in place indefinitely (unless the person revokes it) and will not have to be renewed.

This means that a person with an objection in place under the Adoption of Children Act 1964 will not have to take any action when the Adoption Act 2009 commences to ensure any other party to the adoption who applies for information about the person will be advised that he or she does not wish to be contacted.

However, a person with an objection in place under the Adoption of Children Act 1964 may lodge a contact statement under the Adoption Act 2009 to ensure the person's wishes, including their wish not to be contacted, are clearly expressed. The person can also use the contact statement to provide information about their reasons for not wanting to be contacted, or any other matters, for Adoption Services Queensland to pass on to another party.

Adoption Services Queensland will be able to release identifying information about a person who had an objection in place under the Adoption of Children Act 1964, only if:

• an officer of Adoption Services Queensland has spoken to the person, in person or by telephone, to discuss the other person's contact statement and what it means
• the person seeking information has signed a document that acknowledges he or she has been told the other party does not want to be contacted and it would be an offence to do so.

It will be an offence, carrying a maximum penalty of $10,000 or imprisonment for 2 years, for a person who knows another person has lodged an objection (or registered a contact statement expressing a wish for no contact) to:

• contact, or attempt to contact, the person directly, through a relative or another person
• publish information that identifies the person as a party to an adoption.

Adoption Services Queensland will be able to provide to people seeking identifying information and/or people who have an objection (which transitions into a contact statement) in place other information, counselling or support considered appropriate (before or after the information is disclosed). This may be provided directly by Adoption Services Queensland or through the use of appropriately qualified service providers.

How the Adoption Act 2009 will affect adopted people and birth parents who have previously been refused identifying information

The Adoption Act 2009 enables adopted people and birth parents access to identifying adoption information when the person who was adopted is 18 years of age. Under the new Act this right is the same, whether the adoption order was made before or after 1 June 1991, and is not affected if another party objects to the information being released.

An adopted person or birth parent will also be entitled to receive copies of some documents such as a parent's consent and the adoption order.

The Adoption Act 2009 enables information to be released to relatives of an adopted person or birth parent if the adopted person or birth parent has died, or is permanently incapable of applying for information. A relative is defined as the spouse, parent, sibling or child of an adopted person or the spouse, parent, sibling or child of a birth parent.

A person who has previously been refused identifying information because the other party to the adoption had an information objection in place under the Adoption of Children Act 1964 will be able to receive identifying information under the Adoption Act 2009. However, if the other person's objection was in place immediately before the commencement of the new Act, the objection automatically becomes a contact statement expressing the person's wish not to be contacted. It will continue to be an offence for the person to contact, or attempt to contact, the other party to the adoption.