Step-parent adoption

Who may apply to adopt a step-child?

A child's step-parent, that is the married or de facto spouse of a parent of the child, will be able to apply to adopt the child if:

• the person is an adult who is resident in Queensland and is an Australian citizen (or the spouse of a Australian citizen)
• the person lives with the child and spouse and has done so for at least three years
• the person has been granted leave by the Family Court under the Family Law Act 1975 (Commonwealth) to commence adoption proceedings
• the child is at least five years old and not more than 17 years old (an application may be accepted in relation to a child who has turned 17 but is not yet 18 in some circumstances).

An application relating to a child who has turned 17 years of age may be accepted if Adoption Services Queensland decides:

• there is enough time to complete the adoption process before the child turns 18
• the grounds for making an adoption order are likely to exist.

A de facto spouse who is the same gender as his or her partner will not be eligible to apply to adopt their partner's child.

What fees apply?

Fees will be prescribed in an Adoption Regulation, which is under development.

It is anticipated that the application and assessment fees which currently apply to people seeking to adopt a step-child under the Adoption of Children Regulation 1999, will continue to apply under the new regulation.

The fees under the current Regulation are:

• application fee: $61.85
• assessment fee: $463.95

Can a child be adopted by a relative other than a step-parent?

Under the Adoption Act 2009, a person can no longer apply to adopt a child who is related to the person (other than a person applying to adopt a step-child).

If adoption by a relative is the best option for securing a child's long-term care, the Department can ask a relative to consider being assessed as a prospective adoptive parent for the child. However, the relative cannot initiate the process.

What happens after a step-parent applies to adopt a step-child?

If an application and application fee is received from someone who may apply to adopt a step-child the department must take steps to obtain the consent of each of person whose consent is required for a child to be adopted by a step-parent.

If the department:

• becomes aware that a parent does not wish to give his or her consent
• cannot establish the identity of a parent after making all reasonable enquiries
• cannot locate a parent after making all reasonable enquiries
• the applicant must be notified that, for the relevant reason mentioned above, it has not been possible to obtain the consent of each parent.

The application cannot progress further unless:

• the department becomes aware that the parent wishes to give consent, or of the parent's identity or whereabouts
• the applicant makes an application to dispense with a consent required for the adoption that cannot be obtained.

This means the applicant is responsible for applying to the Childrens Court for an order dispensing the need for consent of the parent who cannot be found, or who does not wish to give his or her consent. If the applicant chooses not to make this application to the court, it is likely the adoption will not be able to proceed.

If an application is inactive for six months, the application lapses and is closed. An application becomes inactive if:

• after attempting to obtain all consents required, the consents have not been obtained
• a notice requesting information has been sent to an applicant and the applicant does not provide the information in the required time.

If all consents are obtained and the applicant pays the assessment fee, the department must proceed with the adoption process by assessing whether the step-parent is suitable to adopt the step-child.

Assessment of application

The assessment of whether a person is suitable to be an adoptive parent of the step-child must take into account information regarding a range of matters, including information about:

• the step-parent's capacity, and that of other people in the household, to protect the child from the risk of harm
• the step-parent's capacity to be an adoptive parent
• whether the step-parent is of good character
• the step-parent's understanding of adoptive parenting
• quality of the step-parent's relationship with his or her spouse
• nature, closeness and quality of the child's relationship with the step-parent and other members of the household
• ability and willingness to help a child maintain contact with the child's community or language group, if applicable.

In deciding whether a step-parent is suitable and whether adoption would best serve the child's interests and whether there are exceptional circumstances that warrant the making of the order, the department must also consider:

• the circumstances in which the child came to be living with the person
• the likely effect on the child, both through childhood and the rest of his or her life, of permanently ending the parent-child relationship between the child's biological parents and the child (even if the biological parents are no longer living).

If the step-parent is assessed favourably, the department must prepare a suitability report for the Childrens Court. The report will state that the person has been assessed as suitable to be the child's adoptive parent and whether the chief executive considers:

• an order for the child's adoption by the person would better serve the child's interests than an order under the Family Law Act 1975 (Commonwealth), any other court order or no court order
• there are exceptional circumstances that warrant the making of the order.

The department must give the step-parent a copy of the suitability report prepared for the Childrens Court.

Application by step-parent for a final adoption order

If the assessment of a step-parent's suitability is completed and the step-parent is suitable to be an adoptive parent, Adoption Services Queensland will prepare a suitability report for the Childrens Court and give a copy to the step-parent.

When the step-parent receives a copy of Adoption Services Queensland's suitability report, the step-parent is then able to apply to the court for a final adoption order. The application must be made jointly with the step-parent's spouse.

The step-parent must serve a copy of the application on the department and on every parent of the child (unless a parent cannot be found after making all reasonable enquiries).

A parent who has consented to the child's proposed adoption by a step-parent, but wishes to contest the application, may apply to the court to be a respondent.

After being served with a copy of the application, the department must lodge a copy of the suitability report in the court.

After an application for a final adoption order is lodged, the Childrens Court must decide whether to make an adoption order in favour of the child's step-parent. The Court can do this, only if satisfied that:

• the child is present in Queensland
• the step-parent is an adult who is resident or domiciled in Queensland
• the step-parent or his/her spouse is an Australian citizen
• the step-parent is suitable, having regard to the matters that must be considered in assessment
• an order for the child's adoption by the step-parent would better promote the child's wellbeing and best interests than an order under the Family Law Act 1975 (Commonwealth), any other court order or no court order
• there are exceptional circumstances that warrant the making of the order.

After an adoption order is made, the department must give a copy of the order and a notice explaining the terms and effects of the final adoption order to parties to the proceedings and a notice explaining the terms and effects of the final adoption to each parent who consented to the child's adoption.

Consents required for a child to be adopted by a step-parent

Each of a child's parents must consent to the child's adoption before the Childrens Court may make an adoption order.

Under the Adoption Act 2009, a parent or guardian's consent is not required if a court has dispensed with the need for the person's consent to the child's adoption.

What happens if a consent required for the adoption cannot be obtained?

The Adoption Act 2009 allows the Childrens Court to make an order dispensing with the need for a parent (or guardian) to give their consent in order for the adoption of their child by a step-parent to proceed.

A step-parent may apply to the Childrens Court for an order to dispense with the requirement for a person's consent. After an application for the dispensation of a person's consent is filed in the court, the applicant (the step-parent) must serve a copy on the department as well as the relevant parent stating:

• where and when the application will be heard
• that the application may be decided even if the relevant parent does not appear in court.

The step-parent will have to provide evidence to the court to prove that one of the grounds on which the court can dispense with the need for a person's consent exist. These grounds are that:

• the identity of the relevant parent cannot be established after making all reasonable enquiries
• the relevant parent cannot be located after making all reasonable enquiries
• the relevant parent is a lineal relative of the child's mother
• the child's conception was a result of an offence committed by the relevant parent
• there would be an unacceptable risk of harm to the child or mother if the relevant parent were made aware of the child's birth or proposed adoption
• the Guardianship and Administration Tribunal has made a declaration that the relevant parent does not have capacity to give the consent
• the relevant parent is not an adult and the court is satisfied, on the basis of an assessment mentioned in section 28, that the relevant parent does not have capacity to give the consent
• the relevant parent is not in Queensland and the court is satisfied that the relevant parent does not have capacity to give the consent
• the court is satisfied the relevant parent is not and will not be willing and able to protect the child from harm and meet the child's need for long-term stable care, within a time frame appropriate to the child's age and circumstances, and
• is unreasonably:
  • withholding his or her consent to the adoption, or
  • refusing to engage with the chief executive in relation to the issue of whether to give consent to the adoption
• the court is satisfied there are other special circumstances for giving the dispensation.

The court will not be able to give the dispensation:

• unless satisfied it would be in the child's best interests for arrangements for the child's adoption to continue to be made
• where there is a current application before another court seeking a declaration of paternity for the child or a parenting order for the child under the Family Law Act 1975 (Commonwealth).

If the applicant is a step-parent, the court must be satisfied the grounds for making an adoption order in favour of the applicant are likely to exist.

Having regard to the child's age and ability to understand, if the child has any views about the relevant parent and is able to express themselves, the court must consider the views before giving dispensation.

If the court makes an order dispensing with the need for the relevant parent's consent, and a copy of the application for the dispensation order was not served, the relevant parent or the department may apply to the court to discharge the dispensation order.

The court may discharge the dispensation order if an adoption order for the child has not been made, and the court is satisfied the ground on which the dispensation order was made does not apply.

Information, counselling and support provided to children

Where a child to be adopted is able to form and express views about the adoption, the Adoption Act 2009 requires the child to be given information to help them form views about their adoption. This must include information about the adoption process and options other than adoption for the child's long term care. The child must also receive counselling.

The child's age and ability to understand must be considered. The information and counselling have to be given to the child in a way that enables the child to understand.

If a child is an Aboriginal or Torres Strait Islander child, counselling must be carried out in a way and at a place appropriate to Aboriginal tradition or Island custom and may be by an appropriate Aboriginal or Torres Strait Islander person. This requirement does not apply if the child declines to receive the counselling in a way, or by a person, appropriate to Aboriginal tradition or Island custom.

The department may appoint a qualified person, such as a social worker or lawyer not employed by the department, who has the necessary expertise or experience to support the child during the adoption process.

The Childrens Court must consider the child's views before deciding whether or not to make an adoption order for the child.

The Court will be able to appoint a person to give separate legal representation or other support to the child during the court hearing.

Review of decisions by the Childrens Services Tribunal

Any decision made by the department that a person may not apply to arrange an adoption of a step-child, or that the person is not suitable to be an adoptive parent of the step-child, is reviewable by a tribunal*.

The department is required to inform a person when he or she may not make an application, or is found unsuitable to be an adoptive parent of the step-child, and provide the reasons for the decision and inform the person of the right to have the decision reviewed.

The effect of a final adoption order

After a final adoption order is made, the child becomes the legal child of the step-parent and the step-parent becomes the adoptive parent of the child.

The law stops recognising that a parent-child relationship existed between the child and the birth parent that the child no longer lives with.

The Department of Communities arranges for a copy of the final adoption order to be registered with the Registry for Births, Deaths and Marriages and a new birth certificate is issued for the child. This new certificate is in the child's name as it is after the adoption and includes the names of the child's step-parent.

How the Adoption Act 2009 will affect current relative children's adoption applicants

The new Act contains transitional arrangements which determine how people who had commenced the adoption process under the Adoption of Children Act 1964 will be affected by the Adoption Act 2009.

A person's current application to adopt their step-child will continue as a valid application under the Adoption Act 2009 as long as the person meets the new eligibility criteria.

A person who wishes to ensure their current application to adopt their step-child will be valid under the new Act must be able to prove that immediately before the commencement of the new Act on 1 February 2010, the person met the following criteria:

• the person is the spouse (married or de facto) of a parent of the child whom he or she has applied to adopt
• the person is an adult who is resident in Queensland and is an Australian citizen (or the spouse of an Australian citizen)
• the person lives with the child and spouse and has done so for at least three years
• the person has been granted leave by the Family Court under the Family Law Act 1975 (Commonwealth) to commence adoption proceedings
• the child is at least five years old and not more than 17 years old (an application may be accepted in relation to a child who has turned 17 but is not yet 18 in some circumstances).

If all of these criteria are not met before the Adoption of Children Act 1964 is repealed, the person's step-parent adoption application will automatically come to an end.

Many current applicants have not obtained leave from the Family Court under the Family Law Act 1975 (Commonwealth) to commence adoption proceedings. If they have not obtained leave by the commencement date, their current application will automatically end.

Current applicants who want their applications to continue under the Adoption Act 2009 are advised to seek legal advice about having leave granted under the Family Law Act 1975 (Commonwealth) to commence adoption proceedings to ensure they meet this requirement prior to the commencement of the Adoption Act 2009.

* The tribunal that currently reviews decisions made under adoption law is the Children Services Tribunal. On 1 December 2009, the Children Services Tribunal will cease to exist and its functions will be taken on by the new Queensland Civil and Administration Tribunal.