Adoption Act 1994

• Children who are or may be adopted: The child's welfare is paramount. The Act gives children of sufficient maturity the right to participate in decisions.
• Birth parents: Must give informed consent to adoption (except where dispensed with). Have ongoing rights to receive information about the adoption and to manage contact arrangements.
• Prospective adoptive parents: Must be assessed and approved before being matched with a child. The assessment process is extensive and includes character, financial stability, health, parenting capacity and cultural competency (section 40(2)).
• Adoption agencies: Must be approved and must operate in accordance with the Act's requirements. The CEO also facilitates adoptions directly.
• Aboriginal and Torres Strait Islander children and communities: The Act's explicit acknowledgment that adoption is not part of Aboriginal culture requires consultation with Aboriginal communities and the exhaustion of kinship and other culturally appropriate alternatives before an Aboriginal child is adopted. Schedule 2A sets out the Aboriginal and Torres Strait Islander children placement for adoption principle.
• Registrar of the Family Court: The Family Court has jurisdiction to make adoption orders.

Last resort principle. Adoption should only proceed where there is no other appropriate alternative. Before an adoption order is made, the responsible authority must be satisfied that all appropriate alternatives have been considered.

Eligibility requirements for prospective adoptive parents (sections 39 and 40). An applicant must be at least 18 years of age, an Australian citizen (with limited exceptions), resident or domiciled in WA, and must not have been convicted of a Class 1 offence after turning 18. Joint applicants must have been married to or in a de facto relationship with each other for at least three years. Assessment under section 40 requires evidence that the applicant is physically and mentally able to care for and support a child to age 18, is of good repute, and (for joint applicants) has a stable relationship.

Placement prerequisites (section 52). The CEO must not place a child for adoption unless: the prospective adoptive parent is named on the register under section 44, meets the child's expressed wishes where relevant, satisfies the age differential requirement (generally the younger of joint adoptive parents must not be more than 45 years older than the child), and (for Aboriginal or Torres Strait Islander children) the placement accords with Schedule 2A. Where siblings are relinquished simultaneously, all reasonable steps must be taken to place them with the same prospective adoptive parent (section 52(1)(d)).

Cultural appropriateness. For Aboriginal and Torres Strait Islander children, the Act requires consideration of cultural issues and consultation with the community before adoption proceeds, as reflected in section 16A and Schedule 2A.

Information obligations. Adoption agencies must maintain proper records of all adoptions and provide access to information as required by Part 4.

Consent. Birth parents must give free and informed consent to adoption, in the prescribed form, after the prescribed period from the birth of the child. Consents given too early are invalid.

The CEO of the department has broad powers including approving adoption agencies, managing the adoption process for non-agency adoptions, and making decisions about the suitability of prospective adoptive parents. The CEO may also delegate functions under section 130 and may revoke or transfer parental responsibility in prescribed circumstances (sections 33 and 34). The Family Court makes adoption orders and has jurisdiction to dispense with consent in prescribed circumstances (section 24), to vary or override notification requirements (section 60), to make orders about parental responsibility (section 36), and to approve and enforce adoption plans (section 72).

Under section 110, the CEO may review certain decisions. Further review by the State Administrative Tribunal (SAT) of CEO decisions on review is available under Part 5, Division 2 (section 113).

Part 6 creates a detailed set of offences with graduated penalties:

• Making or receiving payment for adoption (section 122): A person must not make, give or receive, or agree to make, give or receive, any payment or reward for or in consideration of a child's adoption or proposed adoption, for the giving of consent to adoption, or for conducting an adoption service in relation to a child. The penalty is a fine of $25,000 and imprisonment for 2 years. Permitted payments include legal expenses, authorised medical and hospital expenses, and charges made by the CEO or approved agencies for services under the Act.

• Advertising a child for adoption (section 123): Publishing material indicating that a person wishes to have a child adopted, wishes to adopt a child, or conducts adoption services, without approval of the CEO or a private adoption agency, carries a penalty of a fine of $10,000 and imprisonment for 12 months.

• Publishing identity of party to adoption (section 124): Publishing material that identifies or is likely to identify a person as a party to an adoption or proposed adoption carries a penalty of a fine of $10,000 and imprisonment for 12 months.

• Threatening a person to induce consent (section 125): Using or threatening force, restraint, injury or detriment to induce another person to consent or refrain from consenting to an adoption, or to influence the negotiation of an adoption plan, carries a penalty of a fine of $10,000 and imprisonment for 12 months.

• Harassing parties to adoption (section 126): Acts intended or likely to harass, intimidate, embarrass or ridicule a party to an adoption by reason of being such a party carry a penalty of a fine of $10,000 and imprisonment for 12 months.

• Providing false information (section 127A): Giving false or misleading information in or in relation to an application, report or other document prepared for the purposes of the Act carries a penalty of a fine of $6,000.

• Failing to notify CEO of relevant changes (section 127B): A party to a proposed adoption who becomes aware of information relevant to identification of a consent-giver, or of circumstances affecting the effectiveness of a consent, must notify the CEO within 28 days. A person on the register who becomes aware of changes affecting their suitability as a prospective adoptive parent must also notify the CEO within 28 days. The penalty for both obligations is a fine of $10,000 and imprisonment for 12 months.

• Restricted disclosure of information (section 127): Unauthorised recording, use or disclosure of information held by the department, a private adoption agency or a contact and mediation licensee, relating to an adoption or proposed adoption, carries a penalty of a fine of $10,000 and imprisonment for 12 months.

All prosecutions under Part 6 must be instituted by, or with the written consent of, the Attorney General, the CEO or the Commissioner of Police (section 128(1)(a)), and must be commenced within 12 months of evidence sufficient to justify proceedings coming to the knowledge of that person (section 128(1)(b)).

The adoption process under Part 3 proceeds through distinct stages with prescribed timeframes:

1. Pre-consent (sections 16 and 16A): The CEO must inform a birth parent who wants to have a child adopted of alternatives to adoption and of the nature of the adoption process. For Aboriginal or Torres Strait Islander children, section 16A imposes additional duties to consider the principles in Schedule 2A.

2. Consent (sections 17 to 23): Effective consent requires that at least 28 days have elapsed since the birth of the child and since the required information and counselling was received. A consent may be revoked during a revocation period (section 22). After the revocation period expires, consent cannot be revoked without leave of the Family Court.

3. Assessment and registration of prospective adoptive parents (sections 38 to 44): Applications are made to the CEO, an assessment report is prepared by a suitably qualified person (section 40), the adoption applications committee reviews the assessment (section 41), and approved applicants are placed on the register (section 44).

4. Placement (sections 45 to 54): Once the adoption plan is negotiated and agreed (section 46), and all prerequisites in section 52 are satisfied, the CEO places the child with the prospective adoptive parent (section 48). The CEO is required to supervise the child's welfare during placement (section 54).

5. Application for adoption order (sections 56 to 64): A person is not to file an application for an adoption order before the expiration of six months after the day on which the child was placed (section 56). At least 60 days before filing, the prospective adoptive parent must notify the CEO of the intention to apply (section 58(1)).

6. Adoption order (sections 65 to 78): The Family Court considers the application. The order cannot be made unless the residential prerequisites in section 65 are satisfied and the preconditions in section 68 are met. Section 75 sets out the full legal effect of an adoption order: the adoptee is treated as the child of the adoptive parent, and the relationship with the birth parents is terminated (subject to exceptions for step-parent adoptions).

Intercountry adoptions involve additional processes through the relevant overseas authority and the State Central Authority, as well as Commonwealth immigration and citizenship requirements.

• Family Court Act 1997 (WA): The Family Court makes adoption orders. The Act's definition of "Family Court Act" refers to this Act. Section 4A sets out when parentage presumptions under the Family Court Act 1997 apply.
• Children and Community Services Act 2004 (WA): The children's welfare system interfaces with adoption where children are in care.
• Commonwealth migration law: Intercountry adoptions require immigration processing for the adopted child to enter Australia. Interaction with visa and citizenship requirements is significant.
• Hague Convention on Intercountry Adoption (Schedule 2B): Australia is a party to this Convention, which governs intercountry adoptions with other Convention countries, and the Minister is designated as the State Central Authority for WA under section 134A.
• Aboriginal Communities Act 1979 (WA): Aboriginal community consultation requirements.
• Adoption of Children Act 1896 (WA) (repealed): The 1896 Act was repealed by the 1994 Act. Schedule 3 contains transitional and savings provisions for adoptions effected under the 1896 Act, including modified access-to-information provisions (Schedule 3, clauses 9 to 13).

Adoption is not routine. The Act's last resort principle means that adoption will not be approved simply because prospective adoptive parents want a child. The system prioritises reunification with birth family, kinship care, and foster care before adoption.

Early consent is invalid. Section 18(1)(a) and (b) provide that consent given by a birth parent before 28 days after the birth of the child, or before 28 days after receiving required information and counselling, is not effective. This protects birth parents from decisions made in the immediate post-birth period when they may not be in the best position to make long-term decisions.

Age differential requirement. Section 52(3) sets out specific age differential requirements: the younger of prospective joint adoptive parents must generally be not more than 45 years older than the child (or 50 years in prescribed circumstances). This requirement reflects the Act's concern for the long-term welfare of the child.

Class 1 offence disqualification. Under section 39(1)(d), a person who has been convicted of a Class 1 offence after the age of 18 is not eligible to apply as a prospective adoptive parent. The definition of Class 1 offences in the Act captures serious sexual and violent offences. This is an absolute disqualification, not a discretionary one.

Contact vetoes. Under Part 4 Division 4, parties can place contact vetoes on adoption records, restricting who can access identifying information or make contact. A breach of a contact veto arrangement is an offence under section 127 or related provisions. Sections 102 to 103 govern confirming, cancelling and varying vetoes, and require undertakings from persons seeking access.

Intercountry adoption complexity. The Act's intercountry adoption framework operates alongside bilateral arrangements between Australia and specific countries. Not all countries are available for intercountry adoption, and the process is determined by which countries Australia has bilateral arrangements with at any given time.

The adoption plan is mandatory. Section 72 requires Court approval of an adoption plan before an adoption order can be made, unless the Court dispenses with the requirement under section 73. A plan that has not been approved cannot be enforced, and a Court-approved plan can be enforced as a Court order.

Domestic infant adoption. A birth mother who cannot care for her newborn contacts an approved adoption agency. After the 28-day waiting period and counselling (Schedule 1), she provides written informed consent in the approved form witnessed in accordance with Schedule 1 clause 2. The agency matches the child with approved prospective adoptive parents from the register. The adoption plan is negotiated between birth and adoptive families and approved by the Family Court. After a supervised placement period of at least six months, the prospective adoptive parents file an application for an adoption order. The Family Court makes the order under section 68. Section 75 then provides that the adoptee is the child of the adoptive parents and no longer the child of the birth parents. All parties may subsequently access adoption records and information subject to any contact veto arrangements under Part 4 Division 4.

Aboriginal child's adoption considered. A child is in long-term foster care. Adoption is proposed. Because the child is Aboriginal, section 16A and Schedule 2A apply. The CEO must give effect to the placement for adoption principle in Schedule 2A, which requires prioritisation of placement with Aboriginal family members, then with members of the child's Aboriginal community. The department must consult with the Aboriginal community. Only if no suitable kinship or community placement exists and adoption is genuinely in the child's best interests would the process continue.

Adoptee seeking information. An adult who was adopted seeks access to records about their birth parents. Under Part 4, the adoptee has rights of access to certain identifying and non-identifying information (sections 82, 84 and 85), subject to whether a contact veto has been placed on the records. If a contact veto exists, the CEO is prevented from providing the identifying information without first obtaining an undertaking that the person will not breach the veto (section 103).

Step-parent adoption. The biological father of a child has no contact with the child for several years. The child's mother has been in a stable de facto relationship for more than three years with a person who wishes to adopt the child. Under section 67, the prospective adoptive step-parent may adopt the child. An adoption plan must be prepared and approved. The birth father's consent is required under section 17 unless the Court dispenses with it under section 24. If adoption is ordered, section 75(2) provides that the existing relationship between the child and the birth mother (who is married to or in a de facto relationship with the adoptive step-parent) is not terminated.