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Who can adopt and be adopted?

In Australia adoptions are the responsibility of the State Governments. In South Australia, the adoption process is governed by the Adoption Act 1988 (SA).

All adoptions of children by residents of South Australia are conducted through the Department for Child Protection.

Because very few babies and children are relinquished for adoption in South Australia there has been a marked increase in interest in adopting a child from overseas countries see Adopting an overseas child.

Adoption is a legal process where the rights and responsibilities of the birth parents are transferred to the adoptive parents. There are two types of adoption: local (i.e. from within Australia) and inter-country (i.e. from other countries).

Private adoptions (i.e. adoptions where a child is placed with adoptive parents without the involvement of an agency) are illegal in South Australia.

Who can be adopted

Only children up to 18 years of age may be adopted [s 8(2)].

Where a person over 18 requires care and guardianship, a power of guardianship is the appropriate solution. See Guardianship and Administration. This is an entirely different legal process and is not an adoption, nor can an adoption be undergone as an alternative.

Aboriginal children and adoption

Aboriginal children can only be adopted if, in the interests of the child, an adoption order is preferable to any alterantive order. This is because the legal process of adoption conflicts with Aboriginal culture, in particular, beliefs about family, kinship and the preservation of cultural ties. As a result there are strict rules governing the circumstances under which adoption of Aboriginal children can occur. An adoption order will only be granted where the applicant is a member of the child's Aboriginal community and where, by Aboriginal customary law, they have the correct relationship with the child. If there is no such person wanting to adopt the child, only another Aboriginal person can adopt [Adoption Act 1988 (SA) s 11].

Who can adopt

Only those people who are listed on the Prospective Adopters Register are eligible to adopt a child. The Prospective Adopters Register lists all people who have expressed an interest in adoption and who have satisfied the requirements under the Adoption Act. To determine whether an applicant is eligible to be listed on the Prospective Adopters Register, the Department for Child Protection must have an assessment report undertaken which outlines the suitability of the applicant to adopt a child [see Adoption Regulations 2004 (SA) reg 9(2)]. The assessment report must take into account a number of factors, including the parenting skills of the applicant, whether the applicant has care of any other child, the applicant's financial position, and the physical and mental health of the applicant [see reg 9(3) for full list of factors].

If, after considering the assessment report, the Department for Child Protection is satisfied that the applicant(s) is a suitable person to adopt a child, they will be listed on the Prospective Adopters Register [see reg 10(2)].The Department must determine an application to be listed on the register within 18 months of it being lodged [see reg 10(1)].

A person dissatisfied with a decision of the Department for Child Protection in relation to registration matters (including assessment reports) may apply to SACAT for a review of the decision within 30 days of receiving the decision [see reg 16].

Only couples in a qualifying relationship eligible to adopt

Previous restrictions allowing only heterosexual couples to adopt have been removed. The requirement now is that a couple be in a qualifing relationship which includes same sex couples (see below).See the Department for Education website for further information on the adoption process.

To qualify as prospective adoptive parents a couple must be in a qualifying relationship (i.e. either married or de facto and either heterosexual or same sex) and have lived together continuously for at least five years.

A relationship of less than five years may be considered if the court is satisfied that special circumstances exist [Adoption Act 1988 (SA) s 12]. Normally, the Chief Executive cannot select a person from the Adoption Register unless they have been cohabiting with another in a qualifying relationship for a continuous period of at least 3 years [Adoption Regulations 2004 (SA) reg 19(3)(d)].

Circumstances under which only one person may adopt

Adoption orders in favour of one person can only be made in the following circumstances [s 12(3)]:

  • where the person is in a qualifying relationship with a birth or adoptive parent of the child and has been living with that parent continuously for at least five years; or
  • where the person is in a qualifying relationship with the birth or adoptive parent and the Court is satisfied that special circumstances justify making the order; or
  • where the person is not in a qualifying relationship with the birth or adoptive parent of the child and the Court is satisfied that there are special circumstances justifying the making of the order.

Who cannot adopt

Unless there are particular circumstances relating to the child to be placed and where those needs can be best met by other applicants, a person will not be considered as a suitable applicant for adoption if she or he:

  • has had a previous registration (whether in South Australia or another state) cancelled on the grounds that it was improperly obtained;
  • has, at any time, had a child removed from their care and made the subject of an order under the Children's Protection Act 1993 (SA);
  • has been convicted of an offence involving violence towards a child, child abuse or child abduction.

It is a minimum requirement that a prospective parent be either an Australian permanent resident or citizen (in the case of joint applicants at least one of the applicants must be an Australian citizen).

A prospective parent must also be living in and domiciled in South Australia.

[see Adoption Regulations 2004 (SA) reg. 8]

Who can adopt and be adopted?  :  Last Revised: Mon Jul 9th 2018
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.