Intercountry adoption is a very time consuming and complicated process. Due to the complexity of these matters a considerable amount of time can pass between making the application and the finalisation of the adoption.
Australia is a signatory to the Hague Convention with Respect to Intercountry Adoption, the purpose of which is to protect children against abduction and child trafficking. Under the Hague Convention all intercountry adoptions must be coordinated through a central government agency. In Australia this is the Commonwealth Attorney-Generals’ Department. However, as the processing of adoptions is done by the relevant state government authority, all intercountry adoptions in South Australia are administered by the Department for Child Protection. As a result, privately arranged adoptions are not recognised under Australian law.
The only exception to this is for expatriate Australian citizens, residing and working in an overseas country, who are eligible to adopt a child under that country’s laws (see Intercountry adoptions not involving an Australian state adoption authority).
It is important to understand that the Department of Home Affairs will refuse a child an entry visa unless adoption arrangements meet migration requirements. This may be the case even if the adoption has been lawfully arranged in the overseas country. It is important to obtain legal advice both in Australia and in the overseas country before considering an adoption not involving the South Australian adoption authority (i.e. the Department for Child Protection).
The Department for Child Protection will not normally give approval to adopt a relative or a child known to the prospective adoptive parents. In these cases there may be other options, such as applying for an orphan relative visa. For further information contact the Department of Home Affairs.
Step 1: Determining eligibility
After attending an information session conducted by the Department for Child Protection prospective applicants lodge an Expression of Interest. An interview is then arranged with a DCP worker to determine country eligibility and suitability.
Step 2: Orientation, Application and Assessment
Applicants will attend an Education workshop prior to being invited to lodge a formal application. After the application is received a Family Assessment will be conducted and a report prepared for the purpose of assessing the suitability of the applicants as prospective adoptive parents.
Applicants who are not approved will be advised of this and of their rights to appeal the decision. Those applicants who are approved are allocated a DCP social worker who will be their contact point throughout the adoption process.
Step 3: Applying to the overseas country
The application is sent to the chosen overseas country where it is evaluated by the overseas adoption authority. At this stage nothing can happen until the overseas authority makes the decision that a child can be adopted to a foreign country.
Step 4: Matching and placement of child
The overseas adoption authority will make a determination about whether the applicants are suitable adoptive parents for the child. This decision will also be considered by DCP before a formal allocation is approved.
After approval is given legal and administrative processes in the child’s country must be finalised. The child must also be medically examined and granted an Australian resident visa.
Step 5: Arriving home
After arriving home it may be necessary to apply for an adoption order if the adoption was not finalised overseas. In most cases the Department for Child Protection will be the legal guardian until the adoption process has been finalised. Some countries require ongoing reports about the child’s progress until they legally become an adult. Families are allocated a DCP worker to assist with providing progress reports.
Intercountry adoptions not involving an Australian state adoption authority
The Hague Convention prohibits privately arranged adoptions. However, the only exception to this is expatriate Australian citizens or permanent residents who are living and working in an overseas country. If they are eligible to adopt a child under the law of that country they may be eligible to apply for an adoption visa to bring the child back to Australia.
To be eligible for a visa for the adopted child the following criteria must be met:
- the adoptive parents must have been living overseas for more than 12 months at the time of lodging the visa application;
- they must be able to show that their residence overseas was not solely to circumvent the adoption requirements under Australian law;
- the adoption is in accordance with the laws of the country in which the child lives;
- the adoption grants full and permanent parental rights (i.e. the legal ties between the child and its birth parents are severed)
Immigration issues to be aware of
- An adoption visa cannot be granted to a child who has been adopted in circumstances other than those detailed above, even if the child has been adopted lawfully in another country (e.g. if Jane and John who are living in South Australia arrange a private adoption in China without the involvement of the Department for Child Protection, a visa will not be issued, even if the adoption is lawful in China).
- State adoption authorities will not usually give approval for the adoption of a child who is a relative, nor will they support the adoption of a specific child where the adoption has not been arranged by them
- In some countries it is not possible to be granted full parental rights in the adoption process. Where an adoption order fails to grant full parental rights to the adoptive parents a visa will not be granted.
- You should seek legal advice, both in Australia and in the relevant overseas country, to ensure that the adoption will be recognised and that the child will be able to be granted a visa before proceeding with an adoption that is not being arranged by the South Australian adoption authority i.e. Department for Child Protection.
Further information can be found at the Intercountry Adoption Australia website.
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.