Adoption is the legal process, which permanently transfers all the legal rights and responsibilities of being a parent from the child’s birth parents to the adoptive parents. Adoption in NSW is currently covered by the Adoption Act 2000. Raised with this act are both legal and ethical issues. Adoption offers the greatest sense of belonging and permanence for children and young people who are not able to live with their biological parents. In 2011, 65 out of 18,000 children in out-of-home care were adopted; the significantly low adoption rate may be due to the controversial issues raised within the adoption laws.
Since adoption is an imperative factor not only in relation to the individuals getting adopted but also since societies views are continuously changing, there are constant reviews of this act every 5 years stated in section 213 of the Adoption Act 2000. Issues and Problems of the Adoption Act 2000 NSW include the concept of “the best interest of the child” in relation to: * Same-sex couples and/or step-parents in same sex couples in relation to relation * The consent of unmarried fathers in the adoption process Same-sex couple adoption
Under section 26 of the Act, an application for adoption order can be made by one person or jointly by a couple. Also under this act defined that a couple was between a man and a woman who are married or in a de facto relationship, which excluded allowing same-sex couples to adopt in NSW, even as a same-sex stepparent. The issuesregarding this included some argued that its assessment of adoption applicants should focus specifically on “ the best interet of the child” in terms of the suitability of the couple instead of the sex of the couple.
The adoption of a child should merely be focused on the child’s safety and wellbeing of being adopted, instead of the sex of the parents. Some argue against this saying that it would be in the best interest of the child to be raised by both sexes; a mother and a father. This review caused large public controversy due to society’s changing perceptions of changing values and morals in reference to same sex couples. In 2010, the bill to allow same-sex couples to adopt children in NSW was passed in the NSW senate [Adoption Amendent (same sex couples) Act 2010].
The definition of couple was omitted to “two persons” instead of “man and woman” under the act. But this still did not stop issues from arising of same-sex couple adoption. The case of William and Jane, Re  NSWSC 1435 (6th December 2010) was the first same-sex adoption application to be heard in NSW, which depicted of two males applying to adopt a boy and a girl. It is a legal requirement to receive the consent from the biological parents. But as this was the first case, many individuals were very hesitant and still not for adoption to same-sex couples, which is where the problems began to arise from.
Some of the biological parents of the children receiving adoption did not agree to this adoption application. But after a lengthy process of investigating whether this adoption was seen as in the “best interest of the child” the adoption was allowed to go forward. This depicts although the law was amended that same-sex couples were eligible to adopt, there are still ethical (social and moral) issues involved with the public and individuals views, revealing where the law can be seen as ineffective.
Consent of unmarried fathers Another issue involved within the Adoption Act 2000 NSW is the consent of the parents for adoption. This is under section 52-56 of the act where, the consent of each parent of the child is required if they are under the age of 18 except for certain circumstances. A major controversial issue within adoption law is the role of the unmarried father in terms of whether his consent is necessary or should be required.
In the case of ex-nuptial children, consent is required from the father if the parents lived together as husband and wife on a bona fide domestic basis in a household including the child; referred to as the “common household” test. This means that the unmarried father’s consent is required unless the father has not been granted custody and guardianship by court order, and he has not lived with the mother and the child in a household or has parent responsbility. This is issue was raised in the case W v H  VR 1, where the consent was not needed of the biological father.
Although the rights towards unmarried men are limited, they must be notified if the mother has given her consent to the adoption, and within 2 weeks the biological father is then allowed to apply for an application to obtain guardianship of the child. This issue has caused a lot of arguments and reviews towards the role of the unmarried father in the adoption processas of how many believe this is seen unfair treatment where the father’s consent should be needed. Locating the birth father can be a difficult process.
If a birth father cannot be located after all reasonable attempts have been made, then it is the Court’s discretion to decide whether or not his consent should be dispensed with in the particular case. This enables a balance to be struck between the right of birth fathers to be informed about the existence of their children and to participate in their lives; the ability and resources of the agencies to conduct searching processes; and the interests of the adoptee in not having a beneficial placement delayed by lengthy searches for a birth father.
Legislation should provide that consent to the adoption of a child under 18 years should be obtained from every person who is a parent or guardian of a child or who has parental responsibility for the child, except in the following circumstances: * Where the child in respect of whom an adoption application is made has attained the age of 12 years, in which case consent is only obtained from the child; * the parent or guardian or person who has parental responsibility for the child is the applicant for the adoption order; or * the consent has been dispensed with by a Court order.
However, the best interests of the child should always no matter what be the paramount concern the decision is. As discussed, acts and legislations in relation to adoption must continuously be reviewed and amended in order to keep up with the changing social views and values of individuals within the community. By this, the law will be more effective, adoption rates will increase positively and the process of reviewing adoption applications will be in the best interest of the child.
Courtney from Study Moose
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