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Adopting a child from out of home care


Adopting a child from out of home care - process info sheet [PDF 201KB]

Information for foster and kinship carers interested in adopting a child already in their care.


What is adoption?

Adoption is a way for you to provide a new, permanent family for a child who for various reasons cannot live with their birth (or legal) parents. Adoption legally and permanently transfers all rights and responsibilities for the child from their birth family (or legal guardians) to you, their adoptive family. Adoption is organised through Child and Youth Protection Services and decided on by the ACT Supreme Court.

For children in out of home care, adoption legally secures the relationship already established between you and the child in your care, whether through foster or kinship arrangements, and gives your family autonomy requiring no further intervention from the out of home care system.

Out of home care adoption is not, however, limited to existing carers only. If you are thinking about adopting a child from the ACT, out of home care adoption is an option, as you do not need to already be a foster carer to adopt a child from care. While the information on this page is geared towards existing carers it is also relevant to non-foster carers as it highlights unique circumstances that can exist with out of home care adoption. If you are unsure about anything please contact us.

Children already in care

Children and young people in out of home care can be adopted by their foster families. Certain requirements need to be met, as with any adoption, and these are outlined in the Adoption Act 1993.
For some, these requirements can be frustrating, especially if you have cared for a child for considerable time and simply want to formalise your existing relationship with them as quickly and with as little fuss as possible.

While timeliness in the adoption process is important, it is equally important that the process guiding the adoption is robust, considered and transparent for everyone involved.

Adoption is a sensitive process with life-long legal implications. Potential challenges exist that can affect your experience with the process and the overall time it takes to finalise an adoption.

Above all else, Child and Youth Protection Services want to work with you to achieve the best outcome for the child in your care as quickly and effectively as possible.

Specific considerations and challenges

Reuniting families

One of the primary goals of the out of home care system is to reunite children with their birth family as quickly as possible. If this is not possible, securing a stable and permanent home becomes the focus.
Removing all legal links between a child and their birth family is a serious matter that cannot be rushed. Child and Youth Protection Services and ACT Together must place the best interests of the child first and this includes exhausting all possibilities to reunite the child with their birth family.

Timeframes

The out of home care adoption process involves a number of steps and assessments. Their purpose is to ensure the best interests of the child are considered.

Generally, out of home care families care for children very effectively. For adoption, it is important to determine their ‘ongoing’ capacity to do this for the rest of the child's life – both emotionally and financially and without involvement from Child and Youth Protection Services or ACT Together.

Child and Youth Protection Services and ACT Together will work as quickly as possible with you and all relevant others to conduct the required assessments so if adoption is recommended in your case the court processes can begin as soon as possible. For more information visit The adoption process.

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Consent

Consent by both birth parents (and any other legal guardian) is required for any adoption. In some situations where children are already in out of home care, birth parents withhold consent not wanting to permanently break the link to their child, regardless of how long their child has been in care. It may also be that a birth parent cannot be found to gain consent from, or they do not have the mental capacity to give consent.

If consent is not obtained and adoption is in the best interests of the child in your care, an application to dispense consent can be made to the ACT Supreme Court.

Because the Director General of the Community Services Directorate is the legal guardian for all children in out of home care, their consent is also required. This consent is obtained as part of the assessment process.

Dispensation

Dispensation is the legal process to remove the requirement of obtaining consent from birth parents and legal guardians. It is decided on by the ACT Supreme Court.

There are strict grounds for when dispensation can be granted, as outlined in section 35 of the Adoption Act 1993. The specific ground used for seeking dispensation will vary depending on the circumstances of your case, and so too will the time it takes for the Court to reach a decision.

If your situation requires the dispensation process to happen, Child and Youth Protection Services will work with you, the Government Solicitor’s Office and ACT Together to progress the application as quickly as possible.

Suitability

Adoption is not always the best option for a child in care.

For Aboriginal or Torres Strait Islander children, adoption is less common. This is because of past practices and generally such children are raised by their whole community. Adoption of Aboriginal or Torres Strait Islander children requires special consideration to ensure the right people are consulted and safeguards put in place to ensure the child can maintain a connection with the lifestyle, culture and traditions of their community.

Adoption is also typically not sought for kinship care arrangements because of the potential to create confusion for the child caused by the change of family relationships. In these situations, Enduring Parental Responsibility is a more suitable option. See Alternatives to adoption.

Relationship between carers and birth parents

Adoption can be a stressful process. It works best when you and the child’s birth parents have a mutually respectful relationship and are confident you can work together for the benefit of the child. When this is not possible adoption can still be progressed if it is in the best interests of the child. See Dispensation.

What we want to achieve

A key aim of out of home care adoption is to provide better outcomes for children and families giving you autonomy to get on with life and to normalise the life experiences of the child currently in your care.

Eligibility – who can adopt?

To adopt a child already in your care, you must live in the ACT and be listed on the suitable people register. This register is maintained by Child and Youth Protection Services. There are also requirements outlined in section 14 of the Adoption Act 1993 regarding whether you are adopting as a couple or an individual.

Who can be adopted?

Children in out of home care in the ACT who are under 18 years old and have no plan to be reunited with their birth family can be adopted. Typically adoption is not sought for Aboriginal or Torres Strait Islander children or children in kinship care (see Suitability).

People who have been in care and are older than 18 years old can still be adopted. As the person is no longer in out of home care, the process for adoption is slightly different. Adoption of over 18s is coordinated through private legal professionals not Child and Youth Protection Services. If this matches your situation, you might like to visit The local adoption process to gain an overview of the typical steps involved before seeking legal advice.

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The adoption process

Deciding to adopt a child you have cared for for some time is a wonderful thing and Child and Youth Protection Services recognises you want to be able to do this as quickly as possible.

Regardless of the type of adoption, Child and Youth Protection Services is required under law to conduct an assessment of all adoption applications to satisfy the needs of the ACT Supreme Court. This is in addition to the assessments you participate in as part of your carer role.

The Court needs to be satisfied that adoption is the best option for the child, and you are able to provide independently for them for the rest of their life. They also need to be satisfied that the rights of everyone involved have been considered and upheld. We will work with you to make the process as efficient as possible, as giving permanency to a child is a key goal for us.

In brief, the out of home care adoption process involves:

It is not possible to guarantee the time it will take for an adoption to be granted. More detail on each step of the process, including estimated timeframes, costs and responsibilities, is available at The adoption process.

Involvement of the child

Adoption is a major event in a child’s life and their views need to be considered. It is important they understand what adoption is and what it will mean for them if they are adopted.

During the adoption process, your child’s case worker will provide information to them about the proposed adoption and work with them and you to ensure they understand what it means so they can freely express how they feel about it.

The child’s views will form part of the adoption plan submitted to the ACT Supreme Court.

Information specific for children is available at Support for children.

Involvement of birth parents

Adoption is a major decision for birth parents. Some parents will be supportive of the process and others will not. Child and Youth Protection Services and ACT Together will put the best interests of the child first and work with you and everyone involved to communicate and achieve this.

Consent

Consent to the adoption is required by both birth parents, and any legal guardians, of the child you want to adopt. There are rules and requirements around obtaining consent including mental capacity, timeframes and revocation periods where parents can change their mind. These requirements are outlined in section 26 of the Adoption Act 1993.

If consent is not given, either because a birth parent or guardian cannot be found, do not have the mental capacity to give consent, or do not agree with the adoption, and adoption is in the best interests of the child, an application to dispense consent can be made to the ACT Supreme Court. See Dispensation.

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Future contact

Adoptions in the ACT are open, meaning adoption does not exclude the right for birth parents and families to have future contact with their child after they are adopted. Contact will vary depending on the best interests of the child and agreement of all people involved, including you as their adoptive parent.

Birth parents will be involved in establishing a contact plan, along with you, Child and Youth Protection Services, ACT Together and where able the child, to be lodged in Court as part of the adoption order application.

What happens after an adoption is granted?

Once adoption is granted by the ACT Supreme Court, all legal rights and responsibilities for the child will be transferred from the Director General, Community Services to you. The child will become in law your child, and you will become in law their parent. The child will cease to legally be a child of the birth parents or legal guardians.

A new birth certificate will be made for the child to reflect the legal change, and will be the only one permitted to be used for legal purposes. The child will also now have the usual rights to inherit from your estate.

Future contact with the birth family will occur in line with the contact plan agreed by the Court.

Post adoption support will be provided by ACT Together for a period of time, gradually stopping and providing your family with full autonomy. For further information see Post adoption support.

Alternatives to adoption

Depending on your situation, there may be other options to consider.

Enduring Parental Responsibility

Enduring Parental Responsibility transfers all daily and long-term parental responsibility from the Director General, Community Services to you the carer. This means you can exercise all parenting functions without the approval of the Director General, Child and Youth Protection Services or ACT Together. It provides you with all rights and responsibilities for the child as if you had adopted them, without actually changing their legal identity. Enduring Parental Responsibility is often most suitable for kinship carers.

Enduring Parental Responsibility is considered by the ACT Children's Court when the child has been in your care for a total of at least one year in the two years preceding the making of the order, and there is no likelihood of the child being reunited with their birth family.

Further support and information

If you are considering adoption you might like to get support and advice to help you and your family through the process. This could include legal advice, counselling and other support services.

If you would like further information, your child’s case worker and ACT Together are there to help you.

You can also contact Child and Youth Protection Services on 6207 1466 or adoptions@act.gov.au.

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