Adoption and consent 1923-present
Adoption of children was regulated from 1923, when the Child Welfare Act 1923 (NSW) was introduced. Since this time, the law has said that a parent or guardian must consent to their child being adopted. However, the Court can order adoption without consent in various circumstances.
The Child Welfare Act 1923 (NSW) allowed the Court to order adoption without parental consent where the child had been 'deserted’ or 'abandoned’ (). A 1924 amendment to this Act () also allowed the Court to dispense with consent where it deemed it ‘expedient to do so’. This change was made to save on costs of administering adoption processes.
Later, the Child Welfare Act 1939 (NSW) () allowed a child to be adopted into a family if the Court found it ‘just and reasonable to do so’.
Adoption was also used to remove Aboriginal children from their families, including for newborn babies, with mothers pressured to consent to the adoption (, ). See also SUB0087 and SUB0114. The Child Welfare Department did not check whether Aboriginal mothers understood the consequences of consenting to adoption ().
In 1965, under the Adoption of Children Act 1965 (NSW) (), the Aborigines Welfare Board (AWB) could apply to the Children’s Court to dispense with parental consent. This meant an Aboriginal child could be adopted by a foster parent on application by the AWB if the Court found the child’s parent or guardian to be ‘unfit to discharge the obligations of a parent or guardian by reason of his having abandoned, deserted, neglected or ill-treated the child’.
In its 1997 review of the Adoption of Children Act 1965 (NSW) (), the NSW Law Reform Commission recommended that courts no longer be given the power to make an adoption order without parental consent unless the order is in the ‘best interests of the child’.
In 2000, the Commission’s recommendation was implemented by the Adoption Act 2000 (NSW) (), which generally required the consent of a child’s parent or guardian to adoption. Aboriginal children could only be adopted through an adoption order if the Supreme Court found it was in their best interests and only as a last resort (). The Adoption Act also recognises that the concept is absent in customary Aboriginal kinship arrangements ().
In 2014, the NSW Government introduced a hierarchy of permanent placement options into the Care Act (). This hierarchy ranked adoption below the option of providing parental responsibility of a child to the Minister for Aboriginal children.
In 2018, a number of changes were made to adoption through the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW) (). This Act continues to enable guardianship and adoption orders to be made without parental consent.
This change to adoption in NSW has been criticised for disproportionately impacting Aboriginal families () and risking ‘permanently separating another generation from their families’ ().
The law and policy in this subject is accurate as of 1 June 2024.